Case 3:16-cr-00051-BR

Document 1337

Filed 09/23/16

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
UNITED STATES OF AMERICA
v.
AMMON BUNDY, et al.,

3:16-CR-00051-BR
GOVERNMENTS RESPONSE
TO DEFENDANT AMMON BUNDYS
SUPPLEMENTAL BRIEF ON JURY
INSTRUCTIONS (#1321)

Defendants.
The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,
Assistant United States Attorneys, hereby submits this response in opposition to Defendant
Ammon Bundys Supplemental Brief on Jury Instructions (ECF No. 1321), filed on behalf of all
defendants.

Case 3:16-cr-00051-BR

1.

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Defendant seeks to remove any reference to the term impede in the Courts

instructions. The basis for defendants argument is that since impede does not appear as an
element of the offense, its insertion into the instructions is somehow misleading.
2).

(Def.s Mem.

There is no legal authority for the Court to remove the term impede and it accurately

describes the charged offense.

The offense is properly captioned Conspiracy to Impede

Officers of the United States, in violation of 18 U.S.C. 372.

Any reference the term impede

in the Courts instructions accurately describes the charged offense.

The government still must

prove beyond a reasonable doubt that defendants did conspire to prevent officers from
discharging their official duties through threats, force, or intimidationthe use of the word
impede in the instructions does not otherwise alter that burden.
2.

There is also no legal authority for defendants request that the jury instruction

include a requirement that the government prove that the conspiracys specific aim was to
impede or prevent federal officers from performing their lawful duties.

The cases he cites do

not stand for that proposition, and in fact, the Gricco case he cites (which involves a 371
conspiracy), used the same formulation that this Court has proposed (i.e., that the conspiracys
goal was an agreed objective).
To accept defendants formulation would mean that if the jury found that defendants had
other objectivesi.e. to generate publicity for their cause, to adversely possess federal land,
etc.that it could acquit despite the fact that defendants also sought to impede federal officers
from performing their lawful duties. That proposition is not the law.

Instead, courts have

repeatedly recognized that conspiracy convictions are sustainable upon proof that the conspiracy

Governments Response to Defendants Defendant Ammon Bundys

Supplemental Brief on Jury Instructions (#1321)

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Case 3:16-cr-00051-BR

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had multiple objectives, even when some of those objectives were not illegal. See, e.g., United
States v. Gallishaw, 428 F.2d 760, 763 (2d Cir. 1970); United States v. Wedstedt, 589 F.2d 339,
342 (8th Cir. 1978); United States v. Papadakis, 510 F.2d 287, 297 (2d Cir. 1975). So long as
the jury finds that an object of the defendants agreement was to impede or prevent federal
officers from performing their dutiesas this Court held during the pretrial conferencethe
evidence will sustain the conviction.
Defendants other proposed addition on this subjectthat the government must prove
that the conspiracys unlawful objective was one of the conspiracys objects and not merely a
foreseeable consequence or collateral effect, is confusing and argumentative.

The Courts

proposed instruction accurately states what the government must prove, and it should not be
further embellished. Moreover, the clause misstates conspiracy law: co-conspirators are liable
for offenses that could reasonably have been foreseen as a necessary or natural consequence of
the unlawful agreement. United States v. Thomas, 887 F.2d 1341, 1345 (9th Cir. 1989).
3.

Defendant seeks to supplement the existing instructions to instruct the jury that a

legitimate action as contemplated by the Courts instructions should include staking a claim
for possession.

(Def.s Mem. 3).

The Court has repeatedly limited defendants use of

adverse possession to defendants state of mind, if defendants elect to testify. (See ECF No.
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Governments Response to Defendants Defendant Ammon Bundys

Supplemental Brief on Jury Instructions (#1321)

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Case 3:16-cr-00051-BR

1171, at 2-3).

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Moreover, there is no legal authority that suggests that staking a claim for

adverse possession is the type of legitimate action contemplated by the Courts instructions.
Dated this 23rd day of September 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Ethan D. Knight
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

Governments Response to Defendants Defendant Ammon Bundys

Supplemental Brief on Jury Instructions (#1321)

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