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Document 384
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KENNETH MEDENBACH,
Defendant(s).
Case 3:16-cr-00051-BR
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B. Reasons to Reconsider:
In its rulings on defendants oral motion, this court misconstrued the thrust
of defendants argument which had been twisted through the governments
grandiloquence and the defendants own inexperience in advancing such a motion.
In 1997, in an appeal from a conviction in U.S. District Court for the Western
District of Washington, defendant challenged the constitutionality of federal
ownership of public lands in Washington State. United States v. Medenbach, 116
F.3d 487 (9th Cir. 1997). Defendant also argued that since the Constitution does not
confer upon federal courts the power of judicial review Marbury v. Madison, 5 U.S.
137 (1803), was wrongly decided. United States v. Medenbach, 116 F.3d 487 (9th
Cir. 1997). The Ninth Circuit Court of Appeals rejected the argument because
defendant failed to offer reasoning or case law to support the argument that Marbury
v. Madison should be overruled. Id.
What follows is reasoning and proof that Marbury v Madison must be
overruled.
1. Congress has required an official oath that is inconsistent with the
Constitution.
Article VI, Sec. 2 of the United States Constitution states:
"This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
anything in the Constitution or Laws of any State to the contrary
notwithstanding.
The Constitution is the Supreme Law of the land. In order to support a true
union by the people and for the people and to assure that the Constitution remained
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the Supreme Law of the land, the drafters included in that very document the
requirement of an oath before serving the country in an official capacity:
"The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this Constitution
but no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States."
Article VI, Sec. 3 of the United States Constitution
These words, inserted when the whole frame of government, with the powers
specified, had been adopted by the Constitutional Convention; and it was in that
form, and with these powers, that the Constitution was submitted to the We the
People, of the several States, for their consideration and decision. The emphatic
language of the pledge required is to "support" this Constitution. There is no power
more clearly enumerated by the plain language of the Constitution of the United
States than this requirement for officials to "support" the Constitution.
The first law statute of the United States of America, enacted in the first
session of the First Congress on 1 June 1789, was Statute 1, Chapter 1: an act to
regulate the time and manner of administering certain oaths, which established the
oath required by civil and military officials to, "support the Constitution." The first
oath prescribed by Congress (June 1, 1789) was simply, "I do solemnly swear (or
affirm) that I will "support the Constitution of the United States."
It took just one week short of four months before Congress started perverting
the Constitution. In the Judiciary Act adopted September 24, 1789, Congress
prescribed an unconstitutional second oath of office to United States judicial
officers:
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I,
, do solemnly swear or affirm that I will administer justice
without respect to persons, and do equal right to the poor and to the
rich, and that I will faithfully and impartially discharge and perform
all the duties incumbent upon me according to the best of my abilities
understanding, agreeably to the Constitution and the laws of the
United States. So help me God.
See Judiciary Act of 1789, 1 Stat. 73, Sec.8.
What this court did not previously consider, and what defendant failed to
articulate at the motion hearing, was that this unconstitutional oath of
understanding, agreeably, was central to the Supreme Courts holding reserving
to it the power to interpret the constitution in Marbury v Madison, 5 U.S.137 (1803).
The Supreme Court said, "Why does a judge swear to discharge his duties agreeably
to the Constitution of the United States, if that constitution forms no rule for his
government? If it is closed upon him, and cannot be inspected by him? If such be
the real state of things, this is worse than solemn mockery. To prescribe, or to take
this oath, becomes equally a crime".
If the unconstitutional second oath of office of "understanding, agreeably to
the Constitution," had not been established by the Judiciary Act of 1789, 1 Stat. 73,
Sec.8, it would never have been available to the Supreme Court in 1803 and
Marbury v Madison would have never come into existence. According to Marbury
v. Madison, the oath by its very nature requires the power of Constitutional
interpretation. Because that oath was not consistent with the Constitution in the first
place, Marbury was wrongly decided.
2. Congresss attempts to establish an oath have been inconsistent with
the Constitution.
In the 1990 Judicial Improvements Act, at 28 USC 453, Congress replaced
the phrase, "according to the best of my abilities and understanding, agreeably to
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the Constitution and laws of the United States. So help me God," to "under the
Constitution." This begs the question of why the oath was changed after nearly 200
years and replaced with another oath no more consistent with the Constitution than
the one it replaced.
The legislative history on this statute and its intent is opaque. The
Congressional Research Service of the Library of Congress, which works
exclusively for the United States Congress, providing policy and legal analysis to
committees and Members of both the House and Senate, prepares upon enactment
into law, a final public law summary. It stated concerning this provision:
Upon the enactment of replacing "according to the best of my abilities
and understanding, agreeably to the Constitution and laws of the
United States. So help me God," with "under the Constitution," the
Congressional Research Service stated, "This language proved
reasonably more effective in tying the decisions of the judiciary to the
authority of the United States Constitution."
It appears that Congress intended to force the judiciary to tie its decisions to
the Constitution with a revised oath that eliminated the language allowing the courts
to extend their authority in an unconstitutional manner. It also suggests that because
actions were taken by the courts in an extra-constitutional manner pursuant to an
invalid oath, decisions made by the federal courts prior to 1990 are presumptively
unconstitutional.
At the same time, since the 1990 Judicial Improvements Act did not cure the
unconstitutional flaws in the oath which remains inconsistent with the plain
language of the Constitution:
"The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
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Because defendant did not have the opportunity for oral argument before the Ninth
Circuit, he was never afforded the opportunity to make this argument to that Court.
4. Defendants literal reading of the oath is supported by Marbury.
In Marbury v Madison, the Supreme Court considered the limited grant of
judicial power expressly found in the language of the document as key to
understanding its provisions:
It has been insisted, at the bar, that as the original grant of
jurisdiction, to the supreme and inferior courts, is general, and the
clause, assigning original jurisdiction to the supreme court, contains
no negative or restrictive words; the power remains to the legislature,
to assign original jurisdiction to that court in other cases than those
specified in the article which has been recited; provided those cases
belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the
legislature to apportion the judicial power between the supreme and
inferior courts according to the will of that body, it would certainly
have been useless to have proceeded further than to have defined the
judicial power, and the tribunals in which it should be vested. The
subsequent part of the section is mere surplusage, is entirely without
meaning, if such is to be the construction. If congress remains at
liberty to give this court appellate jurisdiction, where the constitution
has declared their jurisdiction shall be original; and original
jurisdiction where the constitution has declared it shall be appellate;
the distribution of jurisdiction, made in the constitution, is form
without substance.
Affirmative words are often, in their operation, negative of
other objects than those affirmed; and in this case, a negative or
exclusive sense must be given to them or they have no operation at
all.
It cannot be presumed that any clause in the constitution is
intended to be without effect; and therefore such a construction is
inadmissible, unless the words require it.
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Sir, I took the oath, a single oath that's on record.It's not necessary for me
to make this point, but I feel I want to communicate to you as an individual. I have
in fact, throughout my judicial career, tried every time I had to make a ruling to
follow the oath I took -- both as a judge of the circuit court of the state of Oregon
and then beginning in 1999, for this court -- to support and defend the Constitution
of the United States. Exhibit 1 at 31.
In reviewing the United States Code, it appears that two different statutes
require an oath of office, 5 USC 3331 and the unconstitutional second oath found
at 28 USC 453. The court not address this argument, nor has any other court in
contrast to the governments mischaracterization.
7. The oath this Court does not comport with the Constitution.
Since the last hearing, the defendant has obtained a copy of the Oath that this
court took. On October 27, 1999, this Court took an oath that was a combination of
28 USC 453 and 5 USC 3331. See Oath of Office, Anna J. Brown U.S. District
Court, October 27, 1999 attached as Exhibit 2. The top half of the combination oath
is said to be 28 USC 453 but is actually the original oath of office from the Judiciary
Act of 1789. 1 Stat. 73, Sec. 8 and relied upon by the Court in Marbury. Marbury v.
Madison, 5 U.S. 137, 180, 2 L. Ed. 60 (1803). The bottom section of the
combination oath is taken verbatim from 5 USC 3331. It states:
And I will support and defend the Constitution of the United States
against all enemies, foreign and domestic; that I will bear true faith
and allegiance to the same; that I take this obligation freely, without
any mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to
enter. So help me god.
Exhibit 2.
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This oath renders 28 USC 453 or 1 Stat. 73 Sec. 8 void because the
Constitution does not allow or require a second oath in relation to the Constitution.
Only one oath to support the Constitution pursuant to Article 6, Sec. 2 and Article
6, Sec. 3 is allowed or required.
C. Conclusion:
For the reasons stated above the defendants Motion to Dismiss should be
reconsidered and he should be granted oral argument.
Kenneth
Medenbach
Kenneth Medenbach
Pro Se Defendant.
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vs.
MOTION TO RECONSIDER
ORAL MOTION TO DISMISS
EXHIBIT 1
KENNETH MEDENBACH,
Defendant(s).
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Plaintiff,
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v.
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KENNETH MEDENBACH, (16)
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Defendant.
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__________________________________)
Portland, Oregon
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TRANSCRIPT OF PROCEEDINGS
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(Detention Hearing)
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APPEARANCES:
FOR THE PLAINTIFF:
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FOR DEFENDANT
MEDENBACH:
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CRAIG GABRIEL
Assistant U.S. Attorney
U.S. Attorney's Office
1000 SW Third Avenue
Portland, OR 97204
(503)727-1000
KENNETH MEDENBACH
Pro Se
25795-086
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MATTHEW SCHINDLER
501 4th Street #324
Lake Oswego, OR 97034
(503)699-7333
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COURT REPORTER:
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AMANDA M. LeGORE
CSR, RDR, FCRR, CRR, CE
U.S. Courthouse
1000 SW Third Avenue Suite 301
Portland, OR 97204
(503)326-8184
Exhibit 1 - Page 1 of 42
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P R O C E E D I N G S
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THE COURT:
Please be
seated.
Mr. Gabriel.
MR. GABRIEL:
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Medenbach.
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to represent himself.
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Schindler.
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confusion.
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late February.
The clerk did docket the matter as a Faretta hearing
But
I'm
I can't tell.
MR. SCHINDLER:
THE DEFENDANT:
Go ahead.
MR. SCHINDLER:
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THE COURT:
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MR. SCHINDLER:
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All right.
And so we would like to have that
done today.
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The Court
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THE COURT:
Yes.
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hear what you have to say this morning, Mr. Medenbach, to see
you.
THE DEFENDANT:
THE COURT:
Yes.
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MR. GABRIEL:
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THE COURT:
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Count 4.
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against you.
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thing.
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person accused.
You have the absolute right to remain silent and not
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If you chose to
And
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So the
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THE DEFENDANT:
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THE COURT:
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I am.
All right.
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MR. GABRIEL:
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THE COURT:
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4, your Honor.
4.
Sorry.
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several times.
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admissibility of evidence.
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To help a defendant
To challenge the
But, in
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procedure.
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you face in this case, and to assist you to try to get the best
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result possible.
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good reason.
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then knows where the most likely path is for resolution that
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He
I just
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matter.
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And
He
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get from the Court a ruling that no one should tell the jury he
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And I so ruled.
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marshal's custody.
the jury after that trial, and they were concerned that the
evidence in the same way; that he wasn't able to make the legal
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Why would
a person do that?
And I simply said, Well, that was his choice, and so
it was honored and respected.
So I just relate that experience to you because it's
one fresh in my mind.
In that case, I -- when I did allow that man to
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can see from your attendance at the other proceedings the sheer
individually is voluminous.
You
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you.
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MR. SCHINDLER:
I think
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worked well over the course of the last few weeks, and I don't
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THE COURT:
All right.
We've
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accomplished.
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that.
All right?
THE DEFENDANT:
THE COURT:
Okay.
Indictment.
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THE DEFENDANT:
THE COURT:
All right.
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MR. GABRIEL:
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THE COURT:
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THE COURT:
Thank you.
Yes, I do.
All right.
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them generally.
I've spoken to
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the like.
error that no lawyer would have made and that there was nothing
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He's the
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should have asked you, you're not -- you do not have a license
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to practice law.
Is that right?
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THE DEFENDANT:
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THE COURT:
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THE DEFENDANT:
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THE COURT:
No.
All right.
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experience to do so?
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THE DEFENDANT:
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Well, I understand.
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THE COURT:
That's
not correct.
anybody.
be allowed to make.
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with civil?
THE COURT:
No.
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experience.
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proceeding.
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prosecutors.
would.
issue.
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So
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reviewed later.
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THE DEFENDANT:
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Medford, on --
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THE COURT:
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THE DEFENDANT:
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Right.
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In a
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THE DEFENDANT:
there, also.
THE COURT:
difference of opinion.
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everyone.
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THE DEFENDANT:
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stay within some -- you know, he doesn't want to get you upset.
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THE COURT:
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THE DEFENDANT:
I'm sorry.
Say it again?
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So he has to
THE COURT:
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if you didn't follow the ruling, you could be taken out of the
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room.
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your own.
right to a lawyer.
motions.
Setting
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THE DEFENDANT:
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THE COURT:
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Yeah.
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for making the legal arguments, for filing the papers, for
at a significant disadvantage.
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THE DEFENDANT:
Okay.
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THE COURT:
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THE DEFENDANT:
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THE DEFENDANT:
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THE COURT:
You
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counsel.
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any review of the legal decisions I make in the case, you won't
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THE DEFENDANT:
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THE COURT:
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Yeah, I understand.
Okay.
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THE DEFENDANT:
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THE COURT:
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THE DEFENDANT:
Not at all.
I've
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got a holy spirit who lives in me, and he'll guide me through
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this.
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This is a small
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THE COURT:
I do.
years now, I've never once seen a person make the decision
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THE DEFENDANT:
life in heaven.
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All right.
All right.
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you are bound by the rulings that I make, whether you agree
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THE DEFENDANT:
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THE COURT:
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Yes.
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THE DEFENDANT:
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THE COURT:
I understand.
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would run the risk of being removed from the courtroom, so that
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THE DEFENDANT:
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THE COURT:
I understand.
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THE DEFENDANT:
THE COURT:
THE DEFENDANT:
THE COURT:
No.
No.
THE DEFENDANT:
No.
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THE COURT:
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THE DEFENDANT:
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THE COURT:
Yes.
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If I do end
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your direction, but he's not the -- that's not the same as
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THE DEFENDANT:
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THE COURT:
I understand.
All right.
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process?
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MR. GABRIEL:
On the matter of
supervised release.
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THE COURT:
We go
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me you understood.
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on supervision.
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THE DEFENDANT:
(Nods head.)
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THE COURT:
THE DEFENDANT:
THE COURT:
(Nods head.)
Yes.
THE DEFENDANT:
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THE COURT:
I understand.
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Mr. Gabriel.
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be in writing.
These need to
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it.
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counsel, then once you've read it, please sign it, and then
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THE DEFENDANT:
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THE COURT:
All right?
Okay.
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THE DEFENDANT:
About
about.
THE COURT:
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(Pause, referring.)
THE COURT:
All right.
record.
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THE DEFENDANT:
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THE COURT:
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Is that
Yes, it is.
think I asked you this, but I want to be sure about the record.
Has anyone put any pressure on you to make this
decision --
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THE DEFENDANT:
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THE COURT:
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No.
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THE DEFENDANT:
THE COURT:
Yes, it is.
All right.
counsel.
He is making a
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MR. SCHINDLER:
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THE COURT:
(Nods head.)
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issue of release.
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THE DEFENDANT:
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THE COURT:
Yes.
All right.
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your feet.
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THE COURT:
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THE DEFENDANT:
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Okay.
Go ahead.
Motion to dismiss for lack of
jurisdiction.
First, why would we, the people of the United States,
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didn't.
We
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Constitution does not confer upon the federal courts the power
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wrongly decided.
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should be overruled.
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this Constitution.
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Article
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judicial review.
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and the Tenth Amendment, which states the powers are not
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The Congress
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ownership.
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to the states.
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2, and the Tenth Amendment; and the 1976 Federal Land Policy
Exhibit 1 - Page 28 of 42
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 30 of 43
29
1
the right of the people to keep and bear arms shall not be
infringed.
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and this Court cannot try me on any one of these -- anyone else
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land.
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be fruitful and multiply, fill the earth, and subdue the earth.
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The earth is created for the people to farm, grant, mine, log,
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public works.
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planet.
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25
If we,
Exhibit 1 - Page 29 of 42
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 31 of 43
30
1
the people of the United States, don't step up and subdue the
crying.)
(Defendant
THE COURT:
MR. GABRIEL:
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against the United States two years ago, and the same issue was
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jurisdiction.
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He brought a claim
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in law or fact.
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claim before Judge McShane, related to the judge's oath and the
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Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 32 of 43
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1
jurisdiction.
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5
THE COURT:
response?
THE DEFENDANT:
THE COURT:
THE DEFENDANT:
10
THE COURT:
11
that's on record.
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speak.
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No.
13
I let you
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Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 33 of 43
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1
THE DEFENDANT:
THE COURT:
MR. SCHINDLER:
Yes.
Mr. Medenbach is
THE COURT:
MR. SCHINDLER:
That's fine.
10
THE COURT:
11
MR. SCHINDLER:
12
THE COURT:
Thank you.
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conferring.)
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THE DEFENDANT:
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THE COURT:
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THE DEFENDANT:
19
Okay.
Go ahead, sir.
Did you want to finish what you were
talking about?
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THE COURT:
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wanted to make.
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THE DEFENDANT:
I need to take up
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 34 of 43
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1
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3
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6
(Pause, referring.)
All right.
You've made
for the reasons he stated on the record, and that motion was
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THE DEFENDANT:
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La Pine, Oregon.
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MR. SCHINDLER:
18
THE COURT:
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MR. SCHINDLER:
20
Yes.
If it would be appropriate, could I
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THE COURT:
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MR. SCHINDLER:
May I?
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THE DEFENDANT:
Yes.
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MR. SCHINDLER:
Thank you.
25
THE COURT:
Yes.
Go ahead.
Exhibit 1 - Page 33 of 42
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 35 of 43
34
1
MR. SCHINDLER:
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impede.
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dollars.
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this point.
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see a jury.
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prospect.
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THE COURT:
I am thrilled at that
Or -- or earlier.
Or earlier.
Exhibit 1 - Page 34 of 42
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 36 of 43
35
1
MR. SCHINDLER:
Okay.
context of -- you know, Mr. Medenbach has been in jail now for
a period of -- what?
THE COURT:
MR. SCHINDLER:
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this hearing.
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His conduct
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here today.
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But
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the law.
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Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 37 of 43
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1
situation.
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10
THE COURT:
You
And so I
All right.
MR. SCHINDLER:
11
accepts that he did not comply with the -- with the initial
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13
Thank you.
14
THE COURT:
15
MR. GABRIEL:
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Mr. Gabriel?
Yes, your Honor.
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did, in November.
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Thank you.
He
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Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 38 of 43
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1
refuge.
that truck.
He stole a truck.
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sense.
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THE COURT:
All right.
to add?
PRETRIAL SERVICES OFFICER STRANIERI:
We would just
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 39 of 43
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1
2
THE COURT:
Okay.
anything else?
conferring.)
THE COURT:
So,
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9
THE DEFENDANT:
brought right back.
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to Burns.
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back.
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THE COURT:
All right.
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Is that right?
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MR. GABRIEL:
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THE COURT:
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MR. GABRIEL:
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THE COURT:
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MR. GABRIEL:
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THE COURT:
25
I have a call
A jury trial?
A jury trial.
Yes, ma'am.
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 40 of 43
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1
conflict.
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9
That's
The
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11
you're not here, and we'll have to deal with the consequence of
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that.
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just made.
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two places.
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THE COURT:
25
I may have
MR. GABRIEL:
Medford.
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THE DEFENDANT:
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I don't
know.
THE DEFENDANT:
On the 6th?
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 41 of 43
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1
THE COURT:
THE DEFENDANT:
THE COURT:
Maybe.
Maybe, not.
Mr. Medenbach.
District Court for the District of Oregon show that you do not
conditions of release.
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So to
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denied.
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Exhibit 1 - Page 40 of 42
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 42 of 43
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1
All right.
MR. GABRIEL:
THE COURT:
THE COURT:
7
8
Is that right?
That's my
10
Do you know?
MR. GABRIEL:
matter, your Honor.
Yes.
12
THE COURT:
13
MR. SCHINDLER:
14
11
Anything else?
All right.
But the Court is going to enter an
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THE COURT:
Yes.
16
case.
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All right.
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Judge McShane is
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--oOo--
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Exhibit 1 - Page 41 of 42
Case 3:16-cr-00051-BR
Document 384-1
Filed 04/11/16
Page 43 of 43
42
1
is not certified.
and format comply with those prescribed by the Court and the
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Exhibit 1 - Page 42 of 42
Case 3:16-cr-00051-BR
Document 384-2
Filed 04/11/16
Page 1 of 2
KENNETH MEDENBACH,
Defendant(s).
Exhibit 2 to defendants Motion to Reconsider
Case 3:16-cr-00051-BR
Document 384-2
Filed 04/11/16
Page 2 of 2
Exhibit 2 - Page 1