Case 3:16-cr-00051-BR

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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
DEFENDANTS PROPOSED JURY
INSTRUCTIONS (#1323, #1313)

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
Medenbachs Proposed Jury Instructions (ECF Nos. 1323, 1313), filed on behalf of all
defendants.

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Jury Nullification (ECF No. 1323)

The government opposes defendant Medenbachs request for a jury nullification
instruction. The cases he cites do not support the instruction, and the Ninth Circuit has held
that district courts are correct to reject nullification instructions. United States v. Powell, 955
F.2d 1206, 1212-13 (9th Cir. 1992). Moreover, the Ninth Circuit has affirmatively held that
district judges have a duty to forestall or prevent such conduct.

United States v. Christensen,

828 F.3d 763, 806 (9th Cir. 2015). Indeed, jurors who intentionally disregard the law in the
form of jury nullification can be dismissed. Id.
Withdrawal & Co-Conspirator Statements (ECF No. 1313)
The Ninth Circuit holds that withdrawal has no bearing on the admissibility of a coconspirator statement. United States v. Williams, 668 F.2d 1064, 1070 (9th Cir. 1982).
Although an effective withdrawal will absolve a conspirator of liability for any substantive
offenses committed by other conspirators after his withdrawal, United States v. Lothian, 976
F.2d 1257, 1267 (9th Cir. 1992), it is not the proper test for 801(d)(2)(E) admission.
Withdrawal from a conspiracy may be accomplished in one of three ways: (1) disavowal
of the conspiracys goal; (2) taking affirmative action to defeat the conspiracys goal; or
(3) taking definitive, decisive, and positive steps to disassociate from the conspiracy.
Lothian, 976 F 2d at 1261.

Just because a defendant was arrested or opted to leave the Refuge,

does not constitute withdrawal, as the court defines that defense.

Moreover, a defendant who

purports to withdraw from a conspiracy after the crime is complete cannot raise that defense.
See, e.g., United States v. Loya, 807 F.3d 1483, 1493 (9th Cir. 1987) (holding that withdrawal
Governments Response to Defendants Proposed Jury Instructions
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defense was not supported by the evidence because defendant relied upon acts that were too
late to count).
Defendant Medenbachs request for a withdrawal jury instruction (#1313) should be
denied because there is no evidence to support his theory; he was arrested and he has taken no
steps to disassociate himself from the conspiracy.

Although a court should generally instruct

the jury on a defense theory, it should only do so if the theory is supported by the law and has
some foundation in the evidence. United States v. Moe, 781 F.3d 1120, 1127 (9th Cir. 2015).
There is no evidence in this case that Medenbachor any other defendantwithdrew from the
conspiracy before the crime was complete, or at any time.

Quite the opposite, he and many of

the other defendants have continued to publicly express their support for the conspiracys aims
and objectives.

And regardless of whether a defendant withdraws from a conspiracy, that is not

the legally relevant test for admission of co-conspirator statements.

Absent evidence to support

his withdrawal claim, this Court should reject the proffered jury instruction. See, e.g., United
States v. Kopp, 464 F. Appx 662, *1 (9th Cir. 2012) (affirming district courts failure to sue
sponte give a withdrawal instruction given the absence of evidence to support the defense).
Instead, the appropriate test for the admission of co-conspirator statements is whether the
government has demonstrated by a preponderance of the evidence that a conspiracy existed and
that a statement was made during the course of and in furtherance of a conspiracy. United
States v. Peralta, 941 F.2d 1003, 1008 (9th Cir. 1991).
Although an arrest may end a conspiracy, that is not always the case.

An arrest of some,

but not all of the conspirators, may leave the conspiracy intact: The arrest of some of the
Governments Response to Defendants Proposed Jury Instructions
(#1323, #1313)

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conspirators, even its principal member, does not necessarily terminate the conspiracy. United
States v. Ammar, 714 F.2d 238, 253 (3d Cir. 1983).

A conspiracy is presumed to continue

until its objective is achieved. Id. See also United States v. Patel, 879 F.2d 292, 294-95 (7th
Cir. 1989) (affirming admission of co-conspirator statements after a defendants involvement
ceased, observing: You do not absolve yourself of guilt by walking away from a ticking time
bomb.).
Further, statements made well after the substantive crimes may further a conspiracy and
be admissible at trial under 801(d)(2)(E). See United States v. Tille, 729 F 2d 615 (9th Cir
1984).

The indictment generally confines the conspiracys temporal scope, so for example,

over acts of concealment that took place six years after the substantive offenses may still fall
within the rule so long as the acts occurred within the indictments timeframe alleged for the
conspiracy. See, e.g., United States v. Moses, 148 F.3d 277 (3d Cir. 1998) (holding coconspirators grand jury testimony six years after tax crimes fell within rule because it
constituted an overt act of concealment).

As applied in this case, statements made by co-

conspirators after their arrests that urged others to join or continue the conspiracy similarly
furthered the conspiracy charged in this case.
Once this Court determines that co-conspirator statements are admissible, no jury
instruction highlighting this particular type of evidence is necessary or advisable. Instead, the
parties should be permitted to argue whether and how the co-conspirator statements prove (or
disprove) a particular defendants guilt.

Consistent with the law included in this memorandum,

the government intends to argue that the jury may consider statements co-conspirators made,
Governments Response to Defendants Proposed Jury Instructions
(#1323, #1313)

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including statements made following their arrestswhen those statements furthered the ongoing
conspiracy.
Multiple Conspiracy Instruction (ECF No. 1313)
Finally, defendant Medenbach has also asked that this Court instruct the jury on multiple
conspiracies. (ECF #1313). That request should be denied because there is no evidence of
multiple conspiracies in this case to support such an instruction.

A multiple conspiracy

instruction is only appropriate if an indictment charges several defendants with one overall
conspiracy, but the proof at trial indicates that a jury could reasonably conclude that some
defendants were only involved in separate conspiracies unrelated to the overall conspiracy
charged in the indictment. United States v. Liu, 631 F.3d 993, 999 (9th Cir. 2011). A
multiple conspiracy instruction is not appropriate when the proof at trial includes sub-agreements
within the same overall conspiracy. United States v. Mincoff, 574 F.3d 1186, 1196 (9th Cir.
2009).
In this case, the governments evidence has been entirely consistent with the single
conspiracy charged in the Indictment. The jury will have to find that each defendant knowingly
joined the charged conspiracy in order to convict; because there is no evidence of distinct,
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multiple conspiracies, the instruction would be both improper and potentially confusing to the
jury.
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 Proposed Jury Instructions

(#1323, #1313)

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