Case 3:16-cr-00051-BR

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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,
RYAN BUNDY,
SHAWNA COX,
DAVID LEE FRY,
JEFF WAYNE BANTA,
KENNETH MEDENBACH, and
NEIL WAMPLER,

3:16-CR-00051-BR
GOVERNMENTS MEMORANDUM
REGARDING AUTHENTICITY OF
GOVERNMENT EXHIBIT 21

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 memorandum in support of the
authenticity of Government Exhibit 21.

Case 3:16-cr-00051-BR

I.

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Background
On September 19, 2016, outside of the presence of the jury, the government proposed to

introduce Government Exhibit 21 as a statement of a party opponent (Ryan Bundy) and as a

statement in furtherance of the conspiracy.

At that time, the exhibit included two pieces of an

interview in early January 2016, between a reporter with Oregon Public Broadcasting (OPB) and
Ryan Bundy.

The original recording was provided in Volume 23 of the governments

discovery on May 9, 2016.

It was identified as a government exhibit with its associated Bates

number, along with all of the governments exhibits, on July 29, 2016.

No objection was raised

to the exhibit until the hearing on September 19th.

Ammon Bundy, through counsel, and Ryan

Bundy objected to the exhibit on multiple grounds.

After the government explained that the

statement would be offered to establish that the conspirators intended to prevent federal
employees from doing their jobs, defendants objected to the authenticity of the recording.
Defendants alleged that the recording had been manipulated and sliced and diced to alter the
meaning of defendant Ryan Bundys statement.

At that time, the Court found that the

government had not made a sufficient showing of the authenticity of the recording and ruled that
it could not be admitted into evidence until the government made a sufficient authenticity
proffer.
II.

Authenticity Proffer
On Monday, September 26, 2016, the government will seek to offer a revised

Government Exhibit 21.

The exhibit is from the same January 2016 interview with Ryan

Bundy. It has been shortened to remove concerns defendant has raised regarding the editing of

Governments Memorandum Regarding Authenticity of Government

Exhibit 21

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the interview.1

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A transcript of the entire interview is attached.

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The highlighted portion on

page 3 of the transcript is the revised Government Exhibit 21. The government will establish
the authenticity of the exhibit as set forth below.
Oregon Public Broadcasting is a television and radio public broadcasting network in
Oregon.

On September 6, 2016, the Court issued an order reserving two seats in the courtroom

for the media.

(ECF No. 1204).

One seat was reserved for a reporter from The Oregonian, the

states largest newspaper by circulation.

The second seat was reserved for a report from OPB.

OPB has been reporting on the occupation and the subsequent prosecution of the defendants
since early January 2016.
Following the hearing on September 19th, the government contacted counsel for OPB to
request a witness to authenticate the recording contained in Governments Exhibit 21.
indicated that they stand by their reporting.

OPB

However, as a matter of policy, they are unwilling

to provide a witness to testify for any party in this proceeding.

Rule 901(a) of the Federal Rules of Evidence provides:
(a) In General. To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.
The government will offer revised Government Exhibit 21 as a statement of a party opponent
(Ryan Bundy) and as a statement in furtherance of the conspiracy. To establish that the exhibit
///

If the defense seeks to play the entire interview under the rule of completeness, the
government will not object.
Governments Memorandum Regarding Authenticity of Government
Exhibit 21

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is what it purports to bea recording from a media interview with Ryan Bundythe government
will call FBI Special Agent Ronnie Walker.

Agent Walker will establish the following:

Revised Government Exhibit 21 is a 40-second excerpt from an interview of Ryan Bundy

that took place in early January while Ryan Bundy and others were occupying the
Refuge.

The original OPB story is six minutes and thirty-nine seconds long.

It was posted to the OPB website, http://www.opb.org, on January 9, 2016, and was
broadcast on OPBs Weekend Edition radio broadcast.

The government originally obtained the interview by downloading it from the OPB
website where it was published and where, as of the date of this filing, it still appears:
http://www.opb.org/news/series/burns-oregon-standoff-bundy-militia-news-updates/ryanbundy-of-the-malheur-occupation-guns-show-were-serious/.

On September 19, 2016, after the government attempted to introduce Government

Exhibit 21, the court-designated OPB pool reporter posted a podcast to OPBs website.
In that podcast, OPB again played the original interview with Ryan Bundy.

Revised Government Exhibit 21 is approximately 40 seconds long. It is a complete

conversation about the purpose of the occupation.

Agent Walker carefully reviewed the entire six-minute, thirty-nine-second interview. In

this review, he detected edits to the recording. However, there are no discernable edits
to the 40-second portion of the interview that is revised Government Exhibit 21.

///
Governments Memorandum Regarding Authenticity of Government
Exhibit 21

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The first 30 seconds of revised Government Exhibit 21 involves Ryan Bundy speaking
without interruption and with no discernable edits. Ryan Bundy says that the charges
against the Hammonds came from this facility, it is destroying the lives and liberties
of those around, and that by being here, it puts a stop to that.

Approximately 31 seconds into the interview, the reporter interrupts Ryan Bundy and
both voices can be heard at the same time. The reporter interjects with the statement,
But the federal government employees are still working from home. At approximately
34 seconds, Ryan Bundy can be heard attempting to interrupt by saying Well. Again
both voices overlap. The reporter continues speaking about federal employees working
from home until Ryan Bundy interrupts at approximately 38 seconds. At that point,
Ryan Bundy can be heard speaking over the reporter to say, Well, perhaps. This whole
system isnt perfected yet.
The government need only make a prima facie showing of authenticity so that a

reasonable juror could find in favor of authenticity or identification. United States v. Chu
Kong Yin, 935 F.2d 990, 996 (9th Cir. 1991) (citation omitted). Once the prima facie case for
authenticity is met, the probative value of the evidence is a matter for the jury. Id. With the
proffered testimony, a reasonable juror could find that the recording is an authentic interview of
Ryan Bundy by a member of the media. This evidence is similar to other evidence the jury will
be considering. Government Exhibit 22 is an audio interview of Shawna Cox. Government
Exhibit 672, part 2 is a video interview of Ammon Bundy. Government Exhibit 642 is a video
interview of Duane Ehmer and Neil Wampler. The government obtained all of these interviews

Governments Memorandum Regarding Authenticity of Government

Exhibit 21

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from the Internet and they have been received in this case. Government Exhibit 21 is an
authentic interview of Ryan Bundy. Defendants may still test the reliability of the evidence in
cross-examination. They may also require the government to play the entire interview under the
rule of completeness. However, any conflicting evidence on the authenticity of the evidence
goes to weight, not admissibility. See United States v. Ortiz, 776 F.3d 1042, 1045 (9th Cir.
2015). Government Exhibit 21 is admissible evidence at the very heart of this conspiracy and
should be submitted to the jury.
Dated this 23rd day of September 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

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

Governments Memorandum Regarding Authenticity of Government

Exhibit 21

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