Case 3:16-cr-00051-BR

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J. Morgan Philpot (Oregon Bar No. 144811)

Marcus R. Mumford (admitted pro hac vice)
405 South Main, Suite 975
Salt Lake City, UT 84111
(801) 428-2000
morgan@jmphilpot.com
mrm@mumfordpc.com
Attorneys for Defendant Ammon Bundy
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,

Case No. 3:16-cr-00051-BR

Plaintiff,

DEFENDANTS JOINT MOTION IN

LIMINE RE: THE GOVERNMENTS
REBUTTAL CASE

v.
AMMON BUNDY, et al,

District Judge Anna J. Brown

Defendants.

Last week, the government provided an outline of its rebuttal case, attached hereto as
Exhibit 1, raising five matters. Earlier today, the government added a sixth issue via email,
attached as Exhibit 2. In response, with the input of counsel for other Defendants, undersigned
counsel for Defendant Ammon Bundy moves in limine to preclude the governments rebuttal
case as follows:
I.

Litigation Surrounding The BLMs Bunkerville Impoundment Orders.

For its first issue on rebuttal, the government intends to call DOJ lawyer Terry Petrie to
testify about litigation surrounding the impoundment orders issued in the District of Nevada on
July 9, 2013 in Docket Number 12-CV-804, and on October 8, 2013 in Docket Number 98-CV531 and to describe a deposition that he took of Cliven Bundy in pursuit of one of those
orders. Ex. 1. The government produced voluminous filings from the two cases, which it intends
to have Mr. Petrie describe, and has given notice that it intends to introduce as exhibits the
partially redacted court orders previously marked as Government Exhibits 157 and 158.
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Within limits, the [district] judge may control the scope of rebuttal testimony, may
refuse to allow cumulative, repetitive, or irrelevant testimony, and may control the scope of
examination of witnesses. Geders v. United States, 425 U.S. 80, 86-87 (1976) (citations
omitted). To this issue, the Ninth Circuit has held that it is an abuse of discretion to allow the
government to present rebuttal evidence where there was nothing to rebut since [the defendant]
admitted the facts at issue in the governments rebuttal case. United States v. Vega, 188 F.3d
1150, 1153 & n.2 (9th Cir. 1999).
Permitting the government to introduce Mr. Petries testimony and other evidence
regarding the litigation related to the two Bunkerville orders is improper and unnecessary for two
reasons. First, Defendants already entered into a stipulation regarding the existence of the
Bunkerville orders, and as part of that stipulation, the government agreed not to have BLM
Agent Jason Curry testify and not to introduce Government Exhibits 157 and 158. See 9/16/2016
Rough Tr. at 9-12. Second, in his testimony, Defendant Ammon Bundy did not dispute, and in
fact admitted, the validity of those court orders. See 10/4/2016 Rough Tr. at 220-22, and
10/5/2016 Rough Tr. at 32-34. Accordingly, as in Vega, there [is] nothing to rebut since [the
defendant] admitted the facts at issue in the governments proposed rebuttal case. Vega, 188
F.3d at 1153 & n.2. Finally, there is no evidence that Ammon or Ryan Bundy were involved in
the underlying litigation that resulted in the Bunkerville Orders, where their father represented
himself pro se, and so the governments rebuttal case on this point would appear to open a minitrial, where Defendants may need to call Cliven Bundy in surrebuttal.
II.

BLM Agent Jason Currys Report Of Bunkerville.

For its second issue on rebuttal, the government intends to call BLM Agent Jason Curry
to testify about his role in the impoundment of the cattle at Bunkerville consistent with his
report of the event. Ex. 1. Among other things, Agent Currys report describes his observations
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at Post 1 where he saw approximately 75-100 protestors arrive, a number of them with
handguns holstered on their sides. See Curry 4/15/2014 Report, attached as Exhibit 3, 6.
Later that day, Agent Curry was reassigned to Post 2, where he observed the following:
-

several protestors wearing tactical clothing, id. 8;

a large number of protestors armed with handguns worn in holsters on their hips, id.
8;

between 7-10 protestors armed with long guns in various locations, including one
who point[ed] his long gun and sw[ung] it in a sweeping motion past all of the
officers at Post 2, apparently looking through an optic or scope at officers at Post
2, id. 8-9;

a crowd of people who got in a line and advanced forward to the fence separating the
protestors from Post 2, where a number of these protestors were armed with
holstered handguns, id. 10;

BLM radio traffic authorizing the use of less lethal force options if the protestors
began to breach the fence, pointing out subjects armed with long guns, describing
different suspects pointing long guns at us, and requesting that the interstate lanes
be shut down and cleared, id. 10, 12;

BLM Agent Dan Love escorting an individual from the area of the fence back
toward the ICP, and moments later, I heard radio traffic ordering all BLM officers
move away from our posts and move back to ICP, where they were ordered to
caravan back to the Mesquite Holiday Inn for further briefing, id. 13-14; and

as the BLM officers left the ICP in a convoy, Agent Curry observed man agitated
protestors, armed with handguns holstered on their sides. Id. 15.

With the exception of the one unidentified individual who allegedly swung his rifle past
the BLM officers, apparently looking through an optic or scope at them, Agent Currys
proposed testimony is either irrelevant or redundant and cumulative of the parties prior
stipulation, Vega, 188 F.3d at 1153 & n.2, and FRE 403, where the parties stipulated that the
BLM suspended operations out of concern for its safety, after receiving information and
observing hundreds of protestors who had traveled to Bunkerville to confront the BLM,
including many openly carrying firearms who converged on the impoundment site, demanding

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that BLM personnel leave and release the impounded cattle. See 9/16/2016 Rough Tr. at 9-12.
93-94. Further, the Court will recall that it had Mr. Bundy turn the sound off during a portion of
the video played regarding Bunkerville events to avoid a third-partys narration of his
perceptions of how the BLM was going to shoot protestors. See 10/4/2016 Rough Tr. at 22, and
10/5/2016 Rough Tr. at 42-43. If Agent Curry is allowed to describe the events in question, Mr.
Bundy would request that he be allowed to play the narration previously excluded as inconsistent
with Agent Currys testimony.
Defendants further object on grounds that Mr. Bundy was only allowed to introduce
evidence of Bunkerville under the state of mind exception to hearsay, FRE 803(3), the Court
repeatedly reminding the jury throughout Mr. Bundys testimony of the limited purpose for the
testimony. While that might open the door, so to speak, to testimony evincing a different state of
mind, it does not open the door to truth of the matters presented, see Shepard v. United States,
290 U.S. 96, 103-04 (1933), especially where the Court repeatedly refused to allow Mr. Bundys
efforts to corroborate his state of mind with the statements of others at the time.
Finally, the government intends to have Agent Curry testify regarding radio
communications authorizing less lethal force, but Mr. Bundy has been informed that the
government recently produced in Nevada over 400 hours of BLM radio communications
regarding Bunkerville, including a description of the BLMs formation as a death funnel for
protestors, and at least one instance where, during the events Agent Curry is describing on April
12, 2014, a BLM agent is overheard describing the confrontation with protestors as a shootfirst-ask-questions-later situation, before being reminded that his statements were being
recorded. Courts have held that surrebuttal is merited where (1) the governments rebuttal
testimony raises a new issue, which broadens the scope of the governments case, and (2) the

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defenses proffered surrebuttal testimony is not tangential, but capable of discrediting the
essence of the governments rebuttal testimony. United States v. Murray, 736 F.3d 652, 659 (2d
Cir. 2013) (reversing conviction where the defendant was not given the opportunity to rebut the
governments rebuttal evidence) (citations omitted). If the government is permitted to have
Agent Curry testify to these matters on rebuttal, Mr. Bundy would request that he be able to
obtain a copy of the relevant recording from the 400 hours of communications and introduce it as
surrebuttal evidence.
III.

Officer Lucas McLains Testimony Regarding January 2, 2016.

The government has given notice that Harney County Deputy Lucas McLain will testify
that he was not present at any meeting at Ye Olde Castle on January 2, 2016, that he attended a
law enforcement briefing at 0700 that day and was ordered to work with a partner at all times,
identifying his partner that day as Deputy Dan Jenkins. Ex. 1. In support, the government has
produced a CAD report documenting Officer McLains activities on January 2, 2016, which is
attached hereto as Exhibit 4.
Defendants concede that evidence regarding Officer McLains activities on January 2
could be potentially relevant rebuttal, but request further information from the government
regarding Officer McLains activities on January 2. As it stands, the purported CAD report does
not show any activity for Officer McLain on January 2 no calls or anything regarding the
activities of Officer McLain or his partner that day. See Ex. 4. Sheriff Ward testified that Deputy
McLain called him that day to report Mr. Bundys vehicle traveling toward the Refuge during the
parade. See 9/14/2016 Rough Tr. at 72, 115-23. There should be at least a record of that call, and
likely more activity, given the events of that day in Harney County. As it stands, the CAD report
would contradict Officer McLains testimony regarding any events that day, calling into question
the good faith basis for the governments proffer. Accordingly, Defendants request, as a
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condition of the governments calling Officer McLain as a rebuttal witness, further discovery
regarding any reports or calls Officer McLain made that day, including phone records and any
reports to dispatch, and also that Defendants be allowed to call Officer McLains partner, Officer
Jenkins, as a potential surrebuttal witness.
IV.

Judge Grastys Testimony Regarding Community Sentiment.

The government proposes to call Judge Grasty to testify regarding community sentiment
regarding the occupation in other words, to have Judge Grasty speak to his impression of
other peoples impressions about an unknown number of people unrelated to the case with
unknown intentions who for reasons he cannot possibly know did not like something about all of
this. Really?
First, it is unclear why the government is proffering evidence that the court has already
excluded as not relevant. See Order Re: Final Pretrial Conference ECF#1171 at 4. This evidence
was irrelevant then and remains irrelevant now. Second, the government put on evidence of
community sentiment through Sheriff Ward, permitting limited testimony about Wards opinion
on a completely collateral issue that is irrelevant in the first instance, and through BLM Manager
Jeff Rose, who was permitted to testify about how Mr. Bundy brought all the people to Burns
with guns, the most guns he had ever seen in 28 years living in Burns, which was unusual to see.
See 9/16/2016 Rough Tr. at 60-63. The government does not need to rebut its own case. And a
show of hands or a request made at some meeting does not determine the outcome of a criminal
case.
Community sentiment one way or another has zero probative value. Testimony or
evidence that some of the people of Burns did not like the hundreds of protestors who were
lawfully armed and expressing constitutionally protected political views is not relevant to this
trial. Just as testimony indicating the opposite was largely irrelevant except in the few instances
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where it related to state of mind. The government continues to think that any innuendo it can
scrape up about anyone, anywhere disagreeing with the viewpoint of these defendants is
relevant.
Why Mr. Grasty denied the permit to use the fairgrounds for a meeting where Mr. Bundy
would turn over the protest to the Committee of Safety is also irrelevant. It is only the fact that it
was denied and how the denial affected the defendants state of mind that matters. We already
heard that anything else is unnecessary. The court should exclude this evidence as irrelevant
under FRE 401 and cumulative under FRE 403. Finally, if Mr. Grasty is allowed to testify,
Defendants request to cross-examine him regarding the recording of a meeting he hosted on
January 9, 2016, where he attempted to discourage elected representatives making up the COWS
delegation from visiting the Refuge, and where the D.A. of Harney County and others confirmed
that as of that date, the occupiers had not violated any state laws.
V.

Chad Karges Testimony Regarding USFWS Employees Presence At The Refuge.

The government proposes to offer in its rebuttal the exact same testimony that Mr.
Karges provided on direct testimony: that as far as he knows no employees of Fish and Wildlife
went to the Refuge from December 31, 2015 until February 17, 2016. See 9/15/2016 Rough Tr.
at 174. It had only limited relevance to begin with and it has been exhausted. It is cumulative and
unnecessary.
Whether the person defense witnesses testified about seeing was in fact a Fish and
Wildlife employee is unimportant. It was only offered for the limited purpose of showing the
defendants state of mind. The only relevant fact is that they believed it. Anything responsive
from the government is cumulative under FRE 403. And should Mr. Karges be allowed to testify
further to these issues, Defendants request disclosure of all time cards, work records and payroll
records for all employees from December 31 to February 17.
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VI.

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Agent Ben Jones Testimony To Rebut The Testimony Of Duane Schrock.

Earlier this morning, the government gave notice that it intends call Agent Ben Jones in
response to Duane Schrocks testimony about their interaction. But the government has not
produced any 302 or summary of Agent Jones interview with Mr. Schrock. Defendants would
object to interactions and statements not documented in its investigation and where it has failed
to comply with its obligations under FRCrimP 16 and the Jencks Act, 18 U.S.C. 3500.
Defendants further request information regarding any other witnesses he has interviewed since
trial started. Finally, if Agent Jones is permitted to testify further, Defendants request the ability
to cross-examine him regarding other instances of witness intimidation or regarding his
credibility generally, for example, his prior interviews with government employees contradicting
the governments position regarding the presence of employees during the occupation.
DATED: October 16, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy