Case 3:16-cr-00051-BR

Document 1014

Filed 08/10/16

Page 1 of 6

Lisa A. Maxfield OSB 84433

Pacific Northwest Law, LLP
1420 World Trade Center
121 S.W. Salmon Street
Portland, Oregon 97204
t. 503.222.2661 f. 503.222.2864
lamaxfield@pacificnwlaw.com
Attorney for Defendant Neil Wampler

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
NEIL WAMPLER,
Defendant.

3:16-cr-00051-BR
MOTION IN LIMINE TO
EXCLUDE DEFENDANT
WAMPLERS PRIOR
STATEMENTS OF PROTEST

The Defendant, Neil Wampler, through counsel Pacific Northwest Law, LLP
and Lisa A. Maxfield hereby moves this Court in limine for an order excluding
evidence of two offensive emails sent to the Harney County sheriff six weeks
before the occupation of the Malheur Wildlife Refuge (hereafter, the Refuge). He
makes his motion on the grounds that the evidence is improper propensity
evidence and its probative value is substantially outweighed by the prejudicial
impact.
United States v. Neil Wampler 3:16-cr-00051-BR
MOTION IN LIMINE

PACIFIC NORTHWEST LAW, LLP

1420 World Trade Center 121 S.W. Salmon Street
Portland, Oregon 97204

Case 3:16-cr-00051-BR

Document 1014

Filed 08/10/16

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Factual Background
In November 2015, there were numerous online posts about Dwight and
Steve Hammond, two Oregon ranchers labeled by federal prosecutors as
terrorists and sentenced to five-year mandatory prison terms for a fire that
burned BLM land. The posts urged readers to write to the Harney County Sheriff
and insist that he intervene to protect the Hammonds from going to prison.
On November 17, 2015, Sheriff Ward received an email from Neil
Wampler. It urged the Sheriff to protect the Hammonds from an abusive and
corrupt government cabal and warned that, if he did not, Harney County would be
invaded by some of the most determined and organized and armed - citizens
alive in this country today.1
On November 21, 2015, Sheriff Ward received a second email complaining
about the most recent threats to the Hammonds by fed agents and warning the
sheriff our determination to protect the Hammonds is no bluff. Hundreds of
armed citizens - including yours truly - are prepped and waiting for the call.2
On January 2, 2016, Mr. Wampler, who did not possess a firearm, travelled
to Burns, Oregon to join several hundred others in a political parade through
Burns protesting the federal government overreach that resulted in mandatory
1

Governments proposed Exhibit 54, an email to Dave Ward reads: Sheriff Ward; With all due respect,
your alternatives in handling the Hammond case have narrowed to: #1 Protect your consituents (sic) from
an abusive and corrupt government cabal. #2 See your county invaded by some of the most determined
and organized and armed - citizens alive in this country today. The Bundys have sent out a nationwide
alert, and if you have any doubts about what this means, I suggest you ask Sheriff Gilbertson of Clark Co
Nevada. We are high-stakes players sheriff, and are perfectly willing to raise the bet. Neil Wampler ... Los
Oso Ca.
2
Governments proposed Exhibit 55, an email to Dave Ward reads: Sheriff Ward: Are the most recent
threats to the Hammonds - by fed agents - simply bluff and bluster? I assure you that our determination to
protect the Hammonds is no bluff. Your recent interview with Bruce McFarlane and the JoCo oathkeepers
was only the tip of the iceberg. Hundreds of armed citizens - including yours truly - are prepped and waiting
for the call. WE AIN'T PLAYIN! As Sheriff Poindexter said, let the chips fall where they may
............................ .
United States v. Neil Wampler 3:16-cr-00051-BR
MOTION IN LIMINE

PACIFIC NORTHWEST LAW, LLP

1420 World Trade Center 121 S.W. Salmon Street
Portland, Oregon 97204

Case 3:16-cr-00051-BR

Document 1014

Filed 08/10/16

Page 3 of 6

minimum prison terms for the Hammonds. During the protest, Mr. Wampler was
wholly unaware that earlier that morning, Ammon Bundy had convened a
confidential leadership meeting to propose for the very first time his plan to
occupy the Malheur National Wildlife Refuge. Dkt. 892, Joint Motion For Pretrial
of Defendants Ammon Bundy and Ryan Bundy, p. 6.
The government seeks to admit the November emails to the local sheriff to
prove that in January Mr. Wampler agreed to prevent officers of the United
States Fish and Wildlife Service, an agency within the Department of Interior, from
discharging their duties at the Malheur National Wildlife Refuge and to
accomplish that objective by using force, intimidation or (true) threats. Mr.
Wampler moves to exclude the emails.
Legal Argument
As the proponent of the evidence, the governments first duty is to identify
with specificity the purpose for which this evidence is admissible. Neither of the
November emails contains any evidence Mr. Wampler made a criminal agreement
to prevent Fish and Wildlife officers from discharging their duties at the Refuge.
The November statements are neither direct evidence of the charged
conspiracy, nor were they made in furtherance of it. [See Dkt. 1000, Defendant
Frys Motion in Limine, p. 3, citing authority for the principle that a statement
made before the declarant joined the conspiracy cannot fall within the coconspirator rule.] Despite the allegation in the indictment that the conspiracy
began on November 5, 2016, there is no evidence in over eight terabytes of
government discovery to support that claim. Even if others had agreed to impede

United States v. Neil Wampler 3:16-cr-00051-BR

MOTION IN LIMINE

PACIFIC NORTHWEST LAW, LLP

1420 World Trade Center 121 S.W. Salmon Street
Portland, Oregon 97204

Case 3:16-cr-00051-BR

Document 1014

Filed 08/10/16

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Fish & Wildlife officers, Neil Wampler was not aware of such a plan on the dates
the emails were sent to Sheriff Ward.3
The November emails are not inextricably intertwined with the charged
offense. They are separate from it. The November statements are not evidentiary
admissions that are inconsistent with Mr. Wamplers plea of not guilty. Instead,
the November statements are prior political expression whose only probative
value is to show Mr. Wampler has a proclivity to brazenly challenge government
authorities and an ongoing association with patriot or liberty causes. Many
jurors will disagree with those political views so the statements are harmful to
him now.
Aside from proclivity, if the government were able to demonstrate an
accepted logical basis for the November emails, there still would be a need for
the court to balance any probative value against the counterweights: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence. FRE 403.
Here the government does not need the November emails to show Mr.
Wampler was politically aligned with Ammon Bundy, that he shared many of
Bundys views about federal overreach or that he was motivated to protest. The
governments trial memo says it will prove Mr. Wampler was at the Refuge from
Day One. Such early presence is strong circumstantial proof of Mr. Wamplers
association with Ammon Bundy and the political causes he supports.
Additionally, the government intends to introduce a January 4, 2016
Brietbart interview of Mr. Wampler in which he plainly states he was at the Refuge
in the effort against federal overreach and in sympathy and support of the
3

According to government discovery, many of the defendants were similarly uninformed.

United States v. Neil Wampler 3:16-cr-00051-BR

MOTION IN LIMINE

PACIFIC NORTHWEST LAW, LLP

1420 World Trade Center 121 S.W. Salmon Street
Portland, Oregon 97204

Case 3:16-cr-00051-BR

Document 1014

Filed 08/10/16

Page 5 of 6

Hammonds and also over the general out-of-control, ever-encroaching nature that
the federal government has displayed over a long, long period of time. It simply
has to stop! In the video, Mr. Wampler also states that he was at other armed
protests, including Bundy Ranch. Aside from propensity, the November emails can
offer little of any relevance beyond what other evidence will establish.
Turning to the other side of the FRE 403 measure, this Court should
consider that the unfair prejudice to Mr. Wampler is greater than usual because
his November statements were protected political speech.4 See United States v.
Ring, 706 F.3d 460, 473-474 (D.C. Cir. 2013) (finding that First Amendment
concerns might justify placing a thumb on the prejudice and confusion side of
the scale.) See, also, Brandenburg v Ohio, 395 U.S. 444 (1969). Permitting the
jury to draw adverse inferences from prior statements that were not true threats
will create a substantial risk of confusing and misleading the jury by suggesting
that a criminal threat can be something less than an unequivocal, serious
expression of an imminent intent to harm or assault another. See authority cited
in Defendants motions to dismiss count one for overbreadth (Dkt. No. 474) and
vagueness (Dkt. Nos. 471 & 477).
Additionally, there is the very real risk the jury will use the evidence for its
more intuitive and impermissible value, concluding that if Mr. Wampler made a
two vague threats to a county sheriff he is more likely to have threatened a
federal officer who works at the Refuge.
///

The government has conceded that to protest the Hammonds sentences and the governments
public land ownership were lawful pursuits entitled to First Amendment protection. Dkt. 958,
Governments Trial Brief, p. 20.
United States v. Neil Wampler 3:16-cr-00051-BR
MOTION IN LIMINE

PACIFIC NORTHWEST LAW, LLP

1420 World Trade Center 121 S.W. Salmon Street
Portland, Oregon 97204

Case 3:16-cr-00051-BR

Document 1014

Filed 08/10/16

Page 6 of 6

Conclusion
The November emails are not directly related to any issue in controversy in
this case. To the extent the emails are minimally relevant, they are redundant of
other evidence the state intends to offer. Admitting the emails will invite the jury
to convict Mr. Wampler based upon prior protected, albeit brazen, political
expression, rather than on substantive evidence that establishes he joined the
conspiracy for which he is charged. For these reasons, this Court should exclude
the evidence.
Respectfully submitted this 10TH day of AUGUST, 2016.
PACIFIC NORTHWEST LAW, LLP
/s/ Lisa A. Maxfield
Lisa A. Maxfield Partner 84433
Attorney for Defendant Neil Wampler
t. 503.222.2661 f. 503.222.2864
lamaxfield@pacificnwlaw.com

United States v. Neil Wampler 3:16-cr-00051-BR

MOTION IN LIMINE

PACIFIC NORTHWEST LAW, LLP

1420 World Trade Center 121 S.W. Salmon Street
Portland, Oregon 97204