Case 3:16-cr-00051-BR

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Filed 09/07/16

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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
3:16-CR-00051-BR

UNITED STATES OF AMERICA

v.
AMMON BUNDY, et al.,

GOVERNMENTS RESPONSE
TO DEFENDANTS MOTIONS
(#1186, 1188, 1189, 1191, 1192, 1996)

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
Shawna Coxs recent motions (ECF Nos. 1186, 1188, 1189, 1191, 1192, 1996), filed on behalf of
all defendants.
First, defendant Shawna Coxs motions are untimely.

This Court directed that all first

round purely legal motions, including motions to dismiss, be filed by April 27, 2016 (ECF No.

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389) and motions to suppress be filed by June 20, 2016 (ECF No. 726).

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Federal Rule of

Criminal Procedure 12(c)(1) provides that the court may set a deadline for filing pretrial motions;
Rule 12(c)(3) authorizes the court to decline to consider untimely motions absent a showing of
good cause. See, e.g., United States v. Walden, 625 F.3d 961, 964-65 (6th Cir. 2010)
(affirming trial courts refusal to consider an untimely motion to suppress given the absence of a
legitimate explanation for the failure to timely file); United States v. Winbush, 580 F.3d 503,
508 (7th Cir. 2009) (recognizing that busy trial courts possess great authority to manage their
caseload).
Cox fails to address the good cause requirement at all.

She simply filed this latest round

of motions the day before jury selection was scheduled to begin, and she did so in contravention
of this Courts directive that all parties must meaningfully confer prior to filing motions (ECF
No. 415).

There is no good cause for this latest round of motions, which largely re-raise issues

already addressed.

Coxs motions should be denied for these fatal procedural defects alone.

Alternatively, should this Court examine the substance of Coxs late motions, they should
also be denied on the merits.

Most of them are frivolous.

Motion to Dismiss, ECF No. 1186

In her Motion, Cox asks that this Court dismiss the indictment and/or compel production
of her arrest warrant.

Her Motion to Dismiss is premised upon her misguided theory that she

has a constitutional right to a trial in Pendleton, Oregon, ostensibly because Portland-area voters
are too liberal.

Venue for criminal cases is governed by Fed. R. Crim. P. 18, which states that

the government must prosecute an offense in a district where the offense was committed.

Governments Response to Defendants Motions (#1186, 1188, 1189, 1191,

1192, 1996)

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The rule refers to a district not a division within a district, and courts have squarely rejected
defense arguments that there is any constitutional entitlement to a trial within a particular
division of a single district. Carrillo v. Squier, 137 F.2d 648 (9th Cir. 1943).

A division

within a district is not jurisdictional. Id.; see also United States v. Clark, 416 F.2d 63, 64 (9th
Cir. 1969) (confirming that transfer between divisions within a single district was not a change of
venue). Nor does a defendant have a right to a jury pulled from an entire district. United
States v. Florence, 456 F.2d 46, 49 (4th Cir. 1972).

In sum, there is nothing unlawful about the

jury pool or the location that this Court has selected for trial.
The remainder of the Motion is frivolous; Cox was arrested on federal, not state charges,
and thus she was never extradited or kidnapped by federal law enforcement agents.

Cox

fails to cite any authority for the proposition that the United States was or should be compelled to
seek civil remedies in lieu of pursuing criminal charges; whether the evidence supports the
criminal charges will be decided by the jury.
Motions for Production and for Extension of Time, ECF Nos. 1188, 1192
Cox seeks Brady material, but fails to identify anything missing from discovery already
provided. The government is aware of its obligation to produce any exculpatory, favorable
information, and it will continue to do so.
however.

Cox is not entitled to examine the prosecutors files,

The prosecutor is not required to deliver his entire file to defense counsel, but only

to disclose evidence favorable to the accused that, if suppressed, would deprive defendant of a
fair trial. United States v. Bagley, 473 U.S. 667, 674 (1985).
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Governments Response to Defendants Motions (#1186, 1188, 1189, 1191,

1192, 1996)

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Cox is also incorrect when she claims that she was never arraigned on the Superseding
Indictment.

She was arraigned on that Indictment on March 9, 2016.

(ECF No. 284).

Motion to Dismiss, ECF No. 1189

Cox asks this Court to dismiss the Indictment because she was entrapped. Although
she states that she was induced to commit the charged crimes (a position at odds with her
theory that she was lawfully seeking to adversely possess the Refuge), she fails to identify any
facts to support this theory.
Moreover, her Motion is legally flawed.

Entrapmentif viableis a question for the

jury, not the court. Matthews v. United States, 485 U.S. 58, 63 (1988). There are limited
circumstances that permit a court to grant a Rule 29 motion at the conclusion of the
governments case-in-chief if undisputed evidence makes it patently clear that an otherwise
innocent person was induced to commit the act by trickery, persuasion, or fraud of a government
agent. United States v. Sandoval-Mendoza, 472 F.3d 645, 649 (9th Cir. 2006).

But Cox fails

to identify facts that would support an entrapment defense; her Motion is factually baseless and
legally flawed and it should be denied.
Motion to Suppress, ECF No. 1191
Coxs Motion seeks to suppress evidence obtained from her electronic devices on the
grounds that they were searched incident to her arrest and without a warrant. (Def.s Br. 2).
To the contrary, the government searched defendant Coxs electronic devices pursuant to a
lawful search warrant, In the Matter of the Search of 18 Electronic Devices, No. 16-MC-217,
signed by Judge Paul Papak on April 22, 2016.

Governments Response to Defendants Motions (#1186, 1188, 1189, 1191,

1192, 1996)

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Coxs Motion is also moot.

Filed 09/07/16

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On August 30, 2016, the government and defendant Cox

filed a Stipulation which reads At the time Shawna Cox was arrested, she had in her possession
an SD card and two flash drives.

These three electronic devices contained over 500 pages of

official documents that were scanned or downloaded from files on the Malheur National Wildlife
Refuge, without the permission of the Refuges employees.

Defendants Motion is

inconsistent with this Stipulation.

Motion to Dismiss, ECF No. 1196
Cox correctly notes that a motion challenging subject matter jurisdiction may be raised at
any time.

Her Motion fails to identify any viable defects in this Indictment that would justify

dismissal. As she acknowledges, the government has already pointed out that this Courts
jurisdiction over these federal criminal charges is found in 18 U.S.C. 3231.

Rejecting the

plain language of that statute, Cox instead generally attacks the FBI agent who prepared the
original criminal Complaint, she complains that the Indictment is insufficient because it fails to
define United States or clarify whether Cox is a citizen of the United States.

She also re-

argues that venue is improper, the Grand Jury was drawn from too narrow a segment, and that
her case was improperly transferred without her consent. None of these arguments affect this
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Governments Response to Defendants Motions (#1186, 1188, 1189, 1191,

1192, 1996)

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Courts jurisdiction over this criminal case.

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Thus, although this Motion cannot be denied as

untimely, it should be denied because it lacks merit.

Dated this 7th 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 Response to Defendants Motions (#1186, 1188, 1189, 1191,

1192, 1996)

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