Case 3:16-cr-00051-BR

Document 1281

Filed 09/15/16

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Tiffany A. Harris OSB 02318

Attorney at Law

333 SW Talor St., Suite 300

Portland, Oregon 97204
t. 503.782.4788
tiff@harrisdefense.com
Standby Counsel for Defendant Shawna Cox

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND
UNITED STATES OF AMERICA,
Plaintiff,
v.
SHAWNA COX,
Defendant.

3:16-CR-00051-BR-7
MOTION FOR
RECONSIDERATION
REGARDING GOVERNMENT
EXHIBIT 107; OR IN THE
ALTERNATIVE FOR
LIMITING INSTRUCTION

Defendant Shawna Cox, by and through standby counsel, Tiffany A. Harris, respectfully
requests that the Court reconsider its ruling regarding the admission of Exhibit 107 through
Government witness Chad Karges. In the alternative, Ms. Cox requests that the Court issue the
following limiting instruction:
As the Court knows from the parties opening statements, the central, disputed fact
regarding count 1 is the charged defendants state of mind-- whether any of them formed an
agreement to use force, threat or intimidation to impede refuge employees. The Government
seeks to prove that there was, based largely on the circumstances of the occupation, itself.
Government Exhibit 107 is, at best, marginally relevant and unfairly prejudicial.
The photo depicts a group of ten men-- nine of whom are unidentified (some of whom
cannot be identified at all because of dark glasses, neck gators, and other articles obscuring their
USDC Oregon Case 3:16-cr-00051-BR
Motion for Reconsideration

Case 3:16-cr-00051-BR

Document 1281

Filed 09/15/16

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faces). As the Court noted, the men depicted in the photo are wearing military garb, armed with
long guns and posing side by side, in two rows. They are reportedly pictured at the Narrows RV
park, roughly seven miles away from the refuge. The Government witness who will testify about
the photo will have no personal knowledge of facts revealing who took it, when it was taken, or
under what circumstances. He will testify that the photo was taken during the course of the
occupation, based upon his familiarity with the Narrows1, and his assumption that there would
not have been this much firepower there at any other time-- not because he saw the photo
being taken or had any contact with subjects.
The photo works a unique kind of prejudice against the defendants in this case. On the
one hand, it invites the attenuated and unfair inference that the charged defendants involved
themselves in or requested a paramilitary operation. On the other hand, it unfairly limits the
defendants ability to attack that inference because so little is known (or will be disclosed) about
the identities of the men in the photo, the photos origin, etc.
The photo is especially prejudicial to Ms. Cox who disputes that she was ever armed
during the occupation. It is unclear, at this point, whether the Government will call any
eyewitness to suggest that she was, and there are no photographs or other physical evidence
establishing that she possessed a gun at the refuge. The Government has indicated that, even in
the absence of such evidence of personal possession, it will proceed against Ms. Cox on count 2,
based on an aid and abet theory. This photo is unfairly prejudicial to Ms. Cox in that context as
well. For these reasons, we respectfully ask the Court to reconsider its ruling on Exhibit 107.
In the alternative, defendants request that the Court give the following limiting
instruction:
In determining what, if any weight to give to photographic Exhibit 107, you must first
find that (1) the conspiracy alleged in this case was in existence at the time the photograph was
taken; (2) that the defendants on trial were part of the same conspiracy as one or more people
1

Without hearing the testimony, we assume the witness familiarity with the Narrows is limited to driving past it
during his commute to work at the refuge.
USDC Oregon Case 3:16-cr-00051-BR
Motion for Reconsideration

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depicted in Exhibit 107; and (3) the acts depicted in Exhibit 107 were done during and in
furtherance of that conspiracy.

Respectfully submitted
with approval from pro se defendant, Ms. Cox
on August 15, 2016
/S/
Tiffany Harris
Tiffany A. Harris, Attorney at Law
Standby Counsel for Defendant Shawna Cox

USDC Oregon Case 3:16-cr-00051-BR

Motion for Reconsideration