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,
Plaintiff,
v.
AMMON BUNDY, et al,
Defendants.

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

DEFENDANT AMMON BUNDYS
OBJECTION AND MEMORANDUM IN
OPPOSITION TO GOVT EXHIBIT 21
District Judge Anna J. Brown

The government has argued the admissibility of its own exhibit, number 21, based upon
authenticity under the Federal Rules of Evidence Article IX Rule 901(a). As purported legal
support for its position the Government relies upon an inapposite case and incomplete
standard for a showing of authenticity. The government claims that it need only make a
prima facie showing of authenticity according to United States v. Chu Kong Yin, 935 F.2d
990, 996 (9th Cir. 1991). But, this is not the law, nor does Chu Kong Yin provide this
support. In particular, in Chu Kong Yin the question of admissibility was related to
fingerprint exemplars not an audio recording and these were only admissible in that case
because a federal agent (as recipient of the record) and a foreign government agent with
direct experience and knowledge of the records in question (the agent had supervised the
filling out of the record personally) had presented testimony that was viewed in combination
with various certifications and declarations and extrinsic evidence surrounding Fingerprint

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Exemplars. In that context there was sufficient evidence to support a finding that the records
were authentic. Id at 996. Tellingly, Chu Kong Yin does not itself examine, nor does it cite,
reference or discuss any case that examines the requisites for admission of an audio recording
in a criminal context. Of course that is the particular issue here.
Nevertheless, Chu Kong Yin does however stand for the proposition that a federal agents
testimony, even though that agent is the recipient of the record, by itself would be
insufficient extrinsic evidence to demonstrate authenticity. Id at 995. Ironically the
government seeks to admit Exhibit 21 solely based upon the testimony of Agent Walker who
has no personal knowledge of nor supervisory power over the recording that the government
seeks to admit into evidence.
I.

The standard for admission of an audio recording in a criminal context is stated

as a general rule in United States v. King.
A sound recording is admissible in a criminal trial only where the party introducing it

meets their burden and demonstrates that it is accurate. United States v. King, 587 F.2d 956,
960 (9th Cir. 1978). As a general rule in the context of a criminal trial the prosecution must
demonstrate the competency of the operator, the fidelity of the recording equipment, the
absence of material deletions, additions, or alterations in the relevant portions of the
recording, and the identification Id of the relevant speakers.
King makes clear that the government bears the burden of demonstrating that the
recording is an accurate reproduction and as a rule in a criminal trial they must show, in
addition to each element previously expressed, that there are no material deletions, additions
and or alterations. The government in this matter cannot meet that burden. The Government
cannot authenticate under the King standard because their witness lacks requisite knowledge
The government has offered an audio recording but their agent lacks knowledge sufficient to
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account for any additions or material deletions and/or the obvious possibility of editorial
alterations of the recording at issue and it is therefore unable to authenticate. This reasoning
is also supported by Chu Kong Yin, 935 F.2d at 996; where the federal agents testimony,
even though that agent is the recipient of the record, by itself is insufficient extrinsic
evidence to demonstrate authenticity, and it is also supported by United States v. Panaro, 266
F.3d 939, 951 (9th Cir.2001); stating that where the government offers an audiotape as
evidence it may be authenticated through testimony of a witness with actual knowledge that
the recording is what it purports to be, or is a true and accurate copy of the original.
In this case the government has admitted that the recording has been edited (indeed it has
been editorialized) and this becomes more troublesome where its witness has no knowledge
with respect to the competency of the operator, the fidelity of the recording equipment, nor
with original content and cannot speak as to the possible relevance and substance of absent
material, editorial deletions, additions, or any other alterations in the recording. In fact, the
government witness lacks any knowledge as to the scope or detail of the original recording or
even if an original still exists.
II.

The Government cannot meet its legal burden and so the matter cannot go
before the jury.
Contrary to what the government argues in their brief, the probative value of the

evidence can only become a matter for the jury after the government has met its burden and it
is an abuse of discretion to admit evidence that does not meet the minimum requirements for
authentication. United States v. Gadson, 763 F.3d 1189, 1204 (9th Cir. 2014), cert. denied
sub nom. Wilson v. United States, 135 S. Ct. 2350, 192 L. Ed. 2d 149 (2015), and cert.
denied, 135 S. Ct. 2350, 192 L. Ed. 2d 149 (2015).
The government also cites Ortiz for the proposition that any conflicting evidence on
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the authenticity of the evidence goes to weight, not admissibility but this is incorrect. See
United States v. Ortiz, 776 F.3d 1042, 1045 (9th Cir. 2015). In fact, Ortiz, genealogically
speaking, rises out of the cases heretofore cited on the admissibility of audio recordings in
the 9th circuit. Another legal ancestor of Ortiz states that our cases similarly indicate that
authenticity and general trustworthiness are the keystones of a proper foundation. United
States v. Mouton, 617 F.2d 1379, 138384 (9th Cir. 1980). Furthermore, [t]he burden is
properly on the offering party, here the Government, to produce clear and convincing
evidence of authenticity and accuracy as a foundation for the admission of . . .recordings.
Id. at 138384. In the case at hand the government cannot produce any evidence as to
authenticity except for the incomplete and editorialized recording itself and they cannot attest
to the accuracy of a thing where their witness has no personal knowledge of its origin,
production, or editing. Coincidentally in Mouton a recording was admissible through the
testimony of an FBI Agent but only because he was able to testify that he was responsible for
recording the calls; that the entire conversation except the initial salutation was recorded;
that only several words or phrases from the tape played to the jury were inaudible, and that as
a whole it was an accurate and complete recording of the conversations. Mouton, 617 F.2d
1379, 138384 (9th Cir. 1980). This is drastically different from the case at hand where the
governments witness did not record the call, and where the government has admitted the
recording has been edited; admits that the recording is not the entire conversation; and cannot
account for missing portions let alone attest to the nature and context of the missing content.
III.

Recording is an inadmissible duplicate under Fed. Rules Evid. Rule 1003

A duplicate is admissible instead of the original unless a genuine question is raised

about the originals authenticity or the circumstances make it unfair to admit the duplicate.
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United States v. Alexander, 326 F.2d 736 (4th Cir. 1964). And see Toho Bussan Kaisha, Ltd.
v. American President Lines, Ltd., 265 F.2d 418, 76 A.L.R.2d 1344 (2d Cir. 1959). Here a
legitimate question has been raised by the Defendant as to the authenticity of the
governments exhibit and it is unfair to admit a duplicate. United States v. Balzano, 687 F.2d
6, 78 (1st Cir. 1982).
The original must be required in this case because the remainder is needed for crossexamination or may disclose matters qualifying the part offered or otherwise useful to the
opposing party. United States v. Alexander, 326 F.2d 736 (4th Cir. 1964); Toho Bussan
Kaisha, Ltd., 265 F.2d at 418.
IV.

The recording fails as to completeness under the Fed. Rules of Evid. Rule 106
The government peculiarly argues that it has solved the problem of the incomplete or

partial recording. It has done this intentionally editing the recording even further such that
there will be no discernible edits. As if by being unable to discern that it was edited we can
all somehow pretend to believe that which is not so. However, this in fact increases the
problematic nature of the recording making it even less complete such that is now, most
assuredly, a carefully tailored snippet violative of the law. Where the changes made or
actions taken with this recording may have a material impact on the case, [s]uch intentional,
material, editing is, of course, egregiously unethical and amounts to nothing less than
subversion of justice. 23 Am. Jur. Proof of Facts 3d 315 (Originally published in 1993); see
also, United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1160 (C.D. Cal. 2008), stating
that the Rule of Completeness was designed to prevent the Government from offering a
misleadingly-tailored snippet.
The rule of completeness stands for the proposition that the statements in proper
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context results in one set of possible meanings, whereas reading the latter statement in
isolation tends to create a different meaning. There is a serious risk that presentation of only
the latter answer, separate and apart from the one before it, would distort, misrepresent, or
confuse the meaning of the Defendant's statement. United States v. Castro-Cabrera, 534 F.
Supp. 2d 1156, 1160 (C.D. Cal. 2008). Such is the case here, particularly where the
government seeks to offer this recording as a sort of admission that it believes supports the
very heart of their conspiracy narrative. Plus, as was argued in United States v. Warner, No.
02 CR 506-1, 2006 WL 2583722 (N.D. Ill. Sept. 7, 2006), aff'd, 498 F.3d 666 (7th Cir.
2007)(Unpublished), in circumstances like this it is quite likely, reasonable and possible that
the speaking party may well have qualified his answer to the questions or otherwise
provided context that cannot be [discerned] on the recordings. Here too, the "rule of
completeness" demands more. Id.
As it pertains to the Governments exhibit 21 the Defendant contends that the entire
recording is necessary without any edits to give context to the position that the government is
seeking to admit otherwise the Defendant may be entitled to a new trial based because there
is a reasonable possibility that the admission of the recording could contribute to a guilty
verdict. 23 Am. Jur. Proof of Facts 3d 315 (Originally published in 1993) referencing
Layman v. State, 728 So. 2d 814 (Fla. Dist. Ct. App. 5th Dist. 1999). The introduction of this
evidence would violate the Defendants 5th Amendment rights whereas it compels Defendant
to take the stand. Where the whole or a part of a conversation has been put in evidence by
one party, the other party is entitled to explain, vary, or contradict it. Carver v. United
States, 164 U.S. 694, 697 (1897). However, in this case given the incomplete nature of the
recording and the unavailability of the original Defendant is left with an untenable choice; to
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let the incomplete and misleading statement lie or take the stand and waive his constitutional
right. For the reasons and authority argued above, this is untenable and improper. See also
United States v. Andreas, 23 F. Supp. 2d 835, 840 (N.D. Ill. 1998); United States v.
Sivils, 920 F.2d 587, 597 (6th Cir. 1992) (Making clear it is the party proposing to introduce
the evidence that bears a strong burden to ensure that the jury is not mislead under similar
circumstances.)
Where admission of a partial recording, particularly one that could be interpreted as
containing inculpatory statements, admission burdens the Defendant with the only option of
testifying in violation of his Fifth Amendment right to avoid self-incrimination. Normally
one could allow for argument over introduction of the complete statement to inculpate but
here the government is unable to properly authenticate let alone produce the unaltered
version and therefore Defendant is forced to take the stand to rebut in indisputably
incomplete record of his own prior statements in a plainly unreliable context, and this is
impermissible. See United States v. Phillips, 596 F.3d 414, 419 (7th Cir. 2010).
CONCLUSION
The governments exhibit should not be admitted, the government admits it is
incomplete, it is part of an editorial public news broadcast, it is therefore admittedly
inaccurate, cannot be authenticated under the relevant test, and the governments witness
lacks knowledge to provide satisfactory assurances regarding the missing portions, etc., as
argued above. The recording is also an inadmissible duplicate and, under these
circumstances, admission would ultimately and unjustifiably infringe upon Defendants 5th
Amendment rights.
For all of the above stated reasons, and argument to be introduced on this matter, the
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OPPOSITION TO GOVT EXHIBIT 21.

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Governments Exhibit 21 should be rejected as inadmissible by the Court.

DATED: September 26, 2016
/s/ J. Morgan Philpot
J. Morgan Philpot
Marcus R. Mumford
Attorneys for Ammon Bundy

Page 8 of 8 | DEFENDANT AMMON BUNDYS OBJECTION AND MEMORANDUM IN

OPPOSITION TO GOVT EXHIBIT 21.