Case 3:16-cr-00051-BR

Document 1378

Filed 09/30/16

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

3:16-cr-00051-BR-5
ORDER DENYING MOTIONS
(#1206, #1207, #1208,
#1209, #1211, #1212,
#1213, #1224) FILED BY
DEFENDANT RYAN BUNDY

v.
RYAN BUNDY,
Defendant.

BROWN, Judge.
This matter comes before the Court on eight Motions filed by
Defendant Ryan Bundy on September 7, 2016 (the day that trial in
this matter began with voir dire), and on September 8, 2016.

The

government filed a Response (#1309) to Bundys Motions on

September 20, 2016.

Ryan Bundy filed a Reply (#1352) in support

of his Motions on September 27, 2016.

The Court concludes the

record is now sufficiently developed to take the Motions under

advisement without oral argument.

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ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

Case 3:16-cr-00051-BR

I.

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Motion (#1206) for Pretrial Discovery, Rule 12(b)(4) Notice,

and Summary of Expert Testimony
In his Motion (#1206) for Pretrial Discovery Defendant Ryan

Bundy makes various requests under Federal Rule of Criminal

Procedure 16.1

Throughout the course of these proceedings and in

response to similar requests, motions, and complaints from Ryan

Bundy, the government has repeatedly represented it has complied
with its Rule 16 discovery obligations and will continue to
comply with its ongoing discovery obligations.

Ryan Bundy has

not identified in his Motion (#1206) any specific evidence that

he believes is subject to the governments Rule 16 obligations,
but that the government has not produced to him.
In addition, in his Motion (#1206) Ryan Bundy requests the
government produce to him summaries of expert-witness testimony
and the qualifications of any expert witness that the government
intends to call at trial.

The government, however, has indicated

it does not intend to call any expert witnesses at trial.

Accordingly, on this record the Court DENIES Defendant Ryan
Bundys Motion (#1206) for Pretrial Discovery, Rule 12(b)(4)
Notice, and Summary of Expert Testimony.
II.

Motion (#1207) for Disclosure of Informants

Ryan Bundy also raises several issues in this Motion that

are raised more specifically in other Motions. The Court will
address those issues as related to the specific Motion.
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ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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In his Motion (#1207) for Disclosure of Informants Ryan

Bundy requests this Court issue an order requiring the government
to disclose the names and addresses of any and all informants
whom the Government has utilized in the instant case.

Ryan

Bundy relies on Rovario v. United States for the proposition that

the privilege protecting the identity of a government informant
is overcome when the disclosure of an informers identity, or of
the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination of
a cause.

353 U.S. 53, 60-61 (1957).

Ryan Bundy contends the

government must identify those informants because the government

used information derived from those sources to obtain search
warrants.
The government represents it has disclosed information
provided by confidential sources, but it does not intend to call
any of those sources as witnesses at trial.

Moreover, the

government asserts Ryan Bundy has failed to demonstrate there is

any additional information from informants that is relevant and
helpful to the defense of an accused, or is essential to a fair
determination of a cause.

Id.

At the outset the Court notes Ryan Bundys Motion is

untimely.

This is the type of Motion that is based on the

Defendants legal rights that should have been raised in the

Round One motions that were due April 27, 2016.
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See Order (#389)

ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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Document 1378

(issued Apr. 11, 2016).

Filed 09/30/16

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To the extent that Ryan Bundy was

alerted to any such issue in discovery, he should have made this

Motion in the Round Two motions that were due June 15, 2016.
Order (#523) (issued May 6, 2016).

See

Ryan Bundy has not shown good

cause why he could not file this Motion before the Round One or
Round Two motions deadlines or any sooner than the first day of
trial when he filed this Motion.

On this record, therefore, the

Court denies Ryan Bundys Motion (#1207) for Disclosure of

Informants as untimely.
In any event, the Court also denies Ryan Bundys Motion
(#1207) on the merits.

The government has a limited privilege

to withhold an informants identity.

United States v.

Henderson, 241 F.3d 638, 645 (9th Cir. 2000).

This privilege

serves several important law enforcement objectives, including

encouraging citizens to supply the government with information
concerning crimes.

Id.

To obtain disclosure, a defendant must

show a need for the information . . . and in doing so, must show
more than a mere suspicion that the informant has information
which will prove relevant and helpful to his defense, or that
will be essential to a fair trial.

Id. (quoting United States

v. Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir. 1993))(internal

citations omitted).

Balancing the defendants and the

government's interests, a district court must hold an in camera

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ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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hearing whenever the defendant makes a minimal threshold showing

that disclosure would be relevant to at least one defense.
Henderson, 241 F.3d at 645 (quoting United States v. Spires, 3
F.3d 1234, 1238 (9th Cir. 1993)).
Here Ryan Bundy has failed to make even the minimal
threshold showing that disclosure of the identities of the
governments informants would be relevant to the defense and that
an in camera review of such material would be appropriate.
Henderson, 241 F.3d at 645.

See

Although the government provided to

Ryan Bundy information disclosed by confidential sources, he has

not made any showing that the identity of any such witness is
relevant or helpful.

Moreover, the relevance of the identity of

any informant is not obvious on this record in light of the

governments representation that it will not call any informant
as a witness at trial.
On this record, therefore, the Court DENIES Ryan Bundys
Motion (#1207) for Disclosure of Informants.
III. Motion (#1208) for Discovery of Statements of Co-Defendants
and Co-Conspirators
In his Motion (#1208) Ryan Bundy requests an order
directing the government to permit inspection and copying of any
statement of any co-defendant or co-conspirator that the
government intends to offer against him under [Federal Rule of
Evidence] 801(d)(2)(E).
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ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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In its Response (#1309) the government represents it has

provided all co-defendant and co-conspirator statements to
Defendants and emphasizes the content and admissibility of
certain co-conspirator statements has already been the subject of
significant pretrial litigation.

The Court agrees.

The

admissibility of statements under Federal Rule of Evidence

801(d)(2)(E) has been a common subject of litigation in this
matter both pretrial and during trial.

There is not any basis in

the record for the Court to find that the government has failed
to disclose any statement that it had an obligation to disclose
pursuant to the Courts orders or the governments discovery
obligations.
On this record, therefore, the Court DENIES Ryan Bundys
Motion (#1208) for Discovery of Statements of Co-Defendants and
Co-Conspirators.
IV.

Motion (#1209) for Preservation of Tapes and Notes

In his Motion (#1209) for Preservation of Tapes and Notes

Ryan Bundy seeks an order requiring the government to preserve

all tape recordings or handwritten notes, reports or memoranda
of interviews or communications made in connection with this case
by the Governments investigation, the Bureau of land management,
the Federal Bureau of Investigation, and all other federal or
state and local enforcement agencies.

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Ryan Bundy generally

ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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contends such notes, reports, and memoranda may constitute

materials that are required to be disclosed under Brady v.
Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C.
3500.
In its Response (#1309) the government contends federal
agents are already obliged to maintain their rough notes (United
States v. Harris, 543 F.2d 1247 (9th Cir. 1976)), but state and
local police are not.

See State v. Armstrong, 71 Or. App. 467

(1984).
The duty of government agents to preserve notes and
memoranda regarding interviews stems from the governments
obligations under the Jencks Act.
941 F.2d 858, 860 (9th Cir. 1991).

See United States v. Durham,

Federal law-enforcement

officers are obligated to maintain their original notes taken by

[federal law-enforcement officers] during interviews with
prospective government witnesses.

Id.

State law-enforcement

officers, however, are not under a similar duty under the Jencks
Act unless those notes are otherwise in the possession of the
United States.

Id. at 861 (quoting 18 U.S.C. 3500(a)).

The governments obligations regarding the preservation of

notes, therefore, are settled law and do not require an
additional court order to establish that principle.

Moreover,

Ryan Bundy has not identified any specific witness or notes that

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ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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the government had an obligation to disclose to Defendants and

failed to do so.
Accordingly, on this record the Court DENIES Ryan Bundys
Motion (#1209) for Preservation of Tapes and Notes.
V.

Motion (#1211) for Production and Inspection of Grand Jury

Proceedings
In his Motion (#1211) for Production and Inspection of Grand

Jury Proceedings Ryan Bundy seeks inspection and copying of the

proceedings of the Grand Jury that returned the above-styled
indictment, and the proceedings of any Grand Juries that
considered the subject matter of this indictment.

Ryan Bundy

seeks this information because:

1.
Defendant believes that witnesses have testified
before the Grand Jury providing testimony relevant to
the criminal charges asserted against defendant.
2.
Transcripts of the witnesses Grand Jury testimony
would be of great assistance in enabling Defendant to
determine with particularity the nature of the
Governments charges in this case. The indictment does
not contain sufficient particulars to inform Defendant
of the evidence upon which the accusations contained
therein are based.
Def.s Mot. (#1211) at 1.

Ryan Bundy requests the transcript be

provided to him no later than 21 days prior to trial, but, as

noted, Ryan Bundy filed this Motion on the first day of jury
selection.
Grand juries operate secretly.
608 F.3d 529, 536 (9th Cir. 2010).
8 -

United States v. Navarro,

The court, however, may

ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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authorize disclosure . . . of a grand jury matter . . . at the

request of a defendant who shows that a ground may exist to
dismiss the indictment because of a matter that occurred before
the grand jury.

Fed. R. Crim. P. 6(e)(3)(E)(ii).

Discovery of

grand jury transcripts may be ordered if the party seeking

disclosure has demonstrated that a particularized need exists
that outweighs the policy of grand jury secrecy.
v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985).

United States
See also United

States v. Graham, 630 F. Appx 712, 715 (9th Cir. 2015).

If the

alleged basis for the defendants motion would not have

compelled the dismissal of the . . . indictment, then the
defendants motion for discovery of grand-jury records should be
denied.

Murray, 751 F.2d at 1533-34.

Again, the Court notes Ryan Bundys Motion is untimely.

Because Ryan Bundys Motion is based solely on his asserted legal
right to access grand-jury records, this Motion should have been
filed with the Round One motions that were due April 27, 2016.
See Order (#389)(issued Apr. 11, 2016).

Ryan Bundy has not shown

good cause for the untimely filing of this Motion.

In any event,

disclosure of any grand-jury records 21 days before trial would

have been impossible in light of the fact that Ryan Bundy filed
his Motion on the first day of trial.

Accordingly, the Court

denies Ryan Bundys Motion as untimely.

Ryan Bundys Motion is also without merit.
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Ryan Bundy has

ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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not demonstrated any particularized need for grand-jury records

that outweighs the policy of grand-jury secrecy.

Ryan Bundys

need for additional factual information regarding the charges in

this case has been addressed through voluminous discovery,
pretrial conferences, and Court orders including the Courts
Order (#614) on Defendants Motion for Bill of Particulars in
which the Court directed the government to provide each Defendant
with a statement of the primary factual basis for each Count as
to which the government intends to proceed to trial against such
Defendant and a statement as to whether the government asserts a
particular Defendants alleged criminal liability is as a
principal and/or as an aider and abettor.
On this record, therefore, the Court DENIES Defendant Ryan
Bundys Motion (#1211) for Production and Inspection of Grand
Jury Proceedings.
VI.

Motion (#1212) for Pretrial Production of Jencks Act

Material
In his Motion (#1212) for Pretrial Production of Jencks Act

Material Ryan Bundy seeks pretrial production of government

witness statements as required by the Jencks Act, 18 U.S.C.
3500.
In its Response (#1309) the government notes Ryan Bundys
Motion is untimely and at least partially moot because it was
filed on the first day of trial, and, therefore, pretrial
10 - ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,
#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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disclosure of Jencks material was impossible.

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In any event, the

government represents it has complied with all of its duties

under the Jencks Act.
Again, the Court notes this Motion is untimely.

To the

extent that Ryan Bundy seeks pretrial disclosure of Jencks Act

material, that Motion is untimely because the Motion was not
filed until the first day of trial.

To the extent that Ryan

Bundy seeks disclosure of Jencks material during trial, there is

not any evidence in the record to contradict the governments
representation that it has fulfilled its obligations under the
Jencks Act.
On this record, therefore, the Court DENIES Ryan Bundys
Motion (#1212) for Pretrial Production of Jencks Act Material.
VII. Omnibus Motion (#1213) of Ryan Bundy
In his Omnibus Motion (#1213) Ryan Bundy makes several
requests concerning matters that have already been addressed in
this case, including requests for all Rule 16 discovery, a
pretrial hearing regarding co-conspirator statements, witness and
exhibit lists form the government, an order for law enforcement
to retain rough notes, the names and addresses of witnesses and
informants, and grand-jury transcripts.

Each of these matters

has been addressed previously in this case, and Ryan Bundys

Omnibus Motion does not raise any basis on which to revisit any

11 - ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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such issue.
In addition, Ryan Bundy moves to suppress unspecified
physical and testimonial evidence on the basis that Bundys
arrest was illegal and that he was not arraigned on the
Superseding Indictment (#282).

On January 26, 2016, Magistrate

Judge Stacie F. Beckerman issued an Arrest Warrant (#6) for Ryan

Bundy.

Ryan Bundy was arrested on January 26, 2016, based on

probable cause to believe that he had committed a crime.

On

February 3, 2016, a grand jury issued an Indictment (#58) in

which Ryan Bundy was named in one count of Conspiracy to Impede
Officers of the United States in violation of 18 U.S.C. 372.
In addition, on March 8, 2016, a grand jury issued a Superseding
Indictment in which Ryan Bundy was named in one count of
Conspiracy to Impede Officers of the United States in violation
of 18 U.S.C. 372, one count of Possession of Firearms and
Dangerous Weapons in Federal Facilities in violation of 18 U.S.C.
930(b), and one count of Theft of Government Property in
violation of 18 U.S.C. 641.

Ryan Bundy was arraigned on the

Superseding Indictment on March 9, 2016.

Ryan Bundy, therefore,

has failed to demonstrate his arrest was unlawful or otherwise to

establish any basis to suppress any evidence.
Ryan Bundy also moves to suppress statements that he made
during a custodial interrogation in violation of the Fifth
Amendment to the United States Constitution.

Ryan Bundy,

12 - ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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however, fails to identify the statements that he made during any

such custodial interrogation.

Accordingly, Ryan Bundy has failed

to demonstrate suppression is appropriate as to any such

statement.
On this record, therefore, the Court DENIES the Omnibus
Motion (#1213) of Ryan Bundy.
VIII. Motion (#1224) for Discovery and Inspection of List of
Government Witnesses
In his Motion (#1224) for Discovery and Inspection of List
of Government Witnesses, Ryan Bundy requests the government to
deliver, within 3 days prior to trial, a list of all witnesses
that it intends to use in its case-in-chief at the trial and to
supplement that list in the event the government discovers
additional witnesses.
Pursuant to the Courts direction, the government filed a
Witness List (#961) on July 29, 2016.

In addition, on August 26,

2016, the government filed a First Amended Witness List (#1147).

Those lists are sufficient to satisfy the governments
obligations under this Courts orders.
Accordingly, on this record the Court DENIES Ryan Bundys
Motion (#1224) for Discovery and Inspection of List of Government
Witnesses.

CONCLUSION
13 - ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,
#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY

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For these reasons, the Court DENIES Defendant Ryan Bundys

Motion (#1206) for Pretrial Discovery, Motion (#1207) for
Disclosure of Informants, Motion (#1208) for Discovery of
Statements of Co-Defendants and Co-Conspirators, Motion (#1209)
for Preservation of Tapes and Notes, Motion (#1211) for
Production and Inspection of Grand Jury Proceedings, Motion
(#1212) for Pretrial Production of Jencks Act Material, Omnibus
Motion (#1213) of Ryan Bundy, and Motion (#1224) for Discovery
and Inspection of List of Government Witnesses.
IT IS SO ORDERED.
DATED this 30th day of September, 2016.

/s/ Anna J. Brown

ANNA J. BROWN
United States District Judge

14 - ORDER DENYING MOTIONS (#1206, #1207, #1208, #1209, #1211,

#1212, #1213, #1224) FILED BY DEFENDANT RYAN BUNDY