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,

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

Plaintiff,

DEFENDANT AMMON BUNDYS

MEMORANDUM RE: THE JURYS
CONSIDERATION OF ADMITTED
EXHIBITS IN DELIBERATIONS

v.
AMMON BUNDY, et al,
Defendants.

District Judge Anna J. Brown

Yesterday, the government informed undersigned counsel that it intends to seek a ruling
from the Court to exclude from the jurys consideration several exhibits that were offered and
received into evidence during the testimony of Ammon Bundy. Defendant Ammon Bundy
submits this brief in opposition to the governments forthcoming request.1
It appears that the government intends to base its request on the fact that some exhibits
were admitted to show Mr. Bundys state of mind, under Fed. R. Evid. 803(3). Indeed, there
were several exhibits admitted into evidence during Mr. Bundys testimony to show state of
mind, and on several occasions, at the governments request or sua sponte, the Court gave the
jury a limiting instruction accompanying the admission of such evidence. But, in contrast to Rule
803(18), which explicitly limits the receipt of statements from a learned treatise into evidence by
reading to the jury only, and Rule 803(5), which limits the receipt of recorded recollections into
1

The government did not identify the exhibits it intends to have the Court exclude. Once it
identifies those exhibits, there may be additional reasons to deny the request, and Defendant
reserves the right to supplement his opposition to the governments respect.
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evidence by reading unless the exhibit is offered by an adverse party, Rule 803(3) does not
contain a similar limitation in how evidence of the declarants then-existing state of mind (such
as motive, intent, or plan), is received into evidence and presented to the jury. Compare Fed. R.
Evid., Rule 803(3) with id., Rule 803(5) (If admitted, the record may be read into evidence but
may be received as an exhibit only if offered by an adverse party.), and id., Rule 803(18) (If
admitted, the statement may be read into evidence but not received as an exhibit.).
Upon retiring for deliberations, juries are usually allowed to take all materials
received in evidence with them into the jury room. Judge Robert E. Jones, et al., RUTTER
GROUP PRAC. GUIDE FED. CIV. TRIALS & EV. CH. 16-C, at 16:65, 16:70, 16:75, 16:77.5 (June
2016) (emphasis in original).2 This includes documents, photos, and audio and video recordings.
See United States v. Chadwell, 798 F.3d 910, 914 (9th Cir. 2015). Generally, jurors are entitled
to examine all documents properly admitted into evidence. United States v. Mohamud, 941 F.
Supp. 2d 1303, 1315 (D. Or. 2013) (King, J.); see also United States v. DeCoito, 764 F.2d 690,
695 (9th Cir. 1985) (same).
Obviously, the jury reviews evidence alone in the jury room all the time. Paper
exhibits and even physical exhibits are routinely brought into the jury room for a
criminal jury to review during deliberations. I cannot discern any difference
between recorded exhibits and paper exhibits which would require different
procedures. As explained above, the recorded exhibits here are not testimonial.
The recordings are admitted exhibits. I see no problem with giving them to the
jury during deliberations, to be played in the jury room without anyone else in
attendance.
Mohamud, 941 F. Supp. 2d at 1316-17.3 The Ninth Circuit has observed that [j]urors generally
2

This treatise notes that some courts will not send weapons to the jury room in order to
eliminate any chance of accident. Id. at 16:86 (citing United States v. Burrell, 963 F2d 976, 983
(7th Cir. 1992)).
3
Judge King explained that testimonial evidence would include trial or deposition testimony,
affidavits, questioning by law enforcement, and required production of documents for
investigative bodies, which would not be included to avoid a situation where the jury give[s]
undue emphasis to one witness over another. Mohamud, 941 F. Supp. 2d at 1315-16. In
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may examine all or part of any exhibit received into evidence and determine the weight to give
that evidence during deliberations in the privacy of the jury room. Chadwell, 798 F.3d at 914. In
Chadwell, the court affirmed the district courts discretion to send the video recording to the
jury room during deliberations and to provide the jury with the technology to view this properly
admitted video exhibit in the privacy of the jury room in the same manner that the jury is
entitled to view paper exhibits, photographs, and physical exhibits. Id. In DeCoito, the Ninth
Circuit affirmed the district courts decision to allow jurors to examine prior written statements
of two witnesses, over the defendants objections that the prior statements were essentially the
same as their oral testimony, reasoning that [j]urors are generally entitled to examine
documents properly admitted in evidence. DeCoito, 764 F.2d at 694.
Courts have observed that the situation presented by the governments request in this case
where it seeks to exclude admitted exhibits from the jurys deliberations is rare:
The situation before us, where the appellant argues that a district court has denied
a request to have the jury consult a properly admitted exhibit, seems to be rare.
More commonly, a party argues that a jury has been exposed to information not
admitted into evidence. In the latter case, to obtain a new trial, a party must show
that it was prejudiced by the improper exposure.
Deicher v. City of Evansville, Wis., 545 F.3d 537, 542 (7th Cir. 2008). In Deicher, the Seventh
Circuit reversed and remanded for new trial where the trial court failed to provide a properly
admitted exhibit to the jury during deliberations, resulting in a situation where the jury had in its
possession during deliberations exhibits which supported one sides theory but not the other side.
Id. at 543-45. Recognizing the district courts error, the court announced its holding: [W]e hold
that a new trial is required if there is a reasonable possibility that a party is prejudiced by the
Chadwell, the Ninth Circuit similarly noted that [t]he concern for avoiding undue emphasis on
particular trial testimony did not limit the discretion of the district court to send the video exhibit
to the jury room for review like all other evidentiary exhibits. Chadwell, 798 F.3d at 915
(quoting United States v. Cuozzo, 962 F.2d 945, 953 (9th Cir. 1992)).
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district courts failure to provide certain exhibits to the jury, even if the exhibits are properly
admitted. Id. at 543 (emphasis added). Similarly, in United States v. Garza, 574 F.2d 298 (5th
Cir. 1978), the Fifth Circuit held that it was an abuse of discretion to let the jury deliberate with
exhibits supporting the prosecutions theory of the case, without also giving the jury those
exhibits supporting the defendants case. Id. at 300-02; United States v. Collins, 604 F.3d 481,
489 (7th Cir. 2010) (district court does not abuse its discretion as long as it provide[s] admitted
evidence to the jury in an evenhanded manner). In applying this rule, courts are encouraged to
let the jury take into deliberations any exhibit which has been properly admitted into evidence,
is integral to the issues in the case, and [where] a party requests that the jury receive it. Deicher,
545 F.3d at 545.
The Court should apply a similar rule in this case to ensure that the jury receives all those
documents, audio and video recordings that were admitted during Defendants cross examination
of government witnesses and during the Defendants case-in-chief, with the necessary
redactions, where applicable (and consistent with how the exhibits were received in evidence).4
DATED: October 10, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

Documents or recordings admitted for a limited purpose are often sent to the jury room in
redacted form. See Judge Robert E. Jones, et al., RUTTER GROUP PRAC. GUIDE FED. CIV. TRIALS
& EV. CH. 16-C, at 16:72 (June 2016).
4