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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


MOTION TO INSPECT, COPY &
REPRODUCE RECORDS
PERTAINING TO THE SELECTION
OF BOTH THE GRAND AND PETIT
JURIES OF THIS CASE 1
Judge: Hon. Anna J. Brown

Defendant Ammon Bundy respectfully moves the Court for an order allowing him
to inspect, copy and reproduce records pertaining to the selection of the grand and petit
juries of this case, including all jury minutes, rolls, the master wheel, and all other
records pertaining to jury selection processes and including the Courts recent emails,
text messages, hand-written notes, files, voicemail messages, postage and mail logs.
Certification of Conferral: Undersigned counsel certifies that an explanation of
this motion and the grounds for relief was communicated to the government, and on July
22, 2016, Assistant United States Attorney Ethan Night has stated that the governments

The U.S. District of Oregons approved Jury Plan provides, at Section 4.11, that
disclosure of jury selection information will be provided upon motion directed to the
Chief Judge, setting forth grounds why disclosure should be allowed. This motion is
made simultaneously to both the Honorable Judge Anna Brown and to the Chief Judge.

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position is: The government opposes defendants motion regarding grand jury materials.
It is also the governments position that the Courts prior rulings on this matters [sic]
substantively address any additional claims.
Grounds for Relief: Defendant Ryan Bundy previously filed a Motion (Doc.
481) for inspection of grand-jury selection records pursuant to 28 U.S.C. 1867(f) and
28 U.S.C. 1868. The Court denied the motion as moot (Doc. 576), referencing a
declaration by the Jury Administrator. This motion both renews and expands that initial
request.
Defendant Ammon Bundy is in the process of preparing a challenge to the jury
selection processes pertaining to both the grand juries and the petit jury being selected for
the Sept. 2016 trial date. Significantly, during this period, the Jury Selection and Service
Act, at 28 U.S.C. 1867(f) expressly permits an inspection of all jury selection records,
and the opportunity to reproduce and copy these records at all reasonable times.
Further, the United States Supreme Court, as argued in the accompanying Memorandum
of Law and Authority in Support of this Motion, has held that this is essentially an
unqualified right of inspection, without the intervening discretion of the court.
Respectfully submitted this 22nd day of July, 2016.
/s/ Marcus R. Mumford
Marcus R. Mumford
Attorney for Ammon Bundy
/s/ J. Morgan Philpot
J. Morgan Philpot
Attorney for Ammon Bundy

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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


MEMORANDUM IN SUPPORT OF
DEFENDANT AMMON BUNDYS
MOTION TO INSPECT, COPY &
REPRODUCE RECORDS
PERTAINING TO THE SELECTION
OF BOTH THE GRAND AND PETIT
JURIES OF THIS CASE 2
Judge: Hon. Anna J. Brown

MEMORANDUM IN SUPPORT
Defendants in a federal criminal case have an unqualified right at any time prior
to voir dire, to inspect jury selection records pertaining to both the grand and petit juries
involved in their criminal case, pursuant to 28 U.S.C. 1867(f) and 28 U.S.C. 1868.
Several federal district courts have attempted, but failed, to limit or qualify this right, or
to require a showing by defendants justifying the extension of resources necessary to
facilitate a full and unfettered inspection of all jury selection records. However, the law
is clear. Defendants are not required, by law or any rule, to preview their concerns or
2

The U.S. District of Oregons approved Jury Plan provides, at Section 4.11, that
disclosure of jury selection information will be provided upon motion directed to the
Chief Judge, setting forth grounds why disclosure should be allowed. This motion is
made simultaneously to both the Honorable Judge Anna Brown and to the Chief Judge.
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advance purported or speculative grounds for any future motion challenging the jury
selection processes. The Court must simply accommodate the request for inspection,
when it is timely made. As thoroughly explained by both the United States Supreme
Court and the Ninth Circuit Court of Appeals, the statute provides an essentially
unqualified right to inspect the jury selection records, at all reasonable times, during the
preparation of a challenge to both grand jury and petit jury selection procedures.
In this case, the Court previously referenced the Jury Administrators declaration
as a substitute for inspection. See Doc. 576 at 506. Respectfully, as addressed below,
this was legal error. In any event, it is insufficient relief for Defendants present motion.
A.

The Right To Inspect, Reproduce and Copy Jury Selection


Records is Unqualified as a Matter of Law.3

Simply, there is no provision allowing the government or the Court to cabin a


lawful request under 28 U.S.C. 1867(f). This issue was specifically decided by the
United States Supreme Court as far back as 1975, when it concluded that independent of
a defendants stated purpose, he has an unqualified right to inspection based upon the
language of the statute and the policies supported by it. Test v. United States, 420 U.S.

While Defendant has endeavored with diligence to review the information


provided by the Jury Administrator, the Court fell short of the laws requirement when it
denied the prior motion as moot because the Jury Administrators Declaration
provides sufficient information for Ryan Bundy to determine whether the grand jury was
made up of grand jurors from the vicinage of the alleged offense. Id. First, as this Court
has previously ordered, all motions filed are joined by all defendants unless otherwise
indicated, so it was not just Defendant Ryan Bundys right to inspect, reproduce and copy
that was it issue. Second, it is the content of the records, and an actual inspection
related thereto including specifically the right to reproduce and copy such records and
papers at all reasonable times that is it issue. Further, the Jury Administrators
declaration is expressly insufficient based upon Night Circuit cases making clear that this
statute includes, the right to inspect the grand jury panel and the master wheel and
their contents. United States v. Armstrong, 621 F.2d 951, 955 (9th Cir. 1980).
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28, 29, 95 S. Ct. 749, 750 (1975). In Test, prior to trial, the defendant had filed a motion
to dismiss alleging that the master lists from which his grand jury had been drawn (and
from which the petit jury would also be selected) systematically excluded
disproportionate numbers of people with Spanish surnames, students, and blacks. Id. at
29. Dismissal was argued pursuant to his Sixth Amendment right to an impartial jury
and provisions of the Jury Selection and Service Act of 1968.

Attached to his motion

was, inter alia, a motion requesting permission to inspect and copy the jury lists
pertaining to the grand and petit juries in the instant indictment. Id. The defendant had
argued that inspection was necessary for discovering evidence to buttress his claims.
Id. His request for inspection was denied. Id. He renewed his arguments before the
Tenth Circuit, but his claims were again ignored. Id. The Supreme Court granted
certiorari specifically for deciding whether the Jury Selection and Service Act required
that petitioner be permitted to inspect the jury selection records. Id.; see also 417
U.S. 967, 95 S. Ct. 3170. (Emphasis added). In its ruling, the Supreme Court enforced
the plain language of the statute, affirming that any party to a case shall be allowed to
inspect, reproduce, and copy such records or papers at all reasonable times as
essentially an unqualified right. Id. at 30. (Emphasis added.)
The governments prior position (and the Courts prior order) cabining the prior
request in the present case, to only one of the stated purposes (exploring the question of
vicinage), and purporting that this purpose was fulfilled by a declaration from the Jury
Administrator, plainly does not comply with the Supreme Courts express precedent on
the question. [W]ithout inspection, a party almost invariably would be unable to
determine whether he has a potentially meritorious jury challenge. Id. ([A]n

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unqualified right to inspecting is required not only by the plain language of the statute,
but by the statutes overall purpose of insuring grand and petit juries selected at random
from a fair cross section of the community. 28 U.S.C. s 1861.)
In this case, the right to inspect jury selection records is more urgent now, given
the pendency of the September trial date.

The Ninth Circuit has made clear that where a

future inspection cannot correct the plain prior error of a court which impermissibly
denies a motion to inspect, that denial is grounds for reversal after trial. United States
v. Washington, 819 F.2d 221, 225 (9th Cir. 1987). Further, there are other rights affected
directly by the Courts treatment of this issue in this case. If inspection reveals grounds
upon which to challenge the jury selection, a defendant may file a motion challenging
the jury selection or, dismissing the indictment. United States v. Studley, 783 F.2d 934,
938 (9th Cir. 1986).
Given the current limits of pretrial incarceration this prejudice grows even more
problematic with the pass of each day, because Defendant (and presumably the other
defendants joined automatically hereto) needs time to pursue these rights before the
prejudice compounds, and to make a motion to stay or dismiss prior to trial. People
of Territory of Guam v. Palomo, 511 F.2d 255, 258 (9th Cir. 1975).
B. This Motion Includes Information Not Previously Available.
Since the prior motion, new jury selection processes have begun for the petit jury.
Defendant is also entitled to inspect records pertaining thereto. Thus, in addition to his
pending right to challenge the past indictment(s) based upon unlawful conditions
affecting grand jury selection, he also has a right to preemptively examine and prepare a
motion related to the present efforts to select a petit jury including a motion to stay

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the September trial date. Id.

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Further, as the Court has been directly involved and

communicated regularly regarding the processes to select the petit jury this motion
covers new material not previously available, including specifically, the contents of
records or papers used by the jury commission or court in connection with the jury
selection process. United States v. Beaty, 465 F.2d 1376 (9th Cir. 1972)(Emphasis
Added). Therefore, Defendant respectfully requests that upon granting this motion the
Court also make available all emails, text messages, hand-written notes, files, voicemail
messages, logs, and all other communications and records used by the Court in
connection with the jury selection process and that such disclosure be continuing. Id.
C. This Motion Is Timely By Statute and Ninth Circuit Precedent.
Though the prior motion was denied as moot, the law commands that inspection
be allowed at at all reasonable times and does not limit the issue to one request at one
specified time. This motion is timely. First, its timely because the prior request was not
granted, and defendants have an unqualified right that does not terminate simply by the
Courts prior error. Second, its timely because the same statute permits a jury challenge
any time before the voir dire examination begins, Beaty, 465 F.2d at 1379. And, 28
U.S.C. 1867(f) relates to inspection of jury selection records before a defendant is
required to file his challenge to the jury selection process. Third, its timely because new
information, not available previously, is included in the request.
The law provides no exceptions. In Beaty, after a prison escapee, Ronald Wayne
Beaty, hijacked a car at knife point and led authorities on a high-speed interstate flight
(with hostages in tow) that ended in a dramatic crash, he was tried and convicted for,
among other things, transporting kidnapped persons and aiding escape and arrest. He

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was sentenced to twenty years. Prior to his trial however, like this case, there was a prior
motion for inspection of the jury selection records. Like this case, the court erred and
denied the motion. Beaty, 465 F.2d at 1379. But, in Beaty, the basis of the courts error
wasnt a claim that the request was moot, it was that the motion constituted a fishing
expedition with no justification shown and [] apparently made for the purpose of delay.
Id. Also, similar to the instant circumstances, the defendant in Beaty recognized the
Courts error and filed a second motion approximately one month later. In his second
motion, Beaty argued that 28 U.S.C. 1867(a) permits a jury challenge any time before
the voir dire examination begins and that 28 U.S.C. 1867(f) requires the inspection of
records before the challenge motion, and requires inspection of records in the possession
of the clerk. Id. The court in Beaty denied the second motion for an unlimited
inspection of the jury records and subsequently amended its denial to include the
explanation that the records were being currently used and that the records numbered
in the thousands and would therefore take considerable time to inspect, and that no
facts had been given to the court to show a probability of merit to the proposed jury
challenge and finally that the granting of the motion would create serious security
problems and interfere with the United States Marshals responsibility for prisoner
security. Beaty, 465 F.2d at 1380. On appeal, all of these purported exceptions were
found to be impermissible restrictions, and in error. Id. The Ninth Circuit also ruled
that the contents of the records was the subject of inspection preventing the prior
position taken in this Court, in this case, when it entered a finding of moot-ness. Like
the trial court in Beaty, this Courts prior order concluding that the Jury Administrators
Declaration provides sufficient information is an impermissible qualification of the

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unqualified right a Defendant has to inspect the content of the jury selection records.
No defendant is required to accept facts as declared by a government officer or employee.
In Beaty, the Ninth Circuit also concluded, It is true that appellant was a felon
who had suffered four prior convictions and had served many years in prison [] [but
he] was right in asserting that he had a right to make the inspection before he made a
motion to challenge the jury under 1867(a) which is timely any time prior to voir dire.
Beaty, 465 F.2d at 1381-82. This inspection is necessary for the preparation of a
challenge to the indictment and to the selection process of the petit jury, based upon
failure to comply with the Jury Selection and Service Act and applicable federal law.
No further grounds are required. See Test, 420 U.S. at 29 (Rejecting any
qualifications or requirements for inspection, holding the right to inspect was
essentially unqualified); Beaty, 465 F.2d at 1379 (Expressly rejecting a no
justification shown or fishing expedition argument to limit or qualify the right to
unlimited inspection. See also United States v. Alden, 776 F.2d 771, 773 (8th Cir.
1985)(To avail himself of the right of access to otherwise unpublic jury selection
records, a litigant need only allege that he is preparing a motion challenging the jury
selection procedures [] [and he] may not be denied because it is unsupported by a
sworn statement of facts which, if true, would constitute a substantial failure to comply
[] [n]or may a motion to inspect be denied because the defendant fails to allege facts
which show a probability of merit in the proposed jury challenge.)
The Courts own statements are also at issue in this request, based upon its
statements already weighing on this subject of jury selection processes in this case. First,
the Court has observed that, [T]he underlying events [related to the charged conspiracy]

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took place in Malheur County in January and February of this year [] the September 7,
2016, trial is set to take place in Portland, Oregon, which is geographically quite remote
from the community in which the underlying event took place. Doc. No. 389, at p. 7.
Second, the Court has recently declared that the Court has drawn its jury pool by
initially summonsing [sic] 1,500 jurors from the entirety of the District of Oregon and not
only from the Portland Division where court has convened for this case. Doc. 884, p.
4-5. Third, the Court has also stated that it has observed the media coverage of this
case, agreed that it has been extensive and concluded that much of the traditional
media coverage has not contained confession or other blatantly prejudicial information
of the type readers or viewers could not reasonably be expected to shut from sight and
has concluded that [w]hether the Court is capable of seating an impartial jury will be
determined during a voir dire process. Id. at p. 4, 5 and 9. 4

The Court made this

statement prior to the publicity that the government sought and obtained after the most
recent detention hearing where Defendant Ryan Bundy sought to revoke pretrial
detention, and the government opposed, in part, by referencing his alleged efforts several
months ago, to braid a 12 to 15 foot rope made from bed sheets as a gratuitously
characterized escape attempt from the sixth story of a metropolitan detention center. 5
The Court has also, in addition to any other records at issue, sent and received emails to

Defendant notes: In its order, at doc. 884, the Court makes no reference to the
repeat media coverage of several recent plea agreements, or the inclusion of confessing
statements made in open court based upon the Courts requirement that defendants
changing their plea to guilty describe the basis for that plea in open court.
5
See Matsumoto, Samantha Ryan Bundys 15-foot escape plan comes up short.
The Oregonian. Published July 19, 2016.
http://www.oregonlive.com/portland/index.ssf/2016/07/ryan_bundys_15foot_rope_proba.html (Last Visited July 22, 2016.)
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and from defense counsel in this case, related specifically to the jury selection process.
Pursuant to 28 U.S.C. 1861 et seq, all of these statements are subject to challenge and
verification by Defendant, including specifically the inspection described above, so that it
may be discovered what grounds exist, if any, for Defendants ultimate decision to bring
motions challenging jury-selection and/or selection procedures. Test, 420 U.S. 28.
Conclusion
These records at issue presumably number in the thousands, and the process to
legitimately pursue this right will obviously take substantial time. The inspection could
also reveal grounds, inter alia, to stay the proceedings, Beaty, 465 F.2d at 1381, to
challenge the jury in advance of trial, and to dismiss the pending indictments. Id.; See
also People of Territory of Guam, 511 F.2d at 257.
Defendant is not satisfied with the Jury Administrators declaration regarding
some of the records, particularly when he is entitled to inspect, reproduce and copy
the content of all the records. Alden, 776 F.2d at 775 ([T]he district court is not free
to establish additional requirements that defendants must meet in order to gain access to
jury selection records.) Further, because the Courts prior ruling on moot-ness was in
error, the Court must also re-open and allow motions reasonably flowing from the
inspection once granted. Id. (Even if the defendant's anticipated challenges to the jury
selection process, as articulated at the time of his motion for inspection, are without
merit, the defendant may still inspect the jury records. Grounds for challenges to the jury
selection process may only become apparent after an examination of the records.); Gov't
of Canal Zone v. Davis, 592 F.2d 887, 889 (5th Cir. 1979)(Where, as here, a defendant
is denied access to the very materials containing the information necessary to the filing of

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a motion to dismiss for defective jury selection, his failure to file a formal motion blindly
and speculatively drafted will not be viewed as an abandonment of his right.)
Additionally, facts discovered during the inspection could reasonably be expected
to implicate a meritorious (non-publicity based) basis for a motion to move the trial to
another location within the Federal District of Oregon or some other venue entirely,
which Motion the Court must fairly allow. See e.g. United States v. Stanko, 528 F.3d 581
(8th Cir. 2008) (Showing a reasonable relationship between the wrongful denial of a
defendants request to inspect jury selection records, and the wrongful denial of a change
of venue); see also Dupoint v. United States, 388 F.2d 39, 44 (5th Cir. 1967)([O]ne must
not arbitrarily be sent, without his consent, into a strange locality to defend himself
against the powerful prosecutorial resources of the Government.)
[W]ithout inspection, a party almost invariably would be unable to determine
whether he has a potentially meritorious jury challenge. Test, 420 U.S. 28 ([A]n
unqualified right to inspection is required [] [for the ] purpose of insuring grand and
petit juries selected at random from a fair cross section of the community.)(Internal
marks omitted.) This also directly implicates Defendants rights, inter alia, his rights
protected by the Fifth Amendment grand jury clause, the Fifth Amendment due process
clause, the Fifth Amendment equal protection clause, and the protections afforded
specifically under the Jury Selection and Service Act.
Respectfully submitted this 22nd day of July, 2016.
/s/ Marcus R. Mumford
Marcus R. Mumford
Attorney for Ammon Bundy
/s/ J. Morgan Philpot
J. Morgan Philpot
Attorney for Ammon Bundy
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