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THOMAS K. COAN, OSB #891732

tom@tomcoan.com
Attorney at Law
1001 SW Fifth Ave., Suite 1400
Portland, OR 97204
(503) 221-8736
Attorney for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,
vs.
PETER SANTILLI,
Defendant.

I.

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

DEFENDANT SANTILLIS
MOTION IN LIMINE

Motion
Defendant Peter Santilli, through his attorney Thomas Coan, moves the Court in

limine for an order excluding the information identified below from evidence in this case.
II.

Background
The Governments trial memorandum states that Santilli was a spokesperson and

recruiter for the occupation, that he is a longtime associate of many of the co-defendants,
and throughout January he actively recruited people to achieve the goals of the occupation.
The Government further claims Santillis role went beyond that of a journalist responding
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to the occupation; they claim he incited others to engage in unlawful activity, that Santilli
recruited others by broadcasting a number of calls for patriots to come to Burns, Oregon
throughout the month of January.
Beyond this, the Governments trial memo sets out a scattershot of allegations
against Santilli that have no apparent relevance to the conspiracy charge of preventing
federal officers from the Bureau of Land Management (BLM) and the Department of Fish
and Wildlife Services (DFWS) from performing their duties. It is our position that this
evidence is irrelevant, or that any relevance it has is substantially outweighed by the
potential to cause confusion and undue prejudice, and that much of it is protected under the
First Amendment. This motion in limine targets the following evidence: (1) that Santilli
videotaped the removal of FBI pole cameras and held one of the cameras after it had been
removed; (2) that Santilli told someone not to bring a butter knife to a gun fight; (3) that
Santilli allegedly threatened counter-protesters and accused one of being an FBI plant, and
(4) that he published approximately 682 pages of stolen BLM paperwork relating to the
Hammonds.
III.

The Court should exclude the following from evidence.

1. Videotaping the removal of FBI pole cameras
On January 15, 2016, Scott Willingham, Levi Majors, LaVoy Finicum and others

climbed a ladder and removed cameras that were set high on telephone poles on or near the
MNWR. Santilli was there along with other journalists and reporters to cover the story.
The next day, LaVoy Finicum held a press conference and he talked about why they had
removed the cameras. There were even more journalists at this press conference, and in

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some video recordings, journalists can be seen touching, handling and photographing the
cameras.
There is nothing unlawful about Santillis conduct on either day, and the Court
should not allow the Government to use any of it as evidence. First, it is not relevant to the
conspiracy charge, as it has nothing to do with preventing or impeding BLM or DFWS
officials from performing their duties. Reporting on the occupiers removal of the cameras
is a matter of public importance, and reporters need to handle items they photograph so
they can capture the picture they want to publish. This is exactly what Santilli was doing
here.
There is nothing about this conduct that is inciting anyone else to commit unlawful
acts; its merely documenting what Santilli believes is a relevant aspect of the occupation.
Santilli does not see how this conduct is relevant. It could only be used to confuse the jury.
It should be excluded under FRE 401 and 403.
2.

Santilli told someone not to bring a butter knife to a gunfight.

The Governments Trial Memorandum states that Santilli told someone not to bring
a butter knife to a gunfight. This should be excluded under FRE 401 and 403 because it is
not relevant and, even if the Court finds that it is relevant, its probative value is
substantially outweighed by the danger of unfair prejudice and confusing the issues. By
any measure, this statement is not a true threat, and to whomever Santilli made this
comment was not a BLM or DFWS employee, so it is not relevant but it has the danger of
confusing the jury as to the issues.
3.

Threats to counter-protesters

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The Government indicates it intends to offer evidence that Santilli threatened

counter-protesters and that he accused one of being an FBI plant. Defendant is unaware of
any threats Santilli made while he was in Harney County, so he asks the Government to
identify the specific threat Santilli allegedly made and he asks the Court for an order
requiring the Government to identify this alleged threat prior to offering it in evidence so
that Santilli has an opportunity to challenge its admissibility.
A.

Safeway employee KS

Based on the witnesses named on the Governments witness list, filed under seal,
Santilli believes the Government intends to offer evidence involving a Safeway employee,
identified by the initials KS. This Safeway employee had been openly vocal of her
opposition to the occupation of the MNWR, and equally vocal in her opposition to local
business people who conducted business with anyone who was in any way associated with
the occupiers, such as Santilli. According to the FBI report, when Santilli learned that KS
was advocating for a boycott of all local commercial operations that conducted business
with people such as Santilli, he went to the Burns Safeway store and loudly denounced KS,
called her a Nazi and suggested Safeway should terminate her services. The FBI report
also states that Santilli asked how KS would feel if federal agents, dressed as militia, went
into the schools in Burns and began shooting children. The reports also states that KS
reported being contacted by a woman from Minnesota who indicated she had been
investigating Santilli and that KS should be worried that Santilli and his associates have a
target on her. As a result, KS no longer felt safe in the community, she began locking
her doors for the first time in her life and she pulled her children out of school.

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The court should not allow KS to testify because none of this is relevant to the
conspiracy charge. Even assuming the truthfulness of these statements, there is no
connection to the conspiracy charge of preventing DFWS or BLM employees from
performing their duties. It is clear that Santillis loud protest of KS at Safeway was in
response to KS calling for a boycott of businesses doing business with any individuals
associated with militia or the occupation. Further, any probative value it may have is
substantially outweighed by the danger of unfair prejudice and confusing the issues.
B.

Accusing a counter-protester of being an FBI plant.

Santilli expects the government will offer evidence that he accused witness TM of
being an FBI plant posing as a counter-protester. TM went to the MNWR with his
colleague, KS. The both work for or are associated with an environmental advocacy group.
Neither are BLM or DFWS employees. They went to the MNWR several days to conduct
a counter-protest against the occupation. TM bears a strong resemblance to an FBI agent
who was working in the area. Santilli noticed this noticed this at one point and proclaimed
that TM was actually an FBI agent working undercover as a counter-protester. The
relevance of this evidence is not apparent. Defendant moves to exclude it under FRE 401
and 403.
4. Publishing copies of Hammond legal files from the MNWR.
a)

The Court should not allow evidence of publication.

The Court should exclude any evidence that Santilli published copies of BLM
documents relating to the Hammonds that were stored at the Refuge because it is not
relevant to the conspiracy charge and allowing this evidence will have a chilling effect on
the press contrary to First Amendment interest in an informed citizenry. Evidence that
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Santilli published The Hammond Legal Files is not relevant to the conspiracy charge so
it should be excluded under FRE 401.
There is also nothing wrong with Santilli publishing this information, so it has the
potential to confuse the jury. Santilli anticipates and believes that these documents were
not physically removed from the Refuge. Rather they were copied or scanned into a PDF
format. The evidence would also show that Santilli neither participated in the copying or
scanning, nor did he encourage or coerce anyone into doing the same.
A person who is a passive recipient of information may not be prosecuted for
publishing it, even if that person knows or has reason to believe the information was seized
unlawfully. Bartnicki v. Vopper, 532 U.S. 514, 528 (2001). The Court began by noting that
[a]s a general matter, state action to punish the publication of truthful information seldom
can satisfy constitutional standards. More specifically, this Court has repeatedly held that if
a newspaper lawfully obtains truthful information about a matter of public significance
then state officials may not constitutionally punish publication of the information, absent a
need ... of the highest order. Bartnicki, 532 U.S. at 527-28 (internal quotations omitted).
The Court further noted that in New York Times Co. v. United States, 403 U.S. 713 (1971),
when the Government tried to prevent the publication of the Pentagon Papers, the Court
upheld the right of the press to publish information of great public concern obtained from
documents stolen by a third party. Bartnicki at 528. The Court emphasized three facts:
First, the defendants played no part in the illegal interception. Rather, they found out
about the interception only after it occurred, and in fact never learned the identity of the
person or persons who made the interception. Second, defendants access to the
information on the tapes was obtained lawfully, even though the information itself was
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intercepted unlawfully by someone else. Third, the subject matter of the conversation
was a matter of public concern. Id. at 525. The Court concluded that, a strangers illegal
conduct does not suffice to remove the First Amendment shield from speech about a matter
of public concern. Bartnicki v. Vopper, 532 U.S. at 535.
The First Amendment protects Santillis publication of these documents. The
Supreme Court has held that Internet speech is entitled to full First Amendment protection.
[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that
should be applied to this medium. Reno v. American Civil Liberties Union, 521 U.S. 844,
870 (1997).
If reporters and journalists are considered conspirators for publishing information
provided by or about controversial topics, they will almost certainly stop providing this
information despite the clear public interest in people knowing about what is going
on. Thus, a court should be reluctant to allow use of press coverage activities as evidence
of a conspiracy absent substantial grounds for tying the journalist to the conspiracy.
B.

If the Court allows evidence of publication, it should preclude any

inquiry regarding the source of information.

The Supreme Court has upheld an inclusive definition of press, noting that the
press includes individual publishers who may not have special affiliations or education, but
who may use leaflets and other sorts of publications that provide both information and
opinion. Lovell v. City of Griffin, 303 U.S. 444, 452 (1935). In Branzburg v. Hayes, 408
U.S. 665 (1972), the Court noted that the newsgatherers privilege applied to the lonely
pamphleteer as much as the large metropolitan publisher. Id. at 704. When cases do not
involve grand jury proceedings, the Ninth Circuit relies on Justice Powells concurrence in
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Branzburg and recognizes a qualified privilege for reporters. See Farr v. Pritchess, 522
F.2d 464, 468-69 (9th Cir. 1975) In Farr, a newsman covering the Charles Manson trial
was held in contempt by a state court when he refused to name his confidential sources that
leaked sealed "confessions," which his newspaper then printed. The confessions had been
found inadmissible, and the court had ordered that they not be released, in order to protect
the defendants' right to a fair trial.
The court applied the Branzburg test for non-grand jury cases, which seems to
require that the claimed First Amendment privilege and the opposing need for disclosure
be judicially weighed in light of the surrounding facts and a balance struck to determine
where lies the paramount interest. Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir. 1975)
(explaining test). Because the court had found that the Manson defendants rights to a fair
trial were at stake, and because Farr refused to disclose who had violated the courts order,
the First Amendment protection announced by Branzburg collided head-on with a
compelling judicial interest in disclosure of the identity of those persons frustrating a duly
entered order of the court. Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir. 1975).
The court weighed the competing interests and held that Farr had no constitutional
protection in refusing to identify the sources, reasoning that the Manson defendants right
to a fair trial could not be protected if the court could not enforce its order: If the
newsmans privilege against disclosure of news sources is to serve as a bar to disclosure of
the names of those who disobey the court order, then the court is powerless to enforce this
method of eliminating encroachment on the due-process right of the defendants. Farr v.
Pitchess, 522 F.2d 464, 469 (9th Cir. 1975).

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In Shoen v. Shoen, an investigative author had refused to comply with a deposition

subpoena, claiming that the information he had gathered for purposes of writing a book
was privileged. The plaintiffs argued that the author could not claim privilege because he
was not a member of the traditional news media. The Ninth Circuit held that there was no
principled basis for denying the protection of the journalist's privilege to investigative book
authors while granting it to more traditional print and broadcast journalists. What makes
journalism journalism is not its format but its content. Shoen v. Shoen, 5 F.3d 1289, 1293
(9th Cir. 1993). [T]he critical question for deciding whether a person may invoke the
journalist's privilege is whether she is gathering news for dissemination to the public. The
test . . . is whether the person seeking to invoke the privilege had the intent to use
materialsought, gathered or receivedto disseminate information to the public and
[whether] such intent existed at the inception of the newsgathering process. Id. at 129394 (9th Cir. 1993) (internal quotations and footnote omitted, brackets in Shoen).
Since the author could invoke the privilege, the court went on to consider whether
the plaintiffs could show a compelling need for the information. Id. at 1296 (Once the
privilege is properly invoked, the burden shifts to the requesting party to demonstrate a
sufficiently compelling need for the journalists materials to overcome the privilege.).
The court held that the plaintiffs could not show this need. To differentiate the case from
Farr, the court explained that in Farr the only untapped source for the wrongdoers
identity was the journalist. Here, in contrast, by failing to depose [the defendant], plaintiffs
have failed to exhaust the most patently available other source. Id. at 1297. In a followup opinion in the same case, the Ninth Circuit clarified that where information sought is
not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid
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assertion of the journalists privilege by a nonparty only upon a showing that the requested
material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2)
noncumulative; and (3) clearly relevant to an important issue in the case. Shoen v. Shoen,
48 F.3d 412, 416 (9th Cir. 1995).
Oregon has a statutory reporters privilege. ORS 44.510 to 44.540. Importantly, it
states that no person connected with or engaged in any medium of communication to the
public shall be required to disclose, by subpoena or otherwise, the source of any published
or unpublished information obtained by the person in the court of gathering, receiving, or
processing information for any medium of communication to the public. ORS 44.520; see
also, Desyllas v. Bernstine, 351 F.3d 934, 942 (9th Cir. 2003) (noting Oregons
exceptionally strong shield law).
Here, there is no overriding need to determine the source of the information at issue.
The published information involved decades old legal files relating to the Hammonds and
their history with the BLM and other federal agencies. The information involved a matter
of public importance, as it involved the issue underlying the reason for the initial protest in
support of the Hammonds, and the information was published for public viewing. There is
no overriding need to determine the source of this information, and requiring Santilli to
provide this information would have a chilling effect on the First Amendment freedom of
the press.
Thomas K. Coan
Thomas K. Coan, OSB 89173
Attorney for Defendant Santilli

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