Case 3:16-cr-00051-BR

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Ryan Bundy, Pro Se

Inmate: Swis# 795070
Multnomah County Detention Center
11540 NE Inverness Drive
Portland, OR 97220
Telephone: (503) 988-3689
Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,

Case No. 3:16-cr-00051-BR-05

Plaintiff,
vs.

DEFENDANTS CHALLENGE TO
COUNT FIVE JURY INSTRUCTION

RYAN BUNDY,
Defendant.
Judge: Hon. Anna J. Brown

RYAN BUNDYS CHALLENGES TO THE COURTS PROPOSED JURY

INSTRUCTIONS, AND HIS PROPOSED JURY INSTRUCTIONS
COUNT 5
PROPOSED JURY INSTRUCTION OF RYAN BUNDY REGARDING THE INTENT
REQUIREMENT OF COUNT 5
FIRST, A DISCUSSION:
The Courts preliminary jury instructions regarding Count Five are inaccurate and
misleading. The Courts proposal purports to lay out only three elements: (1) stole or
converted to own use; (2) property of the United States; and (3) valued at more than
$1,000).[1]
Then the Courts proposed instructions state that [t]he term knowingly in this context
means the same as for Count One.
This is horribly written and misleading at best and utterly false at worst. (When last
discussed, it seemed the intent details had not been finalized in Count 1.) 18 U.S.C.
641 is a specific intent crime: conviction requires that the theft be intended to
permanently (or near-permanently) deprive the owner of the use or benefit of the
property.
Then the Courts proposed jury instruction launches into a discussion of aiding and
abetting the theft of government propertyfalsely suggesting to the jury that one can
violate 641 vicariously or even accidentally. This entire aiding and abetting instruction
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is misleading and prejudicial and should be stricken from the final instructions. There is
no issue of aiding and abetting any theft in this case.
Significantly, the Supreme Court in Morissette v. United States, 342 U.S. 246 (1952)
specifically added an element (and thus the requirement of an addition to the jury
instructions) to 18 U.S.C. 641. Indeed the Supreme Court reversed a conviction on the
ground that criminal intent was an essential prerequisite of criminal liability under 641,
and that the existence of such intent was not to be presumed as a matter of law, but was to
be found by the jury.
The Third Circuit held that after Morissette, the absence of a criminal-intent jury
instruction requires reversal of a 641 conviction. United States v. Kemble, 197 F.2d
316 (3rd Cri. 1952). It is clear that there is a material omission in the Ninth Circuits
pattern instructions for 641 in the wake of Morissette.
The requirement of a specific-intent-to-transfer-to-ones-personal-use-and-permanentlydeprive-the-owner instruction is also made clear by a look at the common law of theft. In
United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970), the Court of Appeals found
(just as did the Supreme Court in Morissette) that "Section 641 was intended by
Congress to codify the common law crimes of larceny and embezzlement . . . Those
common law crimes required a finding of specific intent to take property for ones own
use and thereby permanently deprive an owner of property.
The common law of theft is, of course, ancient. And at common law, theft is not
committed where a defendant intended only to temporarily deprive the owner of
possession, and merely intended to use the property and then return it.[2] For example
there are a number of published cases holding that joy riding is not auto theft, for
example. See, e.g., United States v. Trinder, 1 F. Supp. 659 (D.Mont. 1932).[3] In Ryan
Bundys case, the evidence will show that there wasnt even a temporary use of the
property. The evidence will show that cameras were simply taken down and safely
stored for redelivery to the Government.
In State v. Langford, 483 So. 2d 979 (La. 1986), the Louisiana Supreme Court as much
as suggested that a stated intention to return a removed object to its owner is an
affirmative defense to a larceny charge. The Court wrote that "a defendant must show
both that he had the intent to return the property within a reasonable time, and that he had
a substantial ability to do so." Id. at 985, citing Wayne R. LaFave & Austin W. Scott, Jr.,
Criminal Law 88 (1972).
Applying the same standard, the Louisiana Supreme Court reversed a conviction for theft
in State v. McBride. 504 So. 2d 840 (La. 1987). The defendant took jewelry worth more
than $ 1000 from his sister and pawned it to borrow $ 100. He gave the pawn ticket to his
mother, along with an explanation of what he did. The court concluded that he had the
ability to repay the loan and redeem the jewelry. "Under these circumstances, we
conclude that any reasonable trier of fact would have a reasonable doubt that the
defendant intended to permanently deprive his sister...." Id. at 842.
Interestingly, the Model Penal Code (at Section 223.0) defines the term deprive (as used
in larceny statutes) as "(a) to withhold property of another permanently for so extended a
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period as to appropriate a major portion of its economic value, or with intent to restore
only upon payment of reward or other compensation; or (b) to dispose of the property so
as to make it unlikely that the owner will recover it."
Am Jurs Larceny discussion cites a handful of cases expanding on the same principle:
50 Am Jur 2d Larceny 1
1 Common-law definition, generally
A legal dictionary defines common-law "larceny" as the unlawful taking and carrying
away of someone else's personal property with the intent to deprive the possessor of it
permanently [citing Blacks Law Dictionary] a definition that, in its essentials, has been
approved in numerous court decisions. See, e.g., U.S. v. Waronek, 582 F.2d 1158 (7th
Cir. 1978); In re Giarratano, 299 B.R. 328 (Bankr. D. Del. 2003), order aff'd (D. Del.
Nov. 29, 2004); Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963); McIntosh v. State,
105 Neb. 328, 180 N.W. 573, 12 A.L.R. 798 (1920) (stating that this definition as used in
jury instructions embraces all essential elements of the crime); Goertz v. State, 29 Okla.
Crim. 261, 233 P. 768 (1925).

* *

Many courts have defined larceny in more comprehensive terms: the felonious taking by
trespass and carrying away by any person of the personal goods or things of another from
any place, without the latter's consent and with the felonious intent to deprive the owner
of his or her property permanently and to convert it to the taker's own use. Nugent v.
Ashcroft, 367 F.3d 162(3d Cir. 2004); Ackerson v. U.S., 185 F.2d 485 (8th Cir. 1950);
U.S. v. Posner, 408 F. Supp. 1145 (D. Md. 1976), aff'd, 551 F.2d 310 (4th Cir. 1977);
State v. Vars, 154 Conn. 255, 224 A.2d 744 (1966); Fitch v. State, 135 Fla. 361, 185 So.
435, 125 A.L.R. 360 (1938); State v. Green, 170 N.J. Super. 292, 406 A.2d 310 (App.
Div. 1979); State v. McCrary, 263 N.C. 490, 139 S.E.2d 739 (1965); State v. Jones, 628
S.E.2d 436 (N.C. Ct. App. 2006); Cook v. State, 196 Tenn. 104, 264 S.W.2d 571 (1954);
State v. Grant, 135 Vt. 222, 373 A.2d 847, 85 A.L.R.3d 913 (1977); State v. Ruggles, 183
W. Va. 58, 394 S.E.2d 42 (1990).
38 At common law and under some statutes, it is specified that there must be a
criminal intent to deprive the owner of his or her property wholly and permanently.
People v. Riel, 22 Cal. 4th 1153, 96 Cal. Rptr. 2d 1, 998 P.2d 969 (2000); Itin v. Ungar,
17 P.3d 129 (Colo. 2000), as corrected, (Nov. 28, 2000); State v. Calonico, 256 Conn.
135, 770 A.2d 454 (2001); Fowler v. U. S., 374 A.2d 856 (D.C. 1977); State v. Hayes,
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837 So. 2d 1195 (La. 2003); Putinski v. State, 223 Md. 1, 161 A.2d 117, 82 A.L.R.2d 859
(1960); Com. v. Mills, 436 Mass. 387, 764 N.E.2d 854 (2002); People v. O'Reilly, 125
A.D.2d 979, 510 N.Y.S.2d 375 (4th Dep't 1986).

Thus, the jury instructions must be changed to read

something like:
In order for Defendant Ryan Bundy to be found guilty of Count Five,
the government must prove each of the following elements beyond a
reasonable doubt:

First, the Defendant knowingly and with criminal intent stole and
converted to their own use cameras and related equipment with the
intention of permanently depriving the owner of the use of this
property;

Second, the cameras and related equipment belonged to the United

States; and

Third, the value of the cameras and related equipment was more than
$1,000.00.

The Defendant does not commit the offense if he intended only to

temporarily deprive the owner of possession, or merely intended to use
the property and then return it.

[1] As noted, Defendant Ryan Bundy is charged in Count Five with

Theft of Government Property in violation of 18 United States
Code 641. In order for Defendant Ryan Bundy to be found guilty of Count Five, the
government must prove each of the following elements beyond a reasonable doubt:
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First, the Defendant knowingly stole and converted to their own use cameras and related
equipment with the intention of depriving the owner of the use of this property;
Second, the cameras and related equipment belonged to the United States; and
Third, the value of the cameras and related equipment was more than $1,000.00.
[2] Cf. also United States v. McCarty, 15 C.M.R. 692 (1954) (discussing the U.S.
Armys Manual for Courts-Martial, 1951: "'. . . An intent to steal is implicit in a
wrongful and intentional dealing with the property of another in a manner likely to cause
him to suffer a permanent loss thereof)
[3] See also Kovero v. Hudson Ins. Co., 255 N.W. 93 (Minn. 1934) (It appears to be the
general rule that theft requires that the wrongdoer, at the time of the taking, had the
criminal intent to steal, that is, permanently to deprive the owner of his property. The
taking of the car for a joy ride, with intent to return it in a brief time, is not a sufficient
showing of a theft thereof) (citing Repp v. American Farmers Mut. Auto. Ins. Co. 179
Minn. 167, 228 N.W. 605; Miller v. Phoenix Assur. Co. 221 Ill. App. 75; Hartford F. Ins.
Co. v. Wimbish, 12 Ga. App. 712, 78 S.E. 265; Michigan Commercial Ins. Co. v. Wills,
57 Ind. App. 256, 106 N.E. 725; Phoenix Assur. Co. v. Eppstein, 73 Fla. 991, 75 So. 537,
L.R.A. 1917F, 540; Valley Merc. Co. v. St. Paul F. & M. Ins. Co. 49 Mont. 430, 143 P.
559, L.R.A. 1915E, 327, Ann. Cas. 1916A, 1126; Van Vechten v. American Eagle F. Ins.
Co. 206 App. Div. 39, 200 N.Y.S. 514.
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RYAN BUNDYS CHALLENGE TO THE PROPOSED JURY INSTRUCTIONS

REGARDING JURY DUTY TO CONVICT AND THE ADMONITION THAT
JURORS MUST NEVER CONSIDER SENTENCING IMPLICATIONS
The present language includes the false statement that jurors have a duty to convict if
the government proves its case, and a false suggestion to jurors that they may be punished
for violating their oaths if they acquit.

DUTY TO DELIBERATE
After you have heard all of the witnesses testimony and the
parties closing arguments, it will
be your duty to deliberate,
which means to weigh and to evaluate all of the evidence calmly
and dispassionately and, in that process, to decide what the
facts are. To the facts as you find them, you should must apply the law
as I give it to you, whether you agree with the law or not, which
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is just as you promised to do in the Oath that you just took. In

the meantime you must keep an open mind regarding the issues you
will be asked to decide. As you deliberate at the end of the
case, you must not be influenced by any personal likes or
dislikes, opinions, prejudices, or sympathy, and you must
ultimately decide the case solely on the evidence received during
the trial and on these instructions.

[Justification: This proposed instruction is inconsistent with the intent of the

Constitutions protections of trial by jury and the jurisprudence of the Supreme Court. In
the only jury trial ever recorded with any detail in the U.S. Supreme Court, Georgia v.
Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794), Chief Justice John Jay (himself a Framer of the
Constitution and coauthor of The Federalist Papers) gave the following instructions to the
jury:
It is presumed, that juries are the best judges of facts; it is, on the other
hand, presumed that courts are the best judges of law. But still both objects
are within your power of decision you [juries] have a right to take it upon
yourselves to judge both, and to determine the law as well as the fact in
controversy.
These are the only jury instructions regarding juror prerogatives ever recorded as having
been delivered by the U.S. Supreme Court. It appears that there may have been three jury
trials in Supreme Court history (all during the 1790s). However, only the jury
instructions from Brailsford survive. See Robert A. James, Instructions in Supreme
Court Jury Trials, 1 Green Bag 2d 377 (1998).
Also, the rule as proposed unfairly and prejudicially focuses the jurors minds on an
oath and thus is suggestive of punishment if the jurors fail to obey. Of course it is well
settled that no juror can ever be punished for his verdict. See Bushels Case (6 How.
999)(1670).
PRESUMPTION OF INNOCENCE
GOVERNMENT'S BURDEN OF PROOF BEYOND A REASONABLE DOUBT
The fact that federal criminal charges have been brought . . . .
If, after careful and impartial consideration of all of the evidence at the end of the case,
you are not convinced beyond a reasonable doubt that the government has proved a
particular Defendant guilty of a particular charge, it is your duty to find that Defendant
not guilty of that charge. On the other hand, if after such careful and impartial
consideration of all of the evidence, you are convinced beyond a reasonable doubt that
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the government has proved a particular Defendant is guilty of a particular charge, it is

your duty to find you

may find that Defendant guilty of that charge.

[Justification: The proposed instruction is a must convict jury instruction. It is false

and unlawful. It is not the law that juries must find a defendant guilty whenever the
Government meets its burden of proof, though they may do so. See United States v.
Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) (trial judges are prohibited from
directing the jury to come forward with [a guilty] verdict, regardless of how
overwhelming the evidence may point in that direction); Gregg v. Georgia, 428 U.S.
153, 199 n.50 (1976) (saying any legal system that would rob jurors of their discretion to
acquit against the evidence would be totally alien to our notions of criminal justice);
Brotherhood of Carpenters v. United States, 330 U.S. 395, 408 (1947) (a judge may not
direct a verdict of guilty, no matter how conclusive the evidence); United States v.
Mentz, 840 F.2d 315, 319 (6th Cir. 1988 ) (Regardless of how overwhelming the
evidence may be, the Constitution delegates to the jury, not to the trial judge, the
important task of deciding guilt or innocence); Konda v. United States, 166 F.91, 93 (7th
Cir. 1908) (an accused has a right to a chance of a jury acquittal even where the
evidence against him is clear and uncontradicted, as he unquestionably would have if it
were doubtful and conflicting); Buchnanan v United States, 244 F.2d 916 (6th Cir.
1957) (a trial judge cannot instruct a jury to convict even if the facts of guilt are
undisputed); Dinger v. United States, 28 F.2d 548, 550, 551(8th Cir. 1928) (trial judges
instruction that if you believe the testimony of these agents . . . you would be justified,
and in fact required, to find the defendant Dinger guilty was a most serious error not
permissible in a criminal case); Billeci v. United States, 184 F.2d 394, 399 (D.C. Cir.
1950) (must convict instruction is not the law. The law is that if the jury believes beyond
a reasonable doubt that the defendant has committed the alleged offense it should find a
verdict of guilty). (emphasis added)
Never has the Supreme Court issued a decree that jurors must abandon their
senses of justice, their assessment of the justness of laws, or their consciences if the
government proves its case beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 317 n.10 (1979) (referring to the jurys unassailable power to issue an
unreasonable verdict of not guilty); McCleskey v. Kemp, 481 U.S. 279, 311 (1987)
(criminal juries have an inherent discretionary power to decline to convict, and such
discretionary exercises of leniency are final and unreviewable); Batson v. Kentucky,
476 U.S. 79, 86-87 n.8 (1986) (the jurys role has no sympathy for the governments
position. It has a general veto power);
See also State v. Koch, 85 P. 272, 274 (Mont. 1906) (the jury has power to
disregard the law as declared and acquit the defendant, however convincing the evidence
may be, and . . . the court or judge has no power to punish them for such conduct).
The only Supreme Court justice ever impeached, Samuel Chase, was impeached
in part for endeavoring to wrest from the jury their indisputable right to hear argument,
and determine upon the question of law, as well as the question of fact, involved in the
verdict which they were required to give during a 1798 treason trial. See William H.
Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and
President Andrew Johnson 59-60 (1992). (Chase later recanted and acknowledged that
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the jury had power to deliberate upon matters outside the limited scope of his
instructions, and the U.S. Senate declined to convict and remove Chase.)

In deciding whether the government has proved any of the Defendants guilty beyond a
reasonable doubt of any of the charges, you must not consider

should

generally not consider what sentence or punishment the Court may impose
in the event you find any Defendant guilty of any charge.

[This change is most consistent with common law practice and therefore the requirements
of the Constitution. The Supreme Court has repeatedly stated that the scope and meaning
of trial by jury must be construed in accordance with their scope and meaning under
the common law of 1789-1791. See, e.g., United States v. Bailey, 444 U.S. 394, 415 n. 11
(1980).

At common law, jurors had knowledge and authority to consider sentencing. See the
discussion by Judge Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J.
951 (2013) (discussing the long history of juror involvement in sentencing under
common law principles); John H. Langbein, The English Criminal Trial on the Eve of
the French Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY,
1700-1900, at 36-37 (1987) (saying that as most accused persons lacked any defense on
the merits, the English criminal jury trial of the later eighteenth century . . . was
primarily a sentencing proceeding in which a jurys decision on conviction might be
based on the justice of the accompanying sentence as opposed to technical proof of the
crime).
See also Morgan v. Illinois, 504 U.S. 719 (1992). (Scalia, J., dissenting) (noting in a
death penalty discussion that the jury must always be given the option of extending
mercy) (citing Woodson v. North Carolina, 428 U.S. 280, at 303-305).
In Brown v. California, 479 U.S. 538 (1987), the Supreme Court permitted a state to
caution jurors against the influence of sympathy. The specific instruction at issue in
Brown, known as an anti-sympathy instruction, told jurors to ignore mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion, and public feeling.
Courts, Chief Justice Burger wrote, have long held that in the practical business of
deciding cases the factnders, not unlike negotiators, are permitted the luxury of verdicts
reached by compromise. Cnty. Court v. Allen, 442 U.S. 140, 168 (1979) (Burger, C.J.,
concurring) (emphasis added). See also Allison Orr Larsen, Bargaining Inside the Black
Box, 99 Georgetown L. J. 1567 (2011) (discussing the longstanding recognition of the
legitimacy of compromise verdicts by juries).
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Governments Use of Undercover Agents and

Informants
You may hear testimony from an undercover agent who was involved in the
governments investigation in this case. Law enforcement officials may engage in stealth
and deception, such as the use of informants and undercover agents and the use of false
names, in order to investigate criminal activities.

Law enforcement
officials who engage in stealth and deception,
such as by the use of informants and undercover
agents and the use of false names, should merit
harsh scrutiny.
RYAN BUNDYS PROPOSED LANGUAGE:

[justification: Constitutional law has never embraced deceptive practices by government

agents at the wholesale level suggested by this proposed instruction. Indeed, courts have
overwhelmingly condemned such practices. "At the foundation of our civil liberties,
wrote Justice Brandeis, lies the principle that denies to government officials an
exceptional position before the law and which subjects them to the same rules of conduct
that are commands to the citizen." Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting) (adding that the right to be let alone is the most comprehensive
of rights and right most valued by civilized man.).
Upon its plain face, the Courts proposed language violates the basic principle that parties
before the courts are to be equals in an adversarial system. Constitutional standards
grounded in the Equal Protection Clause, the Due Process Clauses of the Fifth and
Fourteenth Amendments, and Article III itself all provide support for the mandate of
symmetry and equality in the treatment of parties.
The Constitutions Framers firmly rejected the lopsided inquisitorial court procedures
that accompanied the notorious British Star Chamber court of the seventeenth century.
Federal law is filled with provisions which harshly penalize deceptive practices. See 18
U.S.C.A. 1622, Subornation of perjury (Whoever procures another to commit any
perjury is guilty of subornation of perjury, and shall be fined under this title or
imprisoned not more than five years, or both); 18 U.S.C. 1512 (Tampering with a
witness, victim, or an informant). These provisions generally apply to government as
well as nongovernment actors. See, e.g., 18 U.S.C. 1512(k) (Whoever conspires to
commit any offense under this section shall be subject to the same penalties as those
prescribed for the offense the commission of which was the object of the conspiracy).

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________________________________________

Respectfully submitted this 6th day of September, 2016.

/s/ Ryan Bundy*

Pro Se Defendant

*Filed on behalf of Mr. Bundy by standby counsel Lisa J. Ludwig, OSB #953387

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