#102 Motion in Limine or in Alternative Proffer of Conconspirator Statements

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 1 of 21
CARLIE CHRISTENSEN, United States Attorney (#0633)

JARED C. BENNETT, Assistant United States Attorney (#9097)
LAKE DISHMAN, Assistant United States Attorney (Provisionally admitted; Licensed in VA)
185 South State Street, #300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682
jared.bennett@usdoj.gov
Attorneys for the United States of America
IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH

CENTRAL DIVISION
UNITED STATES OF AMERICA,

Plaintiff,
vs.
PHILLIP KAY LYMAN; MONTE
JEROME WELLS; SHANE MORRIS
MARIAN; and FRANKLIN TRENT
HOLLIDAY;
Case No. 2:14CR470RJS

MOTION IN LIMINE OR, IN THE
ALTERNATIVE, PROFFER OF
COCONSPIRATOR STATEMENTS
UNDER FED.R.EVID. 801(d)(2)(E)
Honorable Robert J. Shelby
Defendants.
The United States moves the admission of several statements from Defendants Phillip K.
Lyman and Monte Wells into evidence because they are not hearsay for two reasons. First, the
following statements are not offered to prove the truth of the matter asserted and, therefore, may be
admitted into evidence against all Defendants. Second, even if this Court determines that the
following statements are offered to prove the truth of the matter asserted, Fed.R.Evid. 801(d)(2)(E)
allows the admission of the statements against all Defendants. Given that this motion is made in
the alternative, the two sections immediately following provide: (1) the facts showing a
conspiracy, and (2) defendants statements that this motion seeks to admit into evidence.
STATEMENT OF ELEMENTS OF CONSPIRACY

To prove a conspiracy existed, the United States must show:
1.
There was an agreement to violate the law;
2.
The defendant knew the essential objective of the conspiracy;
3.
The defendant knowingly and voluntarily participated in the conspiracy;
4.
An overt act was committed in furtherance of the conspiracy;
5.
The coconspirators were interdependent.
United States v. Bedford, 536 F.3d 1148, 1156 (10th Cir. 2008).
STATEMENT OF FACTS BY ELEMENT OF CONSPIRACY
I.
The Agreement to Violate the Law

1.
On September 13, 2007, under the authority of 43 C.F.R. 8341.2(a), the
Bureau of Land Management (BLM) closed Recapture Canyon to recreational motorized use
because the authorized officer in BLMs Blanding Field Office determined that off-road vehicle
use had caused damage to the cultural resources in Recapture Canyon . . . . ECF No. 78-1 at 2
of 15.
2.
Under the authority of the Federal Land Policy and Management Act
(FLPMA), the Department of the Interior promulgated a regulation that provides: The
operation of off-road vehicles is prohibited on those areas and trails closed to off-road vehicle
use. 43 C.F.R. 8341.1(c).
3.
FLPMA makes it a crime to knowingly and willfully violate a regulation
promulgated thereunder. 43 U.S.C. 1733(a). Section 8341.1(c) is such a regulation.

2
4.
On February 27, 2014, Defendant Phillip K. Lyman, as a San Juan County
Commissioner, convened a town meeting at which he and approximately 150 constituents

attended. ECF No. 72-2 at 18, 24, and 25 of 34; ECF No. 78-2 at 3 of 6. Mr. Wells also attended
the meeting. ECF No. 72 at 3.
5.
At the meeting, Mr. Lyman and his constituents discussed their
dissatisfaction with public land management. ECF No. 72-2 at 18-19 of 34. Among the issues
discussed at the meeting was BLMs closure of Recapture Canyon to motorized use. ECF No.
72-2 at 19 of 34. The result of the meeting, according to Mr. Lyman, was we said, well, lets go
ride Recapture. ECF No. 72-2 at 19 of 34 (emphasis added).
6.
The decision at the meeting was to hold the ride up Recapture Canyon on
May 8, 2014. ECF No. 72-2 at 24 of 34.

7.
However, Mr. Lyman later changed the date to May 10, 2014 because the
8th was the Thursday and a lot of people wanted to come from outside the area. ECF No. 72-2 at
24 of 34. Mr. Lyman told BLM management about the changed date. ECF No. 72-2 at 25 of 34.
8.
Mr. Lyman acknowledged that BLM did not give him permission to ride up
Recapture Canyon. ECF No. 72-2 at 26 of 34.

II.
Defendants Knew the Essential Elements of the Conspiracy

1.
As to Mr. Lymans knowledge of the essential elements of the conspiracy,
the United States incorporates herein facts 1-8 in section A. above.

2.
Additionally, on April 27, 2014, Mr. Lyman posted on his Facebook page
an invitation to ride Recapture Canyon at the appointed date. In that invitation, Mr. Lyman stated
3
that BLM had precluded motorized machines from Recapture Canyon. He then states: I for
one plan to be riding an ATV. ECF No. 78-2 at 2 of 6. Mr. Lyman actually had to rent an ATV
to ride on May 10, 2014. ECF No. 72-2 at 12 of 34. Mr. Lyman rode into the closed portion of
Recapture Canyon on May 10, 2014. Exhibit A.
3.
Mr. Lymans April 27, 2014 Facebook post recommends to readers a good
article on Recapture Canyon http://thepetroglyph.com/ride-capture-rim/. ECF No. 78-2 at 3 of 6.

4.
Mr. Wells is the proprietor of the website known as The Petroglyph.
ECF No. 72 at 2.
5.
On his website, Mr. Wells published an online article entitled
RecaptureOur Public Lands: Come and Join This Recapture Event. ECF No. 72-1 at 2 of 3.
6.
Mr. Wells begins this article with a picture of Uncle Sam pointing at the
reader adjacent to the words We Need You!!! ECF No. 72-1 at 2 of 3.

7.
In the article, Mr. Wells provides the May 10, 2014 date for the ride and the
purpose to [a]ssert local jurisdiction and challenge the overreach of federal agencies. He then
says, we welcome ALL supporters. ECF No. 72-1 at 2 of 3 (emphasis added).
8.
Further down in the article, Mr. Wells states that [o]n the 10th We (sic)
will have some introductions, some introductions (sic), and I will explain the topography including
what trails have been closed by the BLM and which ones remain open. We will also have a flag
ceremony and will hear from some dignitaries. ECF No. 72-1 at 2 of 3 (emphasis added).
9.
Mr. Wells appears to be reprinting Mr. Lymans April 27, 2014 Facebook
post, but Mr. Wells does not reference Mr. Lyman in his article. Like Mr. Lyman, Mr. Wells
4
post recognizes that BLM has deemed motorized machines unfit for riding in Recapture
Canyon. He also says, I for one plan to be riding an ATV, carefully and respectfully, on these
well established trails . . . ECF No. 72-1 at 2 of 3.
10.
Prior to the May 10, 2014 ride up Recapture Canyon, Mr. Wells also
interviewed Mr. Lyman about Recapture Canyon and the forthcoming ride. ECF No. 72-2.
During this three-part interview, which was posted on YouTube, Mr. Lyman describes the ride,
how it came about, why it is going to happen, and that BLM said it was illegal. ECF No. 72-2 at
11 to 14; 18-34 of 34.
11.
During the interview, Mr. Wells said of Recapture Canyon, Weve got
some issues with [the] trail itself, where it hasnt been maintained for the last 8 years, 7 years.
And so there are some places where you cant get through unless we do some trial maintenance,
actually. And stuff. But that may prevent us from riding parts of it or whatever, but there is (sic)
still some trails that have roads in them that were looking at. ECF No. 72-2 at 29 of 34
(emphasis added). Later on in the interview, Mr. Wells added, Well, hopefully, then the media
will get tap (sic) and bring in a lot of people to come down with the intention to ride maybe the
trails . . . . You know, its time that something changes. ECF No. 72-2 at 31-32 of 34.
12.
After his interview with Mr. Lyman, Mr. Wells showed up on May 10,
2014, with a handgun strapped to his leg, and rode Recapture Canyon on his four-wheel ATV.
Exhibit A.
13.
Messrs. Marian and Holliday were present on May 10, 2014 for the rally
that occurred prior to the ride up Recapture Canyon. Exhibit A.

5
14.
During the rally, speakers, including Mr. Lyman, stated the reason for the
ride up the closed portion of Recapture Canyon. Exhibit A.

15.
Mr. Holliday was wearing a t-shirt that said, Dont Tread on Me, as he
and Mr. Marian rode their four-wheel ATVs together through the closed area of Recapture
Canyon.
III.
Defendants Knowingly and Voluntarily Participated in the Conspiracy

1.
IV.
The United States incorporates the facts in sections A and B above.
Overt Acts Committed in Furtherance of the Conspiracy

1.
On May 10, 2014, Messrs. Lyman, Wells, Holliday, and Marian rode their
motorized vehicles passed the closure sign and into Recapture Canyon, which was closed to
off-road vehicles. Defendants also passed another sign pointing the way to trails that were open
to off-road vehicles. Exhibit A.
V.
Defendants Were Interdependent

1.
The United States incorporates herein the facts in sections I, II, and IV
above.
DECLARANT STATEMENTS
1.
On Sunday, March 2, 2014, Mr. Lyman emailed BLM State Director Juan Palma
about the February constituent meeting that resulted in the agreement to ride Recapture Canyon.
This email to Mr. Palma also contains an email that Mr. Lyman sent to his email group about the
February constituent meeting, the decision to ride Recapture Canyon on May 8, 2014, and their
protest of BLM policies. Exhibit B.
6
2.
On March 2, 2014, Mr. Lyman posted on his Facebook page the email to his
constituents that he shared with Mr. Palma. Exhibit C.

3.
On April 11, 2014, the Deseret News published an editorial that Mr. Lyman had
authored notifying people to join the May 8, 2014 ride into Recapture Canyon and stating the
reasons behind it. Exhibit D.
4.
On April 11, 2014, Mr. Lyman promoted his Deseret News article on his Facebook
page and lamented the fact that the Deseret News did not publish his direct invitation for others to
join the ride. Exhibit E.
5.
On April 17, Mr. Lyman posted on his Facebook page that he was changing the date
of the ride through Recapture Canyon from May 8, 2014 to May 10, 2014 so more people can
come. Exhibit F.
6.
April 21, 2014, Mr. Lyman admitted in a meeting of the San Juan County
Commission that he was the ringleader of the Recapture Canyon protest ride and stated that the
purpose of the ride was to protest BLMs closure of Recapture Canyon. Exhibit G.
7.
On April 27, 2014, Mr. Lyman posted on his Facebook page another invitation to
the May 10, 2014, Recapture Canyon ride to [a]ssert local jurisdiction and challenge the
overreach of federal agencies. . . . It was deemed necessary at a town hall meeting in Blanding on
February 27, 2014, and we welcome ALL supporters. Mr. Lyman also recognizes the possibility
of a BLM enforcement action for the ride and states that he will be riding his ATV. Exhibit H.
8.
On or about April 28, 2014, Mr. Wells interviewed Mr. Lyman about Recapture
Canyon, the May 10 protest ride, the reasons for it, and an invitation to participate. ECF No. 72 at
7
3; 72-2. The United States seeks the admission of the entire interview.
9.
Also on April 28, 2014, Mr. Lyman stated during a meeting of the San Juan County
Commission that the main thing he wanted to do on the Saturday morning of the May 10th protest
ride was to have a big gathering so that he could basically give them some rules and where they
can go, what the lay of the land is. He also said, [I]f they want to bring a horse, bring a horse, if
they want to come and walk, they can walk. If they want to bring an ATV, then well explain
what the rules are, and they can make their choice on that day. I plan on being on an ATV myself.
Ive got to find one this week. Exhibit I.
10.
On April 29, 2014, Mr. Lyman authored a letter to BLM District Manager Lance
Porter. In the letter, Mr. Lyman states, among other things, that the protest ride was decided upon
at a February 27, 2014 meeting, the reasons for the protest ride, and that he acknowledges that
BLM does not approve of the ride. Exhibit J.
11.
On April 29, 2014, Mr. Wells posted on his website, The Petroglyph, an article with
a picture of Uncle Sam pointing at the reader adjacent to the words We Need You!!! ECF No.
72-1 at 2 of 3. In the article, Mr. Wells provides the May 10, 2014 date for the ride and the
purpose to [a]ssert local jurisdiction and challenge the overreach of federal agencies. He then
says, we welcome ALL supporters. ECF No. 72-1 at 2 of 3 (emphasis added). Further down
in the article, Mr. Wells states that [o]n the 10th We (sic) will have some introductions, some
introductions (sic), and I will explain the topography including what trails have been closed by
the BLM and which ones remain open. We will also have a flag ceremony and will hear from
some dignitaries. ECF No. 72-1 at 2 of 3 (emphasis added).
8
12.
Mr. Wells appears to be reprinting much of Mr. Lymans April 27, 2014 Facebook
post, but Mr. Wells does not reference Mr. Lyman. Like Mr. Lyman, Mr. Wells post recognizes
that BLM has deemed motorized machines unfit for riding in Recapture Canyon. He also says,
I for one plan to be riding an ATV, carefully and respectfully, on these well established trails . . .
. ECF No. 72-1 at 2 of 3.
13.
On May 7, 2014, Mr. Lyman posted on The Petroglyph a message about the May
10 protest ride. Mr. Lymans post announces the 9:00 a.m. meeting on May 10, 2014 at
Centennial Park and states that, at the meeting, information will be provided about which trails
people may legally ride. It also announces a social the night before the ride. Exhibit K.
14.
On May 9, 2014, Fox 13 News interviewed Mr. Lyman and Mr. Wells. Mr.
Lyman is recorded as saying, among other things, BLM has been very adamant. They said,
Dont do it, or we will cite you with criminal and civil penalties. I dont like that. Mr. Wells
stated, Sometimes people have to stand up and say, This is what we want. This is the way it
should be. Exhibit L (video provided in discovery and can be played at any hearing).
15.
Also, prior to the May 10, 2014 protest ride, Mr. Lyman appeared on a radio
program called Inside the Outdoors. Mr. Lyman discussed the ride and its purposes. Bates No.
992 (provided in third production of discovery).
ARGUMENT
I.
THE STATEMENTS ARE NOT HEARSAY AND THUS ADMISSIBLE AGAINST

ALL DEFENDANTS INDEPENDENT OF FED.R.EVID. 801(d)(2)(E).
The above-referenced statements are admissible independent of Fed.R.Evid. 801(d)(2)(E)
because they are not hearsay. Hearsay is an out-of-court statement that a party offers for the
truth of the matter asserted in the statement. Fed.R.Evid. 801(c). The role of the hearsay rule
(and the related component of the right to confrontation) is to protect against statements that
cannot be challenged by cross-examining the speaker. Cross-examination can expose problems
with the speakers perception, memory, or truthfulness. United States v. Cesareo-Ayala, 576
F.3d 1120, 1129 (10th Cir. 2009). However, when perception, memory, and truthfulness [are]
irrelevant to the purpose for which the government offers out-of-court statements, then the
statements are not offered for the truth of the matter asserted. Id. Consequently,
Coconspirator statements are sometimes hearsay and sometimes not. . . . . If three
persons are prosecuted for conspiracy, the conversation in which they plan the
venture and agree to participate is not hearsay, and the words spoken by each may
be proved against all, but a later statement by one of them admitting his
involvement would be hearsay if offered against the others to prove that point.
United States v. Faulkner, 439 F.3d 1221, 1226-27 (10th Cir. 2006) (quoting Christopher B.
Mueller, The Federal Coconspirator Exception: Action, Assertion, and Hearsay, 12 HOFSTRA
L.REV. 323, 326 (1984)). Additionally, statements that amount to verbal acts and verbal parts
of an act are not hearsay and, therefore, can be used against coconspirators regardless of
Fed.R.Evid. 801(d)(2)(E). Id. at 1226 (quoting Fed.R.Evid. 801 Advisory Committee Notes).
Verbal acts include a conspirator directing the conduct of other conspirators or a conspirator
agreeing to follow directions. Id.; Cesareo-Ayala, 576 F.3d at 1130 (discussing why evidence
10
that a person being interviewed by police received ten phone calls seeking heroin during the
interview was not hearsay because calls show inference that person was dealing heroin, not for
truth of matters in ten phone calls). Verbal acts also include statements introduced for their
effect on the listener. United States v. Lambinus, 747 F.2d 592, 597 (10th Cir. 1984) (holding that
detectives testimony of how his partner offered to sell the defendant food stamps was not hearsay
because the partners statement was offered for its effect on [the defendant] and his knowledge of
the illegality of the food stamp transactions).
Given that verbal acts and other statements not submitted for their literal truth are not
hearsay and, therefore, are admissible against all coconspirators independent of Fed.R.Evid.
801(d)(2)(E), courts should first address whether the statement is hearsay at all before looking to
whether it meets the requirements of Fed.R.Evid. 801(d)(2)(E). Faulkner, 439 F.3d at 1226; 12
Hofstra L.Rev. at 341 n.78 (1984) (Where a coconspirator statement has only non-hearsay
significance in a case, resort to the coconspirator exception of Fed.R.Evid. 801(d)(2)(E) is
unnecessary. Courts frequently resort to it anyway. This habit simply confuses matters.). As
shown below, the statements above are not hearsay, which makes analysis under Fed.R.Evid.
801(d)(2)(E) unnecessary.
First, Declarant Statements 1, 2, 3, 4, 5, 7, 8, 11, 12, 13, and 15 above are not hearsay
because they are verbal acts. Specifically, the verbal acts in these statements are invitations to
join the protest ride. Invitations to participate in the protest ride are quintessential verbal acts and,
therefore, are not hearsay. See, e.g., United States v. Montana, 199 F.3d 947, 950 (7th Cir. 1999)
(stating that performative utterances such as a promise, offer, or demand . . . are not within the
11
scope of the hearsay rule because they do not make any truth claims). Additionally, any
statements in these documents describing the reasons for the ride are not submitted for the truth of
the matter asserted but merely provide context for the invitation to engage in illegal activity.
United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990) (holding that statements from an informant
that did not testify at trial are not hearsay because they provided context to accuseds recorded
statements, not for truth of the matter asserted in statements). Therefore, Declarant Statements in
1, 2, 3, 4, 5, 7, 8, 11, 12, 13, and 15 are not hearsay and are admissible against all coconspirators.
Second, Declarant Statements 6 and 14 are not hearsay because they are not submitted for
the truth of the matter asserted but only to show that Mr. Lyman and Mr. Wells were members of
the conspiracy. Whether Mr. Lyman was actually the ringleader of the protest ride is quite
irrelevant. Declarant Statement No. 6. Instead, the purpose of introducing Mr. Lymans
statement is to show his acknowledgment that a group exists who will ride motorized vehicles
through an area that is closed to such activity and that he is part of that group. Likewise, Mr.
Wells statement, in Declarant Statement 14, is not submitted to for the literal truth of the matter
asserted, but to acknowledge a conspiracy and his participation in it. Thus, neither Declarant
Statements 6 and 14 is hearsay and, therefore, both are admissible against all coconspirators.
Third, Declarant Statements 10 and 14 are not offered to prove the truth of the matters
asserted therein, and, therefore, are not hearsay. Whether BLM would actually seek civil and
criminal penalties sanctions against those who rode motorized vehicles through the closed
Recapture Canyon is not the purpose for introducing the statements. Instead, Mr. Lymans
statements acknowledge that those involved in motorized use through Recapture Canyon were
12
fully aware that their activity was unlawful. Such statements do not implicate the declarants
memory, perception, or truthfulness; they show their knowledge of the unlawfulness of their
activity. Thus, these statements are not hearsay and are admissible against all coconspirators.
II.
IN ANY EVENT, FED.R.EVID. 801(d)(2)(E) ALLOWS THE ADMISSION OF ALL

DECLARANT STATEMENTS AGAINST ALL COCONSPIRATORS.
Even if the Declarant Statements are hearsay, they are still admissible against all
coconspirators under Fed.R.Evid. 801(d)(2)(E). Rule 801(d)(2)(E) provides that a statement

made by the partys coconspirator during and in furtherance of the conspiracy is not hearsay and
is admissible against all coconspirators. Fed.R.Evid. 801(d)(2)(E). To meet these foundational
elements to admit such statements, the Tenth Circuit requires the United States to prove by a
preponderance of the evidence that: (A) a conspiracy existed, (B) the declarant and the
defendant were both members of the conspiracy, and (C) the statements were made in the course
of an in furtherance of the conspiracy. United States v. Patterson, 713 F.3d 1237, 1245 (10th
Cir. 2013). As shown in order below, the United States meets each element.1
A. A Conspiracy Existed to Ride Motorized Vehicles Into Recapture Canyon.
A conspiracy existed to ride motorized vehicles through Recapture Canyon, which BLM
had closed to recreational motorized use. To prove a conspiracy, the United States must show:
(1) there was an agreement to violate the law; (2) the defendant knew the essential objective of the
Fed.R.Evid. 801(d)(2)(E) does provide defendants with the equivalent of a motion for summary
judgment on a conspiracy charge. United States v. Smith, 46 F.3d 1223, 1235 (1st Cir. 1995)
(holding that rulings under Fed.R.Evid 801(d)(2)(E) are not findings on whether the evidence is
sufficient for a count to go to the jury). Instead, if the foundational elements of Rule
801(d)(2)(E) are not met, then the statements are not admissible against all coconspirators, but
they are admissible against the conspirator who made the statement under other hearsay rules.
13
conspiracy; (3) the defendant knowingly and voluntarily participated in the conspiracy; (4) an
overt act was committed in furtherance of the conspiracy; and (5) the coconspirators were
interdependent. Bedford, 536 F.3d at 1156. As shown in order below, the United States meets
each element here.
1. An agreement existed to illegally ride motorized recreational vehicles into
Recapture Canyon.
An agreement existed to ride motorized recreational vehicles into Recapture Canyon,
which BLM had closed to such use. In proving the existence of an agreement to violate the law,
the United States does not have to prove that an express or formal agreement was made; it merely
has to show the coconspirators tacitly came to a mutual understanding. United States v. Suntar
Roofing, Inc., 897 F.2d 469, 474 (10th Cir. 1990). The government may also show the existence
of an agreement based on frequent contacts among the defendants and joint actions. United States
v. Sells, 477 F.3d 1226, 1236 (10th Cir. 2007).
The evidence in this case shows far more than a tacit, mutual understanding to break the
law. Mr. Lyman, as a San Juan County Commissioner, convened a meeting at which he and
approximately 150 constituents attended, including Mr. Wells. Statement of Fact I:4. At the
meeting, people complained about BLMs management and decided to ride motorized vehicles up
Recapture Canyon on May 8, 2014. Statement of Fact I:5, 6. Those who decided to ride knew it
was unlawful because BLMs closure of Recapture Canyon was discussed at the meeting.
Statement of Fact I:5. Mr. Lyman himself changed the date to May 10, 2014. Statement of Fact
I:7. Thus, an agreement clearly existed to unlawfully ride recreational motorized vehicles in an
area closed to such use.
14
2. Defendants knew of the conspiracys essential objective.

Each defendant was aware of the conspiracys objective to ride motorized vehicles into
Recapture Canyon and voluntarily participated to bring about that objective. [O]nce a
conspiracy is established, only slight evidence is required to connect a co-conspirator. United
States v. Andrews, 585 F.2d 961, 964 (10th Cir. 1978). Each participant who may join the
conspiracy at any time during its existence need not necessarily know all the details or all the other
partieshe need only be aware of the schemes general scope. United States v. Dickey, 736
F.2d 571, 583 (10th Cir. 1984). Accordingly, a party may join an ongoing conspiracy during its
progress and become criminally liable for all acts done in furtherance of the scheme. Andrews,
585 F.2d at 964. More than slight evidence exists to connect Defendants to the conspiracy here.
Messrs. Lyman and Wells were well aware of the conspiracys objective because each
attended the February 27, 2014 meeting where the decision was made to illegally ride. Statement
of Fact I:4-5. Further, Messrs. Lyman and Wells had a lengthy, recorded discussion on April 28,
2014 about Recapture Canyon, the protest ride, its purpose, and the potential consequences for
doing it. Statement of Fact II:10-11. Both Messrs. Lyman and Wells publicized the protest ride
and its purpose in their respective internet forums. Statement of Fact Nos. II:2, 5-9. Also, both
made statements about the ride to the media. Declarant Statements Nos.14-15. Thus, Messrs.
Lyman and Wells were well aware of the conspiracys objective.
Messrs. Marian and Holliday were likewise aware of the conspiracys objective. Both
were seen at a pre-ride rally on May 10, 2014 standing behind people holding signs that protested
federal authority. Statement of Facts II:13. The pre-ride rally discussed the purposes and
15
objectives of the ride. Statement of Fact II:14. At the rally, Mr. Holliday was wearing a t-shirt
that said, Dont Tread on Me. Statement of Fact II:15. Later that day, both Messrs. Marian
and Holliday were seen riding together up the closed trial in Recapture Canyon along with several
others in the same clothes that they had on at the pre-ride rally. Statement of Fact II:15. Before
riding up Recapture Canyon, they had to pass a sign showing that the road was closed to
recreational motorized vehicles, and another sign showing where recreational vehicles were
legally able to ride. Statement of Fact IV:1. Thus, both Messrs. Holliday and Marian were
aware of the conspiracys objective.
3. Defendants knowingly participated in the conspiracy.
Defendants actions show that they knowingly and voluntarily participated in the
conspiracy. A defendants knowing participation in a conspiracy may be established through
proof of surrounding circumstances, such as acts committed by the defendant which furthered the
scope of the conspiracy. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). Messrs.
Lyman, Wells, Marian, and Holliday all committed acts that show their knowing participation in
the conspiracy.
First, Mr. Lymans actions clearly show his knowing involvement in the conspiracy. Mr.
Lyman convened the meeting that led to the decision to have a protest ride up Recapture Canyon.
He publicized the ride, held pre-ride rallies on May 9, 2014 and May 10, 2014, rented an off-road
vehicle just for the ride, warned others of BLM enforcement, and drove up Recapture Canyon.
Clearly, he knowingly participated in the conspiracy.
Second, Mr. Wells also knowingly participated in the conspiracy. In addition to attending
16
the meeting that led to the decision to do the protest ride, he also helped publicize the ride through
his internet site. He interviewed Mr. Lyman and, therefore, was well aware about the ride, its
purpose, and its potential consequences. Knowing that an enforcement action was possible for
deciding to ride up the closed canyon, Mr. Wells chose to wear a gun strapped to his leg while
riding up the closed road. Indeed, it is difficult to think of a more definite sign of voluntary
participation in an illegal activity than wearing a gun while breaking the law knowing that BLM
may take an enforcement action. Mr. Wells knowingly and willfully participated in the
conspiracy.
Third, Messrs. Marian and Holliday also knowingly and voluntarily participated in the
conspiracy. They attended the pre-ride rally, which strongly infers that he knew what the ride was
about, rode past obvious closure signs, and rode up Recapture Canyon with others. Further, Mr.
Hollidays decision to wear his Dont Tread on Me t-shirt is indicative of his knowledge of the
rides purpose. Therefore, Defendants knowingly and voluntarily participated in the conspiracy.
4. Defendants committed an overt act.
Numerous overt acts exist in this conspiracy. To establish an overt act, the United States
must show that at least one coconspirator made a statement or performed an act, legal or illegal,
that furthered the objective of the conspiracy. Braverman v. United States, 317 U.S. 49, 53
(1942). [A]n individual conspirator need not participate in the overt act in furtherance of the
conspiracy. Once a conspiracy is established, and an individual is linked to that conspiracy, an
overt act committed by any conspirator is sufficient. United States v. Thomas, 8 F.3d 1552, 1560
n.21 (11th Cir. 1993).
17
Overt acts are not in short supply in this action. The object of the conspiracy was to ride
motorized vehicles in Recapture Canyon to protest BLM management. Because this ride was
intended to send a message of protest to BLM, Mr. Lymans internet postings, newspaper article,
and radio interviews to publicize the ride so that more protesters would come constitute overt acts
to accomplish the ride. Similarly, Mr. Wells advertisements regarding the illegal ride also
constitute an overt act. Additionally, all Defendants rode their motorized vehicles into the closed
portion of Recapture Canyon, which furthered the object of the conspiracy, and constitute overt
acts. Therefore, the overt act element is easily met.
5. The coconspirators were interdependent.
The coconspirators were interdependent because they relied on each other to accomplish
the conspiratorial goal. Interdependence is proven when coconspirators intend to act together
for their shared mutual benefit within the scope of the conspiracy charged. United States v.
Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009) (citations, quotations, and alterations omitted).
Circumstantial evidence alone can prove interdependence. Id. Further, a single act can be
sufficient to demonstrate interdependence. Id.
Mr. Lyman provided the opportunity to engage in the illegal ride up Recapture Canyon by
setting May 10, 2014 as the appointed day for the ride. He and Mr. Wells also publicized the ride
and let other coconspirators know that BLM may take action against them. Because of these
actions, Messrs. Wells, Holliday, and Marian, and many others, availed themselves of the
opportunity to illegally ride Recapture Canyon, which helped Mr. Lyman and others express their
dissatisfaction with BLM. Thus, the coconspirators were interdependent.
18
B. The Declarant and Defendants Were All Part of the Conspiracy.

All of the statements that the United States seeks to have admitted under Fed.R.Evid.
801(d)(2)(E) were made by Messrs. Lyman and Wells, who, as shown above, are members of the
charged conspiracy. Likewise, as shown above, Messrs. Holliday and Marian are also members
of the conspiracy. Consequently, any of Mr. Lymans or Mr. Wells statements made in
furtherance of the conspiracy are admissible against all four coconspirators.
C. The Declarant Statements Were Made During and In Furtherance of the
Conspiracy.
The Declarant Statements above were made during and in furtherance of the conspiracy.
Fed.R.Evid. 801(d)(2)(E) requires the United States to show that coconspirator statements were
made during and in furtherance of the conspiracy. The conspiracy began on or about February
27, 2014 when the town meeting yielded the illegal agreement to ride Recapture Canyon on May 8,
2014. Statement of Facts I:4-6. Because the date of the ride was later changed to May 10, 2014,
the conspiracy ended that day upon completion of the illegal ride. All of the Declarant Statements
in this motion were made between February 27, 2014 and before the illegal ride on May 10, 2014.
Thus, the only remaining issue is whether the statements furthered the conspiracy.
A statement is in made in furtherance of a conspiracy when it is intended to promote the
conspiratorial objectives. United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007)
(internal quotation omitted). The Tenth Circuit has found the following types of statements
promote conspiratorial objectives: (1) statements explaining events of importance to the
conspiracy, id.; (2) statements between coconspirators which provide reassurance, which serve to
maintain trust and cohesiveness among them, or which inform each other of the current status of
19
the conspiracy, United States v. Smith, 833 F.2d 213, 219 (10th Cir. 1987) (internal quotation
omitted); (3) statements identifying a fellow coconspirator, Townley, 472 F.3d at 1273; and (4)
discussions of future intent that set transactions to the conspiracy in motion or that maintain the
flow of information among conspiracy members. United States v. Gutierrez, 48 F.3d 1134, 1137
(10th Cir. 1995). As shown below, the Declarant Statements further conspiratorial objectives.
Declarant Statements 1, 2, 3, 4, 5, 7, 8, 10,11, 12, 13, 14, and 15 further conspiratorial
objectives by advertising the illegal ride and warning of potential consequences. These calls to
illegal action explain events important to the conspiracy such as the ride itself, the time, place, and
what BLM may do about it. Indeed, getting the word out about the ride sets transaction of the
conspiracy in motion to get as many people out as possible to protest BLMs management of
public land. These internet postings, articles, meeting statements, and interviews, also helped
inform existing coconspirators of the status of the conspiracy and helped maintain trust between
them. Thus, these statements further the conspiracys objectives and are admissible against all
Defendants under Fed.R.Evid. 801(d)(2)(E).
Likewise, Declarant Statement 6, in which Mr. Lyman identifies himself as the
ringleader, also furthered the objectives of the conspiracy. By designating himself as the
ringleader, he identified himself to others as a conspirator and made himself a resource to other
coconspirators who sought information about the illegal ride. Thus, Declarant Statement 6 is
admissible against all Defendants.
20
CONCLUSION
For the reasons stated above, the Declarant Statements are admissible against all
Defendants without relying on Fed.R.Evid. 801(d)(2)(E). In any event, the Declarant Statements
are also admissible against all Defendants under Fed.R.Evid. 801(d)(2)(E). Thus, these
statements should be admitted.
DATED this 10th day of April 2015.
CARLIE CHRISTENSEN
United States Attorney
/s/ Jared C. Bennett
JARED C. BENNETT
Assistant United States Attorney
21
Case 2:14-cr-00470-TC-BCW Document 102-1 Filed 04/10/15 Page 1 of 2

Telephone: (801) 524-5682

CENTRAL DIVISION

Plaintiff,
vs.
Case No. 2:14CR470RJS-BCW

EXHIBIT LIST
Magistrate Judge Brooke C. Wells

JEROME WELLS; SHANE MORRIS,
HOLLIDAY;
Defendants.
Exhibit A: Declaration of BLM Special Agent Michael Johnson.

Exhibit B: Email from Phillip Kay Lyman to Juan Palma, State Director of BLM, dated
March 2, 2014.
Exhibit C: Phillip Kay Lymans Facebook posting, dated March 2, 2014.
Exhibit D: Phillip Kay Lymans Op-Ed Article entitled My View: Community space
Recaptured, published April 11, 2014.
Exhibit E: Phillip Kay Lymans Facebook posting, dated April 11, 2014.
Exhibit F: Phillip Kay Lymans Facebook posting, dated April 17, 2014.
Exhibit G: Partial transcript of audio recording of San Juan County Commission meeting
held April 21, 2014.
Exhibit H: Phillip Kay Lymans Facebook posting, dated April 27, 2014.
Exhibit I: Partial transcript of audio recording of San Juan County Commission meeting
held April 28, 2014.
Exhibit J: Letter from Phillip Kay Lyman to Lance Porter, District Manager of BLM, dated
April 29, 2014.
Exhibit K: The Petroglyph Facebook posting, dated May 7, 2014.
Exhibit L: Fox13 news article by Nineveh Dinha, Protesters ride ATVs through canyon
despite BLM ban, updated on May 10, 2014.
DATED this 10th day of April, 2015.
CARLIE CHRISTENSEN
United States Attorney
/s/ Jared C. Bennett
JARED BENNETT
Assistant United States Attorney
EXHIBIT A

Telephone: (801) 524-5682

CENTRAL DIVISION

Plaintiff,
vs.
JEROME WELLS; SHANE MORRIS
HOLLIDAY;
Case No. 2:14CR470RJS-BCW

DECLARATION OF MICHAEL
JOHNSON
Magistrate Judge Brooke C. Wells
Defendants.
I, Michael Johnson, under 28 U.S.C. 1746, declare the following:

1.
I have been employed as a Special Agent for the Bureau of Land Management
(BLM) from October 2012 to the present. BLM manages a wide variety of resources spread
over 245 million acres of public lands and 700 million acres of subsurface mineral estate. These
public land resources include timber, forage, energy and minerals, recreation, wild horse and burro
herds, fish and wildlife habitat, wilderness areas, and archaeological and paleontological sites.
BLM has been given specific resource protection and law enforcement responsibilities that relate
to its resource-management mission.
2.
As a BLM Special Agent, I have received specialized training regarding resource
protection on public lands in addition to several hours of law enforcement training.

3.
Prior to serving as a BLM Special Agent, I served as a Special Agent for the United
States Secret Service from March 2004 to October 2012. As a Secret Service Special Agent, my
duties included investigations of: (1) counterfeiting United States currency; (2) identity theft; (3)
bank fraud; (4) check fraud; (5) telemarketing fraud; (6) computer fraud; and (7) forgery, among
others. Additionally, I was asked to provide protection to the President of the United States, the
Vice-President of the United States, former Presidents, visiting heads of state, presidential
candidates, members of Congress, and some family members of the foregoing.
4.
Training to become a Secret Service Special Agent included, among other things,
three months of intense training at the Federal Law Enforcement Training Center in addition to
three months of training at the Secret Service Criminal Investigator Training Program.
5.
Prior to becoming a Secret Service Special Agent, I served as a Uniformed Secret
Service Officer from October 2001 to March 2004. I received three months of training at the
Federal Law Enforcement Training Center in addition to three months of training at the Secret
Service Uniformed Division Training Program.
6.
I hold a bachelors degree in Business Administration from the University of
Phoenix.
7.
I am the case agent for BLM in the above-captioned action.
8.
As such, I am familiar with the evidence that has been obtained during the
investigation and prosecution of this action.

2
9.
On September 13, 2007, BLM closed Recapture Canyon to motorized off-road
vehicle use.
10.
On May 10, 2014, Defendant Lyman and others held a rally prior to leading a group
of people on motorized off-road vehicles up Recapture Canyon.

11.
The United States obtained video footage from the May 10, 2014 pre-ride rally.
12.
Speakers at the pre-ride rally talked about why they were having the ride up
Recapture Canyon.
13.
On the video, Defendants Shane Marian and Franklin Holliday are shown as
spectators at the pre-ride rally. Exhibit 1 (screen capture of the video).

14.
Later that day, a BLM ranger was taking photos in the closed portion of Recapture
Canyon. Messrs. Marian and Holliday were photographed riding motorized off-road vehicles in
the closed area wearing the same clothing that they had on at the pre-ride rally. Exhibit 1 (photos
of Marian and Holliday).
15.
Prior to entering the trail in Recapture Canyon that had been closed to motorized
use, all riders passed two signs. First, they passed a large sign, which had the closure order posted
thereon along with a map showing the closed area. Second, the riders passed a sign directing
them to trails that were open to off-road vehicle use. Exhibit 2 (photos of the signs).
16.
Additionally, on May 10, 2014, a BLM ranger took photographs of Defendant
Monte Wells riding an off-road vehicle through the closed area of Recapture Canyon with a side
arm strapped to his thigh. Exhibit 3.
17.
Likewise, the two BLM rangers took photographs of Defendant Phillip Lyman in a
3
motorized off-road vehicle within the closed area of Recapture Canyon. Exhibit 4.
I declare under the penalty of perjury under the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge.
EXECUTED on April 10, 2015.
/s/ Michael Johnson
MICHAEL JOHNSON
Special Agent BLM
(e-signature used with permission)
EXHIBIT 1
EXHIBIT 2
RECAP-000149
EXHIBIT 3
RECAP-000158
EXHIBIT 4
RECAP-000155
Exhibit B
RECAP-000058
RECAP-000059
Exhibit C
RECAP-000106
RECAP-000107
Exhibit D
RECAP-000982
RECAP-000983
Exhibit E
RECAP-000104
Exhibit F
RECAP-000032
Exhibit G
Exhibit H
RECAP-000029
RECAP-000030
Exhibit I
Exhibit J
RECAP-000084
RECAP-000085
RECAP-000086
RECAP-000087
Exhibit K
Exhibit L
Protesters ride ATVs through canyon despite BLM ban | FOX13Now.com

Page 1 of 6
Protesters ride ATVs through canyon despite

BLM ban
Posted on: 9:30 pm, May 9, 2014, by Nineveh Dinha (http://fox13now.com/author/kstuninevehdinha/),
updated on: 02:27pm, May 10, 2014
BLANDING, Utah Its a fight for rights over public lands; protestors drove ATVs through an area banned
to riders for years Saturday morning.
Saturdays ride began at about 9 a.m. in Recapture Canyon in Southeastern Utah, and between 300 and
500 protesters were in attendance.
BLM officials were also there, but they arrived in plain clothes rather than in uniform and all interactions
were peaceful.
The showdown was organized by San Juans County Commissioner, who said the ride is a demonstration
of his disgust with the federal government. The BLM had warned riders to stay out, and the governor urged
Utahns to follow the law.
Recapture was chosen because its right next to town, said Phill Lyman, who is the man behind
Saturdays protest. Its been close to 8 years since the country put its right way of application. It feels like
its been dragging on and on.
Western residents at odds with the federal government drove their ATVs through Recapture Canyon in an
act of defiance.
BLM has been very adamant, Lyman said prior to the protest. They said, Dont do it, or we will cite you
with criminal and civil penalties. I dont like that. The sheriff has been very supportive and recognizes what
were dealing with. Hes from here, hes local, we have a great sheriff and he doesnt plan on giving
citations tomorrow, keep the peace and look out for the people who are exercising their rights under the
Constitution.
Lyman said he wants people to stand up for what he calls their right to public lands.
Monticello resident Monte Wells said he planned to support the protest.
He said: Sometimes people have to stand up and say, This is what we want. This is the way it should be.
The trail in Recapture Canyon was closed to motorized vehicles in 2007 after the construction of an illegal
trail damaged archeological sites.
The Bureau of Land Management, which has been on high alert after an agency wrangler was threatened
at gunpoint on Tuesday on 1-15 in Juab County (//fox13now.com/2014/05/08/authorities-investigate-deaththreat-against-blm-employee-in-utah/), released a statement Friday, saying in part: We regret that the
illegal ATV ride planned for tomorrow appears to be going forward. Recapture Canyon is public land
belonging to all Americans and contains ancient cultural sites and artifacts that are at serious risk of being
destroyed or damaged.
Governor Gary Herbert also released a statement promising to work with all the parties involved but also
http://fox13now.com/2014/05/09/protesters-plan-to-ride-atvs-through-canyon-despite-blm-ban/
5/14/2014
Protesters ride ATVs through canyon despite BLM ban | FOX13Now.com

Page 2 of 6
Caseeveryone
2:14-cr-00470-TC-BCW
04/10/15
Page
3 ofsafety.
3
said: I encourage
to uphold the law Document
and not do102-13
anythingFiled
that could
disrupt
public
Theres natural law, then theres political law. To me this is political, Wells said.
The fight over public lands has long existed, especially in Utah. It most recently gained national attention
when Nevada rancher, Cliven Bundy, whose been in a 20-year legal dispute with the BLM
(http://fox13now.com/2014/04/12/protesters-reportedly-attempting-to-free-cattle-seized-by-blm-in-nevada-i15-closed-nearby/%20) and had the support of some Republicans, made remarks about whether black
people would be better off as slaves. He has since lost the support of conservative politicians
(http://fox13now.com/2014/04/24/politicians-denounce-bundys-racist-remarks/) but the fight over public
lands only seems to be intensifying.
http://fox13now.com/2014/05/09/protesters-plan-to-ride-atvs-through-canyon-despite-blm-ban/
5/14/2014

#102 Motion in Limine or in Alternative Proffer of Conconspirator Statements

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

#102 Motion in Limine or in Alternative Proffer of Conconspirator Statements

Uploaded by

Copyright:

Available Formats

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 1 of 21

CARLIE CHRISTENSEN, United States Attorney (#0633)

IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH

UNITED STATES OF AMERICA,

Case No. 2:14CR470RJS

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 2 of 21

STATEMENT OF ELEMENTS OF CONSPIRACY

There was an agreement to violate the law;

The defendant knew the essential objective of the conspiracy;

The defendant knowingly and voluntarily participated in the conspiracy;

An overt act was committed in furtherance of the conspiracy;

The coconspirators were interdependent.

The Agreement to Violate the Law

On September 13, 2007, under the authority of 43 C.F.R. 8341.2(a), the

FLPMA makes it a crime to knowingly and willfully violate a regulation

promulgated thereunder. 43 U.S.C. 1733(a). Section 8341.1(c) is such a regulation.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 3 of 21

On February 27, 2014, Defendant Phillip K. Lyman, as a San Juan County

Commissioner, convened a town meeting at which he and approximately 150 constituents

At the meeting, Mr. Lyman and his constituents discussed their

May 8, 2014. ECF No. 72-2 at 24 of 34.

Recapture Canyon. ECF No. 72-2 at 26 of 34.

Defendants Knew the Essential Elements of the Conspiracy

As to Mr. Lymans knowledge of the essential elements of the conspiracy,

the United States incorporates herein facts 1-8 in section A. above.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 4 of 21

article on Recapture Canyon http://thepetroglyph.com/ride-capture-rim/. ECF No. 78-2 at 3 of 6.

Mr. Wells is the proprietor of the website known as The Petroglyph.

On his website, Mr. Wells published an online article entitled

reader adjacent to the words We Need You!!! ECF No. 72-1 at 2 of 3.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 5 of 21

that occurred prior to the ride up Recapture Canyon. Exhibit A.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 6 of 21

ride up the closed portion of Recapture Canyon. Exhibit A.

Defendants Knowingly and Voluntarily Participated in the Conspiracy

The United States incorporates the facts in sections A and B above.

Overt Acts Committed in Furtherance of the Conspiracy

Defendants Were Interdependent

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 7 of 21

constituents that he shared with Mr. Palma. Exhibit C.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 8 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 9 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 10 of 21

THE STATEMENTS ARE NOT HEARSAY AND THUS ADMISSIBLE AGAINST

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 11 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 12 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 13 of 21

IN ANY EVENT, FED.R.EVID. 801(d)(2)(E) ALLOWS THE ADMISSION OF ALL

coconspirators under Fed.R.Evid. 801(d)(2)(E). Rule 801(d)(2)(E) provides that a statement

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 14 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 15 of 21

2. Defendants knew of the conspiracys essential objective.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 16 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 17 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 18 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 19 of 21

B. The Declarant and Defendants Were All Part of the Conspiracy.

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 20 of 21

Case 2:14-cr-00470-TC-BCW Document 102 Filed 04/10/15 Page 21 of 21

Case 2:14-cr-00470-TC-BCW Document 102-1 Filed 04/10/15 Page 1 of 2

CARLIE CHRISTENSEN, United States Attorney (#0633)

IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH

UNITED STATES OF AMERICA,