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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

AMMON BUNDYS MOTION TO
DISMISS FOR IMPERMISSIBLE DELAY
**Evidentiary Hearing and
Oral Argument Requested**
The Honorable Anna J. Brown

Defendant Ammon Bundys rights as protected by the Speedy Trial Act, 18 U.S.C.
3161-3174 (the Act or STA), and the due process clause of the Fifth Amendment, have been
violated. Accordingly, Mr. Bundy moves to dismiss with prejudice. The Courts April 11, 2016
order held that unless and until a Defendant has a factual basis to assert an actual speedy-trial
violation, a motion to dismiss on that basis is premature and should not be filed. [Doc. 389 at 5]
As set forth below, the STA clock as to Mr. Bundy expired, at least, as of August 29, 2016. The
Ninth Circuit has made clear that so long as a defendant brings his motion to dismiss under the
STA prior to trial, it is timely under the STA, and the district court must dismiss if a violation is
found. United States v. Alvarez-Perez, 629 F.3d 1053, 1060 (9th Cir. 2010).
In an effort to avoid compliance with the 70-day STA clock, at the behest of the
government and over the repeated objections of Mr. Bundy and his rights to a speedy trial, the
Court has nevertheless required waivers of STA rights, and has invoked the ends of justice
provisions of the Act to delay and reschedule the trial date and to exclude time from the STA
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clock between March 6 and September 7, 2016. [See Docs. 284, 289, 389, and 930] This
purported exclusion by a general order of complexity and the Courts requirement that a
defendant prospectively waive his STA rights are both directly prohibited by clear United States
Supreme Court and Ninth Circuit precedent. The fact that the Court rescheduled the trial date at
the governments insistence, requiring at the time that defendants choose between a speedy and
fair trial through the impermissible use of waivers, while objecting to and having the Court
deny Mr. Bundys attempts to obtain a fair trial, combined with its errant management of the
STA clock, demonstrates the governments tactical delay in prejudicing Mr. Bundys rights.
Because both the STA overrun and the tactical delay employed by the government have
taken place despite the immediate and repeated assertion of speedy trial rights by Mr. Bundy,
and because the Courts errant order of complexity was entered and maintained over the plain
objection of Mr. Bundy and his co-defendants, the dismissal in this case must be with prejudice.
This motion is based on the attached Memorandum of Law and Authorities, the records and
pleadings on file with the court, all matters of which the court may take judicial notice, and such
other evidence and argument as may be presented. Mr. Bundy hereby requests oral argument and
an evidentiary hearing on this motion.
CERTIFICATE OF CONFERRAL
When Mr. Bundys counsel raised these issues with the government, it indicated that it
intends to oppose this motion.
Respectfully submitted this 5th day of September, 2016.
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys 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 DISMISS FOR
IMPERMISSIBLE DELAY
The Honorable Anna J. Brown

FACTUAL BACKGROUND
At the outset Ammon and Ryan Bundy advocated adamantly that they were entitled
to a trial date no later than mid-April 2016. [Doc. 846 at 6] The Court set a trial date for April
19, 2016. [Docs. 147, 148, 149, 150, 207, 208, 209, 293] This was within the STAs 70-day
period, but, on February 22, the government moved to vacate based upon the cases purported
complexity and to allow, inter alia, for what it described as the most complicated discovery
in the history of the district. [Doc. 185 at 2] On March 9, the Court granted the governments
request, over Mr. Bundys objection, and later set trial for September 7. [Docs. 289, 846 at 6]
Mr. Bundy objected to the February 22 motion to avoid getting buried in a mountain of
discovery, especially digital data, while he was incarcerated with limited ability to review such
matters (including thousands of hours of video). By granting that motion, the Court tactically
gave the government more than double the time set by the STA to review evidence and prepare
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for trial, in the process dumping terabytes of data on Mr. Bundy, more than he could possibly
review before trial. But then, after giving the government the time it needed to prepare for trial,
the Court proceeded to compress Defendants timeline to review evidence and prepare for trial,
blaming Mr. Bundys objection, which the Court overruled, for the fact that there was no
flexibility in the schedule. [Doc. 455] Indeed, the Court went further, implementing a policy,
disallowed by the Supreme Court and Ninth Circuit (cited below), to mandate that any defendant
who dared request time to review the governments voluminous discovery prospectively waive
claim to the STAs protection. See 6/15/2016 Hrg. at 30 (If your client wants to waive his
speedy trial rights then the September 7 trial date may be adjusted for him.); id. at 31 (Ive
simply said that any defendant who affirmatively waives speedy trial rights need not continue to
prepare for trial on September 7.); [see also Docs. 458, 562, and 582] (same). To summarize:
the Court granted the governments motion purporting to exclude its delay under the STA
based on a prohibited complexity order while depriving Defendants of the ability to apply
the STA as it expressly contemplates. See 3161(h)(1)(D); Zedner v. United States, 547 U.S.
489, 497 (2006) (To provide the necessary flexibility, the Act includes a long and detailed list
of periods of delay that are excluded in computing the time . See 3161(h).).
Illustrating this point, on April 27, 2016, Mr. Bundy moved for a continuance based on
due process and Fed. R. Crim. P. 12(c)(2), making clear:
If the Court is disinclined to grant the continuance Mr. Bundy is forced to
make the untenable choice between a speedy trial and a fair one. Neither the
[STA] nor the Sixth Amendment requires that choice, and the Fifth Amendment
due process clause prohibits it. Thus, if the Court denies this request , Mr.
Bundy moves alternatively for relief from prejudicial joinder and for a new,
immediate trial date, within the next 30 days, where he can defend himself and the
Malheur protest at trial . If Mr. Bundy is unable to meaningfully and fairly
engage in credible and diligent pre-trial litigation and motion practice while
the government piles terabytes of discovery data here and pursues a separate but
related prosecution in Nevada, there is no purpose served whatsoever in the
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prolonged pre-trial incarceration of himself and his colleges here in Oregon who
all share (along with their families) its attendant hardships.
[Doc. 470] In other words, Mr. Bundy initially requested to go to trial within 30 days,
suspecting that the governments request for delay to produce volumes of discovery was mere
pretext for one-sided delay, tactically benefitting its trial strategy without giving Defendants the
reciprocal opportunity to review the governments discovery.1 The Court later confirmed the
one-sided nature of its ruling by denying Mr. Bundys June 30, 2016 request to continue the trial.
Mr. Bundys request was based on, inter alia, the Courts complexity ruling, where it
recognized that Defendants custody status necessarily slows and complicates preparation for
pretrial motions and trial, and that the governments two initial volumes of discovery consist
of approximately 3,500 pages of materials including only investigative reports, affidavits, and
warrant materials, and the government expects to provide a substantial amount of additional
discovery as it becomes available, justif[ying] a finding of excludable delay under the Speedy
Trial Act. [Doc. 289 at 5] The Court ruled that the considerations it relied on in granting the
governments request did not apply to Mr. Bundys request, for time to review the governments
voluminous discovery because, despite the voluminous nature of the discovery, both Ammon
and Ryan Bundy are unquestionably aware of the fundamental facts underlying this case and
already know the primary evidence on which the government and co-Defendants will rely.
[Doc. 846 at 10] In other words, the Court granted the governments request for delay based on
the purported complexity of the case, including its representations that the discovery in this
1

In United States v. Koerber, 2014 WL 4060618, at *5 (D. Utah Aug. 14, 2014), revd on other
grounds, 813 F.3d 1262 (10th Cir. 2016), the court explained that 3161(h)(7) requires a valid
reason for the volume of discovery at issue to justify the ends-of-justice being invoked over
the publics and defendants interests in a speedy trial, and that the court must inquire into the
nature and relative importance of the discovery. Without this, the government might bypass
speedy trial rights by dumping hundreds of thousands of irrelevant pages of so-called discovery
in a defendants lap and prolong its investigation, virtually indefinitely.
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case was the most complicated in the history of the district, but denied Mr. Bundys
reciprocal request to time to review that discovery because the matter was not so complex as to
require that he have that time to review the governments discovery. [Id.] This inconsistency
helps establish a violation of the Act and why this case should be dismissed with prejudice.
I. THE COURTS COMPLEXITY RULING DOES NOT TOLL TIME UNDER THE STA.
On March 9, the Court granted the governments request for delay, provisionally
finding excludable delay without resetting a trial date, and purporting to exclude time based on
a general finding of complexity under 3161(h)(7)(A). [Docs. 289 at 5, 846 at 6] But the plain
text of 3161(h)(7)(a) does not provide for such an order provisionally excluding time or
entering an overarching complexity finding, and the applicable case law expressly disallows it.
As a matter of first principles, 3161(h)(7)(a) only contemplates an exclusion of time where the
Court grants a continuance, and the issue of complexity only arises in that context as part of
a preliminary list of non-exclusive factors that the court must consider in deciding whether to
grant that continuance. See 3161(h)(7)(B)(ii)-(iv). Simply, the statute requires an examination
of complexity at the time and under the circumstances of the request then pending for a
continuance. The Court must assess, in the context of each discrete request for continuance,
[w]hether the case is so unusual or so complex, due to the number of defendants, the nature of
the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to
expect adequate preparation for pretrial proceedings or for the trial itself within the time limits
established by this section. Here, the government did not rely on any novel legal or factual
question or anything unique regarding the nature of the case. The only factor at issue seems to
have been its decision to indict a large number of defendants. In any event, the first question
must be not whether the case is complex, but what continuance is it issue, so that the court
can assess how the potential complexity of the case figures into the time that would be excluded.
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Until there is a specific continuance at issue, the complexity provision is not triggered, and there
is no language in the STA addressing what the Court did here, in making an advance carte
blanche determination that the case was, per se, complex for STA purposes. The STA requires
that a cases complexity be considered not as a general matter, but as one factor among
many in a circumstance-by-circumstance evaluation regarding a particular requested
continuance, for a particular purpose, over a specified period of time.
The Supreme Court and Ninth Circuit have issued multiple decisions to rein in and
discourage the overbroad use of the kinds of ends of justice findings employed in this case. In
Zedner, 547 U.S. at 507, the Supreme Court rejected passing reference to the cases
complexity as grounds for excluding time under the Act. And in United States v. Clymer, the
Ninth Circuit similarly warned against the kind of orders entered in this case:
We take this opportunity once again to emphasize that the ends of justice
exclusion in 3161(h)[] is not to be routinely applied, and that it may not be
invoked in such a way as to circumvent the time limitations set forth in the
Act. The Speedy Trial Act and its amendments are the product of a series of
delicate legislative compromises. [which] could be seriously distorted if a
district court were able to make a single, open-ended ends of justice
determination early in a case, which would exempt the entire case from the
requirements of the [STA] altogether.
25 F.3d 824, 829 (9th Cir. 1994) (citations omitted). Clymer came after United States v. Jordan,
where the Ninth Circuit reversed a district courts general order that the entire 33-defendant
case was complex and came within the ends of justice exclusion, thereby stopping the speedy
trial clock. 915 F.2d 563, 564 (9th Cir. 1990). In fact, Clymer cited Jordan to establish the wellmarked limit prohibiting the approach taken in this case. See also United States v. Lloyd, 125
F.3d 1263, 1268 (9th Cir. 1997). Here, as in Clymer, the district court made a general
complexity determination, as opposed to a complexity determination in the context of a request
for a specific and discrete continuance, leaving the matter impermissibly open-ended, coming
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more than a month before the Court actually set a new trial date: Jordan and its predecessors
clearly prohibit this kind of open-ended declaration. Clymer, 25 F.3d at 828. The Courts March
9 order, excluding time provisionally and indicating that later it would find a further period of
excludable delay, without considering any of the relevant future facts and circumstances that
would support that additional delay, and also without seeing the governments additional status
reports and without the benefit of the parties proposals regarding a discovery schedule, the
parties anticipated pretrial motions, and the procedure and time needed for summonsing and
selecting the jury. [Doc. 289 at 5-6] But the Ninth Circuit plainly requires that, to comply with
the Speedy Trial Act, delay must be limited to a specific continuance, that is specifically
limited in time at the time the order is entered, and justified [on the record] with reference to
the facts as of the time the delay is ordered. Lloyd, 125 F.3d at 1268. The Court is prohibited
from referencing past ends of justice continuances as a basis for exclusions of time. To
summarize: [A]n ends of justice exclusion under [] 3161(b) is proper only if ordered for a
specific period of time and justified on the record with reference to the factors enumerated in []
3161(h)(8)(B), and any other approach is simply impermissible under the Speedy Trial Act.
Jordan, 915 F.2d at 566. And the law requires procedural strictness so that such rulings do not
get out of hand and subvert the Acts detailed scheme. Zedner, 547 U.S. at 509.
The Court must consider four factors: First, it must consider (1) [w]hether the failure to
grant such a continuance would be likely to make a continuation of such proceeding
impossible, or result in a miscarriage of justice; (2) [w]hether the case is so unusual or so
complex that it is unreasonable to expect adequate preparation for pretrial proceedings or for
the trial itself within the time limits established by the Act; (3) [w]hether the failure to grant
such a continuance in the proceeding, in a case which taken as a whole, is not so unusual or so

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complex, and in that context, whether such failure would (a) deny the defendant reasonable
time to obtain counsel, (b) unreasonably deny the defendant or the Government continuity of
counsel, or (c) deny counsel for the defendant or the attorney for the Government the
reasonable time necessary for effective preparation, taking into account the exercise of due
diligence. 3161(h)(7)(B)(i)-(iv). In this case, the Court short-circuited that analysis, basing its
order on conclusory as opposed to specific statements applying the statutory factors.
Second, even if the factors weigh in favor of granting a continuance and excluding time
under the STA clock, the Court must specifically find that the ends of justice purportedly
served by the continuance outweigh the best interests of the public and the defendant in a
speedy trial. 3161(h)(7). While the Court recited this standard in its March 9 order, it never
documented a finding correctly applying it. [Doc. 289 at 5] And other orders regarding Mr.
Bundys STA rights made clear that it based its rulings in this case on factors outside the Act.
[See Doc. 846 at 7-9 (denying Mr. Bundys motion because of how it would cause severe
prejudice to court proceedings in two districts and to the many witnesses that the parties are
expected to call in this matter [and because] [g]ranting the Bundys requested continuance
would prejudice the District of Nevadas ability to manage its complex case in which Ammon
and Ryan Bundy are also charged.]
Third, the Court must set forth, either orally or in writing, the reasons for concluding that
the ends of justice served in granting the continuance outweigh the best interests of the public
and the defendant in a speedy trial. 3161(h)(7)(A). These findings must made express[ly],
and explicitly. Zedner, 547 U.S. at 506 ([T]he District Courts technical failure to make an
express finding is not excusable, and if a judge fails to make the requisite findings regarding
the need for an ends-of-justice continuance, the delay resulting from the continuance must be

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counted, and if as a result the trial does not begin on time, the indictment or information must be
dismissed.). This is particularly true with a supposed complexity ruling, where the court must
explain, in detail, the relevance and nature of the discovery in support of its ruling. [The Act] is
not satisfied by the District Courts passing reference to the cases complexity and [t]herefore,
the continuance is not excluded from the [STA] clock. Zedner, 547 U.S. at 507. The Court
cannot make findings regarding the nature of the case or the relevance of discovery that
support a request to exclude time until that request is actually made. United States v. Toombs,
574 F.3d 1262, 1272 (10th Cir. 2009). In the present case, the government had not even
completed the initial phase of its discovery when the Court entered its order. So the Court could
only characterize the nature of the case and discovery in a manner that was necessarily general
admitting that it was without the benefit of the parties proposals regarding a discovery
schedule, the parties anticipated pretrial motions, and the procedure and time needed for
summonsing and selecting the jury. [Doc. 289 at 5] Later, the Court essentially conceded that its
conclusions with respect to the prospective complexity findings were unwarranted when it
denied Mr. Bundys request for a continuance on grounds that Mr. Bundy need not review any of
the governments discovery to prepare for trial. [Doc. 846 at 10]
Fourth, the Court must actually grant a continuance in the context of its complexity
order. See United States v. Doran, 882 F.2d 1511, 1517 (10th Cir. 1989) (The court did not
even explicitly grant a continuance.). Here, the Courts March 9 order did not grant a
continuance but, rather, merely vacated the trial date and ordered time excluded based on the
governments general request for a designation of this matter as complex. [Doc. 289 at 1-2]
II. THE COURTS DEMAND FOR DEFENDANTS WAIVER OF HIS STA RIGHTS WAS ERROR.
In this case, the Court prospectively granted the governments requests for delay
but refused to consider a defendants request until he waived his STA rights. See
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6/15/2016 Hrg. at 29-30 ([D]efendants [who] waived their speedy trial rights
[have been] relieved from preparing for the September 7th trial [but] were going to
do everything we can to move forward [to trial] as to those defendants who have not
waived their [STA] rights.). Implementing such a policy is error. Regardless of how
presented, a defendant may not prospectively waive the application of the Act. Zedner,
547 U.S. at 500 (The purposes of the Act also cut against exclusion on the grounds of
mere consent or waiver.). [A] defendant cannot waive time under the [STA]. United
States v. Ramirez-Cortez, 213 F.3d 1149, 1156 (9th Cir. 2000). To permit a defendant to
waive his [STA] right[s] seriously undermine[s] our rule that the defendant cannot
prospectively consent to an STA violation. Alvarez-Perez, 629 F.3d at 1060.
III. THE 70-DAY STA CLOCK EXPIRED BY AT LEAST MONDAY, AUGUST 29, 2016.
Where the government does not bring a defendant to trial within the time limit required
by [] 3161(c) as extended by [] 3161(h), the indictment shall be dismissed. 3162(a)(2).
In calculating the STA clock as to Mr. Bundy, the Court must consider whether it is reasonable
to attribute to Mr. Bundy the exclusion or exclusions of time, i.e., delay that does not count
against the STA clock, resulting from the actions of his co-defendants. United States v. Messer,
197 F.3d 330, 338 (9th Cir. 1999) (reversing convictions and ordering that the indictment be
dismissed for violating the defendants STA rights). The Ninth Circuit has directed that such
determinations must be made on a case-by-case basis after reviewing the totality of the
circumstances prior to trial, including actual prejudice suffered by the imputation of the
exclusion to Mr. Bundy, Mr. Bundys adamancy in asserting his STA rights, whether Mr. Bundy
was in custody pre-trial, and any disconnect[] between the delay [at issue] and 3161(h)(7)s
purpose. Id. at 336-338 & n.8 (citing numerous cases). This reasonableness inquiry is factintensive, and whether the imputation of delay impairs a defendants ability to prepare for trial
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or result[s] in excessive pretrial incarceration will weigh heavily in favor of dismissal. United
States v. Stephens, 489 F.3d 647, 654 (5th Cir. 2007); Messer, 197 F.3d at 340. Applying the
Ninth Circuits guidance, and taking into account the invalidity of the Courts complexity
order, the following periods of time (at a minimum) elapsed unexcluded on the 70-day STA
clock as applied to Mr. Bundy in this case: January 27-30 (Days 1-3), February 3-10 (Days 411), March 10-15 (Days 12-17), March 23-April 14 (Days 18-40), April 16-21 (Day 41-46), June
30-July 21 (Day 47-68), and August 25-29 (Day 69-73). The result is that the 70 days allowed by
the STA have expired and this case must be dismissed.
IV. THE GOVERNMENTS TACTICAL DELAY FURTHER JUSTIFIES DISMISSAL.
Because the government intentionally prejudiced Mr. Bundy in the delay, both before and
after indictment, the case should be dismissed under Fed. R. Crim. P. 48(b)(1) and 5th
Amendment. See United States v. Gouveia, 467 U.S. 180, 192 (1984) (Fifth Amendment
requires the dismissal if the defendant can prove that the Government's delay in bringing the
indictment was a deliberate device to gain an advantage over him and that it caused him actual
prejudice in presenting his defense.). The government has admitted that it intentionally delayed
taking action during the occupation for political reasons. [Docs. 1052, at 16; 1065 & 1068]
CONCLUSION
For the reasons set forth above, the 70-day limit established by the STA has been
exceeded, and the Court must dismiss the charges pending against Mr. Bundy. Because the
delays at issue are the direct result of the governments conduct, over Mr. Bundys objections,
and because of how the delay (both pre- and post-indictment) has prejudiced Mr. Bundys rights
and ability to prepare for a fair trial, the Court should dismiss with prejudice.
DATED: September 6, 2016
/s/ Marcus R. Mumford
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Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

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