Case 3:16-cr-00051-BR

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Filed 09/08/16

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
3:16-CR-00051-BR

UNITED STATES OF AMERICA

v.
AMMON BUNDY, et al.,

GOVERNMENTS RESPONSE TO
DEFENDANT AMMON BUNDYS
MOTION TO DISMISS INDICTMENT
FOR IMPERMISSIBLE DELAY (#1203)

Defendants.
The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,
Assistant United States Attorneys, hereby submits this response in opposition to Ammon
Bundys Motion to Dismiss (ECF No. 1203), filed on behalf of all defendants, and urges the
Court to deny it. There has been no Speedy Trial Act violation. Defendant bears the burden of
proving a speedy trial act violation, United States v. Medina, 524 F.3d 974, 979 (9th Cir. 2008),
and his Motion should be denied because he fails to meet his burden.

Case 3:16-cr-00051-BR

I.

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Under the Speedy Trial Acts Plain Language, Excludable Delay from Pending
Motions and Interlocutory Appeals Have Largely Tolled the Clock
Although defendants Motion attacks this Courts March 9 Excludable Delay Order, there

is a simpler answer to the Speedy Trial Act question: because so many motions and
interlocutory appeals have been filed in this case, nearly all of the time elapsed since defendants
were arraigned on the Superseding Indictment has been tolled.
A few points of reference: first, the 70-day speedy trial act clock was restarted when the
government filed a Superseding Indictment adding new codefendants. United States v. King, 483
F.3d 969, 973-74 (9th Cir. 2007). Thus, the starting point for analysis is the defendants first
appearance on the Superseding Indictment: March 9, 2016. (ECF No. 284). See 18 U.S.C.
3161(c)(1).
Next, the exclusion from the speedy trial clock for one defendant applies to all codefendants. United States v. Mesher, 197 F.3d 330, 336 (9th Cir. 1999). Therefore, motions
filed by defendant or his codefendants will stop the clock from the date the motion is filed
through the date this Court promptly disposes of the motion. 18 U.S.C. 3161(h)(1)(D) &
(H). The Supreme Court has held that the speedy trial act applies to all motions irrespective of
whether is actually causes, or is expected to cause, delay in starting a trial. United States v.
Tinklenberg, 131 S. Ct. 2007, 2011 (2011).
Finally, delay resulting from any interlocutory appeal also tolls the clock. 18 U.S.C.
3161(h)(1)(C). The clock stops from the date the notice of appeal is filed, and it does not
resume until the appellate court files its mandate. United States v. Pete, 525 F.3d 844, 848-49
(9th Cir. 2008). Bail appeals fall within the statutes definition of an interlocutory appeal, and
Governments Response to Ammon Bundys Motion to Dismiss Indictment for
Impermissible Delay (#1203)

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thus, these also toll the speedy trial clock. United States v. Hawkins, 788 F.2d 200, 202 (4th Cir.
1986).
II.

This Cases Speedy Trial Clock Articulated

Start: March 9, 2016
March 10-22, 2016

Defendants 1st Appearance

Excluded due to Motions ECF 291, 299, 302, 312
Motions Decided ECF 320, 321, 334

March 23-28, 2016

5 Days Elapse from STA Clock

March 29, 2016

A. Bundy, et al. file an Interlocutory Appeal*

*In addition, defendants continued to file numerous
motions, which also toll the STA Clock.

July 18, 2016

Ninth Circuit Mandate Issues ECF 894

June 15-July 20

Defense motions ECF 712, 741

Motions Decided ECF 915

July 21

1 Day Elapses from STA Clock

July 22-Aug. 10

A. Bundy files motion ECF 925

Motion Decided ECF 994

Aug. 1-Today

A. Bundy files interlocutory appeal ECF 967

Appeal is still pending before the 9th Circuit

Aug. 10-Sept. 1

Defense Limine Motions filed

Motions Decided ECF 1172

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Because (at most) only six countable days have elapsed since defendants were arraigned
on the Superseding Indictment, the trial in this case (which commenced on September 7, 2016)
was timely. This is so regardless of whether this Courts March 9 Order designating this case as
complex and finding excludable delay within the ends of justice was correctly issued. In
retrospect, the Courts Order was unnecessary given the bounty of motions and interlocutory
appeals that followed.
III.

Even If This Court Were to Consider Defendants Complaints, They Should Be

Rejected
This Courts March 9 Order designating this case as complex and finding excludable

delay from March 9 through April 6, 2016, meets all of the statutory and case law requirements.
The order is not the type of provisional or open-ended extension that the Courts criticized in
Zedner v. United States, 547 U.S. 489 (2006) or United States v. Jordan, 915 F.3d 563 (9th Cir.
1990).1 When this Court designated this case complex, it made specific findings to justify a
limited delay between the orders issuance and the next scheduling conference set for April 6,
2016.
This Courts stated rationale for the excludable delaynamely the number of defendants
(26), the expected volume of discovery, anticipated disputes about evidence, and the
procedural steps of preparing for trialall justified the modest delay. (ECF No. 289, at 4).

Defendants reliance on United States v. Clymer, 25 F.3d 824 (9th Cir. 1994) is unfortunate
and misplaced; since it was decided, the court has limited its holding to its unique facts. United
States v. Pete, 525 F.3d 844, 851 (9th Cir. 2008) (citing United States v. Vo, 413 F.3d 1010,
1014-15 (9th Cir. 2005)). Because this Court did not defer ruling on any pretrial motion until
after the trials conclusion, Clymer is inapposite.
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This Courts fact-findings were comparable to, or greater than, those held sufficient in United
States v. Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010) and United States v. Murillo, 288 F.3d
1126, 1134 (9th Cir. 2002).
Moreover, the facts in this case stand in stark contrast to those in the cases defendant
cites. This case is proceeding to trial just seven months after the original Indictment, despite the
large number of defendants, the extraordinary number of motions, the interlocutory appeals, and
the need for the Court to undertake extraordinary measures to control the proceedings, address
motions to quash filed by public officials, and pick an unbiased jury for a case expected to last at
least two months. Despite the volume of motions filed, there is no dispute that this Court has
ruled on them all promptly; in addition, Senior U.S. District Judge Robert E. Jones has
substantially assisted the Court by handling an equally large number of pretrial motions
regarding various defendants release and conditions of release.
As a consequence, this Courts case management has not only ensured that defendants
statutory speedy trial rights have been met, it also refutes any suggestion that defendants
constitutional rights to a speedy trial have been violated. In general, compliance with the speedy
trial act will satisfy the Constitution. United States v. King, 483 F.3d 969, 976 (9th Cir. 2007).
A trial that commences within the time prescribed by the speedy trial act raises a strong
presumption of compliance with the Constitution. Id. Moreover, because trial in this case has
commenced within less than a year of the indictment, there is no presumptive prejudice. United
States v. Gregory, 322 F.3d 1157, 1161-62 (9th Cir. 2003). Defendant fails to identify any
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prejudice and, in fact, he appears to suggest that he too needed time to review discovery, but he
simply disagrees with this Courts methodology for finding excludable delay.
Defendants assertion that this Court demanded that he waive his speedy trial rights is
simply false, and nothing in the record supports his attempted analogy to the facts in Zedner.
Instead, the record simply reflects that this Court extended the trial date for the second group of
defendants who proactively wanted more time to prepare for trial.
Finally, because there is no speedy trial act violation, this Court need not address whether
dismissal should be with or without prejudice. Even so, defendants assertion that the
government intentionally prejudiced him by seeking tactical delays is false and unsupported
by anything in this record. The government has moved with dispatch to respond to discovery
demands, defense motions, defense appeals, and trial management directives from this Court.
Most pointedly, defendants assertion that the government has admitted that it intentionally
delayed taking action during the occupation for political reasons, is most decidedly false. To
support his claim, defendant cites several of his own pleadings; he cites nothing actually
produced or said by the government. What the government has represented in several of the bail
review hearings is that federal law enforcement agents specifically avoided issuing ultimatums
because they wanted to avoid a violent conflict. To suggest that endeavoring to reach a peaceful
resolution unnecessarily delayed the trial is preposterous.
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IV.

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Conclusion
Defendants Motion to Dismiss the Indictment (ECF No. 1203) should be denied.
Dated this 8th day of September 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Ethan D. Knight
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

Governments Response to Ammon Bundys Motion to Dismiss Indictment for

Impermissible Delay (#1203)

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