Case 3:16-cr-00051-BR

Document 1234

Filed 09/09/16

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MATTHEW SCHINDLER, OSB# 964190

501 Fourth Street #324
Lake Oswego, OR 97034
Phone: (503) 699-7333
FAX: (503) 345-9372
e-mail: mattschindler@comcast.net
HYBRID COUNSEL FOR DEFENDANT KENNETH MEDENBACH

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,
vs.

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

PROPOSED JURY
INSTRUCTION ON MEANING
OF FORCE

KENNETH MEDENBACH,
Defendant(s).
Defendant, Kenneth Medenbach, through hybrid counsel, Matthew Schindler
submits the following proposed instruction concerning the term force as used in
18 USC 372.
Force means physical coercion or compulsion with the threat of
violence. The possession or carrying a firearm without more is not
force as that term is used in this statute.
Because of the overlay of First Amendment and Second Amendment issues
recognized by the court in this case as well as recent 9th Circuit cases interpreting
force within the context of the ACCA, it is necessary to define this term under the
unique circumstances of this case. See generally Johnson v. United States, 559 U.S.
133, 138 (2010); United States v. Werle, 815 F.3d 614, 621 (9th Cir. 2016)(The
United States concedes that the Washington riot statute does not require the level of
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Case 3:16-cr-00051-BR

Document 1234

Filed 09/09/16

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force required by Johnson as a necessary element of the offense. Nevertheless, the

United States argues that felony riot is categorically a violent felony under Johnson
because it requires that the defendant was an actor armed with a deadly weapon.
However, the fact that an individual is armed does not necessarily mean that he or
she has used the weapon in any way.); United States v. Parnell, 818 F.3d 974, 980
(9th Cir. 2016)(The mere fact an individual is armed, however, does not mean he
or she has used the weapon, or threatened to use it, in any way. There is a material
difference between the presence of a weapon, which produces a risk of violent force,
and the actual or threatened use of such force. Only the latter falls within ACCA's
force clause. There is a material difference between the presence of a weapon, which
produces a risk of violent force, and the actual or threatened use of such force. Only
the latter falls within ACCA's force clause.)
Based on the above, the defendant urges the court to provide the proposed
instruction regarding force.

Respectfully submitted on August 23, 2016.

Matthew A. Schindler, OSB#964190

Hybrid counsel for Kenneth Medenbach

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