Case 3:16-cr-00051-BR

Document 1402

Filed 10/09/16

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Lisa A. Maxfield OSB 84433

Pacific Northwest Law, LLP
1420 World Trade Center
121 S.W. Salmon Street
Portland, Oregon 97204
t. 503.222.2661 f. 503.222.2864
lamaxfield@pacificnwlaw.com
Attorney for Defendant Neil Wampler

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
NEIL WAMPLER,
Defendant.

3:16-cr-00051-BR
Motion in Limine
to Allow Evidence of
Defendants State of Mind;
Proffer

The Defendant, Neil Wampler, through counsel, Lisa A. Maxfield and Pacific
Northwest Law, LLP, moves the Court for a determination of the admissibility
certain statements made by the defendant during the course of the alleged
conspiracy, which are offered as proof of his motive and his then-existing state of
mind.
Defendant moves, further, for an order excluding evidence of a prior
conviction that occurred in 1977 as improper impeachment. FRE 609.
//
United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR
Motion in Limine to Allow Evidence of Defendant's State of Mind; Proffer

Case 3:16-cr-00051-BR

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FACTUAL BACKGROUND
The government has alleged a conspiracy to prevent, by force threat or
intimidation, officials of the U.S. Fish & Wildlife Services (USFW) and the Bureau
of Land Management (BLM) from performing their duties. According to the
government, the alleged conspiracy began on November 3, 2015 and continued
until David Fry left the Malheur National Wildlife Refuge a little after 12:00 p.m.1
on February 11, 2016.
The primary issue in the case is whether Mr. Wampler entered into an
illegal agreement to prevent USFW and BLM employees from working at the
refuge. Key to this determination is his state of mind. In opening statement,
defense counsel told the jury that Mr. Wampler was at the refuge for two noncriminal purposes. First, he was at the refuge because he wanted to continue his
political protest of the plight of the Hammonds. Second, he was passionate
about the United States Constitution and historical events, and relished an
opportunity to talk with the many other people at the refuge who shared his
enthusiasm for these topics. As evidence of his state of mind, Mr. Wampler
proffers several statements made during the course of the alleged conspiracy.
From January 3-6, 2016 and January 10-17, 2016, Mr. Wampler cooked
breakfast with Diane Holthaus every morning. Ms. Holthaus will testify that Mr.
Wampler was a cheerful old hippy who loved talking about the Constitution, the
Nuremburg trials, history and how various historical events related to things that
were happening today. Mr. Wampler told her he was at the refuge to protest the
treatment of the Hammonds.

The government has taken the position that no defendant legally withdrew from the conspiracy
and that an arrest did not extinguish responsibility for conspiratorial conduct that occurred later.

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion in Limine to Allow Evidence of Defendant's State of Mind; Proffer

Case 3:16-cr-00051-BR

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On January 8, 2016, Janalee Tobias had a conversation with Mr. Wampler

in the kitchen at the refuge. Mr. Wampler told her he was at the refuge because
the Hammonds were losing their freedoms and it was important for him to join the
protest to support them.
On January 11, 2016, Louis Smith visited the refuge and talked to Mr.
Wampler. Mr. Wampler talked at such length about historical events that Mr.
Smith concluded that Mr. Wampler was at the refuge as an historian.
On January 13, 2016, Ed Snipes had a conversation with Mr. Wampler
about the Constitution and the Hammonds. Mr. Wampler told him he was at the
refuge to protest the treatment of the Hammonds. Mr. Wampler told him the
protest was peaceful and he had a constitutional right to be a part of it.
On January 19th or 20th, Neil Wampler left for home.
On February 10, 2016, while the final four were still at the refuge, Mr.
Wampler was arrested at his house. The next morning, Agents Blanchard and
Madrano transported him to court in Los Angeles. At about 8:18 a.m., Wampler
spontaneously said, "I really can't resist the temptation to try to proselytize a bit
... I don't know if I really want to talk about it all that much, but I might be able to
give you a few educational sources that if you ever got around to it you could look
at...to kind of see where our heads are at and stuff like that." [MNWR 0003417]
Mr. Wampler asked for a pen and paper and wrote down the names of several
educational presentations on YouTube, explaining the significance of each.2 Mr.
Wampler told agents these videos would give them a clue into our thinking.
2

Mr. Wampler explained that Yale Professor Joanne Freemans specialty is colonial America,
the American Revolution and the formation of the federal government. It is surprising the
things you will learn like there was not universal enthusiasm toward the Constitutional
Convention. He said Sheriff Mack won a landmark Supreme Court case, Printz v. United States
with a striking pronouncement that states are not political subdivisions of the federal
government. He said KrisAnn Hall came to Burns during the occupation to lecture on the
Constitution and it was his idea to invite her.
United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR
Motion in Limine to Allow Evidence of Defendant's State of Mind; Proffer

Case 3:16-cr-00051-BR

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The defense conferred with the government regarding this evidence a week
ago. The government contends the statements are inadmissible hearsay. It also
takes the position that it is irrelevant whether Mr. Wampler loved to talk to others
about the Constitution and history.
Finally, the government asserts that if Mr. Snipes testifies Mr. Wampler
described the protest as peaceful, the defense has opened the door to proof of
the defendants 1977 murder conviction.
(The parties have agreed that if the statements to the FBI are admissible,
SA Blanchard can testify by phone. It also is possible this evidence could be
admitted by stipulation.)
LEGAL ARGUMENT
I.

Many of the proffered statements are not hearsay because they are not
offered for the truth of the matter asserted.
Many of the statements are not hearsay. For example, testimony that Mr.

Wampler talked regularly about the Constitution, the American Revolution, the
Nuremburg Trials, and the lessons of history is not hearsay. Nor is the
handwritten list of educational resources on YouTube that he gave to FBI agents
so they could see where are heads are at. These statements are not offered for
truth of anything Mr. Wampler said. They are offered to show he was passionate
about these subjects and thrilled to be in the company of so many people with
similar interests. For Mr. Wampler, having an audience receptive to his soapbox
chronicles was plenty motivation to stay at the refuge.
II.

Statements offered for the truth of the assertion are admissible under
FRE 803(3).
Mr. Wamplers statements that he is at the refuge to protest the treatment

of the Hammonds are offered for the truth of the matter asserted. These
statements are admissible under FRE 803(3), which provides:

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion in Limine to Allow Evidence of Defendant's State of Mind; Proffer

Case 3:16-cr-00051-BR

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The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:
(3) A statement of the declarants then-existing state of mind (such
as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of
the declarants will.
Relying on United States v. Sayakhom, 186 F.3d 928 (1999), the
government asserts FRE 803(3) does not apply. In Sayakhom, the defendant
offered statements she made to insurance investigators about prior sales of life
insurance products. Unlike the statements at issue there, all of Mr. Wamplers
proffered statements were made during the course of the alleged conspiracy,
including his post-arrest statements to Agents Blanchard and Madrano. Mr.
Wamplers spontaneous statements to the agents were not about an historical
memory or belief. Instead, Mr. Wampler said the YouTube presentations would
demonstrate where are heads are at meaning his current state of mind. When
he made these statements, the Final Four was still at the refuge. The alleged
conspiracy had not ended, so Mr. Wamplers state-of-mind still mattered.
A cumulative objection is anticipated if the defense offers all of the
statements. The court should not limit our proof on those grounds. Conspiracy is
the classic continuing offense. United States v. Castro, 972 F.2d 1107, 1112 (9th
Cir.1992). At issue here is Mr. Wamplers state-of-mind from November 3, 2015
to the afternoon of February 11, 2016. It is important to be able show that Mr.
Wamplers stated reasons for participating in the protest did not change or
morph, as is the theory of other defendants and the government.
Presenting all the proffered evidence will not take long. (It will take about a
tenth of the time it took to show the jury all the bullets found on the boat dock at
the refuge.) Moreover, the repetitive nature of Mr. Wamplers statements adds to

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion in Limine to Allow Evidence of Defendant's State of Mind; Proffer

Case 3:16-cr-00051-BR

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the probative value. His stated reasons and motivations stayed the same over
several weeks. In this case, that fact is important.
III.

Mr. Wamplers statement that the protest was peaceful and he had a
constitutional right to be a part of it does not open the door to a prior
conviction.
Mr. Wampler description of a peaceful protest does not open the door to

an attack on his general character. His statement describes the protest, not him.
The conviction the government seeks to introduce occurred almost 40 years ago.
It is extremely remote and offers nothing to impeach Mr. Wamplers perceptions
of the nature of the group's protest in 2016. The government's position is simply
an effort to create unfair prejudice.
Respectfully submitted this 8th day of October, 2016.
PACIFIC NORTHWEST LAW, LLP

/s/ Lisa A. Maxfield

Lisa A. Maxfield Partner 84433
Attorney for Defendant Neil Wampler
t. 503.222.2661 f. 503.222.2864
lamaxfield@pacificnwlaw.com

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion in Limine to Allow Evidence of Defendant's State of Mind; Proffer