Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

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1 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 1 of 11 J. Morgan Philpot (Oregon Bar No ) Marcus R. Mumford (admitted pro hac vice) 405 South Main, Suite 975 Salt Lake City, UT (801) 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 BR MOTION TO DISMISS JUROR FOR BIAS OR, IN THE ALTERNATIVE, FOR MISTRIAL District Judge Anna J. Brown Yesterday, the Court received from the jury a note asking: CAN A JUROR, A FORMER EMPLOYEE OF THE BUREAU OF LAND MANAGEMENT, WHO OPENS THEIR REMARKS IN DELIBERATIONS BY STATING, I AM VERY BIASED BE CONSIDERED AN IMPARTIAL JUDGE IN THIS CASE? After conferring with the parties, the Court inquired of the foreperson (Juror #1), who identified Juror #4 as the note s author, attributing the statement to Juror #11. The Court conducted a limited inquiry of Juror #11 but refused to ask whether he made an admission of bias as Juror #4 alleged. Based on its limited inquiry, the Court found no basis to dismiss Juror #11 and declined Defendants request for any further investigation. The Court, however, invited further briefing on the matter. Based on the authority that follows, Defendant Ammon Bundy moves the Court (1) to dismiss Juror #11 from any further deliberations, (2) to replace Juror #11 with one of the remaining alternate jurors with an instruction to the jury to begin its deliberation anew, Fed. R. Crim. P. 24(c)(3), or (3) in the alternative, to declare a mistrial. 1

2 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 2 of 11 * * * I. The Court Has A Duty To Conduct A Thorough Investigation Of Alleged Juror Bias. The situation presented here is similar to the difficult position faced by the trial court in Dyer v. Calderon, 151 F.3d 970, 979 (9th Cir. 1998). In that case, the Ninth Circuit held that because of how [t]he bias or prejudice of even a single juror would violate [a defendant s] right to a fair trial, any court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances, including whether the juror s answers in voir dire were dishonest and, if so, whether this undermined the impartiality of [the defendant s] jury. Id. at (emphasis added). The trial court has an obligation to develop the relevant facts on the record, not merely presume them, being especially careful to pursue the matter with the requisite verve, so as to avoid a situation where a judge s lack of verve casts doubt on his findings. Id. at 976 (quoting United States v. Gaston-Brito, 64 F.3d 11, 13 (1st Cir. 1995)). As applied to the facts of this case, it is simply insufficient for the Court to stop short of a reasonable investigation of all the relevant facts and circumstances of the colorable claim of bias in favor of its limited questioning of Juror #11. The Ninth Circuit recognized that, while [n]o judge would be eager to discover bias in these circumstances, the trial judge must avoid complacency, including an ostrich-like desire to avoid learning the details of a juror s bias and evidence that was, almost literally, right under his nose, and should avoid findings that are either inexplicable given what he knew or positively irrational given what he could easily have learned. Id. at 979. Instead, where a juror is suspected of prejudice, the trial judge must assume the primary obligation to fashion a responsible procedure for ascertaining whether misconduct actually occurred and if so, whether it was prejudicial. Id. at (quoting United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 2

3 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 3 of )); see also United States v. Hendrix, 549 F.2d 1225, 1231 n. 2 (9th Cir. 1977) (trial court must conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred (quoting United States v. McKinney, 429 F.2d 1019, 1026 (5th Cir. 1970)). In the present case, Juror #11 is not merely suspected of prejudice. Instead, Juror #4, by way of Juror #1, provided an unsolicited and detailed note that specifically attributed an admission of impermissible bias made by Juror #11 at the start of deliberations. The alleged admission concerns an area where Juror #11 had already admitted providing an insufficient answer in voir dire. While the Court did engage in limited questioning of Juror #11, it did not directly inquire into the event i.e., the admission attributed to him by Juror #4 clearly falling short of a procedure that would allow the Court to ascertain whether misconduct actually occurred. Dyer, 151 F.3d at 978. The Ninth Circuit has made clear that, the trial judge fulfills h[er] duty only if [s]he erects, and employs, a suitable framework for investigating the allegation [of bias] and gauging its effects[.] Id. The Court not only failed to ask Juror #11 directly whether he made the admission of impermissible bias, but it also declined to question Juror #4 as unanimously requested by all seven defendants. Thus, the Court directly failed to establish that the allegation of bias is unfounded. At a minimum, this Court should conduct an investigation sufficient to address whether Juror #11 made the statement, and, if so, whether that statement affected deliberations. Further, the limited questioning posed to Juror #11 was inadequate [b]ecause [in such cases] the bias of a juror will rarely be admitted by the juror himself, partly because the juror may have an interest in concealing his own bias. United States v. Torres, 128 F.3d 38, 47 (2d Cir. 1997) (quotation omitted); see also United States v. Allsup, 566 F.2d 68, (9th Cir. 1977) ( Bias can be revealed by a juror's express admission of that fact, but, more frequently, jurors are reluctant to admit actual bias, and the reality of their biased 3

4 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 4 of 11 attitudes must be revealed by circumstantial evidence. ); Oswald v. Bertrand, 374 F.3d 475, 484 (7th Cir. 2004) ( Having invested time in the trial jurors are unlikely to acknowledge bias. ); Hughes v. United States, 258 F.3d 453, 459 (6th Cir. 2001). Finally, matters involving Juror #11 are not necessarily limited to questions of bias. The statement reported by Juror #4 provides the basis for a reasonable inference that Juror #11 admitted his bias in connection with an explanation of his employment history with the BLM. This very directly and legitimately raises a question as to whether the jury is being exposed to extraneous facts not in evidence, provided as part of an explanation by Juror #11 as to what created his self-confessed bias. See, e.g., United States v. Swinton, 75 F.3d 374, 381 (8th Cir. 1996) (remanding for a hearing into possible juror misconduct that might have expose[d] the jury to factual matters not in evidence ). In Swinton, the Eighth Circuit explained that [t]he question of when a juror is resorting to knowledge obtained outside the record presents some difficulties including a violation of the right to confrontation such that where juror misconduct exposes the jury to factual matters not in evidence, we presume prejudice and require the government to prove beyond a reasonable doubt that the inappropriate activity did not harm the defendant. Id. at ; see also United States v. Tucker, 137 F.3d 1016, (8th Cir. 1998). The evidentiary hearing requirement in Swinton is actually the Eighth Circuit adopting the Ninth Circuit s standard for reversal when the possibility of extrinsic material could have been considered by the jury. United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981). Here, given the centrality of BLM employee duties and the controversy and conflict surrounding the BLM as presented in both the government s case-in-chief, and in the defense, it is unreasonable to overlook the report of Juror #11 having made statements to other jurors apparently based upon his personalized knowledge and experience as a prior BLM employee. 4

5 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 5 of 11 Ii. Dismissal Of Juror #11 Is Required Due To Actual Or Implied Bias. Actual bias is typically found when a prospective juror states that he can not be impartial. Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007). The information provided by Juror #4 raises a question of actual bias, and, while Juror #11 did not directly admit such bias, even upon general questioning, his answers remain less than definitive. This is precisely the circumstance, when viewed in context, where Juror #11 s initial answers on voir dire were equivocal, and on questioning yesterday, indirect. Actual bias is typically found when [a juror] expresses a view adverse to one party s position and responds equivocally as to whether he could be fair and impartial despite that view. Fields, 503 F.3d at 767. In any event, under the present circumstances, Defendants are entitled to an opportunity to prove actual bias at a full hearing where Juror #11 is broadly questioned under oath on the issue. Smith v. Phillips, 455 U.S. 209, 215 (1982) ( This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. ). In contrast to actual bias, implied bias exists when the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. Fields, 503 F.3d at 767. The allegations regarding Juror #11 fall within this framework, with at least sufficient detail to justify further proceedings prior to any additional deliberations. As the Ninth Circuit has explained, [w]e agree with the observation in Kiernan v. Van Schaik, 347 F.2d 775, 781 (3d Cir. 1965): That men will be prone to favor that side of a cause with which they identify themselves either economically, socially, or emotionally is a fundamental fact of human character. United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977). Here, the government s entire case was based on 47 witnesses, only 3 of which were not government employee, and the 5

6 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 6 of 11 central question has to do with an alleged conspiracy of force, intimidation or threat directed at FWS or BLM employees. Juror #11 may continue to claim he is not biased to the Court, but his admitted background, which was originally underreported, and the admission now reported by Juror #4 are credible reasons to suggested implied biased for the same reasons that former bank employees in Allsup could not be expected, despite their stated belief, to remain impartial in a bank robbery case. The potential for substantial emotional involvement, adversely affecting impartiality, is evident when the prospective jurors work for the bank that has been robbed. Persons who work in banks have good reason to fear bank robbery because violence, or the threat of violence, is a frequent concomitant of the offense The employment relationship coupled with a reasonable apprehension of violence by bank robbers leads us to believe that bias of those who work for the bank robbed should be presumed. Id. Here, while Juror #11 was not initially excused pre-trial, given the way the case developed, and the recent issue raised by Juror #4, the same apprehension of violence that was applicable in Allsup is applicable here to a former BLM employee sitting on a jury considering conspiracy charges including alleged force, intimidation and threats against BLM employees. Relevant here, the alleged statement reported by Juror #4 is not just that Juror #11 stated he was very biased but that the bias was related to his work history with the same BLM that is the alleged target of the Defendants actions in this case. In either circumstance, actual or implied bias, the tepid efforts so far employed by the Court are insufficient to resolve the concerns raised, and Juror #11 should be dismissed. The Ninth Circuit has expressly recognized that revelations of possible juror bias can occur in three distinct stages of trial: first, for those revelations that occur during voir dire, the remedy is a cause challenge ; second, for those that occur during trial, the remedy is a contemporaneous proceeding during which the trial court can preserve the integrity of the jury ; and third, for revelations that occur after trial, the remedy is a post-trial hearing. Fields, 503 F.3d at

7 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 7 of 11 Only the last stage is directly implicated by FRE 606, 1 and the current situation, where no verdict has been returned, falls within the second, contemporaneous proceeding stage, where the court should attempt to preserve the integrity of the jury. In this context, it is entirely appropriate and necessary to question the allegedly biased juror at a hearing and under oath. See United States v. Mitchell, 690 F.3d 137, 150 (3d Cir. 2012) ( The juror may be questioned in a hearing during or after trial if doubts regarding his or her impartiality emerge during the proceedings. All of these checks in the system exist to protect the defendant's right to be judged by an impartial jury, consistent with the Sixth Amendment. ); see also Tucker, 137 F.3d at (reversing where trial court failed to permit the defendant to question the juror under oath ). And the trial court is not bound by rigid rules, but has broad discretion. As a matter of common sense, a trial judge in making these decisions will necessarily be directed by the content of the allegations, including the seriousness of the alleged misconduct or bias, and the credibility of the source. United States v. Hendrix, 549 F.2d 1225, (9th Cir. 1977) (citation omitted); see also Fields, 503 F.3d at 804 n.1 ( We note that this determination may depend upon testimony of the juror in question. ). So, in the first instance, FRE 606 does not apply because of the stage of these proceedings, but secondarily, even without inquiring into specific deliberations as to the facts and evidence presented in this case, and without even touching on any juror s thoughts or impressions of the evidence received in this case, the Court must take steps to resolve the issue 1 See Warger v. Shauers, 135 S. Ct. 521, 529 (2014), where the Supreme Court observed that FRE 606 does not say during an inquiry into jury deliberations, or prohibit the introduction of evidence of deliberations for use in determining whether an asserted error affected the jury's verdict, but rather simply applies [d]uring an inquiry into the validity of the verdict that is, during a proceeding in which the verdict may be rendered invalid. Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties' ability to bring to the court's attention any evidence of bias before the verdict is rendered. Id. 7

8 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 8 of 11 of bias and possible taint by questioning on whether or not the statement was made, and whether or not related the possibility of extrinsic material could have been considered by the jury. If the Court is not inclined to further investigate, there is ample authority justifying the dismissal of Juror #11 based upon current circumstances. The settled rule in this and other circuits is that the trial judge, in h[er] sound discretion, may remove a juror and replace him with an alternate juror whenever facts are presented which convince the trial judge that the juror's ability to perform his duty as a juror is impaired. United States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977) (quoting United States v. Cameron, 464 F.2d 333, 335 (3rd Cir. 1972)); see also United States v. Jones, 534 F.2d 1344, 1346 (9th Cir. 1976); United States v. Domenech, 476 F.2d 1229, 1232 (2nd Cir. 1973); United States v. Ellenbogen, 365 F.2d 982, 989 (2nd Cir. 1966); United States v. Zambito, 315 F.2d 266, 269 (4th Cir. 1963). And, however the Court might decide to proceed, under any circumstance, a court must excuse a prospective juror if actual bias is discovered and any inconvenience to the Court or the proceedings is heavily counterbalanced by the substantial probability that a possibly biased juror despite their disclaimers, could not become the indifferent juror[]which the Constitution guarantees a criminal defendant. Allsup, 566 F.2d at A juror is considered to be impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court. Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). Any [d]oubts regarding bias must be resolved against the juror. United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000) (citation omitted). Iii. If The Court Declines To Dismiss Juror #11, It Should Declare A Mistrial. If the court cannot find a way to get to the bottom of the issue, having received credible information that the juror or jurors may be biased, then the only remedy is dismissal of the panel, 8

9 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 9 of 11 notwithstanding the expense and inconvenience of the result. At least as far back as 1891, the Supreme Court observed that in order to prevent the defeat of the ends of public justice when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused it was clearly within [the court s] authority to order the jury to be discharged, and to put the defendant on trial by another jury. Simmons v. United States, 142 U.S. 148, (1891). Significantly, in Simmons, the mistrial was further warranted by circumstances now present in this case where the allegation of juror bias has been prominently reported in the local media. 2 More is at stake here than the rights of petitioner; justice must satisfy the appearance of justice. Offutt v. United States, 348 U.S. 11, 14 (1954). An irregularity in the selection of those who will sit in judgment casts a very long shadow. Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987). A perjured juror is as incompatible with our truth-seeking process as a judge who accepts bribes. Cf. Bracy v. Gramley, 520 U.S. 899 (1997). Dyer, 151 F.3d at 983. In 1949, the Supreme Court prominently reaffirmed that mistrial, when a reasonable possibility of juror bias cannot be resolved, is the required remedy. [W]here a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant it is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. Wade v. Hunter, 336 U.S. 684, 689 (1949). This same doctrine was again reaffirmed in Discovery by the judge during a trial that a member or members of the jury were biased pro or con that circumstance has been held to 2 See Maxine Bernstein, One Juror Questions Impartiality Of Another Juror During Deliberations In Oregon Standoff Case, The Oregonian/OregonLive, Oct. 25, 2016, available at _river_home (reporting the juror notes and issue raised regarding Jurors 4 and 11). 9

10 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 10 of 11 warrant discharge of the jury and direction of a new trial. Downum v. United States, 372 U.S. 734, 736 (1963). The Supreme Court has continued to repeat this same guidance. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. Illinois v. Somerville, 410 U.S. 458, 470 (1973); see also Oregon v. Kennedy, 456 U.S. 667, 682 (1982). The simple principle here is that [t]he Sixth Amendment guarantees criminal defendants a verdict by impartial, indifferent jurors. The bias or prejudice of even a single juror would violate [the defendants ] right to a fair trial. Dyer, 151 F.3d at 973. In this case, the Court has repeatedly noted how the jurors have credibly and repeatedly reported to the Court instances where there may be issues, may be potential violations of the Court s instructions, and other significant matters. On this record, the unsolicited and detailed statement alleged to have been made by Juror #11, in a hand written note from Juror #4, is a credible and significant development, warranting dismissal of Juror #11 or a mistrial. It simply cannot be gainsaid that a fair system for the administration of justice must include the guarantee of an impartial jury for the criminally accused even over one potentially biased juror. Hendrix, 549 F.2d at The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice [because] the presence of a biased juror introduces a structural defect not subject to harmless error analysis. Dyer, 151 F.3d at 995. The case law is clear that this Court has an obligation to develop the relevant facts based on the existing evidence of the statement alleged by Juror #4, which has not been directly investigated, and not merely presume them, with a full hearing and the requisite verve, id. at 976, or the court must dismiss Juror #11 and replace him with an alternate juror. Smith, 550 F.2d at 285. Absent these efforts, a mistrial is the only remaining remedy. DATED: October 26,

11 Case 3:16-cr BR Document 1492 Filed 10/26/16 Page 11 of 11 /s/ Marcus R. Mumford Marcus R. Mumford J. Morgan Philpot Attorneys for Ammon Bundy 11