Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 1 of 12 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 MOTION TO INSPECT, COPY & REPRODUCE RECORDS PERTAINING TO THE SELECTION OF BOTH THE GRAND AND PETIT JURIES OF THIS CASE 1 Judge: Hon. Anna J. Brown Defendant Ammon Bundy respectfully moves the Court for an order allowing him to inspect, copy and reproduce records pertaining to the selection of the grand and petit juries of this case, including all jury minutes, rolls, the master wheel, and all other records pertaining to jury selection processes and including the Court s recent emails, text messages, hand-written notes, files, voicemail messages, postage and mail logs. Certification of Conferral: Undersigned counsel certifies that an explanation of this motion and the grounds for relief was communicated to the government, and on July 22, 2016, Assistant United States Attorney Ethan Night has stated that the government s 1 The U.S. District of Oregon s approved Jury Plan provides, at Section 4.11, that disclosure of jury selection information will be provided upon motion directed to the Chief Judge, setting forth grounds why disclosure should be allowed. This motion is made simultaneously to both the Honorable Judge Anna Brown and to the Chief Judge.
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 2 of 12 position is: The government opposes defendant s motion regarding grand jury materials. It is also the government s position that the Court s prior rulings on this matters [sic] substantively address any additional claims. Grounds for Relief: Defendant Ryan Bundy previously filed a Motion (Doc. 481) for inspection of grand-jury selection records pursuant to 28 U.S.C. 1867(f) and 28 U.S.C. 1868. The Court denied the motion as moot (Doc. 576), referencing a declaration by the Jury Administrator. This motion both renews and expands that initial request. Defendant Ammon Bundy is in the process of preparing a challenge to the jury selection processes pertaining to both the grand juries and the petit jury being selected for the Sept. 2016 trial date. Significantly, during this period, the Jury Selection and Service Act, at 28 U.S.C. 1867(f) expressly permits an inspection of all jury selection records, and the opportunity to reproduce and copy these records at all reasonable times. Further, the United States Supreme Court, as argued in the accompanying Memorandum of Law and Authority in Support of this Motion, has held that this is essentially an unqualified right of inspection, without the intervening discretion of the court. Respectfully submitted this 22nd day of July, 2016. /s/ Marcus R. Mumford Marcus R. Mumford Attorney for Ammon Bundy /s/ J. Morgan Philpot J. Morgan Philpot Attorney for Ammon Bundy Page 2 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 3 of 12 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 BUNDY S MOTION TO INSPECT, COPY & REPRODUCE RECORDS PERTAINING TO THE SELECTION OF BOTH THE GRAND AND PETIT JURIES OF THIS CASE 2 Judge: Hon. Anna J. Brown MEMORANDUM IN SUPPORT Defendants in a federal criminal case have an unqualified right at any time prior to voir dire, to inspect jury selection records pertaining to both the grand and petit juries involved in their criminal case, pursuant to 28 U.S.C. 1867(f) and 28 U.S.C. 1868. Several federal district courts have attempted, but failed, to limit or qualify this right, or to require a showing by defendants justifying the extension of resources necessary to facilitate a full and unfettered inspection of all jury selection records. However, the law is clear. Defendants are not required, by law or any rule, to preview their concerns or 2 The U.S. District of Oregon s approved Jury Plan provides, at Section 4.11, that disclosure of jury selection information will be provided upon motion directed to the Chief Judge, setting forth grounds why disclosure should be allowed. This motion is made simultaneously to both the Honorable Judge Anna Brown and to the Chief Judge. Page 1 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 4 of 12 advance purported or speculative grounds for any future motion challenging the jury selection processes. The Court must simply accommodate the request for inspection, when it is timely made. As thoroughly explained by both the United States Supreme Court and the Ninth Circuit Court of Appeals, the statute provides an essentially unqualified right to inspect the jury selection records, at all reasonable times, during the preparation of a challenge to both grand jury and petit jury selection procedures. In this case, the Court previously referenced the Jury Administrator s declaration as a substitute for inspection. See Doc. 576 at 506. Respectfully, as addressed below, this was legal error. In any event, it is insufficient relief for Defendant s present motion. A. The Right To Inspect, Reproduce and Copy Jury Selection Records is Unqualified as a Matter of Law. 3 Simply, there is no provision allowing the government or the Court to cabin a lawful request under 28 U.S.C. 1867(f). This issue was specifically decided by the United States Supreme Court as far back as 1975, when it concluded that independent of a defendant s stated purpose, he has an unqualified right to inspection based upon the language of the statute and the policies supported by it. Test v. United States, 420 U.S. 3 While Defendant has endeavored with diligence to review the information provided by the Jury Administrator, the Court fell short of the law s requirement when it denied the prior motion as moot because the Jury Administrator s Declaration provides sufficient information for Ryan Bundy to determine whether the grand jury was made up of grand jurors from the vicinage of the alleged offense. Id. First, as this Court has previously ordered, all motions filed are joined by all defendants unless otherwise indicated, so it was not just Defendant Ryan Bundy s right to inspect, reproduce and copy that was it issue. Second, it is the content of the records, and an actual inspection related thereto including specifically the right to reproduce and copy such records and papers at all reasonable times that is it issue. Further, the Jury Administrator s declaration is expressly insufficient based upon Night Circuit cases making clear that this statute includes, the right to inspect the grand jury panel and the master wheel and their contents. United States v. Armstrong, 621 F.2d 951, 955 (9th Cir. 1980). Page 2 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 5 of 12 28, 29, 95 S. Ct. 749, 750 (1975). In Test, prior to trial, the defendant had filed a motion to dismiss alleging that the master lists from which his grand jury had been drawn (and from which the petit jury would also be selected) systematically excluded disproportionate numbers of people with Spanish surnames, students, and blacks. Id. at 29. Dismissal was argued pursuant to his Sixth Amendment right to an impartial jury and provisions of the Jury Selection and Service Act of 1968. Attached to his motion was, inter alia, a motion requesting permission to inspect and copy the jury lists pertaining to the grand and petit juries in the instant indictment. Id. The defendant had argued that inspection was necessary for discovering evidence to buttress his claims. Id. His request for inspection was denied. Id. He renewed his arguments before the Tenth Circuit, but his claims were again ignored. Id. The Supreme Court granted certiorari specifically for deciding whether the Jury Selection and Service Act required that petitioner be permitted to inspect the jury selection records. Id.; see also 417 U.S. 967, 95 S. Ct. 3170. (Emphasis added). In its ruling, the Supreme Court enforced the plain language of the statute, affirming that any party to a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times as essentially an unqualified right. Id. at 30. (Emphasis added.) The government s prior position (and the Court s prior order) cabining the prior request in the present case, to only one of the stated purposes (exploring the question of vicinage), and purporting that this purpose was fulfilled by a declaration from the Jury Administrator, plainly does not comply with the Supreme Court s express precedent on the question. [W]ithout inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge. Id. ( [A]n Page 3 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 6 of 12 unqualified right to inspecting is required not only by the plain language of the statute, but by the statute s overall purpose of insuring grand and petit juries selected at random from a fair cross section of the community. 28 U.S.C. s 1861. ) In this case, the right to inspect jury selection records is more urgent now, given the pendency of the September trial date. The Ninth Circuit has made clear that where a future inspection cannot correct the plain prior error of a court which impermissibly denies a motion to inspect, that denial is grounds for reversal after trial. United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987). Further, there are other rights affected directly by the Court s treatment of this issue in this case. If inspection reveals grounds upon which to challenge the jury selection, a defendant may file a motion challenging the jury selection or, dismissing the indictment. United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986). Given the current limits of pretrial incarceration this prejudice grows even more problematic with the pass of each day, because Defendant (and presumably the other defendants joined automatically hereto) needs time to pursue these rights before the prejudice compounds, and to make a motion to stay or dismiss prior to trial. People of Territory of Guam v. Palomo, 511 F.2d 255, 258 (9th Cir. 1975). B. This Motion Includes Information Not Previously Available. Since the prior motion, new jury selection processes have begun for the petit jury. Defendant is also entitled to inspect records pertaining thereto. Thus, in addition to his pending right to challenge the past indictment(s) based upon unlawful conditions affecting grand jury selection, he also has a right to preemptively examine and prepare a motion related to the present efforts to select a petit jury including a motion to stay Page 4 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 7 of 12 the September trial date. Id. Further, as the Court has been directly involved and communicated regularly regarding the processes to select the petit jury this motion covers new material not previously available, including specifically, the contents of records or papers used by the jury commission or court in connection with the jury selection process. United States v. Beaty, 465 F.2d 1376 (9th Cir. 1972)(Emphasis Added). Therefore, Defendant respectfully requests that upon granting this motion the Court also make available all emails, text messages, hand-written notes, files, voicemail messages, logs, and all other communications and records used by the Court in connection with the jury selection process and that such disclosure be continuing. Id. C. This Motion Is Timely By Statute and Ninth Circuit Precedent. Though the prior motion was denied as moot, the law commands that inspection be allowed at at all reasonable times and does not limit the issue to one request at one specified time. This motion is timely. First, it s timely because the prior request was not granted, and defendants have an unqualified right that does not terminate simply by the Court s prior error. Second, it s timely because the same statute permits a jury challenge any time before the voir dire examination begins, Beaty, 465 F.2d at 1379. And, 28 U.S.C. 1867(f) relates to inspection of jury selection records before a defendant is required to file his challenge to the jury selection process. Third, it s timely because new information, not available previously, is included in the request. The law provides no exceptions. In Beaty, after a prison escapee, Ronald Wayne Beaty, hijacked a car at knife point and led authorities on a high-speed interstate flight (with hostages in tow) that ended in a dramatic crash, he was tried and convicted for, among other things, transporting kidnapped persons and aiding escape and arrest. He Page 5 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 8 of 12 was sentenced to twenty years. Prior to his trial however, like this case, there was a prior motion for inspection of the jury selection records. Like this case, the court erred and denied the motion. Beaty, 465 F.2d at 1379. But, in Beaty, the basis of the court s error wasn t a claim that the request was moot, it was that the motion constituted a fishing expedition with no justification shown and [] apparently made for the purpose of delay. Id. Also, similar to the instant circumstances, the defendant in Beaty recognized the Court s error and filed a second motion approximately one month later. In his second motion, Beaty argued that 28 U.S.C. 1867(a) permits a jury challenge any time before the voir dire examination begins and that 28 U.S.C. 1867(f) requires the inspection of records before the challenge motion, and requires inspection of records in the possession of the clerk. Id. The court in Beaty denied the second motion for an unlimited inspection of the jury records and subsequently amended its denial to include the explanation that the records were being currently used and that the records numbered in the thousands and would therefore take considerable time to inspect, and that no facts had been given to the court to show a probability of merit to the proposed jury challenge and finally that the granting of the motion would create serious security problems and interfere with the United States Marshal s responsibility for prisoner security. Beaty, 465 F.2d at 1380. On appeal, all of these purported exceptions were found to be impermissible restrictions, and in error. Id. The Ninth Circuit also ruled that the contents of the records was the subject of inspection preventing the prior position taken in this Court, in this case, when it entered a finding of moot -ness. Like the trial court in Beaty, this Court s prior order concluding that the Jury Administrator s Declaration provides sufficient information is an impermissible qualification of the Page 6 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 9 of 12 unqualified right a Defendant has to inspect the content of the jury selection records. No defendant is required to accept facts as declared by a government officer or employee. In Beaty, the Ninth Circuit also concluded, It is true that appellant was a felon who had suffered four prior convictions and had served many years in prison [ ] [but he] was right in asserting that he had a right to make the inspection before he made a motion to challenge the jury under 1867(a) which is timely any time prior to voir dire. Beaty, 465 F.2d at 1381-82. This inspection is necessary for the preparation of a challenge to the indictment and to the selection process of the petit jury, based upon failure to comply with the Jury Selection and Service Act and applicable federal law. No further grounds are required. See Test, 420 U.S. at 29 (Rejecting any qualifications or requirements for inspection, holding the right to inspect was essentially unqualified ); Beaty, 465 F.2d at 1379 (Expressly rejecting a no justification shown or fishing expedition argument to limit or qualify the right to unlimited inspection. See also United States v. Alden, 776 F.2d 771, 773 (8th Cir. 1985)( To avail himself of the right of access to otherwise unpublic jury selection records, a litigant need only allege that he is preparing a motion challenging the jury selection procedures [ ] [and he] may not be denied because it is unsupported by a sworn statement of facts which, if true, would constitute a substantial failure to comply [ ] [n]or may a motion to inspect be denied because the defendant fails to allege facts which show a probability of merit in the proposed jury challenge. ) The Court s own statements are also at issue in this request, based upon its statements already weighing on this subject of jury selection processes in this case. First, the Court has observed that, [T]he underlying events [related to the charged conspiracy] Page 7 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 10 of 12 took place in Malheur County in January and February of this year [ ] the September 7, 2016, trial is set to take place in Portland, Oregon, which is geographically quite remote from the community in which the underlying event took place. Doc. No. 389, at p. 7. Second, the Court has recently declared that the Court has drawn its jury pool by initially summonsing [sic] 1,500 jurors from the entirety of the District of Oregon and not only from the Portland Division where court has convened for this case. Doc. 884, p. 4-5. Third, the Court has also stated that it has observed the media coverage of this case, agreed that it has been extensive and concluded that much of the traditional media coverage has not contained confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight and has concluded that [w]hether the Court is capable of seating an impartial jury will be determined during a voir dire process. Id. at p. 4, 5 and 9. 4 The Court made this statement prior to the publicity that the government sought and obtained after the most recent detention hearing where Defendant Ryan Bundy sought to revoke pretrial detention, and the government opposed, in part, by referencing his alleged efforts several months ago, to braid a 12 to 15 foot rope made from bed sheets as a gratuitously characterized escape attempt from the sixth story of a metropolitan detention center. 5 The Court has also, in addition to any other records at issue, sent and received emails to 4 Defendant notes: In its order, at doc. 884, the Court makes no reference to the repeat media coverage of several recent plea agreements, or the inclusion of confessing statements made in open court based upon the Court s requirement that defendants changing their plea to guilty describe the basis for that plea in open court. 5 See Matsumoto, Samantha Ryan Bundy s 15-foot escape plan comes up short. The Oregonian. Published July 19, 2016. http://www.oregonlive.com/portland/index.ssf/2016/07/ryan_bundys_15- foot_rope_proba.html (Last Visited July 22, 2016.) Page 8 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 11 of 12 and from defense counsel in this case, related specifically to the jury selection process. Pursuant to 28 U.S.C. 1861 et seq, all of these statements are subject to challenge and verification by Defendant, including specifically the inspection described above, so that it may be discovered what grounds exist, if any, for Defendant s ultimate decision to bring motions challenging jury-selection and/or selection procedures. Test, 420 U.S. 28. Conclusion These records at issue presumably number in the thousands, and the process to legitimately pursue this right will obviously take substantial time. The inspection could also reveal grounds, inter alia, to stay the proceedings, Beaty, 465 F.2d at 1381, to challenge the jury in advance of trial, and to dismiss the pending indictments. Id.; See also People of Territory of Guam, 511 F.2d at 257. Defendant is not satisfied with the Jury Administrator s declaration regarding some of the records, particularly when he is entitled to inspect, reproduce and copy the content of all the records. Alden, 776 F.2d at 775 ( [T]he district court is not free to establish additional requirements that defendants must meet in order to gain access to jury selection records. ) Further, because the Court s prior ruling on moot -ness was in error, the Court must also re-open and allow motions reasonably flowing from the inspection once granted. Id. ( Even if the defendant's anticipated challenges to the jury selection process, as articulated at the time of his motion for inspection, are without merit, the defendant may still inspect the jury records. Grounds for challenges to the jury selection process may only become apparent after an examination of the records. ); Gov't of Canal Zone v. Davis, 592 F.2d 887, 889 (5th Cir. 1979)( Where, as here, a defendant is denied access to the very materials containing the information necessary to the filing of Page 9 MOTION TO INSPECT, COPY & REPRODUCE RECORDS
Case 3:16-cr-00051-BR Document 925 Filed 07/22/16 Page 12 of 12 a motion to dismiss for defective jury selection, his failure to file a formal motion blindly and speculatively drafted will not be viewed as an abandonment of his right. ) Additionally, facts discovered during the inspection could reasonably be expected to implicate a meritorious (non-publicity based) basis for a motion to move the trial to another location within the Federal District of Oregon or some other venue entirely, which Motion the Court must fairly allow. See e.g. United States v. Stanko, 528 F.3d 581 (8th Cir. 2008) (Showing a reasonable relationship between the wrongful denial of a defendant s request to inspect jury selection records, and the wrongful denial of a change of venue); see also Dupoint v. United States, 388 F.2d 39, 44 (5th Cir. 1967)( [O]ne must not arbitrarily be sent, without his consent, into a strange locality to defend himself against the powerful prosecutorial resources of the Government. ) [W]ithout inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge. Test, 420 U.S. 28 ( [A]n unqualified right to inspection is required [ ] [for the ] purpose of insuring grand and petit juries selected at random from a fair cross section of the community. )(Internal marks omitted.) This also directly implicates Defendant s rights, inter alia, his rights protected by the Fifth Amendment grand jury clause, the Fifth Amendment due process clause, the Fifth Amendment equal protection clause, and the protections afforded specifically under the Jury Selection and Service Act. Respectfully submitted this 22nd day of July, 2016. /s/ Marcus R. Mumford Marcus R. Mumford Attorney for Ammon Bundy /s/ J. Morgan Philpot J. Morgan Philpot Attorney for Ammon Bundy Page 10 MOTION TO INSPECT, COPY & REPRODUCE RECORDS