Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 1 of 10

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

DEFENDANT AMMON BUNDYS
MOTION TO STAY TRIAL
PROCEEDINGS PENDING APPEAL
District Judge Anna J. Brown

MOTION AND INCORPORATED MEMORANDUM IN SUPPORT

Defendant Ammon Bundy, by and through counsel, moves the court for an order staying
all trial proceedings including specifically pausing all jury proceedings and the presentation of
the Defendants case-in-chief - pending the resolution of his appeals, #967 and #1359, both
currently pending before the Ninth Circuit.
I.

The Filing of Mr. Bundys Most Recent Appeal Based Upon the Denial of
Injunctive Relief Divests the District Court of Jurisdiction to Proceed.

Mr. Bundys right to appeal this courts September 22, 2016 denial (#1327) of his
emergency motion to dismiss and for injunctive relief (#1248), is not permissive, but an appeal
of right by direct congressional construction pursuant to both 28 U.S.C 1292(a)(1) and 28
U.S.C. 2161. The appeal raises issue central (rather than collateral) to Defendants theory of
his defense, and as the court has noted, Defendants have made an exhaustive record through
multiple filings and arguments on the record regarding their contentions that the federal
Page 1 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 2 of 10

government lacks constitutional authority to own and to exercise jurisdiction over the MNWR
and as to their assertions that their alleged adverse-possession claim deprives this Court of
subject matter jurisdiction or otherwise constitutes a basis to dismiss the Superseding
Indictment. (#1327 at p. 10)
In addition to Defendants legal rights directly implicated by the courts order denying
injunctive relief, and respectfully, also in addition to the courts refusal to more carefully answer
the legal questions presented; critical to Defendants request for urgent appellate review is the
courts contemporaneous ruling that it will not entertain any additional motions regarding any
such arguments. In addition, Defendants may not seek to introduce any evidence or make any
argument to the jury inconsistent with the Court's Orders on these issues. Id. at 10. (Providing
only a limited exception for Defendants alleged state of mind.)
The Ninth Circuit has recently made clear that an appeal is a matter of right where the
district court[] issue[s] direct denials of requests for injunction. United States v. McIntosh, No.
15-10117, 2016 WL 4363168, at *4 (9th Cir. Aug. 16, 2016). See also United States v. Sanges,
144 U.S. 310, 319 (1892)(Establishing that it beyond the trial courts discretion to maintain
jurisdiction, because appellate jurisdiction is determined wholly on the acts of congress
defining appellate rights.); Gov't of Virgin Islands v. Hodge, 359 F.3d 312, 323 (3d Cir. 2004)
(But it is the Congress, not this Court, that has granted litigants an appeal as of right.)
It is beyond dispute that upon filing of the notice of appeal, Defendant has - by right conferred jurisdiction on the court of appeals and that this one act alone divests the district
court of its control over those aspects of the case involved in the appeal. United States v.
Ortega-Lopez, 988 F.2d 70, 72 (9th Cir. 1993), as amended (May 28, 1993); see also, United
States v. Vroman, 997 F.2d 627, 627 (9th Cir. 1993); United States v. Tovar-Rico, 61 F.3d 1529,

Page 2 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 3 of 10

1532 (11th Cir. 1995) (The filing of a notice of appeal is an event of jurisdictional significanceit confers jurisdiction on the court of appeals and divests the district court of its control over the
aspects of the case involved in the appeal.)
Thus, under these unique circumstances the court must stay all trial proceedings. There is
no jurisdictional exception allowing the court to proceed with trial under Rule 4(b)(5) of the
Federal Rules of Appellate Procedure. In fact, it is the interruption of the trial proceedings that
is the central reason and justification for authorizing such an interlocutory appeal in the first
place. Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990)([W]hen an interlocutory appeal
is taken, the district court [only] retains jurisdiction to proceed with matters not involved in that
appealin such cases the divestiture of jurisdiction brought about by the defendant's filing of a
notice of appeal is virtually complete, leaving the district court with jurisdiction only over
peripheral matters unrelated to the disputed right not to have defend the prosecution or action at
trial. See also Foster v. Gilliam, 515 U.S. 1301, 1302 (1995)(Upholding the interruption of a
state trial based upon Appellate Court intervention.); United States v. Loud Hawk, 474 U.S. 302,
316 (1986)(Examining, by implication, the required trial delay upon a criminal defendants
interlocutory appeal.)1
II.

Mr. Bundys Other Pending Appeal Regarding Pretrial Detention is Further

Justification for Temporarily Stopping the Trial.

There are two basic reasons why Mr. Bundys pending Bail Reform Act related appeal
support the stay of proceedings here requested. First, as the trial has progressed, the pretrial

In fact, this motion is filed out of respect to the court and proceedural clarity, because even
prior to granting this motion the issue is conclusive that the court cannot proceed because it is
the filing of the notice of interlocutory appeal itself that operates to divest the district court of
jurisdiction not any secondary exercise of the trial courts discretion and the trial court must
suspend its proceedings once a notice of appeal is filed. Stewart, 915 F.2d at 583; see also,
Ortega-Lopez, 988 F.2d at 72.
Page 3 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 4 of 10

detention of Mr. Bundy has been accompanied with an unjustifiable and severe additional
restriction on his ability to prepare and participate in his defense. As the court is aware and has
been informed, the pretrial detention of Mr. Bundy continues to cause severe complications for
Mr. Bundy to meet with counsel including repeated denial of contact visits during trial to
review critical discovery, examine witness statements, review possible impeachment evidence
directed at government witnesses and other defense objectives and preparations during trial.2
Second, in that appeal (No. 16-30080) Mr. Bundy has also raised the district courts
initial ruling regarding the merits of an adverse possession defense, and the legal consequence
of the property rights asserted by Mr. Bundy during the January 2016 occupation, and the district
courts ruling that these claims do not assert a legal defense to the pending charges and are not
relevant facts and circumstances for release consideration. Given that the trial court has
continued to uphold that ruling pertaining to adverse possession not being a legal defense, and to
make additional rulings relying substantially upon the same holding, that pretrial detention
appeal has now become central to Mr. Bundys due process based Constitutional right to raise
a full and complete defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L.
Ed. 2d 636 (1986) ([T]he Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense.)(Quotation omitted). Like the injunction issues above,
Defendant also has a right based upon his personal and fundamental liberty - to have the
appellate court review this courts fundamental legal aversion and refusal to fully analyze and
treat the consequence of adverse possession in detail. See McIntosh, 2016 WL 4363168, at *7.
(The Supreme Court has recognize[d], of course, that the separation of powers can serve to
safeguard individual liberty and that it is the duty of the judicial departmentin a separation-

See attached declaration of attorney J. Morgan Philpot, incorporated here by reference.

Page 4 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 5 of 10

of-powers case as in any otherto say what the law is. ). In the present case, despite the
governments almost complete refusal to consider the actual merits of the adverse possession at
issue rather than a subsequent quiet title determination (which has never been raised by
Defendants), and despite the courts short and shallow treatment of the lawfulness of defendants
actual and particularly legal actions pursuant to undisputed adverse possession law as a legal
action of force, regardless of the actual land owner being adversely affected (again, independent
of any quiet title question) - Mr. Bundy and his Citizens for Constitutional Freedom have a
fundamental, un-evadable, moral, and legal right to have the CENTRAL questions to their
political protest and activism answered by the federal judiciary. Mr. Bundys colleague has been
killed, Mr. Bundy has been imprisoned pretrial for almost a year under extreme depravations for
a defendant presumed to be innocent and both executive branch and the judiciary have been
avoiding the significant, consequential and legitimately raised issues presented. Respectfully,
while this court has explained its excuse for avoiding these issues, and its related rulings 3
interlocutory appeal at this critical juncture, and a full stop to the currently underway trial
proceedings, is the only remedy left, explicitly provided by the Congress, to put the brakes on
this unjust march through the thicket of legal procedure, and for Mr. Bundy and his codefendants to obtain the actual clarifying light of a direct, solid and sound determination of the
legal questions theyve presented as the core of their defense related to Article I, Section 8 of the
constitution, the basic American principles of private property, and the continued vitality of
personal private property and the rights of individual citizens necessary to act thereupon. That
principle is neither new nor controversial. As James Madison wrote, it was foreseen at the birth

A courts myopic insistence upon expeditiousness can violate both a defendants due
process rights and can render the right to defend with counsel an empty formality. Ungar v.
Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 850 (1964))
3

Page 5 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 6 of 10

of the Constitution, that difficulties and differences of opinion might occasionally arise in
expounding terms & phrases necessarily used in such a charter ... and that it might require a
regular course of practice to liquidate & settle the meaning of some of them. N.L.R.B. v. Noel
Canning, 134 S. Ct. 2550, 2560, 189 L. Ed. 2d 538 (2014). Here, as the Fifth Circuit has
observed, to justify a stay, Defendant only needs to present a substantial case on the merits
when a serious legal question is involved and show that the balance of the equities weighs
heavily in favor of granting the stay. Ruiz v. Estelle, 650 F.2d 555, 56566 (5th Cir. 1981).
DATED: September 27, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

Page 6 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 7 of 10

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,

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

v.

DECLARATION OF ATTORNEY J.
MORGAN PHILPOT

AMMON BUNDY, et al,

District Judge Anna J. Brown

Defendants.
1. My name is J. Morgan Philpot, and I am the Oregon attorney currently representing
Defendant Ammon Bundy, and supervising as required, the pro hac vice admission and
related efforts of Mr. Bundys other attorney, Marcus R. Mumford.
2. During the current trial proceedings, my colleague Mr. Mumford and myself have been
severely handicapped and restricted in providing the necessary legal assistance and
counsel to Mr. Bundy due to the continued pretrial restrictions placed on Mr. Bundy,
which restrictions have noticeably increased in severity and consequence during trial.
3. While we have repeatedly communicated to the court specific concerns and intolerable
impedance on Mr. Bundys ability to be meaningfully and adequately be involved with
and help prepare his defense (which concerns the court has made some efforts to address
and but despite appearances, more effort to disclaim), the circumstances have only been
made worse during trial in the following specific ways:

Page 7 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 8 of 10

a. Since the beginning of trial Mr. Bundy has not been allowed by the U.S.
Marshalls to meet and confer during trial breaks during the trial day.
b. Since the beginning of trial Mr. Bundy has not been allowed, during breaks, to
have tools and resources used in the courtroom during his defense such as legal
pads, normal writing instruments, and normal paper and normal amounts of paper,
for writing notes, reviewing examination outlines, witness rebuttal materials, etc.
c. Since the beginning of trial Mr. Bundy has not been allowed the use of daily court
rough transcriptions without additional cost.
d. Since the beginning of trial Mr. Bundy has regularly been deprived of meals and
adequate sustenance, resulting in physical and mental fatigue beyond what is
normal or allowable under basic principles of fairness and decency.
e. Since the beginning of trial Mr. Bundy has not been allowed to use electronic
communication devices, while the court has expressly allowed and provided
access to other pretrial detained defendants (i.e. his brother Mr. Ryan Bundy).
This has been a severe impediment as Mr. Bundy has not been able to read,
review or participate in the in court conversations between his attorneys, and
between the joint defense attorneys who are relying almost exclusively upon that
kind of electronic communication in court. Most particular, after the defense
finally secured (after several months) Mr. Bundys personal laptop (which was
being held by the US Attorneys Office) and after Mr. Mumford and myself had
asked, at the beginning of the trial day and during the first witness crossexamination, for Mr. Bundy to log into his laptop and review materials thereupon
potentially helpful and related to our cross-examination, and related to our

Page 8 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 9 of 10

preparations for our upcoming presentation of our case and chief, the United
States Marshalls immediately intervened and refused to allow him to even access
the laptop while being directly supervised and sitting in between his two
attorneys.
f.

Finally, and perhaps worse of all, since trial, and as the court has been keep fully
informed, the county detention facility has been repeatedly and severely
restricting and limiting without explanation or justification Mr. Bundys
ability to have contact visits with his legal team.

On Wednesday, March 21, 2016, Mr. Bundys legal team was denied
access, despite having previously ensured via written confirmation (with
copies to the court) that access would be afforded all members of Mr.
Bundys legal team (including my legal assistant/paralegal).

On Friday, March 23, 2016, Mr. Bundy was denied all legal contact
visits, despite a member of his legal team being present at the detention
facility for approximately five hours attempting to persuade the facility
to allow the contact visit.

On Saturday, March 24, 2016, Mr. Bundy was denied contact with his
legal counsel after having had a prior personal visit and a prior
professional visit from an investigator of another defense team, who had
our permission to be there, but not in lieu of further visits with Mr.
Bundy by us.

On Monday, March 26, 2016, Mr. Bundy was again denied access to his
legal counsel, and only after more than an hour of time negotiating with

Page 9 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.

Case 3:16-cr-00051-BR

Document 1360

Filed 09/28/16

Page 10 of 10

guards at the county detention facility was he provided limited contact,

and this contact was unjustifiably limited to a period less than 2 hours.
4. The interference with Mr. Bundys ability to have contact visits with his legal team
during trial has caused his defense to procced without his complete and relevant personal
insights, factual knowledge about witnesses and exhibits and has caused him to have to
make significant omissions and forgo previously planned defense work including
specifically not being able to present certain impeachment exhibits to government
witness during direct examination, including specifically, Chad Karges and government
witness Sheriff David Ward.
5. At this point, release from the present pretrial detention conditions is essential to mitigate
further prejudice as Mr. Bundy presents his case-in-chief.
I declare under penalty of perjury that the above recited facts are true and accurate based upon
my personal knowledge and recollection.
DATED: September 28, 2016
/s/ J. Morgan Philpot
J. Morgan Philpot
Attorney for Ammon Bundy

Page 10 of 10 | Defendant Ammon Bundys Motion to Stay Trial Proceedings Pending Appeal.