Case 3:16-cr-00051-BR

Document 1496

Filed 10/26/16

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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,

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

Plaintiff,

DEFENDANT AMMON BUNDYS

RENEWED PROPOSAL FOR JURY
INSTRUCTION REGARDING SECOND
AMENDMENT RIGHTS

v.
AMMON BUNDY, et al,
Defendants.

District Judge Anna J. Brown

In argument over final jury instructions, the government misled the Court in how it would
argue to the jury in closing that Defendants conspired to use illegal force, intimidation, or threats.
With the jury now beginning deliberations anew, this is an appropriate time for the Court to
correct the issue that developed in the governments closing rebuttal argument.
At the October 17, 2016 hearing on final jury instructions, Defendant requested a jury
instruction regarding Second Amendment rights, to include, inter alia, a reference to
constitutionally-protected militia-related activity. [See Doc. #1444] Defendant was concerned
that the government intended to characterize certain militia-related statements attributed to the
Defendants generally as evidence of their alleged conspiracy to use illegal force, intimidation, or
threat. In response, the Court asked the government if it intended to use the label of militia in
its closing arguments and if the Court therefore needed to be concerned about instructing the jury
on militia-related activity as protected under the Second Amendment. (October 17, 2016 Tr.
(Rough) at 244-45) To that inquiry, the government promised the Court and Defendants that it
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Case 3:16-cr-00051-BR

Document 1496

Filed 10/26/16

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would not use the term militia or characterize Defendants involvement with militia-related
activity as constituting evidence of the alleged conspiracy. (Id.) When Defendants pressed the
issue, the Court promised that we could revisit it, if necessary, after the governments closing
arguments. (Id.) In its rebuttal argument on October 19, 2016, contrary to its prior assurance, the
government specifically argued that the presence of the militia activity at the refuge, which it
also described as protection by the people with guns, was, by itself, circumstantial evidence
of illegal force, intimidation, or threats, and thus evidence of the alleged conspiracy, in violation
of 18 U.S.C. 372. (October 19, 2016 Tr. (Rough) at 206-07)
This characterization of militia-related activity is exactly why Defendant Ammon Bundy
proposed the militia instruction in the first place. [Doc. #1444] It is also exactly what the
government promised it would not do. (October 17, 2016 Tr. (Rough) at 244-45) Accordingly,
based on arguments and authority previously raised, Defendant requests that the Court
supplement and modify the Jury Instruction on Second Amendment Rights as the jury begins
new deliberations, as follows (newly proposed language in bold and underlined):
Right to Possess Firearms Under the Second Amendment
The Second Amendment right of any person to possess and to carry
firearms is not on trial in this case. Under the Second Amendment to the United
States Constitution, a person has the right to keep and bear arms, that is, to own,
to possess, and to carry firearms, and to participate in, or associate with, militia
activity, including when lawfully exercising First Amendment rights.
.
DATED: October 26, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy