Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 1 of 7

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

REPLY IN FURTHER SUPPORT OF
DEFENDANTS MOTION TO DISMISS
FOR IMPERMISSIBLE DELAY
The Honorable Anna J. Brown

The governments response [#1227] to Defendants motion [#1203] is incomplete and

misleading. The 70-day STA clock has been overrun, and dismissal is required. Separately,
Defendants Fifth Amendment argument justifies dismissal.
I. The STA Clock For Defendant Ammon Bundy Did Not Automatically Restart Upon
The Filing Of A Superseding Indictment
The government glosses over a critical part of the applicable legal analysis in citing
United States v. King, 483 F.3d 969, 973-74 (9th Cir. 2007), to argue that the STA clock
automatically restarts upon the return of a superseding indictment naming new defendants. King
applied the general rule from the case Henderson v. United States, 476 U.S. 321 (1986), which
only stated, in a footnote without any further discussion, that [a]ll defendants who are joined for
trial generally fall within the speedy trial computation of the latest codefendant. Id. at 323 n.2
(emphasis added). King weighed the general[] rule from Henderson against a discussion of
United States v. Karssemboom, 881 F.2d 604, 607 (9th Cir. 1989), and United States v. Clymer,
25 F.3d 824 (9th Cir. 1994), where the Ninth Circuit held that the filing of a superseding
REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY

Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 2 of 7

indictment will not automatically reset the STA clock where the new indictment does not
charge a new crime, but only corrects a defect in the original indictment. King, 483 F.3d at 972
(emphasis added). Importantly, King did not overrule or abrogate Karssemboom or Clymer. To
the contrary, it pointed out how the rule expressed in Clymer helps prevent[] the government
from circumventing the speedy trial guarantee by restarting the speedy-trial clock by obtaining
superseding indictments with minor corrections. King, 483 F.3d at 972 (quoting United States v.
Gonzales, 897 F.2d 1312, 1316 (5th Cir. 1990)). Ultimately, the King court applied the STAs
overarching reasonable[ness] standard and held that the rule from Henderson was more
applicable to the facts presented. Id. at 973. Among other things, the court pointed out how the
defendant King had either asked for, or agreed to, nearly all of the continuances at issue, and
that he suffered no prejudice from the delay in that he was not incarcerated during the pendency
of the pre-trial delay. Id. at 972, 977. But the fact that King limited its holding to the casespecific facts presented, i.e., in this situation, contradicts the governments characterization of
the case as running contrary to Mr. Bundys motion.
In this case, the Court has already held that it is Mr. Bundys demand for a speedy trial,
and largely his uniquely, that separates his STA considerations from other co-defendants. [See
#289, #455, #846 at 6, and #1203] Mr. Bundys motion showed how he opposed the
governments motion to delay this case, the Court denying Mr. Bundys motion to continue trial,
and the prejudice that Mr. Bundy has suffered as a result of the Courts refusal to release him
before trial. These factors bring this case more in line with Clymer and other later Ninth Circuit
authority on the topic. See United States v. Alvarez-Perez, 629 F.3d 1053, 1059 (9th Cir. 2010)
(superseding indictment does not restart if it is based on same prior offenses charged). In
particular, in United States v. Chen Chiang Liu, 631 F.3d 993, 998 (9th Cir. 2011), the Ninth

REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY

Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 3 of 7

Circuit clarified its ruling in King, stating: the addition of a codefendant, however, does not
automatically restart the STA clock. Our decision to do so in King relied on the reasonableness
of the delay. That same reasonableness standard applies here so as to calculate the STA clock
from the initial filing.
II. The STA Clock For Defendant Ammon Bundy Is Not Automatically Tolled By Motions
Or Other Actions Related To Other Defendants
Similar to the first point, the government is wrong to argue that Mr. Bundys STA clock
is automatically tolled by the motions and actions of other defendants in this case. Mr. Bundy
would agree that the motions he files trigger the automatic exclusions under the STA. But the
motions and requests of other co-defendants must be evaluated on a case-by-case, situation-bysituation basis to determine whether it is reasonable to attribute the tolling of time triggered by
the filing of said motions to Mr. Bundys STA clock. Mr. Bundys motion argued that the
motions and activities of co-defendants, some of whom are not in custody, some of whom have
different trial schedules, and others who have not as directly and unequivocally assert their
demand for speedy trial, are not reasonably connected to Mr. Bundy to toll the time on his
STA clock. In response, the government relies on United States v. Mesher, 197 F.3d 330, 226
(9th Cir. 1999), but that case applies the legal doctrine that Mr. Bundy seeks to apply here: The
attribution of delay to a codefendant, however, is limited by a reasonableness requirement of
3161(h)(6). Messer, 197 F.3d at 336. The governments misapplication of this authority is even
more significant because it supports Defendants argument that a STA violation has occurred
here. To this point, the central holding in Messer was that using the Ninth Circuits standard
adopted in United States v. Hall, 181 F.3d 1057 (9th Cir. 1999), co-defendant delay was found
unreasonable as applied and thus did not exclude time from the defendants STA clock.
Messer, 197 F.3d at 338. Using the same required approach in this case, Mr. Bundy has tolled
REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY

Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 4 of 7

time on his STA clock where the delay caused by his co-defendants motions should
reasonably be applied, and, after excluding all of that time and other periods as required by the
STA, demonstrated that that the 70-day STA clock has expired.
III. Unlike Pending Motions, Interlocutory Appeal Does Not Always Create Excludable
Delay, And In This Case, The Courts Own Decisions Disallow Any Exclusion Of Time
The government argues that 18 U.S.C. 3161(h)(1)(C), which provides an exclusion of
time for delay resulting from any interlocutory appeal, should be treated the same as delay
related to all pending motions. But, there is no authority directly supporting that position, and
the most relevant authority supports Defendants position, which is that the purpose of the
interlocutory appeal exclusions has to do with time when the district court is divested of
jurisdiction while the appeal is pending. Defendants motion showed how, if such a divestment
of jurisdiction occurs, the court should not be held to the 70-day STA clock, until the mandate
returns. But where no divesting of jurisdiction takes place, and the district court continues on
with its prior schedule without interruption, the STA clock is not automatically tolled.
The government cites United States v. Pete, 525 F.3d 844, 848-49 (9th Cir. 2008), which
does not address the issue directly and only rehearses the interlocutory appeal exclusion as a
matter of course, without indicating whether the case presented any issue in particular on the
point. Id. The courts discussion in that case shows that it was principally focused on several
dispositive questions that were altogether unrelated to the issue of tolling time against the STA
clock during the pendency of an interlocutory appeal. Id. While it is true that, as a general matter,
courts considering the issue generally tend to justify the exclusion of time. But those instances
where the question is considered in detail tend to come out on Defendants side. For example, in
United States v. Tyler, 878 F.2d 753, 759 (3d Cir. 1989), the Third Circuit explained that the
purpose of the interlocutory appeal exclusion is to remove rom the Speedy Trial Act
REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY

Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 5 of 7

calculation periods when the district court justifiably cannot try the defendants case. The Tyler
court explained that while the Act has not been interpreted to apply only to those instances where
jurisdiction is divested, for the exclusion to apply, the court would at least have to be faced
with an interlocutory proceeding in the court of appeals which potentially could affect the trial
to be excludable under the Act. Id. at n. 2. This is consistent with the plain language of the
statute. Under 3161(h)(1)(D), it is well established that the pendency of any motion from the
filing of the motion through the conclusion is excludable and this is the language of the
statute. But 3161(h)(1)(C) merely says delay resulting from any interlocutory appeal. The
critical distinction is that the period of delay is not defined, but it is linked to the word
resulting from just like the other provisions. When the Supreme Court considered a similar
issue in United States v. Tinklenberg, 563 U.S. 647 (2011), it rejected the notion that the word
delay actually meant trial delay, and instead simply meant a period of time. Id. at 665. That
is what Mr. Bundy argues here: that the question of whether delay for an interlocutory appeal
is excludable centers not on whether it delays the trial, but on whether the substance or the form
of an appeal is to be considered. If the supposed interlocutory appeal cannot directly affect
the trial, does not create any change in the schedule, does not require any additional time, does
not divest the district court of jurisdiction, and does not otherwise consume any of the courts
time or resources (like a pending motion), then the purpose of the Act is not served to
automatically exclude time. Tyler, 878 F.2d at 759. In this case, none of the supposed
interlocutory appeals meet the purposes of the Act, and the court and the parties agreed to
proceed irrespectively, [#357, #381, #385], which weighs in favor of Defendants motion.
IV. The Governments Attempt To Minimize The Significance Of Clymer Is Misplaced
The government argues Mr. Bundy misapplied Clymer, 25 F.3d. 824, and United States v.
Jordan, 915 F.3d 563 (9th Cir. 1990), by pointing out the different arguments at issue in those
REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY

Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 6 of 7

cases. While the Ninth Circuit has observed how Clymer has been limited to situations in which
a motion is postponed until after trial, United States v. Lewis, 349 F.3d 1116, 1121 (9th Cir.
2003), that argument is misleading. The holding from Clymer that has been limited has to do
with whether delay during the pendency of a pending motion is automatically excludable when
prosecutorial misconduct is involved and when the motion is not decided until after trial. See
United States v. Gorman, 314 F.3d 1105, 1115 (9th Cir. 2002). Mr. Bundy did not cite Clymer
for that proposition, but rather included it in his discussion of whether a district court can issue
blanket orders declaring a case complex rather than engage in the case-by-case, instance-byinstance, continuance-by-continuance evaluation required by the STA. On that point, the
holdings in both Clymer and Jordan are undisturbed. See, e.g., United States v. Spanier, 637 F.
App'x 998, 1000 (9th Cir. 2016) (citing Jordan and finding the district courts explanation that
continuances were granted due to case complexity was insufficient). The governments
argument becomes more problematic when the Court realizes that same analysis was employed
by the Supreme Court in Zedner, holding that passing reference to the case's complexity is
insufficient to satisfy the ends-of-justice factors required under the statute. Zedner v. United
States, 547 U.S. 489, 507 (2006). The governments opposition fails to address any of the
required factors or otherwise engage Defendants argument that it is error for the district court to
designate a case as complex in the first instance given the requirements of the STA. It is
not the cases complexity by itself, but that complexity in the context of a particular continuance
and its justification that leads to the conclusion that a blanket complexity ruling is contrary to
the STA.
DATED: September 12, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY

Case 3:16-cr-00051-BR

Document 1255

Filed 09/13/16

Page 7 of 7

J. Morgan Philpot
Attorneys for Ammon Bundy

REPLY MEMO IN FURTHER SUPPORT OF MOTION TO DISMISS FOR IMPERMISSIBLE DELAY