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MICHAEL C. ORMSBY United States Attorney Eastern District of Washington Timothy J. Ohms Assistant United States Attorney Post Office Box 1494 Spokane, WA 99210-1494 Telephone: (509) 353-2767
6 UNITED STATES DISTRICT COURT DISTRICT OF OREGON
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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
3:17-CR-00008-HZ United States' Response To Defendant’s Motion To Dismiss
12 MARCUS R. MUMFORD,
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Defendant.
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Plaintiff, United States of America, by and through Michael C. Ormsby, United
16 States Attorney for the Eastern District of Washington, and Timothy J. Ohms, Special 17 Attorney for the United States Attorney General, respectfully submits the United 18 States’ Response to Motion to Dismiss. 19 I. BACKGROUND 20 The Defendant, Attorney Marcus Mumford, represented Ammon Bundy in a 21 criminal trial occurring in the District of Oregon from Sepember 7, 2016, until 22 October 27, 2016, when the jury returned a not guilty verdict.1 CR 1232, 1513. The 23 24 25
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Unless otherwise indicted, CR refers to the Court Record by document number in
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Defendant’s client, Mr. Bundy, had been detained on the underlying matter in the District of Oregon. CR 26. In addition to the matter in the Distric of Oregon, Mr. Bundy was also charged with criminal offenses in the District of Nevanda.2 While still in custody in the District of Oregon, Mr. Bundy appeared in the District of Nevada where a separate order of detention was entered against him on the Nevada charges. Attachment A. The Defendant was aware of this order; he had quoted from it and referenced it as a government exchibit; and he was aware of its implications which were referenced in his pleadings, in government pleadings, and in a court order –i.e.,
9 that it was an independent order that would require Mr. Bundy to remain in custody 10 without regard to the proceedings in Oregon unless and until it was modified in the 3 11 District of Nevada. Thus, following the verdict of acquittal on October 27, 2016, Mr. Bundy 12
13 remained in cusody based on the Nevada order of which the Defendant was aware. 14 This status did not require further action by the Court in the District of Oregon nor did 15 it require the service of further process by the U.S. Marshal Service. The Marshal 16 Service did not need to take Mr. Bundy into custody because he was already in their 17 18 19
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United States v. Bundy, et al, District of Nevada Case No. 2:16-CR-00046.
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Evidence of the Defendant’s awareness of the Nevada order is present in his own
20 pleadings in the District of Oregon and before the Ninth Circuit, in which he cites t o 21 and quotes from the order and references it as an exhibit to a government brief. A 22 summary of these pleadings is set forth in Attachment B with relevant portions of 23 supporting documents in Attachments C, D, E, F G, H. The Ninth Circuit’s final 24 order, which rejected the Defendant’s Construed Motion for Reconsideration en banc 25 terminated review of Mr. Bundy’s order of deterntion was entered on October 25, 26 2016, two days before the verdict in the Oregon case. Attachment H. 27 United States' Response To Motion To Dismiss - 2 28
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custody and would remain so as long as the detention order from Nevada remained in effect. This was not a discretionary decision for Desputy U.S. Marshals who were responsible for ensuring Mr. Bundy’s return to the District of Nevada. Nor did the Defendant need to be shown a copy of the order, which he possessed and had unsecessfully sought to challenge in the District of Oregon. Despite the forgoing, after the jury was excused on October 27, 2016, the Defendant began a series of argumentative assertions to the Court in which he appeared to claim that the Nevada order had no affect and that, unless he was shown a
9 warrant or additional paperwork to his satisfaction, he was instructing his client that 10 he was free to leave the courtroom notwhithstanding the Court’s repeated admonitions 11 and the presence of the Marshals who were responsible for his custody. THE COURT: What I’m saying is that the marshals—the 12 marshals have a hold—notice of a hold from Nevada, and you’re going to 13 need to take up those issues with Nevada and the marshals. Not with me. MR. MUMFORD: And what I’m saying is if they have papers, an 14 arrest warrant for Mr.—Mr. Bundy, to transport him, then I’m happy to 15 see that; but until I do, my instruction to him is he is free to leave. THE COURT: Well, he can do what he wishes, but he’s in the 16 marshal’s custody right now, and he needs to go back with them right 17 now to the jail because of the hold. MR. MUMFORD: No, he does not. He is free. 18 THE COURT: Mr. Mumford, you have take it up to a higher court 19 now. Take Mr. – MR. MUMFORD: He’s free, your Honor. 20 21 ECF No. 11-4 at 5 (emphasis added). The Defendant provided no legal authority and, 22 in fact, made no motion or request for relief that would require a response from the 23 government. He simply repeated an assertion about his client’s status that was false 24 and contrary to a valid court order.These statements were reckless in that they 25 encouraged Mr. Bundy to disregard an existing order from the District of Nevada that 26 the Marshal Service had a responsibility to enforce (in fact, testimony and the 27 United States' Response To Motion To Dismiss - 3 28
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courtroom security video will show that Mr. Bundy did resist the efforts of the Marshals to remove him from the courtroom). After the Court had corrected the Defendant at least six times, the Court
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recessed, stating “I’m not going to argue with you. We are in recess.” ECF No. 11-4 at 7. At this point in the security video, two of the Assistant U.S. Attorney’s assigned to the case stand up to exit the courtroom. At the same time, a Deputy U.S. Marshal walks around the front of the defense table to reach Mr. Bundy in order to remove him
9 from the courtroom. The area behind the counsel table and near the wall was 10 congested with co-defendants, other defense counsel, and other Marshals. The Deputy 11 U.S. Marshals moved a chair out of the way and attempted to reach Mr. Bundy. In the 12 process, he was blocked by the Defendant, who was continuing to repeat to the 13 Mashals that his client was free to go. While doing so, the Court directed the 14 Defendant to step back: 15 16 17 18 19
U.S. MARSHAL: Come to the fourth floor, and we will show you [the Nevada order]. U.S. MARSHAL: We’ll show it to you. MR. MUMFORD: No. No. He is free right here and right now. THE COURT: Mr. Mumford. MR. MUMFORD: He’s free right here and right now. THE COURT: Mr. Mumford, step back.
20 ECF No. 11-4 at 7. The Deputy U.S. Marshal who was attempting to reach Mr. Bundy 21 attempted to prevent the Defendant from bocking him. The Defendant resisted the 22 Marshal, which resulted in a physical altercation that drew in other Marshals and 23 members of the Federal Protective Serive. During the altercation, the Defendant was 24 given repeated commands to stop resisting. The Defendant failed to comply and 25 forcefully resisted the Marshals’ efforts to restrain him. While this was occurring, 26 other Marshals were attempting to remove the remaining co-defendants and others 27 United States' Response To Motion To Dismiss - 4 28
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from the courtroom. Ultimately, one of the Deputy U.S. Marshals removed the cartridge from her taser and deployed it against the Defendant, who stopped resisting in response. Although the Defendant’s argumentative conduct preceediing the recess are relevant to the context of the case, the offense conduct occured after the Court was in recess and before the use of the taser. II.
RESPONSE
A. There Was No Governmental Misconduct To Warrant Dismissal Of The Charges.
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Government conduct is only prohibited when that conduct is so outrageous that
11 it violates “fundamental fairness, shocking to the universal sense of justice.” United 12 States v. Russell, 411 U.S. 423, 431-32 (1973) (citation omitted). The Ninth Circuit 13 has held that this a high standard to meet. United States v. Williams, 547 F.3d 1187, 14 (9th Cir. 2008); United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). A 15 defendant can claim “outrageous conduct” but, only “if he was subjected to police 16 conduct repugnant to the American system of justice.” United States v. Shaw, 796 17 F.2d 1124, 1125 (9th Cir. 1986). The Court has the discretion to dismiss under its 18 supervisory powers for three reasons: (1) to implement a remedy for the violation of a 19 recognized statutory or constitutional right; (2) to preserve judicial integrity; and, (3) 20 to deter future illegal conduct. United States v. Struckman, 611 F.3d 560, 574 (9th Cir. 21 2010). None of the aforementioned reasons are present in this case, and the alleged 22 “outrageous government misconduct” does not rise to the level that warrants dismissal 23 by the court. See e.g., United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) (The 24 defendant was abducted from Uruguay, pistol-whipped, bound, blindfolded, tortured, 25 and interrogated for seventeen days by United States Agents under the knowledge of 26 an Assistant United States Attorney. If true, the Court held the indictment was subject 27 United States' Response To Motion To Dismiss - 5 28
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to dismissal.); but see, e.g., United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995) (finding the defendant’s abduction, alleged torture, and alleged use of stun guns by U.S. Marshals did not meet the rigorous standard “of the most shocking and outrageous kind” to warrant dismissal). First, there was no violation of a statutory or constitutional right by the U.S.
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Marshals in their efforts to first restrain then detain the Defendant. Whether the Defendant had a right to be present in the courtroom during the trial of his client is not at issue. It was not until after the Court was in recess and the U.S. Marshals attempted
9 to remove the Defendant’s client from the courtroom that Defendant impeded the 10 Marshals. After the Court recessd, the U.S. Marshals moved quicly to remove the 11 Defendant’s client from the courtroom. The U.S. Marshals were acted under a lawful 4 12 order from the District of Nevada that they were obligated to enforce. The 13 government believes that the evidence will show that when the Marshals attempted to 14 remove the Defendant’s client, the Defendant impeded them. As the Marshals 15 attempted to prevent the Defendant from impeded them, he forceably resisted them 16 and was ultimately taken to floor where a taser was used in an effort to stop the 17 Defendant from further resisting. In doing so, the Marshals used reasonable means to 18 detain the Defendant. Moreover, the Defendant had already committed the offenses 19 alleged against him at the time that the taser was used to bring his resistance to an end. In assessing an excessive force claim, "all claims that law enforcement officers 20 21 have used excessive force . . . should be analyzed under the Fourth Amendment and 22 its 'reasonableness' standard. . . ." Graham v. Connor, 490 U.S. 386, 397 (1989). See 23 also Brosseau v. Haugen, 543 U.S. 194, 197 (2004); Blanford v. Sacremento County, 24 25
Even without the Nevanda order, it would have been necessary for the Marshals to 26 process him out of custody from the detention facility where he was held. 27 United States' Response To Motion To Dismiss - 6 4
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406 F.3d 1110, 1115 (9th Cir. 2005); Smith v. City of Helmet, 394 F.3d 689, 700-01 (9th Cir. 2005). Under the Fourth Amendment, officers may only use force that is Aobjectively reasonable@ under the circumstances, meaning that the government interests at stake outweigh the nature and quality of the intrusion on the individual's countervailing Fourth Amendment interests. Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001). Reasonableness may be decided as a matter of law if, in resolving all factual disputes in favor of the plaintiff, the officer's force was
8 Aobjectively reasonable@ under the circumstances. Scott v. Henrich, 39 F.3d 912, 915 9 (9th Cir.1994). 10
A[T]he >reasonableness' inquiry in an excessive force case is an objective one:
11 the question is whether the officers' actions are >objectively reasonable= in light of the 12 facts and circumstances confronting them, without regard to their underlying intent or 13 motivation.@ Graham, 490 U.S. at 397 (emphasis added). The Court has developed a 14 balancing test that entails consideration of the totality of the facts and circumstances 15 in the particular case, including Athe severity of the crime at issue, whether the suspect 16 poses an immediate threat to the safety of the officers or others, and whether he is 17 actively resisting arrest or attempting to evade arrest by flight.@ Id. at 396. The court 18 looks at the reasonableness of the force used from the perspective of an officer on the 19 scene, rather than hindsight. Jackson, 268 F.3d at 651. “[T]he court=s consideration of 20 reasonableness must embody allowance for the fact that police officers are often 21 forced to make split second judgments-in circumstances that are tense, uncertain, and 22 rapidly-evolving about the amount of force that is necessary in a particular situation.@ 23 Id. The Ninth Circuit has also concluded that excessive force claims necessarily fail 24 when there is no evidence of any actual, or long-term, or permanent injuries as a result 25 of the force. Arpin v. Santa Clara Valley Tranp. Agency, 261 F.3d 912, 922 (9th Cir. 26 2001). 27 United States' Response To Motion To Dismiss - 7 28
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Here, the factors set forth in Graham weigh against the Defendant. The “severity of the crime at issue” warranted the officers detaining the Defendant and using force to achieve that goal. From the transcript of the hearing, the Court had finished attempting to correct the Defendant’s false assertions that contracted a valid order of which he had knowledge. The Court then recessed, which terminated further argument with the Court. The Marshals thereafter had had a non-discretionary duty to remove the Defendant’s client from the courtroom in preparation for his transport to Nevada. In light of the Defendant’s comments that he was advising his client to
9 disregard the Nevada order pending some further showing that personally satisfied the 10 Defendant, the Marshals moved quickly remove the Defendant’s client. The 11 government believes that the testimony of the Marshals, in conjunction with other 12 evidence, will show that the Defendant physically impeded the Marshals from 13 removing his client. Thus, the Defendant was impeding the official duties of the U.S. 14 Marshals as alleged in Count 1, and they had the right to prevent him from further 15 impeding them. As the Marshals attempt to take the Defendant to the ground and 16 restrain, the Defendant forcibly resisted. Although the government has elected to 17 charge offenses under the Code of Federal Regulations that constitute Class C 18 misdemeanors, the Defendant’s forcible resistence would constitute a violation of 18 19 U.S.C. § 111 (a Class A misdemeanor). The government asserts that the Defendant’s 20 conduct, first in impeding the Marshals and then in forcibly resisting them, was 21 serious and warranted the Marshals efforts to detain him. The Defendant has not 22 alleged injury as a result of his detention. The Ninth Circuit has found the lack of 23 injury undermines a claim of excessive force. In addition, concerns about judicial integrity do not merit a dismissal of the 24 25 Information in this case. See United States v. Simpson, 927 F.2d 1088, 1090-91 (9th 26 Cir. 1991) (a court may exercise its supervisory power to “preserve judicial 27 United States' Response To Motion To Dismiss - 8 28
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integrity.”) The criminal conduct in the case at hand occurred after the court was in recess. Thus, although the conduct occurred in the court and before the judge that other personnel had left, it did not occur while the Court was in session. Judge Brown had clearly indicated that she had finished trying to discuss the matter with the Defendant and that it was now in the hands of the U.S. Marhsals. “The supervisory power comprehends authority for the courts to supervise their own affairs, not the affairs of the other branches; rarely, if ever, will judicial integrity be threatened by conduct outside the courtroom that does not violate a federal statute, the Constitution
9 or a procedural rule.” Id. at 1091. The government contends that the integrity of the 10 judiciary was not challenged by the conduct of the U.S. Marshals. As a result, a 11 dismissal of the Information in exercise of the courts’ supervisory power is not 12 necessary to “preserve judicial integrity.” 13 14 15 16 17 18 19 20 21 22 23 24 25 26
B. The Regulations Charged Do Not Violate The Separation Of Powers Doctrine. The Constitution provides that “all legislative Powers herein granted shall be vested in a Congress of the United States.” U. S. Const., Art. I § 1; Mistretta v. United States, 488 U.S. 361, 371 (1989). However, the Courts have recognized that Congress is not prevented from obtaining help from other branches in legislation. Id. at 372. “[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. However, Congress must provide specific guidance with that delegated authority. Touby v. United States, 500 U.S. 160, 165 (1991). Specifically, Congress must “clearly delineate the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta, 488
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U.S. at 372-73. The Fourth Circuit has looked at this issue with the predecessor statute, and determined it was not a violation of the separation of powers. In United States v. Cassiagnol, seven individuals were arrested for offenses arising out of an antiwar demonstration at the Pentagon in Virginia. 420 F.2d 868, 870 (4th Cir. 1970). The offenses were governed by rules and regulations promulgated by GSA pursuant to 40 U.S.C. § 318 (40 U.S.C. § 1315’s predecessor). Id. The defendants challenged the constitutionality of the statute as an excess of the permissible right of Congress to delegate its own authority. Id. at 876. The Fourth
9 Circuit rejected this argument and reasoned at length as to the constitutionality of this 10 delegation of power to GSA to promulgate rules and regulations. Id. at 876-77. 11
First, the statute specifically set out that “GSA is to have the authority to
12 establish regulations only as to government property under its charge and control.” Id. 13 at 876. Congress has the constitutional power to make rules and regulations regarding 14 government property generally, but the power delegated to GSA was limited only to 15 property under its control. Id. Second, Congress restricted the authority of the GSA to 16 “make needful rules and regulations to maintain and protect such property and ensure 17 its use for the authorized purpose.” Id. It would be impractical for Congress to 18 describe, in every detail, GSA’s duties, along with the rules and regulations necessary 19 to fulfill them. Id. “It is reasonable and constitutional to delegate to the agency 20 charged with maintenance and protection of government property the right to fix the 21 hours and places where the property may be entered by the public, as well as 22 minimum acceptable conduct thereon, and to provide for the punishment of those 23 violating such regulations.” Id. at 876-77. This delegation of power is not an unusual 24 occurrence. Congress has delegated similar powers to the National Park Service, 25 Forest Service, Bureau of Land Management, Fish and Wildlife, and many others. Id. 26 at 876. To hold that the rules and regulations promulgated by GSA are 27 United States' Response To Motion To Dismiss - 10 28
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unconstitutional would have broad implication for Congress’ similar delegation to other authorities. Here, Congress satisfied elements necessary to remain within the proper scope of delegated legislative authority with the successor statute, 40 U.S.C. § 1315. There, Congress delegated the authority to promulgate regulations to the Secretary, in consultation with the Administrator of the General Services. 40 U.S.C. § 1315(C)(1). First, Congress described the general policy: “may prescribe regulations necessary for the protection and administration of property owned or occupied by the Federal
9 Government and persons on the property." Id. Congress made clear which agency was 10 to apply these regulations—that is, an agency under the Administrator of the General 11 Services, to wit: the Department of Homeland Security, which is in the title of the 12 statute. Finally, Congress specified the bounds of this delegated authority. Congress 13 only allowed the regulations to include reasonable penalties, not more than 30 days’ 14 imprisonment (Class C misdemeanors). 40 U.S.C. § 1315(C)(1), (2). Even if the 15 agency wanted to, they could not create a regulation that penalized a violator for more 16 than the penalties allowed by Congress in the delegation. Also, Congress required that 17 all the regulations be posted and remain posted in a conspicuous area on the property. 18 40 U.S.C. § 1315(C)(1). In short, Congress specifically delineated the general policy, 19 the public agency to apply it, the extent of the penalties that would apply to violations, 20 and the subject matter to be addressed. Much like the previous statute which was held 21 constitutional, this delegation of power did not come without limits. Congress met 22 their burden. Therefore, Congress did not exceed its scope in delegating this 23 legislation, and the regulations are not in violation of the separation of powers 24 doctrine. 25 26 27 United States' Response To Motion To Dismiss - 11 28
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C. The Regulations Are Not Void For Vagueness, Either Facially, Or As Applied, And The Regulations Do Not Violate Due Process Because They Provided The Defendant With Sufficient Notice. The Due Process Clause of the Fifth Amendment requires that a criminal statute be sufficiently clear to give an individual of “ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). In order to defeat a vagueness challenge, a statute, at minimum, should “provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits in a manner that does not encourage arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). In Count 1 of the Information it is alleged tha the Defendant exhibited disorderly conduct that impeded and disrupted the performance of officials duties of government employees in violation of 41 C.F.R. § 102-74.390(c). That regulations predecessor, which essentially has the same elements, has been found to be constitutional and not impermissibly vague by this Circuit. See United States v. Brice, 926 F.2d 925 (9th Cir. 1991). In Brice, the Defendant was charged with violating 41 C.F.R. § 101-20.305 (the predecessor of 41 C.F.R. § 102-74.390(c)). Id. In addressing a void-for-vagueness argument in, stated as follows: The regulation is limited to conduct that impedes or disrupts the performance of official duties by Government employees . . . [i]f a defendant believes he was not impeding the official duties of a government employee, he can raise as a defense that his conduct did not impede or disrupt. The court . . . will determine whether an official duty has been impeded.”
23 Id. (emphasis added). Although the Defendant asserts that the regulations fail to define 24 “official duties” of the government employees, he was expressly told by the Court 25 what the Marshals duties were in relation his client. He was told precisely what the 26 Marshals were to do and why, and he was clearly opposed to it. The allegation is that 27 United States' Response To Motion To Dismiss - 12 28
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his opposition to the Marshals culminated in his impeding them once the Court indicated that it was no longer going to debate the issue and recessed. To the extent that the Defendant disputes this, it is a question of fact to be resolved by the trier of fact. In Counts 2 and 3 it is alleged that the Defendant failed to comply with prohibitions set forth in official signs displayed in the courthouse and specific verbal instructions given by members of the U.S. Marshal Service and Federal Protective Service. See 41 C.F.R. § 102-74.385. The evidence will show that during the time that
9 the Defendant was forcibly resisting the U.S. Marshals, he was repeatedly told to stop 10 resisting and kicking, and to place his hands behind his back. The Defendant’s failure 11 to follow those clear instructions violates the law and the Defendant cannot now 12 challenge the regulation as void for vagueness. See United States v. Franklin-El, 554 13 F.3d 903, 910 (10th Cir. 2009). The Defendant disputes his resistance and failure to 14 follow orders. This, however, is a dispute of fact that should be determined at trial. 15
The Defendant further argues that a person of ordinary intelligence would not
16 understand the conspicuous signs posted prohibiting conduct that impedes or disrupts 17 the performance of official duties, particularly as it relates to his argument with the 18 Court. The specific conduct that is charged, however, occurred after the court 19 recessed. At that point, the Defendant was no longer engaged in oral advocacy with 20 the Court. The government contends that a person of ordinary intelligence would 21 understand that signs prohibiting impeding conduct would be violated by impeding 22 and disrupting the U.S. Marshals from removing a defendant who was in their custody 23 following the completion of court. 24
41 C.F.R. § 102-74.390 and 41 C.F.R. § 102-74.385 have survived other
25 vagueness challenges. See United States v. Baldwin, 745 F.3d 1027 (10th Cir. 2014); 26 United States v. Strong, No. 2:11-PO-2-JRM, 2011 WL 4072856 at*1-3 (D. Me. Sept. 27 United States' Response To Motion To Dismiss - 13 28
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12, 2011) (41 C.F.R. § 102-74.390(a)); United States v. Zagorovskaya, 628 Fed. Appx. 503 (9th Cir. 2015) (41 C.F.R. § 102-74.390(a)). These regulations are not facially vague or as applied in this case, and this Court should rule in accord with that. III.
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CONCLUSION
For these reasons, the government requests this Court to deny the Defendant’s Motion to Dismiss on all aspects.
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Dated: February 10, 2017. MICHAEL C. ORSMBY United States Attorney __s/Timothy J. Ohms______________ Timothy J. Ohms Special Attorney for the United States Attorney General
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1 CERTIFICATE OF SERVICE
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I hereby certify that on February 10, 2017, I electronically filed the foregoing
4 with the Clerk of the Court using the CM/ECF system which will send notification of 5 such filing to the following: 6 Michael R. Levine Levine & McHenry LLC 7 1001 SW Fifth Avenue 8 Suite 1414 9 Portland, OR 97204 10
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s/Timothy J. Ohms ___________________ Timothy J. Ohms Special Attorney for the
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United States Attorney General
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