Case 3:16-cr-00051-BR
Document 2187
Filed 08/02/17
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Robert C. Weaver, Jr., OSB #801350 E-Mail: rweaver@gsblaw.com Garvey Schubert Barer Eleventh Floor 121 SW Morrison Street Portland, Oregon 97204-3141 Telephone: (503) 228-3939 Facsimile: (503) 226-0259 Attorneys for United States District Court
UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION
UNITED STATES OF AMERICA, Plaintiff, v. AMMON BUNDY, et al, Defendants.
Case No. 3:16-cr-00051-BR JOINT PROPOSED SCHEDULING ORDER FOR BRIEFING ON ORDER TO MARCUS R. MUMFORD TO SHOW CAUSE WHY PRO HAC VICE ADMISSION SHOULD NOT BE REVOKED The Honorable John C. Coughenour United States District Court Western District of Washington
On July 7, 2017, the Court set a January 8, 2018 hearing on the Order to Marcus R. Mumford to Show Cause Why Pro Hac Vice Admission Should Not be Revoked. In light of that hearing date, the undersigned hereby propose the following briefing schedule for the Order to Show Cause: JOINT PROPOSED SCHEDULING ORDER FOR BRIEFING ON ORDER TO MARCUS R. MUMFORD TO SHOW CAUSE WHY PRO HAC VICE ADMISSION SHOULD NOT BE REVOKED Page 1 of 6
Case 3:16-cr-00051-BR
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Mr. Mumford’s Motion for the Production of Final Transcript Excerpts
August 3, 2017
Mr. Mumford’s Response Brief to the Order to Show Cause
October 17, 2017
Opposition to the Response
November 17, 2017
Reply thereto
December 8, 2017
These dates presuppose that Mr. Mumford receives any portions of the final transcript that the Court determines are reasonable and relevant by no later than September 1, 2017. See June 20, 2017 Minute Order (D.E. 2141). During the parties’ conferral on the briefing schedule, another issue arose regarding the scope of the hearing on the Order to Show Cause, as well as if and when the Court’s assistance is needed to resolve this issue. Counsel for the District Court’s position: The basis for revocation under the Order to Show Cause is Mr. Mumford’s conduct in open court as recorded in the transcript. Mr. Mumford does not need and is not entitled to an evidentiary hearing. See Lasar v. Ford Motor Co., 399 F.3d 1101, 1112 (9th Cir. 2005) (holding “notice and an opportunity to be heard” – not a full scale evidentiary hearing – is all that is required for revocation of pro hac vice status). Mr. Mumford disagrees (see below). He also proposes that any disputes over the scope of the hearing be addressed as part of the above-proposed briefing schedule. We disagree with that proposal since the Court would not then be able to resolve the issue and set the ground rules for the hearing until shortly before the hearing date. As a result, the parties would be required to prepare for a full trial without knowing what, if any, evidence the Court will permit Mr. Mumford to present. Accordingly, we propose the Court set a briefing schedule on this limited issue that will allow the Court to define the scope of the show cause hearing no later than December 1, 2017.
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Mr. Mumford’s position: In the paragraph above, the District Court’s counsel raises an issue of procedure, and an issue of timing. The procedural issue first: I would agree that it appears that some of the basis for revocation as stated in the District Court’s Order To Show Cause (“OSC”) can be decided with reference only to the court transcript. We will know with more certainty after obtaining a final version of that transcript. But the other bases for revocation as stated in the OSC reference matters outside the transcript. As a few examples, OSC #2 and #4 refer to the volume of my voice when arguing (“improperly arguing … with a raised voice” and “yelling at the Court”), and OSC #4 refers to witness disclosures, which were made in ex parte communications with the court. (D.E. 2069) I respectfully assert that, where the transcript is insufficient to address the issues raised in the OSC, I should be permitted sufficient opportunity to introduce evidence so that I can fully respond to the OSC. Additionally, with respect to OSC #5, I would note that it does not appear that the transcript includes the entirety of court events from that day, and the court surveillance video has no audio. I have made repeated requests for the court reporter’s recording for the unrecorded portion of events, which to date have gone unheeded. Under the circumstances, depending in large part on how the District Court’s counsel responds to my submission, I may need a fuller evidentiary hearing to address and resolve the matters raised in the District Court’s OSC. What grounds does the District Court have to deny a request for a full evidentiary hearing to address the matters raised by its own OSC? The Lasar case cited by District Court counsel does not preclude such a hearing. In fact, contrary to District Court counsel’s argument above, the Lasar Court did conduct an evidentiary hearing, taking sworn testimony from the attorney in question, on direct examination, crossexamination, and on the court’s own examination, and giving each side the opportunity to introduce additional documentary evidence. Lasar v. Ford Motor Co., 399 F.3d 1101, 1107-08 (9th Cir. 2005) (referring to the attorney’s testimony and an exhibit to which the attorney’s JOINT PROPOSED SCHEDULING ORDER FOR BRIEFING ON ORDER TO MARCUS R. MUMFORD TO SHOW CAUSE WHY PRO HAC VICE ADMISSION SHOULD NOT BE REVOKED Page 3 of 6
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counsel “did not object”). Part of the basis for sanctions ordered by the district court in that case was the attorney’s testimony “at the sanctions hearing,” which the court found to be “dishonest.” Id. at 1108. And there is no indication that the sanctioned attorney was somehow deprived of the opportunity to introduce evidence at the hearing. Rather, on appeal, the attorney and his client raised what appears to have been an entirely new argument: “that they were entitled to the full panoply of procedural protections that are normally reserved for defendants charged with a criminal offense, such as an independent prosecutor, proof beyond a reasonable doubt, and a jury trial.” Id. at 1110. The Ninth Circuit rejected that argument, finding that the sanctions imposed were compensatory and civil in nature, and that the attorney had not argued below that he was accorded insufficient time to prepare for the sanctions hearing. Id. at 1111-13 & n.9. It is significant that the Ninth Circuit reversed and vacated at least part of the sanctions imposed – the district court’s lifetime pro hac vice ban – based on the district court’s failure to give the attorney “adequate notice and an opportunity to respond” on that issue. Id. at 1113-14. Most importantly, the Ninth Circuit noted that it has never “established a ‘precise limit for a “serious” sanction entitling an individual to a jury trial.’” Id. at 1112 & n.7 (quoting F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1139 n.10 (9th Cir. 2001)). It is true that Lasar quotes Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112 (9th Cir. 2000), to state that the “‘opportunity to be heard does not require an oral or evidentiary hearing on the issue.’” In both of those cases, however, the judge imposing sanctions was the same who personally observed the offending conduct in live court. See Lasar, 399 F.3d at 1112 (“Here, the district judge witnessed Sutter's opening statement and could refer back to notes of the trial to refresh his memory. Sutter also was afforded an opportunity to explain his conduct before the district court imposed sanctions and ruled on the OSC. So long as the court did not impose serious criminal penalties, due process did not require the district court to conduct a full-blown trial.”); Pacific Harbor Capital, 210 F.3d at 1118 n.11 (holding that factual issues JOINT PROPOSED SCHEDULING ORDER FOR BRIEFING ON ORDER TO MARCUS R. MUMFORD TO SHOW CAUSE WHY PRO HAC VICE ADMISSION SHOULD NOT BE REVOKED Page 4 of 6
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could be resolved “by affidavit” under 28 U.S.C. § 1927 “where the judge [imposing the sanctions] has effectively witnessed the offenses’” (quoting Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse, p. 416–417 (2d ed. 1994))).1 Here, in contrast, we are not only one, but two judges removed from the conduct in question – the OSC having been issued by a judge other than the trial court judge. With respect, the authority cited now by District Court counsel does not foreclose the opportunity for a full evidentiary hearing to address the issues raised by his client’s OSC. Should this Court consider limiting the hearing in any way, I would respectfully request the opportunity to fully brief that issue. There are additional grounds why the Court should not limit the hearing, and they include the fact that I may yet face criminal charges for some of the conduct at issue – the dismissal of the government’s case was not entered with prejudice, and one of the concerns that I have is that the OSC is simply a “stalking horse” for a further, potential criminal proceeding. See F.J. Hanshaw Enters., 244 F.3d at 1139 n.10 (noting that the Ninth Circuit has never “established a ‘precise limit for a “serious” sanction entitling an individual to a jury trial’”). Timing. This is further reason why I suggested to District Court counsel that we should wait to raise this issue with this Court until after this matter is fully submitted. I intend to submit, inter alia, documents and sworn declarations with my response to the OSC, beyond those portions of the final transcript that I have requested. I would anticipate that, upon review, the District Court’s counsel may indicate its agreement with at least some, if not all, of the positions asserted, potentially abandoning and/or limiting the scope of the factual dispute to be heard and considered at the January 2018 hearing. Regardless, given the timing of the parties’
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It is further significant that the dissenting judge in Pacific Harbor Capital provided an exhaustive review of the evidentiary record in concluding that it did “not furnish a basis for the district court’s ‘bad faith’ finding,” Pacific Harbor Capital, 210 F.3d at 1121-24 (Kleinfeld, J., dissenting), which would further countervail District Court counsel’s argument seeking to limit the scope of the upcoming hearing. In short, the issues raised in the OSC should be resolved with evidence, and this Court should not preempt or limit my ability to introduce relevant evidence. JOINT PROPOSED SCHEDULING ORDER FOR BRIEFING ON ORDER TO MARCUS R. MUMFORD TO SHOW CAUSE WHY PRO HAC VICE ADMISSION SHOULD NOT BE REVOKED Page 5 of 6
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briefing on the issues presented, it was my recommendation that the parties could raise any issues regarding the scope of the contemplated hearing after briefing was fully submitted so that the Court would have the benefit of the parties substantive positions before making any determination that might limit the scope of the January 2018 hearing on this matter. *
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Electronic signatures provided based on consent of all counsel. DATED this 2nd day of August, 2017. Respectfully submitted, By s/ Marcus R. Mumford Macus R. Mumford, (admitted Pro Hac Vice) 405 South Main, Suite 975 Salt Lake City, UT 84111 Telephone (801) 428-2000 E-Mail: mrm@mumfordpc.com Attorneys for Ammon Bundy
By s/ Robert C. Weaver, Jr. Robert C. Weaver, Jr., OSB #801350 GARVEY SCHUBERT BARER 121 SW Morrison Street, 11th Floor Portland, OR 97204 Telephone: (503) 228-3939 E-Mail: rweaver@gsblaw.com Attorneys for United States District Court
GSB:8814532.3
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