Case 3:16-cr-00051-BR

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MATTHEW SCHINDLER, OSB# 964190

501 Fourth Street #324
Lake Oswego, OR 97034
Phone: (503) 699-7333
FAX: (503) 345-9372
e-mail: mattschindler@comcast.net
HYBRID COUNSEL FOR DEFENDANT KENNETH MEDENBACH

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,
vs.

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

MOTION IN LIMINE
FIRST AMENDMENT

KENNETH MEDENBACH,
Defendant(s).
Defendant, Kenneth Medenbach, through hybrid counsel, Matthew
Schindler,1 moves in limine to limit the governments evidence regarding threats
and intimidation to that which is directly relevant: whether the defendants conspired
to place federal officers in fear of serious physical injury if they persisted in
discharging their official duties.
Defendants seek to exclude the subjective reaction of any employees of the
MNWR, law enforcement officers, and any community members to their protest as
inconsistent with their First Amendment rights. Allowing such testimony creates a
substantial risk of confusing the jury as to the appropriate standard under the First
Amendment. The governments proffered evidence allows the defendants to be

This motion was drafted by attorney Jesse Merrithew who represents severed co-defendant Jake Ryan. He
will also argue this portion of the motion at the pretrial conference if the court allows it.

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convicted of a crime for engaging in protected speech or expressive conduct in

violation the First Amendment and due process.
The only question before this jury is whether the defendants made an
agreement to impede federal officers by force, threats, or intimidation. Whether or
not there was a true threat (or an agreement to make a true threat) depends entirely
on the subjective intention of the defendants, not the reaction of the listener. The
court has already so held:
[B]y its terms 372 cannot apply to mere criticism of government
officials or to circumstances in which an official feels incidentally
intimidated or threatened because the conspiracy element of 372
requires that an individual have the intent to prevent the officer from
discharging his or her duties and to accomplish that objective by using
force, intimidation, or threats.
United States v. Bundy, No. 3:16-CR-00051-BR, 2016 WL 3156310,
at *5 (D. Or. June 3, 2016).
This is true because of the interaction between 372 and the First Amendment. In
its trial memorandum, the government introduces an entirely new theory why the
defendants conduct and words are not entitled to protection and therefore
defendants are compelled to respond.
In this case, the unfair prejudice to the defendant is greater than usual
failing to adequately guide the jury could lead to defendants conviction for
engaging in protected speech. See United States v. Ring, 706 F.3d 460, 473-474
(D.C. Cir. 2013) (finding that there is a strong argument that prejudice concerns
should carry more weight when the prejudice is to core First Amendment activity,

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noting that no decisions directly address the issue, and ultimately skirting the issue).
The First Amendment issues raised by the governments proof create a clear risk of
a conviction here based on protected activity or expression if left unaddressed by
the Court as the government suggests.
1. 372 and the First Amendment
The interaction between 372 and the First Amendment has been briefed
and argued in the context of Defendants motions to dismiss count one for
overbreadth (Dkt. No. 474) and vagueness (Dkt. Nos. 471 & 477). Defendants
incorporate the arguments here. The Court denied those motions in a written order
(Dkt. No. 650).
The Defendants arguments focused on the phrase force, threat, or
intimidation and argued alternatively that the phrase was too vague or that it
encompassed a substantial amount of protected speech. The Court rejected both
arguments for essentially the same reasonthat the statute was subject to a limiting
construction that limits its applicability to true threats. See id. at 8-9, 13. Implicit
in the Courts reasoning is fact that, if the statute were not limited to true threats, it
would run afoul of the First Amendment. What the Defendants seek here is
enforcement of that limiting construction by excluding this evidence.
As the Court summarized in its Order: A statement is a true threat if a
reasonable person would foresee that the statement would be interpreted by those to
whom the maker communicates the statement as a serious expression of intent to

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harm or assault. A threat is a true threat, however, only when the speaker
subjectively intended the speech as a threat. Id. at 7 (internal citations omitted).
In the context of a 372 conspiracy, therefore, the government must prove
beyond a reasonable doubt that the defendants conspired to express to federal
officers that, if they discharged their official duties, someone would harm or assault
them. The threat must be serious enough that a reasonable person in the shoes of the
federal officer would believe that the speaker actually intended to harm or assault
him.
2. The Governments Trial Memorandum
The government makes clear in its trial memorandum (Dkt. No. 958) and in
its factual summaries submitted to individual defendants in lieu of a bill of
particulars that it has no intention of limiting its case to that which is directly
relevant under the necessary limiting construction. Indeed, not a single explicit
threat or even any particular federal officer is mentioned anywhere in the
governments memo. Instead, the government states that it will seek to prove that,
after a small group of defendants entered the MNWR, Out of concern for their
safety, the seventeen employees who worked at the Refuge were ordered to stay
home. Id. at 2. The government has quoted Ammon Bundy in countless filings
saying that, if Sheriff Ward (a county law enforcement officer, not a federal officer
by anyones definition) did not act to prevent the Hammonds return to prison, it
would create extreme civil unrest in the community and we will bring thousands
of people here to do your job for you. See, e.g., id. at 7. Without question, those
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statements are protected speech under the First Amendment. Moreover, there is no
plausible argument that they are true threats directed at a federal officer of the BLM
or FWS to prevent them from discharging their duties at the MNWR, as alleged in
count one of the indictment (Dkt. No. 250). Yet the government has plainly evinced
its intention to introduce those statements at trial.
The governments strategy is laid bare in this boiler plate paragraph included
in each of the factual summaries sent to individual defendants based on the
Courts order (Dkt. No. 614):
The government also intends to introduce general information
regarding the scope, impact, and aftermath of the occupation to the
affected federal employees and surrounding community. Employees
from the Department of Fish and Wildlife and the Bureau of Land
Management will testify regarding the necessity of closing the Refuge
and about the impact the occupation had on their personal and
professional lives. Relatedly, members of the community may testify
to the activities of all co-conspirators and their impact on the daily life
of Burns residents. Lastly, law enforcement will testify about the
physical condition of the Refuge after the conclusion of the
occupation and the government will introduce evidence related to this
testimony. Witnesses will describe the damage to the Refuge and its
ground as well as evidence seized from the Refuge, including over
20,000 rounds of ammunition, over 40 firearms, supplies, food, and
other physical evidence demonstrating the scope of the conspiracy.
None of this evidence directly relates to any issue in controversy in this case. Rather,
it is a blatant attempt to convince the jury to convict the Defendants of the charged
conspiracy because the protest was disruptive to the government and surrounding
community. Whether or not that is true is simply not relevant to proof of a 372
conspiracy consistent with the First Amendment.

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3. The Governments New First Amendment Argument

In response to Defendants Motion to Dismiss for Overbreadth, the
government claimed principally that there was a distinction of consequence between
threatening words and threatening conduct. See Dkt. No. 552 at 5. Perhaps now
realizing that the United States Supreme Court has rejected such a distinction over
and over, most recently in Virginia v. Black, 538 U.S. 343 (2003), the government
has changed tactics. It now admits that Defendants speech constitutes a significant
amount of the evidence in this case. Dkt. No. 958, at 18. However, it makes the
sweeping claim that Because of the role defendants speech plays in the underlying
occupation, this Court cannot lawfully advise the jury (nor can defendants argue)
that these defendants are not on trial for their words or assembly. Nor can this Court
advise the jury that if defendants intended to engage in expressive conduct or
activity that the jury should acquit. Once defendants words and actions turned
to the armed takeover of the Refuge, their actions and words are no longer
entitled to First Amendment protection because they were integral to illegal
activity. Id. at 18, 20.
The defense rejects every aspect of the governments aspirational proposition
that ignores both reality and the law. In support of this sweeping contention, the
government cites a series of tax protester cases. Factually these tax cases are all
quite similar to each other but nothing like this case. The defendants were all
prosecuted for both teaching people how to file false tax returns and actually
assisting people in filing false tax returns. At the outset, despite the governments
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assertions to the contrary, these cases are not analogous to the charges in this case.
In the tax protestor cases, the defendants were being prosecuted for assisting others
in the filing of false returns, either by counseling them how to do it or by actually
helping them fill out the paperwork. The principle crime was the filing of a false
return. That crime does not implicate the First Amendment at all. Despite this, the
defendants sought refuge in the First Amendment, claiming that their activities
counseling and assisting others in the commission of a federal offense for a profit
was somehow speech-based and therefore entitled to protection. Several of the
courts reviewing this claim described it quite simply as without merit. See United
States v. Fleschner, 98 F.3d 155, 159 (4th Cir. 1996) (summarizing cases).
In this case, the defendants stand accused of violating a criminal statute with
their speech and specifically protected political speech. While a defendant could
theoretically violate 372 by agreeing to use force to prevent a federal officer from
discharging his duties, that is not the governments case against these defendants
because that is not what happened. The government here makes the unprecedented
claim that their words or expressive conduct could be actionable under 372 as
threatening or intimidating even when not directed at a federal officer. As the Court
previously acknowledged, the appropriate question under those circumstances is
whether the defendants agreed to issue a true threat.
The cases cited by the government use two different lines of First
Amendment exceptions to justify the conclusion that those actions are not entitled
to protectionthe incitement exception and the integral to the crime exception.
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The two exceptions are interrelated, particularly in the Ninth Circuit, but they have
no application to the facts of this case. The modern incitement test dates to
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). There, the Court held that the
constitutional guarantees of free speech and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely
to incite or produce such action. Id. This exception was cited by the tax protestor
courts, and in particular by the Ninth Circuit in United States v. Freeman, 761 F2d
549, 552, for the proposition that, if a jury were to find that the defendants were
engaging in more than simple protected speech or mere advocacy of illegal action
at some indefinite future time, they could properly be convicted.
The integral to the crime exception was first identified in Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). In Giboney, the Empire
company got an injunction against a union to stop its picketing of Empires business.
The union was organizing a boycott of Empire because Empire sold its products to
nonunion members, as it was required to do under Missouri law. The Court upheld
the injunction.
Thus all of appellants activities their powerful transportation
combination, their patrolling, their formation of a picket line warning
union men not to cross at peril of their union membership, their
publicizing constituted a single and integrated course of conduct,
which was in violation of Missouris valid law. In this situation, the
injunction did no more than enjoin an offense against Missouri law, a
felony. It rarely has been suggested that the constitutional freedom for
speech and press extends its immunity to speech or writing used as an
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integral part of conduct in violation of a valid criminal statute. We

reject that contention now.
336 U.S. at 498.
Giboney predated Brandenburg by 20 years, and at that point the Court was
still using the clear and present danger test instead of the modern incitement test.
If it had the use of Brandenburg, it very well could have decided the case on that
basisthat the unions activity was directed toward inciting imminent lawless
action and was likely to produce such action. In other words, both cases are aimed
at the idea that speech is not protected when the ultimate result is some other nonspeech related substantive offense.
It is true that the agreements and course of conduct here were in most
instances brought about through speaking or writing. But it has never
been deemed an abridgment of freedom of speech or press to make a
course of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language, either
spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies
deemed injurious to society. Giboney, 336 U.S. at 502.
The Ninth Circuit, with Justice Kennedy writing for the court, recognized
that link in Freeman. The issue in Freeman was whether the tax protestor defendant
was entitled to a First Amendment jury instruction to the effect that, if his activities
did not meet the Brandenburg test, they were to acquit. 761 F.2d at 552. As to the
counts where Mr. Freeman stopped short of actually helping someone file a false
return, the Ninth Circuit found that the failure to give the instruction was error, citing
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Brandenburg. As the crime is one proscribed only if done willfully, the jury should
have been charged that the expression was protected unless both the intent of the
speaker and the tendency of his words were to produce or incite an imminent lawless
act, one likely to occur. Id. However, with regard to those counts where Mr.
Freeman actually assisted in the filing of false returns, the court found that the false
filing was so proximately tied to the speech that no First Amendment defense was
established. Id. In its reasoning, the court echoed Giboney.
Counseling is but a variant of the crime of solicitation, and the First
Amendment is quite irrelevant if the intent of the actor and the
objective meaning of the words used are so close in time and purpose
to a substantive evil as to become part of the ultimate crime itself. In
those instances, where speech becomes an integral part of the crime,
a First Amendment defense is foreclosed even if the prosecution rests
on words alone.
Id.
This line of cases is the appropriate place to look when a defendant claims
First Amendment protection from prosecution on some inchoate theory of liability
for some other substantive offense. It is not the appropriate analysis when a criminal
statute proscribes certain speech, a threat or intimidation, as the substantive offense
itself.
For statutes that make threats criminal, the appropriate analysis is the true
threat analysis. [T]he Ninth Circuit made clear in Fulbright that only the
illegitimate nature of a threat brings it within the scope of 372. United States v.
Bundy, No. 3:16-CR-00051-BR, 2016 WL 3156310, at *3 (D. Or. June 3, 2016).

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The governments argument is improper bootstrappingthe speech is not protected

because the legislature made it illegal therefore you cannot argue that the law
infringes on free speech. If courts were to accept the governments simplistic
reading of the integral to the crime exception, legislatures would be free to
legislate away the First Amendment.
4. Conclusion:
The appropriate test under the First Amendment as to whether the
defendants conduct and words were protected is whether there was a true threat or
not. The governments proposed evidence bears no relationship to that question and
is therefore irrelevant. Admitting it based on some strained theory of relevance
would invite the jury to convict the defendants for engaging in protected speech and
conduct.

Respectfully submitted on August 10, 2016.

Matthew A. Schindler, OSB#964190

Hybrid counsel for Kenneth Medenbach

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