Case 3:16-cr-00051-BR

Document 1400

Filed 10/08/16

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Lisa A. Maxfield OSB 84433

Pacific Northwest Law, LLP
1420 World Trade Center
121 S.W. Salmon Street
Portland, Oregon 97204
t. 503.222.2661 f. 503.222.2864
lamaxfield@pacificnwlaw.com
Attorney for Defendant Neil Wampler

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
NEIL WAMPLER,

3:16-cr-00051-BR
MOTION TO ALLOW
TESTIMONY OF MATTTHEW
DEATHERAGE; PROFFER

Defendant.

The Defendant, Neil Wampler, through counsel, Lisa A. Maxfield and Pacific
Northwest Law, LLP, moves the Court for an order allowing the testimony of
Matthew Deatherage and excusing him from the witness exclusion rule. Mr.
Deatherage attended a portion of this trial before either he or counsel recognized
that he would be a witness. The defendant makes this motion on grounds that

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion to Allow Testimony of Matthew Deatherage; Proffer

Case 3:16-cr-00051-BR

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Mr. Deatherage has relevant and helpful testimony and that neither the witness
nor counsel willfully violated a witness exclusion order.1
FACTUAL PROFFER
Matthew Deatherage was at the Malheur National Wildlife Refuge from
January 16, 2016 to January 27, 2016, where he volunteered as a greeter at
the front entry. Mr. Deatherage will testify that he and other greeters were
directed to let everyone onto the refuge. If a visitor seemed threatening or the
greeter had other safety concerns, greeters were trained to radio ahead so others
could keep an eye on the person. This, in fact, was their practice.
Mr. Deatherage will testify that volunteers did their best to be friendly and
welcoming toward all who came to the refuge. During daylight hours, long guns
were kept out of sight. Volunteers at the entry also avoided wearing camo
during the daytime. Mr. Deatherage will testify that they did this for the express
purpose of not frightening anyone away.
Mr. Deatherage will testify about the creation of the Alpha, Bravo, Charlie
and Delta teams described in several government exhibits. He will explain the
teams were put in place primarily to establish a schedule. Before the teams were
created, and schedules established, volunteers could be stranded inadvertently at
posts for long hours while other volunteers who had nothing to do could have
spelled them.
Mr. Deatherage also will testify about the training sessions described in
government exhibits. He will say that participation in training was voluntary.
Training sessions began primarily to stem boredom.

Counsel has assumed that witnesses should be excluded from the courtroom. However, the
witness exclusion order drafted by Mr. Olson was never signed.
United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR
Motion to Allow Testimony of Matthew Deatherage; Proffer

Case 3:16-cr-00051-BR

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On Tuesday, October 4th, Roger Root heard that Mr. Deatherage might be a
helpful witness. Mr. Root sought out Mr. Deatherage, who he found waiting in line
to enter the overflow room on the 13th floor. The two spoke briefly and Mr.
Deatherage agreed to stay out of the courtroom and to meet with defense
counsel later that evening.
Mr. Deatherage states that before talking to Mr. Root, he had listened to
the testimony of Jeff Banta on September 29, 2016 and Sheriff Ward, Kim
Rollins, Brand Nu Thornton and Travis Williams on October 3, 2016.
LEGAL ARGUMENT
Federal Rule of Evidence 615 authorizes a district court to order witnesses
excluded so that they cannot hear the testimony of other witnesses. However,
violation of an exclusion order alone does not render the witness' testimony
inadmissible. Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967); in
accord, Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010
(1893) (If a witness disobeys the order of withdrawal, while he may be
proceeded against for contempt, and his testimony is open to comment to the
jury by reason of his conduct, he is not thereby disqualified.).
Unless the violation has somehow so discredited the witness as to render
his testimony incredible as a matter of law he should not be disqualified from
testifying. Taylor v. United States, 388 F.2d at 788. United States v. Hobbs, 31
F.3d 918 (9th Cir. 1994) (finding plain error when court precluded defense
witnesses from testifying as sanction for violation of witness sequestration order.)
This is true because exclusion of a witness' testimony is an extreme remedy that
impinges upon the right to present a defense and thus should be employed
sparingly. Hobbs, 31 F.3d at 922, citing Washington v. Texas, 388 U.S. 14, 19, 87
S. Ct. 1920, 1023, 18 L.Ed.2d 1019 (1967); see also Holder, 150 U.S. at 92.

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion to Allow Testimony of Matthew Deatherage; Proffer

Case 3:16-cr-00051-BR

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In determining an appropriate remedy, the trial court should consider

whether a witness willfully violated an exclusion order. Taylor v. United States, 388
F.2d at 788. The trial court also should consider whether any violation occurred
with the consent, connivance, procurement or knowledge of counsel. Holder,
150 U.S. at 92; United States v. Torbert, 496 F.2d 154 (9th Cir. 1974). Here
there was no intentional disobedience. Mr. Deatherage did not attend the trial
knowing he would be called to testify. He refrained from entering the courtroom,
including the overflow room, as soon as he learned that he would be interviewed
to determine whether he would be a witness. Similarly, counsel did not learn that
Mr. Deatherage could provide helpful testimony until she interviewed him the
evening of October 4, 2016. After interviewing the witness, counsel explained the
witness exclusion rule and Mr. Deatherage agreed to continue to stay out of the
courtroom. He has maintained that agreement.
The appropriate remedy is to inform the jury that Mr. Deatherage listened to
part of the trial before he had reason to know he would be called as a witness.
Respectfully submitted this 8th day of October, 2016.
PACIFIC NORTHWEST LAW, LLP

/s/ Lisa A. Maxfield

Lisa A. Maxfield Partner 84433
Attorney for Defendant Neil Wampler
t. 503.222.2661 f. 503.222.2864
lamaxfield@pacificnwlaw.com

United States v. Neil Wampler USDC Oregon Case 3:16-cr-00051-BR

Motion to Allow Testimony of Matthew Deatherage; Proffer