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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
[email protected]
[email protected]
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

SECOND RESPONSE TO GOVERNMENT
OBJECTIONS RE EXHIBITS TO BE
USED IN AMMON BUNDYS DIRECT
EXAMINATION
The Honorable Anna J. Brown

Overview: Below is the full exchange between the government and the defendant on
each proposed exhibit for Mr. Bundys testimony.
Hearsay
The government objects to most of the exhibits on hearsay grounds, specifically that
Mr. Bundys statements, or statements not made by Mr. Bundy, are not admissible. This
argument misses the point in that Defendant is either introducing these matters as nonhearsay or
is relying on exhibits that have evidentiary significance for proving Mr. Bundys state of mind
or intention.
As a general position, the exhibits containing statements made by someone other than
Mr. Bundy are being offered to show the effect on Mr. Bundy (who had viewed or heard the
statements). These statements are not offered for the truth of the third party statement, and
therefore are not hearsay. This is consistent with well-established authority. "In criminal trials,
statements that the defendant heard or read may be admitted to shed light on the question
whether he acted innocently or accidentally, or instead acted purposefully or wrongfully or with
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malicious intent. 4 Federal Evidence 8:20 (4th ed.). An out-of-court statement offered to
show the effect on the listener, rather than the truth of the matter asserted, is not hearsay. United
States v. Payne, 944 F.2d 1458, 1472 (9th Cir.1991); United States v. Lopez, 185 F.3d 870 (9th
Cir. 1999) (holding that evidence offered to show parties reliance upon anothers statement,
rather than the truth of the statement itself, does not constitute hearsay under the Federal Rules of
Evidence). This is particularly true, where statements are offered for their effect on defendants'
state of mind, which was very much in dispute or to show the circumstances under which
subsequent events occurred or that show that the statements occurred and that, given their
effect on the defendants' state of mind, they provided a good faith basis for the defendants'
actions." United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 89 (2d Cir. 2014). And a
statement is not hearsay if the witness is reporting what he heard someone else tell him for the
purpose of explaining what the witness was thinking, at the time or what motivated him to do
something. United States v. Leonard-Allen, 739 F.3d 948, 954 (7th Cir. 2013) (reversing
conviction for conspiracy to commit money laundering where the district court erroneously
excluded the defendant from testifying regarding the statements of others, in an attempt to give
the jury an alternate explanation for defendants actions, making his defense more
believable, and negating his criminal intent, because [I]n those circumstances, the out-of-court
statement is not being offered as evidence that its contents are true).
Further, in United States v. Kohan, the Second Circuit reversed a defendants conspiracy
conviction based on the trial courts erroneous exclusion of testimony of a witness regarding the
statements of a third party: the defendant was not basing his defense on the truth of [the third
partys] statements, but rather on the fact that they were made and that [defendant] believed them
to be true. United States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986) (reversing conviction for

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conspiracy under 18 U.S.C. 371 where trial court excluded circumstantial evidence of [the
defendants] state of mind his belief that [the third partys] activities were legitimate). In
Kohan, the court noted that the error was especially significant when offered in the defendants
direct case, revealing the defendants state of mind at the time of the alleged conspiracy, and
corroborating statements that the defendant later provided to government agents investigating the
matter. Id.
Second, exhibits containing direct statements of Mr. Bundy (or Mr. Finicum speaking on
behalf of all the Citizens for Constitutional Freedom) are not hearsay because they are offered as
prior statements under Rule 801(d)(1)(B), or alternatively if the court finds that they are hearsay
they are offered as an admissible exception under Rule 803(3) because they are direct statements
or contextual explanations of Mr. Bundy and the occupiers motive, intent, or plan which are
part of the Rules general state of mind exception. Specifically, one question at issue is
whether Mr. Bundys action (and the alleged co-conspirators actions) in Oregon were
reasonable and legitimate as opposed to threatening and intimidating. Another relevant
question is generally why Mr. Bundy behaved as he did, given that a core defense in this case is
based upon his state of mind and the state of mind of those he was influencing. In these
circumstances, third party statements that had an effect on Mr. Bundy are both relevant and not
hearsay if not introduced for the truth of the statements made.
In addition to the general application of Rule 803(3), the Ninth Circuit recognizes the
Hillmon doctrine which is directly applicable here. The exception embodied in the Hillmon
doctrine does not require that the state of mind of the declarant be an actual issue in the case.
Instead, under the Hillmon doctrine the state of mind of the declarant is used inferentially to
prove other matters which are in issue. Stated simply, the doctrine provides that when the

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performance of a particular act by an individual is an issue in a case, his intention (state of mind)
to perform that act may be shown. From that intention, the trier of fact may draw the inference
that the person carried out his intention and performed the act. Within this conceptual
framework, hearsay evidence of statements by the person which tend to show his intention is
deemed admissible under the state of mind exception. United States v. Pheaster, 544 F.2d 353,
376 (9th Cir. 1976).
Cumulative
Evidence is cumulative when it bears on the same fact that the party presenting
the evidence seeks to prove. In other words, five witnesses called to say they saw
the defendant at work on a particular day, when the fact that he was at work is
unchallenged, would be cumulative.
United States v. Giles, No. 08-CR-143, 2008 WL 5111313, at *3 (E.D. Wis. Dec. 4, 2008)
(quoting United States v. Ives, 609 F.2d 930, 933 (7th Cir.1979) (Cumulative evidence
replicates other admitted evidence.). But [e]vidence of other separate and distinct acts that bear
on the issue of the defendant's state of mind in the case is not. Id.
The distinction between cumulative and corroborative evidence is a fine line
indeed,2 and exactly when corroborative evidence crosses over into cumulative
evidence depends on the circumstances of each individual case. In this particular
case, Jamison Bey claims that the confrontation was largely provoked by Terrell.
Because the only evidence Jamison Bey could proffer, besides his own
statements, is the testimony of his witness, the court cannot agree that the
testimony would have been merely cumulative. Oftentimes corroborative
evidence is the only evidence an inmate has to support his position. See Graham
v. Baughman, 772 F.2d 441, 445 (8th Cir.1985). Denying corroborative testimony
is distinguishable from denying merely cumulative testimony. While prison
officials may disallow testimony from witnesses offered to testify as to matters
covered in the testimony of several prior witnesses, see Langton v. Berman, 667
F.2d 231, 234 (1st Cir.1981), it is a violation of due process to deny an inmate an
opportunity to present any corroborative testimony to bolster his defense when no
other valid reason exists to exclude the witness from testifying. Clark v. Lane, 81
C 3668, 1985 WL 1345, at *2 (N.D.Il.1985).
Bey v. Terrell, No. 90 C 4424, 1991 WL 202654, at *1 (N.D. Ill. Sept. 30, 1991)

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Corroborating evidence is Evidence supplementary to that already given and tending to

strengthen or confirm it. Additional evidence of different character to the same point. Black's
Law Dictionary 344 (6th ed. 1990). Cumulative evidence is Additional or corroborative
evidence to the same point. That which goes to prove what has already been established by other
evidence. Id. at 380.
Bey v. Terrell, No. 90 C 4424, 1991 WL 202654, at *2 n.2 (N.D. Ill. Sept. 30, 1991)
Nor can we dismiss the excluded testimony as cumulative: corroborating testimony is
not cumulative when it bolsters the defendant's contested version of the facts. United States v.
Miller, 546 F. App'x 709, 710 (9th Cir. 2013) (vacating conviction based on erroneous
evidentiary ruling).
Admission of crime-scene video was not so prejudicial as to render defendant's
Oklahoma murder trial fundamentally unfair, since video accurately depicted
location of victim's body and provided jury with view of entire crime scene,
including blood spatter and pooling of blood in relation to body, video further
corroborated witnesses' testimony without focusing on body for inordinate
duration, and, although there were photos of crime scene, video was not
cumulative because it provided walkthrough visualization not provided by photos.
Hernandez v. Jones, 556 F. App'x 672 (10th Cir. 2014)
Presentation of the video or transcript would have taken only a few minutes. See
note 1 supra. Thus, this is not a case where the district court could exclude the
evidence because it was cumulative and would take too much time. See
Fed.R.Evid. 403 (1975) (amended 2011). Even if GarciaGarcia claimed
ignorance of many of the border agent's questions, she was emphatic that Leal
Del Carmen did not give orders. She was the only witness in a position to ...
contradict the testimony of government witnesses. ValenzuelaBernal, 458 U.S.
at 870, 102 S.Ct. 3440 (internal quotation marks omitted). Far from being
cumulative, her statements were antithetical to the testimony of the government's
witnesses and might have helped sow doubt in the minds of the jurors that Leal
Del Carmen was the guide. The Assistant United States Attorney must have
believed that GarciaGarcia's *974 statements made a difference, else he wouldn't
have worked so hard to keep the jurors from hearing them.
United States v. Leal-Del Carmen, 697 F.3d 964, 97374 (9th Cir. 2012)
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The following evidence is necessary in this case to give the jury a visual and evidentiary
experience of what Mr. Bundy experienced, and what hes testifying to:
1. 1232 - Ammon Bundy Family Photo
Purpose: Background
Governments Position: No objection. (Defendant eliminated potential duplicate DX1231.)

Bunkerville 5 photos and less than 12 minutes total video

2. 1146 - Video (from :28 to 2:08) Ammon Bundy Confrontation with BLM Officers,
Bunkerville (2014).
3. 1208 Video of Mr. Bundys Aunt, Margaret Houston, being thrown to the ground by
BLM Agents at Bunkerville. (13 seconds, 0:00 to 0:13).
Purpose: Inter alia, Defendants state of mind regarding his statements made at the
Refuge in January 2016, how those statements were informed and his anticipated interaction with
federal agents in OR based on experience in Bunkerville, NV. Also showing conduct and context
to rebut characterizations of events in Bunkerville, NV circa 2014 made in the governments
case in chief by witnesses such as Ward, Karges, and Rose. Also this evidence shows unique
evidentiary support, but for some of the same general purposes as 1150 and 1151 below.
Governments Position: Object; Hearsay, cumulative, and contrary to the Courts pre-trial ruling
on Bunkerville (ECF 1171 6-7). Also, not proper rebuttal evidence; testimony regarding
Bunkerville by government witnesses Ward, Karges, and Rose were not offered for the
truth. The statements are not properly offered as state of mind because the statements describe
what was occurring at Bunkerville, so while they be properly proffered to show his state of mind
at that event, they are not relevant for this case and therefore hearsay.

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Reply: First, the government opened the door with its witnesses referencing Bunkerville
as the primary reason that the Refuge and BLM offices were closed prior to
January 2, and related statements characterizing what happened in Bunkerville,
NV as it relates to Mr. Bundy. Second, the courts prior ruling stated that the
limited evidence on Bunkerville was conditional, and would remain in place
[u]nless a Defendant opens the door to further evidence. Mr. Bundy has a right
to explain his state of mind and events that contributed to the choices he made in
Oregon, and opening the door to Bunkerville (which was first done by the
government) is something the court confirmed in its order. Third, the evidence is
not cumulative, it relates to a specific event that has not yet been discussed,
showing Mr. Bundy being tasered by BLM agents. Fourth, it is not hearsay
because whatever statements can be discerned in the video are incidental, and not
being admitted to establish the truth of those statements, but instead the video
shows an encounter that had a direct and lasting effect on Mr. Bundys state of
mind, particularly as it related to how he acted in Oregon between November
2015 and February 2016. In the second 13 second video, there are no statements.
The governments argument that this event is only relevant to his state of mind at
that event in 2014 is overly limiting and not justified by the law, because it is a
matter of Mr. Bundys testimony to the jury, and the credibility that they assess to
his motivation and intent related to how he views the BLM, how he has come to
believe it is best to respond to the BLM and other federal agents, and why he gave
the direct invitation to protestors to come to the Refuge and bring their arms. This
evidence is introduced specifically to show the circumstances under which

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subsequent events occurred or that they provided a good faith basis for the
defendants' actions." United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 89
(2d Cir. 2014). It is unreasonable to allow the government to suggest to the jury
that the governments actions in late 2015 and early 2016 were relevantly related
to Bunkerville and what government agents believed regarding what role Mr.
Bundy played there, and at the same time to allow the government to argue that
Mr. Bundy cannot present to the jury the related government actions at
Bunkerville, and an explanation of his role and his actions in that event and the
lasting effect that experience had upon him and how it related to decisions he
made in Oregon. Finally, Mr. Bundy will testify that he saw these events from a
distance, that he subsequently saw the video, and that the manner and method of
the BLM agent in this video, sneaking up behind his aunt and throwing her to the
ground, contributed significantly to his view of the BLM and how to subsequently
deal with Federal Agents, and particularly his view regarding why he told those
coming to the Refuge to bring their arms.
4. 1150 - Video Bunkerville
a. 4:45 to 6:05 shows the cowboys and citizens lining up across the wash from
the barricade
b. 6:58 to 8:38 shows the standoff and the citizens approach to the barricade
c. 10:18 to 12:44 shows the sheriffs office resolving, Mr. Bundy acknowledging
the authority of the sheriffs office
d. 15:12 to 17:12 shows the cattle being freed through the wash
5. 1151 Video Bunkerville

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a. 7:58 to 9:23 shows the citizens approach to the barricade from behind and
Mr. Bundy acknowledging the authority of the sheriff
b. 9:40 to 10:09 shows LaVoy Finicum describing situation and Harry Reid
calling the Bundys domestic terrorists (9:41 to 9:49)
6. 1154 - Photo Cowboys On Horses In Standoff Line (Bunkerville)
7. 1155 - Photo Military Style Rangers (Bunkerville)
8. 1156 - Photo Dead Bundy cow (Bunkerville)
9. 1159 - Photo Ammon Bundy with wound after being tasered (Bunkerville).
10. 1164 - Photo Ammon Bundy with closed public land sign after removing it with
Sheriffs assent (Bunkerville).
Purpose: to show state of mind for his statements made at the Refuge in January 2016, how those
statements were informed by Bunkerville, his conduct and context re Government actions and
Defendants actions to rebut characterizations of events in Bunkerville, NV circa 2014 made in
the governments case in chief by witnesses such as Ward, Karges, and Rose. Also this evidence
shows unique evidentiary support, but for some of the same general purposes as described
related to 1150 and 1151 below.
Governments Position: Object; Hearsay, cumulative, irrelevant, contrary to the Courts pre-trial
ruling on Bunkerville (ECF 1171 6-7), and unduly confusing under FRE 403. Also, not proper
rebuttal evidence; testimony regarding Bunkerville by government witnesses Ward, Karges, and
Rose were not offered for the truth. The statements from this highly edited video are not properly
offered as state of mind because the statements are not defendants; they are attributed to various
parties at Bunkerville so they do not in any way properly implicate FRE 803(3) if they are
offered to show Ammon Bundys state of mind.

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Reply: However, related to these specific video clips, the overwhelming majority of the
content of the video is relevant not for the statements made but because it
provides contextual evidence including time of day, demeanor, environment, and
other situational context to the Bunkerville stand-off. It is not being offered for
the truth of any of the statements made. It is being offered first, because
Ammon Bundy will testify that the context, environment, demeanor of those
depicted in the video as protestors and as law enforcement (both state and federal)
is accurate. Second, the video was seen by Mr. Bundy afterwards, and he will
testify as to the effect this video had upon him. Third, the statements that are in
the video are admissible under 803(2) because they are statements relating to a
startling event or condition made while the individual depicted were under the
stress of excitement that it caused. Finally, the purpose here is to provide
evidence to the jury to what Mr. Bundy claims to have experienced both as a
participant in the events depicted and after subsequently viewing this video and
others like it and therefore the fact that it is highly edited is irrelevant,
because the purpose is to provide evidentiary context to Mr. Bundys state of
mind in relation to that incident, and how that effected and motivated his
decisions in Oregon. So, the video is not hearsay (not admitted for the truth of any
statement), and to the extent that any statements in it would be considered hearsay
they are made by men in women filmed contemporaneously in a highly startling
event or condition and such statements are therefore admissible under 801(3).

Pre-January 1 Communications 6 documents and appx 35 minutes video total

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11. 1234 Letter Aware Citizens and Government Officials, Nov. 3, 2015
12. 1167 Letter to Sheriff Ward, Nov. 12, 2015
13. 1236 Facebook Post Hammonds Threatened, Nov. 20, 2015
14. 1237 Video Hammonds and Ammon Bundy Threatened, Nov. 20, 2015
a. 0:00 to 3:46 video reporting threats made to Hammonds (and Bundy)
15. 1168 Video Hammonds Need Our Help, Nov. 24, 2015
a. 0::00 to 9:31 Ammon Bundy statement with Call to Action
16. 1007 Email to Sheriff Ward re FBI, Nov. 28, 2015
17. 1169 Video Feds Burning Cows Alive, Torching Homes, Dec. 5, 2015
a. 4:30 to 9:05 video footage of BLM fires in Harney County
18. 1006 Email to Sheriff Ward re Petition, Dec. 11, 2015
19. 1171 and 1172 Facebook Post Action Need: Petition for Redress, Dec. 11, 2015
20. 1005 Email to Sheriff Ward re Petition, Dec. 18, 2015
21. 1173 Video Stand Up, Not Stand Down, Dec. 31, 2015
a. 48 seconds video, urging individuals to come to Burns on Jan. 2, 2015
22. 1174 Video Dear Friends, Jan. 1, 2016
a. 19:27 total This is offered as the most complete and plain statement of Ammon
Bundy, made at the time, describing his motivation, plan and intent from
November 2, 2015 through January 1, 2016, and an explanation for why he
directed asked people to come to Harney County as of the date of this video.
Purpose: Direct statements of Defendant Ammon Bundys plan and intention as of the dates in
question, and state of mind preceding actions to occupy the refuge. Contradicts the governments
case arguing that alleged conspiracy began November 5, 2015.

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Governments Position: Object; Hearsay, irrelevant (pre-dates conspiracy), cumulative, and

unduly confusing under FRE 403.
Reply: Defendant Ammon Bundy will testify that these are his written statements and
statements made. It is not cumulative, it is discretely related to Mr. Bundys direct
expression of his state of mind at the precise time the government alleges he was
just getting involved with a conspiracy. The statement that it is irrelevant because
it pre-dates the conspiracy is not credible, as these statements cover the same
time period that the government alleges the conspiracy began. These statements
explain what Mr. Bundy was thinking in that time period, and what his state of
mind and motivations were in the actions that he took, including context to his
first meetings with Sheriff Ward. This evidence is not prejudicial or confusing
(the government does not explain how), because it reflects Mr. Bundys views and
statements, and he is on the stand testifying regarding the same. It is not being
introduced for the truth of the statement, and he is subject to crossexamination. The statement is not hearsay because it is not being introduced for
the truth of the statement, but to prove that the statement was made. It is also not
hearsay because it is a prior statement under 801(d)(1)(B).

Post-January 2 Communications
23. 1175 - Video 8 min 2 sec video. Standing for the rights of men & women. Outside
the Refuge. January 2, 2016.
a. Purpose: this is offered as the most complete and plain statement of intent,
motivation and plan of Defendant Ammon Bundy, his actions, and those who

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participated in the initial occupation on January 2, 2016.

24. 1176 - Video 7 min 41 sec video. Oregon Rancher Asking for Our Help! January 3,
2016.
a. Purpose: this is offered as the intent, motivation and plan of Defendant Ammon
Bundy and those who participated in the initial occupation as of January 3, and
provides evidence as to the credibility of Defendants claimed intent and
motivation, as well as showing the absence of the governments claimed
motivations and intentions (meaning showing no focus whatsoever on preventing
Refuge employee from discharging their duties) of Mr. Bundy and the other
occupiers.
25. 1177 Video Press Conference at Refuge. January 4, 2016.
a. 0:00 to 1:00
b. 7:30 to 14:14
26. 1178 Video By Dang Im Mad LaVoy Finicum explains his frustration with
Hammond situation in OR (2 min 38 sec total
27. 1178 - Video By Dang Im Mad LaVoy Finicum explains his frustration with
Hammond situation in OR (2 min 38 sec total).
Purpose: Inter alia, this video was watched by Defendant prior to the event of January 2, 2016
and provides evidence as to what information formed his state of mind, intention and purpose in
acting between November 2015 and February 2016, and whereas Mr. Finicum is both a
subsequent spokesperson for the Citizens for Constitutional Freedom and has been alleged a coconspirator who has made statements in alleged furtherance of the conspiracy attributable to
Defendants, this video also is offered to rebut the governments circumstantial evidence and

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related inferences as to the intentions behind the motivation and plans of Mr. Finicum and
Defendant Ammon Bundy and the other alleged co-conspirators.
Governments Position: Object; Hearsay, irrelevant, unduly confusing under FRE 403. Evidence
of Lavoy Finicums state of mind is irrelevant for the Courts analysis of 1178 if it is being
offered by Ammon Bundy who is NOT the declarant.
Reply: This argument has been addressed above. Mr. Bundy will testify that he saw this
video, and that it directly affected him and contributed to his subsequent actions in
Oregon. A statement is not hearsay if the witness is reporting what he heard someone
else tell him for the purpose of explaining what the witness was thinking, at the time or
what motivated him to do something. United States v. Leonard-Allen, 739 F.3d 948, 954
(7th Cir. 2013) (reversing conviction for conspiracy to commit money laundering where
the district court erroneously excluded the defendant from testifying regarding the
statements of others, in an attempt to give the jury an alternate explanation for
defendants actions, making his defense more believable, and negating his criminal
intent, because [I]n those circumstances, the out-of-court statement is not being offered
as evidence that its contents are true). The main argument here is that this video is
relevant because it had a direct effect on Mr. Bundys understanding, it directly
influenced why Mr. Bundy took the action he did and an out-of-court statement offered
for some other purpose, such as to demonstrate the statement's effect on the listener,
United States v. Puzzo, 928 F.2d 1356, 1365 (2d Cir.1991), or to show the circumstances
under which subsequent events occurred, United States v. Pedroza, 750 F.2d 187, 200 (2d
Cir.1984), is not hearsay. In United States v. Kohan, the Second Circuit reversed a
defendants conspiracy conviction based on the trial courts erroneous exclusion of

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testimony of a witness regarding the statements of a third party: the defendant was not
basing his defense on the truth of [the third partys] statements, but rather on the fact that
they were made and that [defendant] believed them to be true. United States v. Kohan,
806 F.2d 18, 22 (2d Cir. 1986) (reversing conviction for conspiracy under 18 U.S.C.
371 where trial court excluded circumstantial evidence of [the defendants] state of mind
his belief that [the third partys] activities were legitimate). In Kohan, the court noted
that the error was especially significant when offered in the defendants direct case,
revealing the defendants state of mind at the time of the alleged conspiracy, and
corroborating statements that the defendant later provided to government agents
investigating the matter. Id. Finally, the government offers no explanation as to why this
video is confusing.
28. 1179 - Video Religious Service at the Harney County Resource Center (Refuge)
During Occupation. Shawna Cox, Ryan Bundy, David Fry, LaVoy Finicum and
others in attendance. Praying for Clemency for the Hammonds. January 17, 2016.
a. 00:00 to :45
b. 2:35 to 2:50
c. 6:00 to 6:30
d. 10:21 to 13:00
Purpose: This evidence is introduced to rebut the characterization that the occupation of the
Refuge was a militant occupation and the inferences created by testimony that the Refuge was
held by armed militants and showing the very thing being prayed for by the occupiers was
governmental reform and relief for the Hammonds and nothing related to preventing FWS or
BLM employees from discharging their duties. Further this video is direct evidence that the

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union and agreement between the occupiers was not an illegal conspiracy, but a unity of political
and religious convictions. The video shows, among many others, Shawna Cox, Ryan Bundy,
David Fry, and other alleged coconspirators.
Governments Position: Object; Hearsay, irrelevant, prejudicial. The statement is offered not as
state of mind evidence but rather direct evidence that the agreement was not illegal it is
hearsay without an exception.
Reply: The evidence challenges that the characterization of the occupation as militant
by the demeanor, purpose and visible interaction of the participants. It is not hearsay
because it is being introduced for a nonhearsay purpose. The statements made in the
video are not introduced for the truth but to show the circumstances under which these
events occurred. United States v. Pedroza, 750 F.2d 187, 200 (2d Cir.1984). The prayer
at the end is not introduced to prove that the participants were telling God the truth, that
God actually heard their prayer or that the praying individuals were stating the truth to
each other, but it shows the content of their motive, intention and plan, and the intention
and plan of the occupation generally which is admissible as an exception under
803(3). See also United States v. Leonard-Allen, 739 F.3d 948, 954 (7th Cir. 2013)
(reversing conviction for conspiracy to commit money laundering where the district court
erroneously excluded the defendant from testifying regarding the statements of others, in
an attempt to give the jury an alternate explanation for defendants actions, making his
defense more believable, and negating his criminal intent, because [I]n those
circumstances, the out-of-court statement is not being offered as evidence that its
contents are true). Further, the playing of music and singing of hymns is not introduced
for the truth of the statements being sung, but to show the nature, circumstances, mood,

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temperament, and type of interaction being engaged in by individuals that the

government has alleged were militant[ly occupying the Refuge and intending to
prevent Refuge employees from discharging their duties.
29. 1180 - Video Interview of LaVoy Finicum explaining that elected officials were
discouraged to come and meet at Refuge. January 10, 2016. (3 min 3 sec total)
Purpose: Inter alia, to show Defendants state of mind related to the actions of government
officials in response to the occupation, to add context to Defendants conduct, and to show that
Defendant and the alleged co-conspirators were inviting government participation and allowed
government representatives onto the Refuge. This evidence is introduced also to rebut the
characterization that the occupation of the Refuge was a militant occupation and the inferences
created by testimony that the Refuge was held by armed militants.
Governments Position: Object; Hearsay, irrelevant, prejudicial, and unduly confusing under
FRE 403. Again, evidence of Lavoy Finicums state of mind is irrelevant for the Courts
analysis of 1178 if it is being offered by Ammon Bundy who is NOT the declarant.
Reply: This same argument has been addressed above. The fact that it is not a statement
of Mr. Bundy is acceptable for the purposes here. A statement is not hearsay if the
witness is reporting what he heard someone else tell him for the purpose of explaining
what the witness was thinking, at the time or what motivated him to do something.
United States v. Leonard-Allen, 739 F.3d 948, 954 (7th Cir. 2013). Further, as a
spokesperson for the group, Mr. Finicums statement is the statement of Mr.
Bundy. And, Mr. Bundy will testify that he independently knew of the events that
transpired, but that Mr. Finicums statement is evidence of the intent and plan of the
occupiers. Thus, the truth of Mr. Finicums statements is not being made at issue, and

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that is not the purpose. And, an out-of-court statement offered for some other purpose,
such as to show the circumstances under which subsequent events occurred, United
States v. Pedroza, 750 F.2d 187, 200 (2d Cir.1984), is not hearsay.
30. 1181 - Video 2 min 43 sec video, Press Statement of Ammon Bundy. January 5,
2016.
Purpose: Inter alia, this video shows direct evidence of the plan, purpose and intent of Defendant
Ammon Bundy and the occupiers as of January 5, 2015 including the distinction between
force and threat and communication and defense, and when and under what conditions the
occupiers planned to go home.
Governments Position: Object; Hearsay, FRE 106, rule of completeness, if offered in its entirety
governments position is that it could be played for limited state of mind purposes.
Reply: The hearsay objection is argued above. The statement, even if it is
hearsay, is admissible under 803(3) because it is a direct statement of intent,
motive, and plan. Under the rule of completeness objection, Defendant has
submitted the video he has in its entirety. If the government believes that there is
another video showing additional content it should produce it to the
defense. Otherwise, Defendant [[[]]
31. 1182 - Video 19 min 9 Sec, Press Statement, LaVoy Finicum and A. Bundy.
January 19, 2016. Purpose: Direct statement of intent, plan and purpose as of
January 19. Also rebuts government presentation on government employees
returning.
Governments Position: Object; Hearsay.
Reply: In addition to the arguments made previously, the statement is not hearsay,

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because it is not offered to show the truth of what is asserted. It is offered to show a
statement was made, and that Mr. Bundys state of mind was not focused or directed at
Refuge employees to establish the truth of any claim or statement made in the
video.

Second, it is a not hearsay because it qualifies as a prior statement under

801(d)(1)(B). Alternatively, even if the court were to rule that it is hearsay, it is

admissible hearsay under Rule 803(3) because it is offered to show his state of mind at
the time the video was made. Wagner v. Cty. of Maricopa, 747 F.3d 1048, 1053 (9th
Cir. 2013). The government has alleged that as of the date of this video Mr. Bundy was
directly involved in an illegal conspiracy to prevent federal employees at MNWR for
discharging their duties. This video, and the content thereof, is directly relevant and
admissible because the rule allows statements of motive, intent or plan and that is
exactly the content of this video. The government doesnt explain how this video could
be confusing or prejudicial, and in any event, Mr. Bundy is subject to crossexamination. Further, the statements of Mr. Finicum are admissible for nonhearsay
purposes, because Mr. Bundy will testify that he heard them and relied upon them, and
that Mr. Finicum was speaking for all the occupiers at the Refuge. Finally, and
alternatively, the video should be admitted independently, because this is a statement
upon which others (including co-defendants) allegedly relied as part of being induced
into the alleged conspiracy. Thus, this video is admissible for the non-hearsay purpose of
showing the jury what any other person who allegedly entered into an agreement with
Mr. Bundy saw and heard and were thus affected by.
32. 1183 - Video 11 min 30 sec, Ammon Bundy speaking via Telephone with FBI
Negotiator. January 26, 2016.

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a. 00:00 3:25
b. 4:27 to 4:47.
Purpose: Intent and state of mind of Ammon as of January 26, also rebuts govt circumstantial
evidence regarding intent, particularly related to governmental misconduct as part of the basis of
the protest and occupation.
Governments Position: Object; Hearsay, irrelevant, prejudicial, and unduly confusing under
FRE 403, particularly in light of defendants purported use to show governmental
misconduct. This is being offered to rebut substantive evidence and is therefore not properly
state of mind under FRE 803(3).
Reply: The general hearsay and relevance arguments have already been addressed
above. Regarding the reference to governmental misconduct it shows the state of mind
of Def. Ammon Bundy, in terms of his motive in asking Sheriff Ward to investigate and
regarding the Petitioner for Redress of Grievances. It is not being admitted for the truth
of his statement, but it shows his motive and it explains why he was acting and what
was motivating him to gather records, stay at the Refuge, and demand action from law
enforcement. The authority cited above clearly supports the admissibility for the
nonhearsay purpose.
33. 1184- Video 29 min 37 sec, Interview of Ammon Bundy. (4:43 to 9:08, 19:54 to
21:04, 22:19 to 27:52)
Purpose: Direct statement of plan, intent and motive as of final week of occupation.
Governments Position: Object; Hearsay. This is a lengthy statement of defendant being offered
to show his version of events related to the Refuge as true.
34. Reply: Defendant has selected from the 29-minute interview, those portions where he is

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answering questions directly inquiring as to his intent, his motivation, and his plan. This
is expressly allowed under Rule 803(3) as an exception to hearsay. Further, the 9th
Circuit has ruled that such statements are allowable under the Hillmon doctrine cited
above. Finally, in the alternative, these sections are admissible as nonhearsay prior
statements under Rule 801(d)(1)(B).
35. 1186 - Video 6 min and 12 sec video from Lou Dobbs (Fox News) program
interviewing Susan Hammond. January 19, 2016.
Purpose: Defendants state of mind, particularly to rebut the governments case in chief
suggesting that the Hammonds did not accept the protest or occupation.
Governments Position: Object; Hearsay, irrelevant, prejudicial, and unduly confusing under
FRE 403. This is a FOX news report with editorial voice over and interview of the Hammonds
no statements of defendant it is not therefore, within FRE 803(3) relating to defendants state
of mind.
Reply: This argument has been addressed thoroughly above. Mr. Bundy will testify that
he saw this video, and that it had a direct effect on him and on the choices he made
related to the occupation and the time he stayed and acted at the Refuge. A statement is
not hearsay if the witness is reporting what he heard someone else tell him for the
purpose of explaining what the witness was thinking, at the time or what motivated him
to do something. United States v. Leonard-Allen, 739 F.3d 948, 954 (7th Cir. 2013). As
with the prior news reports, If the statements are not Mr. Bundys, and they are offered to
show what effect these statements had on Mr. Bundy (if he testifies that he saw these
reports or substantially similar reports depicting the same thing) as it relates to his state of
mind in Oregon, they are not hearsay. United States v. Payne, 944 F.2d 1458, 1472 (9th

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Cir.1991); United States v. Lopez, 185 F.3d 870 (9th Cir. 1999). This exhibit is not being
introduced to establish the truth of what was said, they are offered to show that the report
was made, and that the report and similar reports had a direct effect on Mr. Bundys
future motivations, intentions and actions in Oregon. See also The Kerr v. City & Cty. of
San Francisco, No. C 10-5733 CW, 2012 WL 3877752, at *7 (N.D. Cal. Sept. 6, 2012)
(Unpublished) (Holding that conclusory undetailed objections were unduly vague and
that evidence of the news reports at issue were relevant and not offered to prove the
truth of the matter asserted therein and are therefore not hearsay.)
36. 1187 - Video 8 min 13 seconds, video with LaVoy Finicum being interviewed
about reasons for the occupation and how it came about. January 20, 2016.
Purpose: Direct statement of purpose of occupation. Shows consistency of intention an purpose,
and rebuts governments allegation of intent directed at Refuge employees.
Governments Position: Object; Hearsay. Again, this is a statement of Lavoy Finicum, and not
defendant.
Reply: In addition to the arguments made previously, the statement is not hearsay,
because it is not offered to show the truth of what is asserted. It is offered to show a
statement was made, and that the state of mind and intentions of the occupiers was not
focused or directed at Refuge employees to establish the truth of any claim or statement
made in the video. At this time, Mr. Bundy will testify that Mr. Fincium was designated
as an official spokesperson for the Citizens for Constitutional Freedom, so these
statements are the statements of Mr. Bundy as if he had spoken them. Thus, even if the
court were to rule that it is hearsay, it is admissible hearsay under Rule 803(3) because it
is offered to show his state of mind at the time the video was made. Wagner v. Cty. of

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Maricopa, 747 F.3d 1048, 1053 (9th Cir. 2013). Further, the statements of Mr. Finicum
are admissible for nonhearsay purposes, because Mr. Bundy will testify that he heard
them and relied upon them, and that Mr. Finicum was speaking for all the occupiers at the
Refuge. Finally, and alternatively, the video should be admitted independently, because
this is a statement upon which others (including co-defendants) allegedly relied as part of
being induced into the alleged conspiracy. Thus, this video is admissible for the nonhearsay purpose of showing the jury what any other person who allegedly entered into an
agreement with Mr. Bundy saw and heard and were thus affected by.
37. 1188 - Video Ryan Bundy teaching group (at Refuge), about property rights,
theory of possession, claims, adverse possession, etc. January 25, 2016. (
a. 7:42 - 9:05
Purpose: Defendants state of mind regarding Adverse Possession.
Governments Position: Object; Hearsay. Proffered basis clearly demonstrates it is offered for
the truth.
Reply: This is a presentation given by Ryan Bundy, that Mr. Ammon Bundy will testify
is the same presentation given by him and others to anyone who wanted to know their
message, and why they were at the Refuge. Further, the presentation provides evidence
of the occupiers intention specifically adverse possession regardless of the truth as to
the statements made about adverse possession. See also, United States v. Leonard-Allen,
739 F.3d 948, 954 (7th Cir. 2013) (reversing conviction for conspiracy to commit money
laundering where the district court erroneously excluded the defendant from testifying
regarding the statements of others, in an attempt to give the jury an alternate
explanation for defendants actions, making his defense more believable, and negating

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his criminal intent, because [I]n those circumstances, the out-of-court statement is not
being offered as evidence that its contents are true). Further, in United States v. Kohan,
the Second Circuit reversed a defendants conspiracy conviction based on the trial courts
erroneous exclusion of testimony of a witness regarding the statements of a third party:
the defendant was not basing his defense on the truth of [the third partys] statements,
but rather on the fact that they were made and that [defendant] believed them to be true.
United States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986) (reversing conviction for
conspiracy under 18 U.S.C. 371 where trial court excluded circumstantial evidence of
[the defendants] state of mind his belief that [the third partys] activities were
legitimate). In Kohan, the court noted that the error was especially significant when
offered in the defendants direct case, revealing the defendants state of mind at the time
of the alleged conspiracy, and corroborating statements that the defendant later provided
to government agents investigating the matter. Id.
38. 1191 - Video Rep. Greg Walden Full Floor Speech. January 5, 2016.
a. 00:00 to 01:44
b. 6:45 to 13:50
c. 19:20 to 24:19
Purpose: Defendants state of mind to continue the occupation, after seeing consequences of
occupation, and the consequence of Rep. Waldens floor speech on the occupation.
Governments Position: Object; Hearsay, irrelevant, prejudicial, and unduly confusing under
FRE 403.
Reply: Mr. Bundy will testify that just prior to this floor speech he was in contact with
Mr. Waldens office, and had explained to Mr. Waldens chief of staff answers to Mr.

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Waldens questions about the occupation and the concerns of the Citizens for
Constitutional Freedom. Mr. Bundy will also testify that he first heard reports of the
speech and watched the recorded version of the speech while at the Refuge and that this
speech had a direct effect on him and other occupiers, and directly motivated them to act
the way they acted, and confirmed his intention and plan.

This evidence is essential,

because it provides evidence of the foundation of Mr. Bundys choices and actions and
plans after January 5th, and under United States v. Leonard-Allen, 739 F.3d 948, 954 it is
not offered for the truth of the statements of Congressman Walden, but because it makes
the intent, motive, and plan of Mr. Bundy and the other occupiers more credible. . An
out-of-court statement offered to show the effect on the listener, rather than the truth of
the matter asserted, is not hearsay. United States v. Payne, 944 F.2d 1458, 1472 (9th
Cir.1991); United States v. Lopez, 185 F.3d 870 (9th Cir. 1999)
39. 1214 - Video Ammon Bundy Explaining His Views on Rights, Jan. 22, 2015 (2:02)
Purpose: Statement of Defendant Ammon Bundys state of mind regarding authority of county
Sheriff when there is conflict with federal agencies, and why pressure was put on Ward in
November December 2015 in Harney County, OR.
Governments Position: Object; Hearsay. This is not properly offered as state of mind evidence
it is simply a counter narrative by defendant about his version of events at the Refuge.
Reply: This video is not hearsay under Rule 801(d)(1)(b) because it is a prior statement
and is offered to rehabilitate Mr. Bundys credibility as to his intentions at Bunkerville
and in Oregon, where the government has introduced evidence inferring evil or bad
motives to what happened in Bunkerville and related to Mr. Bundys statements to
Sheriff Ward about how he should intervene in the Hammond dispute. It is also to rebut

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an express or implied argument that Mr. Bundys directions and actions towards the
Sheriff are only being justified by him now, after the fact, but not as legitimate
beliefs. The government made such expressions and implications by introducing hearsay
statements about Mr. Bundys conversations with Sheriff Ward, and regarding what
happened at Bunkerville as something bad or wrong that was continuing in Oregon in
November/December 2015, without stating that Bunkerville was resolved with Mr.
Bundys cooperation with the Sheriff deputies on the scene.
40. Clips from January 23, 2016 Training Videos
1220 Video Harney County Resource Center, Training Video Part 1
1221 Video Harney County Resource Center, Training Video Part 2
1222 Video Harney County Resource Center, Training Video Part 3
1223 Video Harney County Resource Center, Training Video Part 4
1224 Video Harney County Resource Center, Training Video Part 5
Purpose: Selections from this training session will be introduced to show direct statements of
plan, intent, and motive related to occupation generally, related to adverse possession, and
related to what open defense means as part of defending rights of those put under chains
of federal agencies, and what role militia plays in the view of Defendants including at the
Refuge.
Part 1 at 10:40 to 14:33, 17:30 to 18:41
Part 3 at 16:10 to 19:06
Part 4 at 18:30 to 20:35
Part 5 at 16:00 to 19:55
The government notified Defendant that it no longer has any objection to this selection of clips.

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1227 - Ammon Bundy Criminal History Report

Purpose Use public record to corroborate Defendants statement regarding interaction with
government, and his state of mind as to the same.
Governments Position: Object; Hearsay, irrelevant, cumulative.
Reply: Public Record and Nonhearsay under Fed. R. Evid. 801.
1233 - Video We do have a plan ... and we will go home. (2:43) Jan. 5, 2016
Purpose: Direct statement of plan and purpose as of Jan. 5, 2016.
Governments Position: Object; Hearsay. It clearly is being offered for the truth the proposed
proffer does not mention state of mind.
Reply: The proffer was a direct reference to the hearsay exception at Rule 803(3)
because it expressly allows a statement of a declarants intention, motive and plan and
that is the content and language of the short video entitled We do have a plan. For
the reasons stated above related to other videos from Mr. Bundy, this video is essential
and permissible as evidence of his plan as of January 5, 2016. Rule 803(3) expressly
allows an exception to hearsay where the content is a statement of the declarants
then-existing state of mind (such as motive, intent, or plan) and that is exactly what
this video is. Mr. Bundy states what is motivating him, what his intention is , and what
his plan was at that time. The fact that the government is objecting here is egregious
because it is direct evidence that bares on whether Mr. Bundy was involved in a
conspiracy and it is the precise kind of evidence Rule 803(3) was designed to allow. It
is absolutely irrelevant whether the statement made in the video are true but the jury
is allowed, and must be allowed, to assess the statement as to the existence of a
conspiracy. Finally, this is a statement that Mr. Bundy made clearly intending others

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to rely upon in coming to Burns, OR on the 2nd or before, and it is thus allowable for
the non-hearsay purpose of showing a statement likely relied upon by alleged coconspirators.
DATED: October 3, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy

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