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In the United States District Court for The Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, 3:16-cr-00051-BR Plaintiff, ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE v. INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM AMMON BUNDY, JON RITZHEIMER, SHOOTING JOSEPH O’SHAUGHNESSY, RYAN PAYNE, RYAN BUNDY, BRIAN CAVALIER, SHAWNA COX, PETER SANTILLI, JASON PATRICK, DUANE LEO EHMER, DYLAN ANDERSON, SEAN ANDERSON, DAVID LEE FRY, JEFF WAYNE BANTA, SANDRA LYNN ANDERSON, KENNETH MEDENBACH, BLAINE COOPER, WESLEY KJAR, COREY LEQUIEU, NEIL WAMPLER, JASON CHARLES BLOMGREN, DARRYL WILLIAM THORN, GEOFFREY STANEK, TRAVIS COX, ERIC LEE FLORES, and JAKE RYAN, Defendants. BROWN, Judge. This matter comes before the Court on Defendants’ Motion (#700) to Compel Production of the Investigation of FBI Use of 1 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 2 of 7 Force in the Finicum Shooting filed by Defendant David Lee Fry and on behalf of all other Defendants. Defendants move to compel discovery of materials related to investigations by the United States Department of Justice Office of Inspector General (OIG) and the Tri-County Major Incident Team into the conduct of two Federal Bureau of Investigation (FBI) Hostage Rescue Team (HRT) officers in connection with the officer-involved shooting death of Robert “Lavoy” Finicum. FACTUAL BACKGROUND1 On January 26, 2016, federal and state law-enforcement officers used a road block to stop a truck Finicum was driving. After Finicum emerged from the driver’s side and, according to law-enforcement officials, reached for a firearm in his coat pocket, Oregon State Police officers shot him. Finicum died as a result. Defendants Shawna Cox and Ryan Bundy, among others, rode as passengers in the truck, and they were arrested at the road block. The Deschutes County Sheriff’s Office led a “Major Incident Team” investigation, and, on March 8, 2016, announced it had 1 Although there are many matters regarding the Finicum shooting that are disputed, the following factual summary is undisputed for purposes of this Motion and based on the parties’ submissions. Accordingly, this Court does not make any findings of fact or express any opinion regarding the legal issues arising from that officer-involved shooting. 2 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 3 of 7 determined the OSP officers who fired the shots that killed Finicum were justified in doing so under Oregon law. The Major Incident Team, however, also determined two members of the FBI HRT fired two additional shots that did not strike any individual. Because the HRT officers did not disclose those shots after the incident and took affirmative steps to conceal the shots, the Deschutes County Sheriff also announced on March 8, 2016, that the actions of those officers were the subject of an ongoing investigation both by the Deschutes County Sheriff’s Office and the OIG. Those investigations are the subject of Defendants’ Motion. DISCUSSION “Federal Rule of Criminal Procedure 16 grants criminal defendants a broad right to discovery.” United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). In order to be entitled to discovery of certain information, however, the “‘defendant must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense.’” Stever, 603 F.3d at 752 (quoting United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995)). “‘Rule 16 permits discovery that is relevant to the development of a possible 3 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 4 of 7 defense.’” United States v. Muniz-Jaquez, 718 F.3d 1180, 1184-85 (9th Cir. 2013)(quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). Defendants contend the details of the OIG and Deschutes County investigations are discoverable because they are relevant to demonstrate the FBI’s institutional bias and the individual HRT officers’ bias against Defendants; to explain and to corroborate Defendants’ intent to carry firearms for self-defense purposes rather than to threaten or to intimidate; to explain why Defendant Fry and others remained at the Malheur National Wildlife Refuge (MNWR) after the arrests on January 26, 2016; and to provide Defendants Shawna Cox and Ryan Bundy with additional information about their arrests. The government, on the other hand, contends it has disclosed to Defendants a large volume of information regarding the arrests of Ryan Bundy and Shawna Cox as well as the Finicum shooting, but further details of the investigation of the two members of the FBI HRT (neither of whom will be called as witnesses in these proceedings) are not relevant to the development of any possible defense. Consequently, such investigation details are not relevant to any possible defense, and the government contends they are therefore not discoverable under Rule 16. On this record the Court concludes the government is correct that the details of the investigations are not relevant to the 4 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 5 of 7 development of any possible defense in this case. The conduct of the two HRT officers at the time of the Finicum shooting cannot explain or corroborate Defendants’ putative intent to defend themselves with firearms at the MNWR because all of the alleged acts giving rise to the charges in this matter took place before the HRT officers’ conduct occurred and was disclosed. Defendants, therefore, formed their relevant states of mind before they knew of the actions that make up the basis of the investigations. Similarly, the details of the investigations are not relevant to the mental states of Fry and the other Defendants who remained at the MNWR after January 26, 2016, because the announcement by the Deschutes County Sheriff regarding the investigations came well after those Defendants were taken into custody. In other words, Defendants’ mental state during the alleged offenses could not have been motivated by facts that they did not know at the time. Moreover, although the details of the investigations potentially could have been used to impeach the credibility or demonstrate the bias of the individual HRT officers if they testified, Defendants’ general contention regarding institutional bias is speculative because there is not any evidence in the record from which the Court could conclude the conduct at issue in the investigations is indicative of any wider institutional bias against Defendants. Thus, Defendants have not demonstrated 5 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 6 of 7 the details of the investigations are material to any claim of institutional bias against them. In any event, the government has indicated it will not call the two involved HRT officers as witnesses, and, therefore, their credibility is not at issue in this case and will not become relevant unless and until the government otherwise puts the credibility of those officers at issue. Finally, although Defendants Ryan Bundy and Shawna Cox are entitled to information regarding their arrest that is relevant to the charges brought against them, Defendants do not articulate any basis on which the details of the investigations are relevant to those charges especially in light of the extensive discovery about their arrests that the government had already disclosed. In summary, the Court emphasizes this criminal case concerns only Defendants’ alleged conduct in relation to the events at the MNWR as set out in the Superseding Indictment. The very important questions whether the shooting of Lavoy Finicum was justified or whether FBI HRT officers engaged in misconduct at the time of that shooting are beyond the scope of this criminal case. Accordingly, the Court concludes Defendants have failed to demonstrate the details of the investigations are relevant to the “development of a possible defense” in these proceedings. See Muniz-Jaquez, 718 F.3d at 1184-85. 6 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING Case 3:16-cr-00051-BR Document 887 Filed 07/15/16 Page 7 of 7 CONCLUSION For these reasons, the Court DENIES Defendants’ Motion (#700) to Compel Production of the Investigation of FBI Use of Force in the Finicum Shooting. IT IS SO ORDERED. DATED this 15th day of July, 2016. /s/ Anna J. Brown ANNA J. BROWN United States District Judge 7 - ORDER DENYING MOTION TO COMPEL PRODUCTION OF THE INVESTIGATION OF FBI USE OF FORCE IN THE FINICUM SHOOTING.
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