Case 3:16-cr-00051-BR

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Per C. Olson, OSB #933863

HOEVET OLSON HOWES, PC
1000 SW Broadway, Suite 1500
Portland, Oregon 97205
Telephone: (503) 228-0497
Facsimile: (503) 228-7112
Email: per@hoevetlaw.com
Of Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 3:16-CR-00051-13-BR

v.
DEFENDANT FRYS MOTIONS IN
LIMINE

DAVID LEE FRY,

Defendant.

Certificate of Conferral: Counsel certifies that he has conferred with the

government regarding these motions. The government opposes the motions.
Defendant David Lee Fry, through his attorney, Per Olson, hereby makes the
following motions in limine to be argued at the Pretrial Conference on August 22, 2016.
MOTION TO EXCLUDE HEARSAY
The government intends to introduce out-of-court statements into evidence
through the co-conspirator rule, FRE 801(d)(2)(E), which provides that statements made
by co-conspirators in furtherance of a conspiracy are not hearsay (See Gov. Trial
Memo., page 24). Defendant objects to the admission of statements against him under
to co-conspirator rule because (1) many of the statements were made before the
beginning of the refuge occupation and before defendant Fry even arrived at the scene;
(2) many statements cannot be regarded as made in furtherance of a conspiracy

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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pursuant to the authorities discussed herein; and (3) some statements were made after
the alleged conspiracy had ended.
Although this motion is made on behalf of Mr. Fry, the other defendants similarly
object to the admission of out-of-court statements under the co-conspirator rule as
against them. The other defendants may make specific arguments at the Pretrial
Conference regarding why certain out-of-court statements should not be admitted
against them, based on their circumstances.
Many of the out-of-court statements at issue in this motion were uttered by
defendants who are going to trial in September. Those statements might be admissible
against the speaker as a party opponent. However, if the Court concludes that the
statements are not in furtherance of a conspiracy under FRE 801(d)(2)(E), then the
statements cannot be used against the other defendants in trial, and the Court must
give a limiting instruction in that regard. Lutwak v. United States, 344 US 604, 618
(1953) (see headnote 16).
1. Legal Standards
Preliminarily, the government should be required to proffer all statements it
intends to introduce under FRE 801(d)(2)(E) at the pretrial conference so that the Court
can determine their admissibility outside the presence of the jury. FRE 104(a)
(preliminary questions of the admissibility of evidence shall be determined by the court);
see also Bourjaily v. United States, 382 U.S. 171, 175 (1987) (Before admitting a coconspirator's statement over an objection that it does not qualify under Rule
801(d)(2)(E), a court must be satisfied that the statement actually falls within the
definition of the Rule.)
Rule 801(d)(2)(E) hearsay statements are admissible when the following
foundation is laid: (a) the declaration was in furtherance of the conspiracy; (b) it was

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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made during the pendency of the conspiracy; and (c) there is proof -- independent of the
declaration -- of the existence of the conspiracy and of the connection of the declarant
and the defendant to it. United States v. Snow, 521 F.2d 730, 733 (9th Cir. 1975), cert.
den., 423 US 1090 (1976).
The proponent must show by a preponderance of the evidence that the
statements were made during the course and in furtherance of the conspiracy. A
statement does not qualify as a co-conspirator statement if the chief objective of the
conspiracy has already been completed or thwarted. Lutwak, 344 U.S. at 617-18
(There can be no furtherance of a conspiracy that has ended. Therefore, the
declarations of a conspirator do not bind the co-conspirator if made after the conspiracy
has ended.). The arrest of the speaker terminates her involvement, and her later
statements do not fit the exception. Wong Sun v. United States, 371 US 471, 490
(1963) ([A]n out-of-court declaration made after arrest may not be used at trial against
one of the declarants partners in crime.)
The government cites United States v. Segura-Gallegos, 41 F.3d 1266, 1271 (9th
Cir. 1994), which held that a conspiratorial statement made before the defendant joined
the conspiracy could be used against him. However, statements made before the
formation of any conspiracy cannot, by definition, fall within the co-conspirator rule. See
United States v. Astorga-Torres, 682 F.2d 1331, 1336 (9th Cir. 1982) (Court accepts,
arguendo, that statement made before conspiracy existed cannot be admissible under
the rule). Furthermore, the governments position is contrary to the fundamental
rationale behind FRE 801(d)(2)(E), rooted in the law of agency, which is that a person
who has authorized another to speak or to act to some joint end will be held responsible
for what is later said or done by his agent, whether in his presence of not. United
States v. Peralta, 941 F.2d 1003, 1006-07 (9th Cir. 1991) (internal quotation omitted;

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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emphasis added). This rationale does not apply to a statement made before the
defendant has joined an alleged conspiracy, because the agency relationship -- and
thus, the authorization to speak -- is not in place. At the very least, in order to admit
early statements of others against the defendant, the Court must find that those
statements were made in furtherance of the same conspiracy that the defendant is
alleged to have joined.
Mere conversations between co-conspirators, or narrative declarations are not
statements made in furtherance of a conspiracy. United States v. Layton, 720 F.2d 548,
556-57 (9th Cir. 1982) (overruled on other grounds). Rather, the statements must
further the common objectives of the conspiracy or set in motion transactions that are
an integral part of the conspiracy. Layton, 720 F.2d at 556 (overruled on other grounds);
see also United States v. Eubanks, 591 F.2d 513, 519-520 (9th Cir. 1979) (statements in
furtherance must assist the conspirators in achieving their objectives.). Thus, while a
discussion that prompts action by a co-conspirator is admissible, idle conversation or
casual admissions, made to a person who the speaker has decided to trust, are not
admissible. United States v. Traylor, 656 F.2d 1326, 1332 (9th Cir. 1981) (statements
concerning the activities of the conspiracy, including future plans, were not in
furtherance of the conspiracy since (they) (were) not seeking to induce (others) to join
the conspiracy and (their) statements did not assist the conspirators in achieving their
objectives.); see also United States v. Foster, 711 F.2d 871, 880 (9th Cir. 1983)
(narrative declarations about the availability of narcotics held insufficient to satisfy the
strict requirements of FRE 801(d)(2)(E)); United States v. Bibbero, 749 F.2d 581 (9th
Cir. 1984) (co-conspirators statement that defendant owned the drugs held not to be in
furtherance of the conspiracy because identity of owner was immaterial to declarants
role in the conspiracy, and therefore, the statement did not further the conspiracy);

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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United States v. Moran, 493 F.3d 1002, 1010 (9th Cir. 2007) (Statements made for
personal objectives outside the conspiracy are not admissible under FRE 801(d)(2)(E)).
In order to invoke the co-conspirator rule the government must prove by a
preponderance of the evidence that the declarant and the defendant against whom the
statement is offered were members of the conspiracy. Bourjaily v. United States, 483
U.S. 171, 175 (1987). In Bourjaily, the Court declared that a co-conspirators hearsay
statement is presumptively unreliable. Id. The presumption can be overcome by
corroborative independent evidence. Id. Courts after Bourjaily have held that the
independent evidence must be at least fairly incriminating on its own before that
evidence together with the hearsay statement can satisfy the Bourjaily preponderance
requirement.
The Sixth Amendment to the United States Constitution provides that, [i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him. In Crawford v. Washington, 541 US 36 (2004), the United
States Supreme Court concluded that the Sixth Amendment's confrontation guarantee
applies to testimonial hearsay statements by a co-defendant admitted against a
defendant in a criminal trial. Crawford, 541 US at 53. Testimonial hearsay statements
are admissible only if the declarant is both unavailable and the defendant had the
opportunity to cross-examine the declarant. Id. at 68. Crawford did not define the full
scope of testimonial statements subject to the Sixth Amendment, but it held
[s]tatements taken by police officers in the course of interrogations are * * * testimonial
under even a narrow standard. Id. at 52.
The Ninth Circuit in United States v. Bridgeforth, 441 F3d 864, 869 n.1 (9th Cir.
2006), stated that FRE 801(d)(2)(E) survives Crawford because co-conspirator
statements are not testimonial, citing United States v. Allen, 425 F.3d 1231, 1235 (9th

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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Cir. 2005). Both Allen and Bridegeforth addressed this issue under a plain error
analysis. Neither case provides any other rationale for FRE 801(d)(2)(E) statements to
side-step the Confrontation Clause if the particular statement at issue is testimonial.
See Crawford, 541 U.S. at 50-51 (Confrontation Clause applies of its own force to outof-court statements and does not depend on the rules of evidence).
In United States v. Tuyet Thi-Bach Nguyen, 565 F3d 668, 674-675 (9th Cir.
2009), the Court found Confrontation Clause error in admitting a co-defendants out-ofcourt statement to an FDA agent that was not inculpatory against the complaining
defendant. Crawford does not require that a statement inculpate a defendant to trigger
error under the Confrontation Clause. Simply, Confrontation Clause error occurs at
admission of a testimonial statement without an opportunity to cross-examine. 565 F.3d
at 674. Thus, the Confrontation Clause should apply to testimonial statements by Mr.
Frys alleged co-conspirators to law enforcement.
2. Application
As mentioned, the government should lay a foundation as to each statement it
intends to offer under the co-conspirator rule and establish why it believes the statement
was made in furtherance of a conspiracy of which Fry was a member. In that regard,
defendant would highlight for the Courts focus the following categories of statements.
A. Testimonial Statements
Obviously, post-arrest admissions to law enforcement should be subject to a
limiting instruction that the statements may not be considered against the other
defendants. (See e.g., Gov. Ex. 641 Medenbachs statement to OSP on 1/15/16).
Also, recorded phone conversations between FBI Agents and the defendants should be
considered testimonial, and therefore, inadmissible under Crawford. Thus, the FBI

Page 6 DEFENDANT FRYS MOTIONS IN LIMINE

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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negotiator call with Ammon Bundy on January 21, 2016, should not be admitted against
other defendants. (Gov. Ex. 11).
B. Statements to Media
Several government exhibits are video or audio recordings of news media
interviews of defendants. These statements cannot be regarded as statements in
furtherance of a conspiracy.
For example, Government Exhibit 21 is an interview by an OPB reporter of Ryan
Bundy. Mr. Bundy states his opinion on a number of issues, makes narrative
statements about activities that allegedly occurred to date, and explains the presence of
firearms. These are not statements in furtherance of a conspiracy pursuant to the
aforementioned authorities. They explain Mr. Bundys position but they do not further
the objectives of the alleged conspiracy.
Other government exhibits that fall into this category of statements to the media,
including press conferences, are Government Exhibits 614 through 617, Government
Exhibit 666, 667 (CBS interview of Ryan Bundy), and 672 (Vice News Story on January
15, 2016).
C. Statements after alleged conspiracy was ended
The co-conspirator rule does not apply to statements after an arrest or after the
alleged conspiracy was ended. For example, Government Exhibit 22 is the audio
recording of an online radio interview of Ms. Cox on March 25, 2016, long after all
defendants had been arrested or had departed the refuge.
D. Statements before Fry arrived
The government will establish that Fry arrived at the refuge on January 8, almost
a week after the initial occupation. For any statement made before that date, the
government must establish that it was made in furtherance of the same conspiracy that

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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Fry is alleged to have joined, and that he was a member of that same conspiracy at the
time the statement was made. This argument involves the following exhibits:

Exhibits 37 42 Text messages between A. Bundy and Santilli

Exhibits 43 - 51 Videos

Exhibits 57 70 Facebook Messages and Photos

Exhibit 77 Facebook video of Cooper, Ritzheimer, OShaughnessy and

Patrick on 12/26/15

Exhibit 608 613 A. Bundy videos

Exhibits 654 658, 669 Santilli Show videos

Also included in this category are statements of declarants whose unrecorded

statements would come in through witness testimony. Defendant particularly takes
issue with pre-occupation statements by Ryan Payne, as they are prejudicial and have
nothing to do with Fry. Again, the government must proffer all such statements before
trial so that parties may litigate their admissibility outside the presence of the jury.
E. Finicum recording on 1/22/16
Government Exhibit 639 is a video recording of Mr. Finicum which he says is
recorded on January 22, 2016. In summary, it depicts Finicum speaking to the camera
and saying that he does not intend to give in or negotiate with the government and that
he does not intend to leave these buildings. As it is not clear who Finicum is
addressing in the video or what his purpose is, the statement cannot be considered to
have been made in furtherance of a conspiracy.
MOTION TO EXCLUDE BUNKERVILLE INCIDENT
The government intends to call BLM Special Agent Jason Curry as a witness to
testify about an incident that occurred in April of 2014 near Bunkerville, Nevada, in
which hundreds of armed Bundy supporters are alleged to have converged on an

Page 8 DEFENDANT FRYS MOTIONS IN LIMINE

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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impoundment area where the BLM had rounded up cattle belonging to Cliven Bundy.
The scope of Agent Currys expected testimony is set forth in a memorandum, filed
herewith under seal. (Exhibit A). The government also intends to offer into evidence
two court orders from the civil matter involving Cliven Bundys cattle. (Gov. Exs. 157,
158 also filed under seal as Exhibits B and C).
Defendant objects to this evidence on the grounds of relevance and undue
prejudice. FRE 401, 403. Defendant Fry, and other defendants in this matter, had
nothing to do with this incident, but the force of this testimony nevertheless is prejudicial
to him by virtue of being tried with others who are charged in the Nevada matter. The
government asserts that defendants referred to the events of Bunkerville as
justification for occupying the refuge; but to the contrary, the weight of the evidence
indicates that the protest at the refuge was motivated by separate and unrelated events,
including the unjust treatment of the Hammonds. Also, the government claims that
some defendants referred to the occupation of the refuge as another Bunkerville, but
those statements were not pervasive. The government does not need this evidence in
order to have the jury fully understand the scope of the alleged conspiracy in Oregon.
Finally, this evidence will result in unnecessary litigation over merely a collateral, and
non-probative, matter.
MOTION TO ALLOW TESTIMONY ABOUT FBI LIES AND COVER UP
The Court has denied defendants motion to compel production of information
regarding the investigation into FBI Agents who lied about firing their weapons on the
day of the killing of LaVoy Finicum and who tampered with evidence. Nevertheless,
defendant intends to offer evidence of the FBI Agents conduct on January 26 with
regard to the Finicum matter. This evidence is relevant for all of the reasons laid out in
defendants motion to compel and reply memorandum. Also, with respect to Fry, the

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HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497

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government intends to offer a video recording of Fry later that night, after the Finicum
death, in which Fry states that Finicum was killed by the FBI with his hands up in the air.
The government will offer this and other videos of Fry, post-Finicum death, in which Fry
describes his belief in an imminent FBI attack. The evidence relating to the FBIs use of
force against Finicum and subsequent cover up is relevant to help the jury understand
the reasonableness of defendants conduct.
MOTION TO ALLOW DEFENDANT TO INTRODUCE HIS VIDEOS
The government intends to offer into evidence videos that defendant produced
and posted on his Youtube channel, Defendyourbase. Defendant intends to offer other
videos from his Youtube channel during his case-in-chief. The videos, which will be
summarized or played for the Court at the Pretrial Conference if necessary, are
admissible for nonhearsay purposes, including, but not limited to: they show
defendants conduct; they show defendant not possessing a firearm before the Finicum
shooting; and as evidence of defendants mental state or knowledge.
DATED this 10th day of August, 2016.
HOEVET OLSON HOWES, PC
/s Per C. Olson
Per C. Olson, OSB #933863
Attorney for Defendant David Fry

Page 10 DEFENDANT FRYS MOTIONS IN LIMINE

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497