4-11-16 ECF 384 USA v MEDENBACH - Medenbach Motion to Reconsider MtD and Exhibits

– AMENDED MOTION TO RECONSIDER ORAL MOTION TO DISMISS (ORAL ARGUMENT

REQUESTED)

KENNETH MEDENBACH SWIS#794840

MCDC

11540 NE Inverness Drive

Portland, OR 97220 Phone: (503) 699-7333

FAX: (503) 345-9372

e-mail: [email protected]

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

KENNETH MEDENBACH,

Defendant(s).

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

AMENDED MOTION TO

RECONSIDER ORAL

MOTION TO DISMISS

(ORAL ARGUMENT

REQUESTED)

Pro se defendant, Kenneth Medenbach, moves the Court to reconsider its

order rejecting defendant’s Motion to Dismiss. ECF 298. The defendant requests

oral argument.

A. Status of the Case:

The defendant is a political prisoner serving a sentence despite not having

been convicted of any crime. He was a participant in a constitutionally protected

protest at a property about which there was a good faith dispute concerning

ownership. He was arrested picking up groceries in a vehicle that he believed

belonged to the people of Harney County based on his understanding of the law.

Defendant has requested a speedy trial and anticipates that the court will provide

one.

Case 3:16-cr-00051-BR Document 384 Filed 04/11/16 Page 1 of 11


REQUESTED)

B. Reasons to Reconsider:

In its rulings on defendant’s oral motion, this court misconstrued the thrust

of defendant’s argument which had been twisted through the government’s

grandiloquence and the defendant’s own inexperience in advancing such a motion.

In 1997, in an appeal from a conviction in U.S. District Court for the Western

District of Washington, defendant challenged the constitutionality of federal

ownership of public lands in Washington State. United States v. Medenbach, 116

F.3d 487 (9th Cir. 1997). Defendant also argued that since the Constitution does not

confer upon federal courts the power of judicial review Marbury v. Madison, 5 U.S.

137 (1803), was wrongly decided. United States v. Medenbach, 116 F.3d 487 (9th

Cir. 1997). The Ninth Circuit Court of Appeals rejected the argument because

defendant failed to offer reasoning or case law to support the argument that Marbury

v. Madison should be overruled. Id.

What follows is reasoning and proof that Marbury v Madison must be

overruled.

1. Congress has required an official oath that is inconsistent with the

Constitution.

Article VI, Sec. 2 of the United States Constitution states:

"This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall be bound thereby,

anything in the Constitution or Laws of any State to the contrary

notwithstanding.”

The Constitution is the “Supreme Law” of the land. In order to support a true

union by the people and for the people and to assure that the Constitution remained



REQUESTED)

the Supreme Law of the land, the drafters included in that very document the

requirement of an oath before serving the country in an official capacity:

"The Senators and Representatives before mentioned, and the

Members of the several State Legislatures, and all executive and

judicial Officers, both of the United States and of the several States,

shall be bound by Oath or Affirmation, to ‘support this Constitution’

but no religious Test shall ever be required as a Qualification to any

Office or public Trust under the United States."

Article VI, Sec. 3 of the United States Constitution

These words, inserted when the whole frame of government, with the powers

specified, had been adopted by the Constitutional Convention; and it was in that

form, and with these powers, that the Constitution was submitted to the We the

People, of the several States, for their consideration and decision. The emphatic

language of the pledge required is to "support" this Constitution. There is no power

more clearly enumerated by the plain language of the Constitution of the United

States than this requirement for officials to "support" the Constitution.

The first law statute of the United States of America, enacted in the first

session of the First Congress on 1 June 1789, was Statute 1, Chapter 1: an act to

regulate the time and manner of administering certain oaths, which established the

oath required by civil and military officials to, "support the Constitution." The first

oath prescribed by Congress (June 1, 1789) was simply, "I do solemnly swear (or

affirm) that I will "support the Constitution of the United States."

It took just one week short of four months before Congress started perverting

the Constitution. In the Judiciary Act adopted September 24, 1789, Congress

prescribed an unconstitutional second oath of office to United States judicial

officers:



REQUESTED)

“I, , do solemnly swear or affirm that I will administer justice

without respect to persons, and do equal right to the poor and to the

rich, and that I will faithfully and impartially discharge and perform

all the duties incumbent upon me according to the best of my abilities

understanding, agreeably to the Constitution and the laws of the

United States. So help me God.”

See Judiciary Act of 1789, 1 Stat. 73, Sec.8.

What this court did not previously consider, and what defendant failed to

articulate at the motion hearing, was that this unconstitutional oath of

“understanding, agreeably”, was central to the Supreme Court’s holding reserving

to it the power to interpret the constitution in Marbury v Madison, 5 U.S.137 (1803).

The Supreme Court said, "Why does a judge swear to discharge his duties agreeably

to the Constitution of the United States, if that constitution forms no rule for his

government? If it is closed upon him, and cannot be inspected by him? If such be

the real state of things, this is worse than solemn mockery. To prescribe, or to take

this oath, becomes equally a crime".

If the unconstitutional second oath of office of "understanding, agreeably to

the Constitution," had not been established by the Judiciary Act of 1789, 1 Stat. 73,

Sec.8, it would never have been available to the Supreme Court in 1803 and

Marbury v Madison would have never come into existence. According to Marbury

v. Madison, the oath by its very nature requires the power of Constitutional

interpretation. Because that oath was not consistent with the Constitution in the first

place, Marbury was wrongly decided.

2. Congress’s attempts to establish an oath have been inconsistent with

the Constitution.

In the 1990 Judicial Improvements Act, at 28 USC § 453, Congress replaced

the phrase, "according to the best of my abilities and understanding, agreeably to



REQUESTED)

the Constitution and laws of the United States. So help me God," to "under the

Constitution." This begs the question of why the oath was changed after nearly 200

years and replaced with another oath no more consistent with the Constitution than

the one it replaced.

The legislative history on this statute and its intent is opaque. The

Congressional Research Service of the Library of Congress, which works

exclusively for the United States Congress, providing policy and legal analysis to

committees and Members of both the House and Senate, prepares upon enactment

into law, a final public law summary. It stated concerning this provision:

Upon the enactment of replacing "according to the best of my abilities

and understanding, agreeably to the Constitution and laws of the

United States. So help me God," with "under the Constitution," the

Congressional Research Service stated, "This language proved

reasonably more effective in tying the decisions of the judiciary to the

authority of the United States Constitution."

It appears that Congress intended to force the judiciary to tie its decisions to

the Constitution with a revised oath that eliminated the language allowing the courts

to extend their authority in an unconstitutional manner. It also suggests that because

actions were taken by the courts in an extra-constitutional manner pursuant to an

invalid oath, decisions made by the federal courts prior to 1990 are presumptively

unconstitutional.

At the same time, since the 1990 Judicial Improvements Act did not cure the

unconstitutional flaws in the oath which remains inconsistent with the plain

language of the Constitution:

"The Senators and Representatives before mentioned, and the

Members of the several State Legislatures, and all executive and




REQUESTED)

shall be bound by Oath or Affirmation, to "support" this

Constitution..."

Art. VI, Sec. 3 United States Constitution

The plain language of the Constitution dictates that an oath with the

language "under the Constitution," is no closer to the correct Constitutional oath to

"support the Constitution," than "understanding, agreeably" to the Constitution.

3. The federal court’s flawed understanding of the unconstitutionality

of the oath and its impact are apparent from the course of

defendant’s history in the federal courts.

In United States of America v Medenbach, the Ninth Circuit stated:

"Medenbach argues that the district court judge's oath of office was

constitutionally deficient because the statutorily prescribed oath of

office set out at 28 U.S.C. § 453 does not mirror the wording of the

Constitution itself. The Constitution requires that, "all executive and


shall be bound by Oath of Affirmation, to support this Constitution."

(U.S. Const. art.VI, cl. 3). The oath prescribed by statute requires that

each federal justice or judge swear to "faithfully and impartially

discharge and perform all the duties incumbent upon me ... under the

Constitution and laws of the United States." 28 U.S.C. § 453.

Medenbach argues that the district court judge who presided over

Medenbach's bench trial lacked judicial authority because he did not

swear to "support" the Constitution, only to perform his duties "under"

the Constitution. The Constitution does not require that a judge swear

verbatim to "support" the Constitution. Thus, we reject Medenbach' s

claim that the district court judge's oath of office was deficient.”

United States v. Medenbach, 116 F.3d 487 (9th Cir. 1997)

The Ninth Circuit’s holding that a judge need not swear verbatim to "support

the Constitution" is plainly inconsistent with the language of the Constitution.



REQUESTED)

Because defendant did not have the opportunity for oral argument before the Ninth

Circuit, he was never afforded the opportunity to make this argument to that Court.

4. Defendant’s literal reading of the oath is supported by Marbury.

In Marbury v Madison, the Supreme Court considered the limited grant of

judicial power expressly found in the language of the document as key to

understanding its provisions:

It has been insisted, at the bar, that as the original grant of

jurisdiction, to the supreme and inferior courts, is general, and the

clause, assigning original jurisdiction to the supreme court, contains

no negative or restrictive words; the power remains to the legislature,

to assign original jurisdiction to that court in other cases than those

specified in the article which has been recited; provided those cases

belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the

legislature to apportion the judicial power between the supreme and

inferior courts according to the will of that body, it would certainly

have been useless to have proceeded further than to have defined the

judicial power, and the tribunals in which it should be vested. The

subsequent part of the section is mere surplusage, is entirely without

meaning, if such is to be the construction. If congress remains at

liberty to give this court appellate jurisdiction, where the constitution

has declared their jurisdiction shall be original; and original

jurisdiction where the constitution has declared it shall be appellate;

the distribution of jurisdiction, made in the constitution, is form

without substance.

Affirmative words are often, in their operation, negative of

other objects than those affirmed; and in this case, a negative or

exclusive sense must be given to them or they have no operation at

all.

It cannot be presumed that any clause in the constitution is

intended to be without effect; and therefore such a construction is

inadmissible, unless the words require it.



REQUESTED)

Marbury v. Madison, 5 U.S. 137, 174, 2 L. Ed. 60 (1803)

If it cannot be presumed that any clause in the Constitution is intended to be

without effect, neither the Congress nor the federal courts have the power to ignore

the language of the Constitution requiring a specific oath.

For the same reason, the Court was wrong in Medenbach v United States of

America Case No. 1:14-cv-641-PA when Judge Panner states, "Plaintiff s claim is

wholly insubstantial because the slight difference in wording between the

Constitution and the statute providing the oath of office has no legal significance."

Nowhere does the Constitution expressly vest in Judge Panner the right to decide

that the plain words of the Constitution have no effect. Furthermore, the implication

from his holding is that everyone in government has the right to interpret or in this

case, disregard, the Constitution.

5. Marbury is inconsistent with the language of the Constitution and

the right to interpret the Constitution belongs to the people.

The plain language of the Constitution allows and requires only one oath of

office to "support the Constitution." Any other oath of office for United States

justices and judges, that does not have "support the Constitution" in it, prescribed

by Congress and taken by federal judicial officers does not meet the requirements

of Article VI, Sec. 3 and the 10th Amendment.

The 10th Amendment, which is never mentioned in Marbury v Madison,

states; "The powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or to the

people."



REQUESTED)

In Marbury v Madison the Supreme Court unconstitutionally delegated to

the judicial department the power to interpret the Constitution when it stated: "It is

emphatically the province and duty of the judicial department to say what the law

is,…” Judicial interpretation of the Constitution is not a power delegated to the

judicial department by the Constitution. It was a power unlawfully taken from the

people without Constitutional authority in violation of the 10th Amendment.

Marbury v Madison, as well as United States v. Medenbach were wrongly decided.

This United States District Court lacks jurisdiction to decide this case because the

Constitution’s plain language does not confer upon federal courts the power of

judicial review. See U.S. Const. Art. VI, cl. 3.

Since all state officers also take an oath to support the Constitution, they are

prohibited by the Constitution from interpreting the Constitution. Thus the powers

quoted in Marbury v Madison, are reserved to "We the People of the United States,

in Order to form a more perfect Union, establish Justice, insure domestic

Tranquility, provide for the common defense, promote the general Welfare, and

secure the Blessings of Liberty to ourselves and our Posterity, who ordained and

established this Constitution for the United States of America."

6. The Court and government misunderstood defendant’s argument.

On March 11, 2016 the court rejected defendant’s argument that a second

oath required by Congress is unconstitutional. It did so, in part, because of the

government’s mischaracterization of the arguments that defendant has raised

previously in federal court. The core of defendant’s argument in those cases went

to the actual language of the oath’s of office as opposed to a second unconstitutional

oath as required by 28 USC § 453.

During the hearing the Court stated:



REQUESTED)

“Sir, I took the oath, a single oath that's on record….It's not necessary for me

to make this point, but I feel I want to communicate to you as an individual. I have

in fact, throughout my judicial career, tried every time I had to make a ruling to

follow the oath I took -- both as a judge of the circuit court of the state of Oregon

and then beginning in 1999, for this court -- to support and defend the Constitution

of the United States. Exhibit 1 at 31.

In reviewing the United States Code, it appears that two different statutes

require an oath of office, 5 USC § 3331 and the unconstitutional second oath found

at 28 USC § 453. The court not address this argument, nor has any other court in

contrast to the government’s mischaracterization.

7. The oath this Court does not comport with the Constitution.

Since the last hearing, the defendant has obtained a copy of the Oath that this

court took. On October 27, 1999, this Court took an oath that was a combination of

28 USC 453 and 5 USC 3331. See Oath of Office, Anna J. Brown U.S. District

Court, October 27, 1999 attached as Exhibit 2. The top half of the combination oath

is said to be 28 USC 453 but is actually the original oath of office from the Judiciary

Act of 1789. 1 Stat. 73, Sec. 8 and relied upon by the Court in Marbury. Marbury v.

Madison, 5 U.S. 137, 180, 2 L. Ed. 60 (1803). The bottom section of the

combination oath is taken verbatim from 5 USC 3331. It states:

“And I will support and defend the Constitution of the United States

against all enemies, foreign and domestic; that I will bear true faith

and allegiance to the same; that I take this obligation freely, without

any mental reservation or purpose of evasion; and that I will well and

faithfully discharge the duties of the office on which I am about to

enter. So help me god.

Exhibit 2.



REQUESTED)

This oath renders 28 USC 453 or 1 Stat. 73 Sec. 8 void because the

Constitution does not allow or require a second oath in relation to the Constitution.

Only one oath to “support” the Constitution pursuant to Article 6, Sec. 2 and Article

6, Sec. 3 is allowed or required.

C. Conclusion:

For the reasons stated above the defendant’s Motion to Dismiss should be

reconsidered and he should be granted oral argument.

Respectfully submitted on April 11, 2016.

Kenneth Medenbach

Pro Se Defendant.


MOTION TO RECONSIDER ORAL MOTION TO DISMISS – EXHIBIT 1


MCDC



FAX: (503) 345-9372



DISTRICT OF OREGON

PORTLAND DIVISION


Plaintiff,

vs.

KENNETH MEDENBACH,

Defendant(s).


MOTION TO RECONSIDER

ORAL MOTION TO DISMISS

EXHIBIT 1

Exhibit 1 to defendant’s Motion to Reconsider

Case 3:16-cr-00051-BR Document 384-1 Filed 04/11/16 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, )

) Case No. 3:16-CR-0051-BR

Plaintiff, )

)

v. ) March 11, 2016

)

KENNETH MEDENBACH, (16) )

)

Defendant. )

__________________________________) Portland, Oregon

TRANSCRIPT OF PROCEEDINGS

(Detention Hearing)

BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF: CRAIG GABRIEL

Assistant U.S. Attorney

U.S. Attorney's Office

1000 SW Third Avenue

Portland, OR 97204

(503)727-1000

FOR DEFENDANT

MEDENBACH: KENNETH MEDENBACH

Pro Se

25795-086

MATTHEW SCHINDLER

501 4th Street #324

Lake Oswego, OR 97034

(503)699-7333

COURT REPORTER: AMANDA M. LeGORE

CSR, RDR, FCRR, CRR, CE

U.S. Courthouse

1000 SW Third Avenue Suite 301

Portland, OR 97204

(503)326-8184

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Exhibit 1 - Page 1 of 42

2

(Friday, March 11, 2016; 11:00 a.m.)

P R O C E E D I N G S

THE COURT: Good morning, everyone. Please be

seated.

Mr. Gabriel.

MR. GABRIEL: Good morning, your Honor.

This is the matter of the United States v. Kenneth

Medenbach. It's Case No. 16-CR-51.

This is the time set for Faretta hearing, as

Mr. Medenbach had previously expressed to the Court his desire

to represent himself.

He is currently appearing with his lawyer, Matt

Schindler. And I think the Government's motion is that he is

represented until such time as the Faretta motion is complete

and the Court grants that motion.

We are also here to take up the matter of

Mr. Medenbach's detention.

THE COURT: On that latter point, there may be some

confusion. I don't know -- and I'll need Mr. Medenbach, for

you to confer -- to confirm whether there really -- there was a

request for review or not.

There was filed in the record a waiver of a detention

hearing that Mr. Schindler filed on Mr. Medenbach's behalf in

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late February.

The clerk did docket the matter as a Faretta hearing

and a detention hearing, and the pretrial officer's here. But

if Mr. Medenbach wants us to review the issue, I will. I'm

just not sure it was intended. I can't tell.

MR. SCHINDLER: Can I speak to this?

THE DEFENDANT: Go ahead.

MR. SCHINDLER: Yes, your Honor, I contacted Pretrial

Services because we did feel that it was important that an

additional review of detention take place here in this court,

so we had asked that some supplemental information that we had

provided to Pretrial Services be reviewed.

THE COURT: All right.

MR. SCHINDLER: And so we would like to have that

done today.

And then at the court -- the initial arraignment, if

the Court will recall, Mr. Medenbach intended to make a motion

to the Court regarding some jurisdictional issues. The Court

asked him to defer that until this hearing today.

So he would like to take a few minutes, once we've

gotten through the Faretta and detention issues, to address his

jurisdictional issue to the Court, your Honor.

THE COURT: Yes. I had thought -- and I do note in

the record -- that I had indicated that he should file a

motion, if he had one to make.

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I -- so far none has been filed. But I'll certainly

hear what you have to say this morning, Mr. Medenbach, to see

if we can get to the bottom of things.

Let's begin with this question about your right to

counsel and your right to waive having an attorney represent

you.

Are you ready to proceed on that question?

THE DEFENDANT: Yes.

THE COURT: Mr. Schindler, would you please be sure

Mr. Medenbach has in front of him the Superseding Indictment;

the one that now charges him both in Count 1 -- and,

Mr. Gabriel, help me with the count.

MR. GABRIEL: Count 4, your Honor.

THE COURT: Count 4.

So, Mr. Medenbach, we went through the formal

arraignment the other day. These charges are now pending

against you. You did not enter a plea, but I did enter a plea

of not guilty for you. You are presumed innocent of all

wrongdoing that's alleged. That presumption of innocence stays

in effect unless and until the Government overcomes the

presumption by proving you guilty in a public trial by jury.

You have an absolute right to that public trial by

jury, where, in a process followed by law, eventually 12 people

are selected to be the judges of what the evidence proves or

does not prove. And in that process, the Government has an

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opportunity to seek to convince 12 jurors of your guilt beyond

any reasonable doubt.

In that process, you have the right to confront the

evidence against you. That is to say, the witnesses who

testify that the Government brings before the jury. You have

the right to -- to confrontation there. You also have a right

to confront any other evidence the Government presents, whether

it's a video or a document, a thing, a photograph; that kind of

thing. That's part of the fundamental due process rights of a

person accused.

You have the absolute right to remain silent and not

to be called as a witness against yourself or to be compelled

to testify against yourself.

And on the mirror image of that right, you have the

right personally to take the witness stand in your own defense

if you wanted to do so.

That, of course, would expose you to

cross-examination by the Government's lawyer. If you chose to

give up the right to remain silent, if you chose to take the

witness stand in your own defense, then you would be permitted

to testify about any matter that was relevant in the case. And

then the Government would be permitted to cross-examine you as

to any matter you raised in your direct testimony.

Finally, you have the right under the Sixth Amendment

to the United States Constitution to the continued and

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effective assistance of counsel.

Mr. Schindler has been appointed to be your counsel.

You've expressed regularly, however, that you do not wish to

have an attorney and you do want to represent yourself. So the

purpose of this hearing, today, is for me to review that issue;

the issue of whether you're going to represent yourself or

proceed with counsel, in detail.

I'm not permitted by law to allow a person to

represent himself until I've had this very detailed discussion

about the issues; specifically, the risks of proceeding without

counsel, the risks of going forward to trial, and the like.

So, that's what I'm prepared to begin with.

Are you with me, so far?

THE DEFENDANT: I am.

THE COURT: All right. Thank you, sir.

So you have in front of you this Indictment, charging

you in Counts 1 and Count 5, was it?

MR. GABRIEL: 4, your Honor.

THE COURT: 4. Sorry.

The maximum penalties were announced the other day.

And we've -- again, we've covered all of the other rights

several times.

The function of a lawyer in the context of this kind

of proceeding is to use his skill and experience to facilitate

the defendant's case. To help the defendant understand the

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risks he's facing, the -- the weight of the evidence the

Government says it has against him. To help a defendant

understand the legal ways to want that risk. To challenge the

admissibility of evidence. To challenge the viability of the

legal theories the Government is proceeding. To work for the

defendant's benefit in discussions and negotiations with the

prosecutor, and so forth.

There are so many things a lawyer does for a person

in your shoes, it's hard for me to enumerate them all. But, in

the end, a person like Mr. Schindler, who has considerable

experience in representing people accused of crimes, can -- as

your advocate -- represent you to the prosecutors; would speak

for you here in court on matters related to both substance and

procedure. He would also know, from his training and

experience, what issues were appropriate to raise at a

particular time and which issues were not appropriate to raise.

He would know, from his training and experience, how

best to consider all of the factors that bear on the exposure

you face in this case, and to assist you to try to get the best

result possible.

So I -- I start from the premise that a lawyer is

guaranteed to a person through the Sixth Amendment for a very

good reason. The founding fathers realized what a risk it was

when -- when the United States Government or even a state

Government accused a person of a crime, the accusation of which

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put the person in custody while awaiting trial.

There are many procedural and substantive rules of

law that I am required to enforce in a proceeding, and a person

trained as Mr. Schindler is, both in -- academically and by

experience -- knows the manner in which those issues are raised

and the likely outcome of various requests to the Court. He

then knows where the most likely path is for resolution that

would minimize risk to a person in your situation.

I'm going to speak a little bit more. I just

appreciate your listening right now, as you are.

Last week I presided at a jury trial in which a

person accused of a crime did choose to represent himself. And

he had with him another lawyer, like Mr. Schindler, well

qualified, but he insisted that he would represent himself. He

was a bright man. He tried very hard, I think, to follow the

rulings I made, and yet he made a number of very obvious errors

that would not have happened if a lawyer was handling the

matter.

For example, he had tried very hard before trial to

get from the Court a ruling that no one should tell the jury he

was in the marshal's custody for that trial because he thought

it would be prejudicial if the jury knew that the marshal had

detained him, given the nature of that charge. And I so ruled.

Yet he asked a witness a question repeatedly, which

caused the witness to answer truthfully that he was in the

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marshal's custody. These are just small examples of how a

person not trained in the process can innocently make mistakes

because he's not trained as a lawyer.

The process is -- I happened to be able to speak with

the jury after that trial, and they were concerned that the

person's case was impaired because he represented himself;

because he wasn't able to facilitate the presentation of

evidence in the same way; that he wasn't able to make the legal

arguments that were relevant. And they questioned: Why would

a person do that?

And I simply said, Well, that was his choice, and so

it was honored and respected.

So I just relate that experience to you because it's

one fresh in my mind.

In that case, I -- when I did allow that man to

represent himself, I required, as I would in your case, the

role of standby counsel. Because as long as the person --

especially, I should say, if a person representing himself is

in custody, the manner in which information he receives is

restricted and limited just by the confines of being in

custody, you would have to have a Mr. Schindler to receive

communications, to act on them quickly, to keep you in the loop

so that you could actively participate.

So I want you to know that if I'm persuaded in the

end that you're making a knowing, intelligent, and voluntary

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waiver of your right to counsel, I will require there to be a

standby lawyer for that reason.

I can't let the case proceed with a risk that a

person in custody, representing himself -- even out of custody,

representing himself -- somehow misses a communication. You

can see from your attendance at the other proceedings the sheer

number of people communicating and the legal issues that have

to be considered by both sides and on behalf of people

individually is voluminous. And there isn't any way I would

permit you to go forward, representing yourself, without a

standby lawyer as a conduit, an insurance policy, so to speak,

that information wasn't lost or missed or -- or not getting to

you.

So on that point, Mr. Schindler, may I ask --

assuming I allow the defendant to represent himself, I'm

assuming you're willing to continue in the role that you've de

facto been serving but I haven't yet acknowledged.

MR. SCHINDLER: Absolutely, your Honor. I think

Mr. Medenbach and I have had -- formed a relationship. We've

worked well over the course of the last few weeks, and I don't

think he has any objection to me remaining in that role going

forward, assuming the Court allows him to represent himself.

THE COURT: All right. So let's get to some of the

parts of this analysis, so I can get all of those things

accomplished. And then when we're finished with the

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question-and-answer part, Mr. Medenbach, if there's anything

else you need to add to the record, you'll have a chance to do

that. All right?

THE DEFENDANT: Okay.

THE COURT: So the first point is I need to ask you

whether you are actually aware of the nature of the charges

against you in Count 1 and in Count 4 of the Superseding

Indictment.

THE DEFENDANT: I've read both of them.

THE COURT: All right. Mr. Gabriel, will you repeat,

again, please, the maximum penalties upon conviction on each of

those two counts?

MR. GABRIEL: Yes, your Honor.

The maximum for Count 1, the maximum sentence is six

years in prison, a fine of up to 250,000 dollars, three years

of supervised release, and a 100 dollar fee assessment.

The maximum for Count 4, theft of Government

property, is ten years in prison, a 250,000 dollar fine, three

years of supervised release, and a 100 dollar fee assessment.

THE COURT: Thank you.

Mr. Medenbach, do you understand?

THE DEFENDANT: Yes, I do.

THE COURT: All right. Let's talk about the dangers

and the disadvantages of self-representation. I've spoken to

them generally. Primarily those dangers involve a person who

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is not trained in the law, who is not experienced in the

criminal law making missteps that ultimately prejudice him

through no fault of his own but, nevertheless, do; making

decisions that do not facilitate his own representation, and

the like.

I've given you a short example from a case last week

where a person trying his very best made a very fundamental

error that no lawyer would have made and that there was nothing

I could do to cure because he's the one who did it. He's the

one who introduced that piece of evidence.

Have you thought about how you would be able to

proceed representing yourself, knowing that the prosecutors are

legally trained, the other defendants have legal counsel also

experienced and legally trained, and yet I'm assuming -- I

should have asked you, you're not -- you do not have a license

to practice law. Is that right?

THE DEFENDANT: No.

THE COURT: And you've not been to law school?

THE DEFENDANT: No.

THE COURT: All right. So have you considered how

you would address the question of those risks of trying to

represent yourself when you don't have the legal training or

experience to do so?

THE DEFENDANT: Well, I understand.

I -- as a pro se litigant, I have more lateral -- I'm

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not held in strict standards of -- an attorney would.

THE COURT: Well, let me correct you there. That's

not correct. You are subject to the same rules of procedure,

the same rules of law, the same rulings of the Court as

anybody. You're not allowed to introduce evidence a lawyer

wouldn't allow -- be allowed to introduce. You're not allowed

to make arguments in front of the jury that a lawyer wouldn't

be allowed to make.

You are subject to exactly the same gatekeeping

standards that I would hold and will hold all the lawyers to.

THE DEFENDANT: Is that the same of criminal as it is

with civil?

THE COURT: No. A -- in a civil case, where a person

brings a civil rights action -- this is particularly what I

think you may be getting at. When a person brings a claim for

civil -- a civil case against a state actor, alleging that his

civil rights have been violated, an unlawful arrest, let's say

for example, and the person sues that person in a civil

proceeding, by himself, the courts of appeal throughout the

federal system have made clear that a court -- a trial court,

like me, must read liberally the allegations of a civil rights

complaint to ensure that a real claim isn't lost for lack of

experience. That's not the standard that applies in a criminal

proceeding.

You would be required to follow the same legal

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rulings that I make for all of the defendants, all of the

prosecutors. You would be required to file your motions. So

when I say, if you want to make a motion to dismiss, file it;

you would be required to do that in the same way a lawyer

would. Of course I would overlook lay language explaining the

same legal concept, lawyers have learned how to speak in a

certain jargon, as long as your arguments convey in principle

the legally cognizable theory or defense. That's not the

issue. But you are held to the same standard. You must follow

the same rules. You must obey the Court's rulings, whether you

agree with them or not.

Any time a ruling is made that you don't agree with,

you may except to it. Then it's on the record, and it can be

reviewed later. But you have to accept the rulings, just as

Mr. Schindler does when he makes an argument on behalf of a

client and the ruling goes against him. He still has to follow

it, and he saves the argument for later on appeal.

Have I -- have I made that clear.

THE DEFENDANT: Well, I have a similar charge down in

Medford, on --

THE COURT: The trespass case or the camping case?

THE DEFENDANT: Right. Right.

And I asked the same question of the Judge Clark down

there, and he gave me a different answer.

THE COURT: We may have a difference of opinion.

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A criminal case is different than a civil case. In a

civil case, there is law that requires me to construe liberally

civil rights pleadings. And -- and that rule is only limited

to civil rights cases.

THE DEFENDANT: Well, this is a criminal case down

there, also.

THE COURT: I'm simply saying we may have a

difference of opinion. And I am expressing to you my

understanding and view of the law. You can't expect to get a

pass, so to speak, on matters that the other lawyers wouldn't

get a pass on. You'll be treated, as best I can, fairly with

everyone. But if you miss an argument, if you misstate an

argument, it's -- you know --

THE DEFENDANT: I mean, if worse comes to worse here,

if Mr. Schindler -- he's got a good living here. So he has to

stay within some -- you know, he doesn't want to get you upset.

THE COURT: I'm sorry. Say it again?

THE DEFENDANT: He has to make a living here, so he

has to abide by these rules. I understand I have to abide by

the rules, too. But the worst that can happen to me is I can

get more jail time, contempt of court.

THE COURT: Well, the worst that can happen to you is

if you didn't follow the ruling, you could be taken out of the

room. You wouldn't even be able to be present at your trial.

People who don't follow rulings don't get to be present.

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There are some very fundamental misunderstandings I

think you have about the disadvantage of trying to do this on

your own. And let me just make one point on that.

There isn't any rush here for you to give up your

right to a lawyer. Right now, we are in pretrial proceedings.

And as you heard at the last group scheduling hearing, the --

the next hearing is going to be focused on scheduling. Setting

a date for a trial. Setting a schedule for the filing of

motions. Setting a schedule to get this discovery issue

moving, getting information to people. For the life of me, I

would -- I cannot understand why you would want to put yourself

in the lead of representing yourself in this very complicated

case, especially at this stage.

It might -- if you wanted to be the person speaking

at trial, if you wanted to be the person asking questions of

the Government's witnesses in cross-examination, if you wanted

to be the one to make your own opening statement and closing

argument, that might be a different time to think about this.

But to me, strategically, it would be -- it's unwise not to

take advantage of Mr. Schindler's role.

You've already heard he's going to be here one way or

the other --

THE DEFENDANT: Yeah.

THE COURT: -- because I'm -- I'm not going to put

you in a situation where you don't have a -- a channel of

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official communication with all of these parties talking to

each other and the prosecutors needing to speak to defendants,

and my needing to get information out.

So my point is, back to the disadvantages of

representing yourself, you are at a disadvantage if you give up

the right to counsel. If you choose to be the one responsible

for making the legal arguments, for filing the papers, for

arguing against a Government's position and the like, you do it

at a significant disadvantage. That's just --

THE DEFENDANT: Okay. I've been through quite a few

trials on the state level. And -- and I didn't win any of them

but I felt justified in everything that I had to say. And I

was able to speak my mind of what I thought the law was.

And -- and I am not disappointed with any of my

previous actions, and I -- the relationship I have with

Mr. Schindler now is -- seems to work just fine with me.

THE COURT: So you're aware that by representing

yourself, you take on the risks of making mistakes that could

end up affecting your case adversely?

THE DEFENDANT: I understand all of that.

THE COURT: And you're aware there are dangers, then,

in taking this course of action that would not exist if

you're -- had a lawyer representing you?

THE DEFENDANT: I'm aware of that.

THE COURT: I'll make one other final point. You

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know, sometimes after a person -- if a person is convicted, if

a person is then sentenced to prison, if a person loses all his

appeals while sitting in custody after having exhausted all

appeals, there is the right to seek post-conviction relief,

sometimes called habeas corpus relief, on the ground of

ineffective assistance of counsel, that the Sixth Amendment

right to counsel was violated because the lawyer made a serious

mistake that amounted to depriving that person of that right to

counsel. No one can do that in the track you're asking me to

allow you to follow.

If you end up representing yourself, getting

convicted, getting sent to prison, exhausting your appeals on

any review of the legal decisions I make in the case, you won't

have a claim for post-conviction relief. Because you don't

have a lawyer, you couldn't say you made a fundamental error.

Do you understand that?

THE DEFENDANT: Yeah, I understand.

THE COURT: Okay. Has anyone put any pressure on you

to make this decision?

THE DEFENDANT: Not at all.

THE COURT: Can you tell me why you want to do this?

THE DEFENDANT: I have deep religious beliefs. I've

got a holy spirit who lives in me, and he'll guide me through

this. He's the creator of heaven and earth. This is a small

thing for him.

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THE COURT: I respect that, sir. I do.

I know from experience, however, having had the

responsibilities of a judge in criminal proceedings for 24

years now, I've never once seen a person make the decision

you're proposing to make benefit from it in the long run.

There is so much to lose by giving up the right to experienced

representation here and I --

THE DEFENDANT: This life is immaterial to a future

life in heaven. This is small stuff.

THE COURT: All right. All right.

So do you understand that if you represent yourself,

you are bound by the rulings that I make, whether you agree

with them or not?

THE DEFENDANT: Yes.

THE COURT: And if I direct that you're not allowed

to raise a certain subject, you may not raise it.

THE DEFENDANT: I understand.

THE COURT: And if you defy a ruling like that, you

would run the risk of being removed from the courtroom, so that

the trial eventually could proceed in an orderly way.

Do you understand that?


THE COURT: I need -- for this purpose, I'm required

to inquire of your mental status. I'm required to ask, to be

sure that you're competent to make this kind of decision.

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Are you presently suffering from any kind of mental

health issue?

THE DEFENDANT: No.

THE COURT: Have you in the past ever been diagnosed

with any kind of mental health issue?

THE DEFENDANT: No.

THE COURT: Are you on medication of any kind that

could be affecting your ability to think clearly?

THE DEFENDANT: No.

THE COURT: Do you believe personally this decision

is in your own best interest?

THE DEFENDANT: Yes.

THE COURT: I am going to address this question of

release, separate from this representation issue. If I do end

up concluding that you must remain in custody, of necessity,

that again restricts your access to meetings that are going on

outside of the -- by lawyers meeting one another, planning

strategies, planning the case.

Mr. Schindler, as standby counsel, will facilitate at

your direction, but he's not the -- that's not the same as

having Mr. Schindler be your lawyer. You know that?


THE COURT: All right. Mr. Gabriel, is there any

other inquiry you think I should make before I complete this

process?

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MR. GABRIEL: Just one, your Honor. On the matter of

supervised release, if Mr. Medenbach were to be convicted and

if the Court were to sentence him to a term of supervised

release, if he were to violate the terms of that supervised

release, because these are Class C and D felonies he could be

subject to up to two years in prison for each violation of

supervised release.

THE COURT: Mr. Medenbach, Mr. Gabriel's right.

That's the logical extension of the worst-case scenario on

conviction.

Right now, again, you're presumed innocent. We go

forward between now -- from now, forward to a trial, to

determine whether the Government can overcome your presumption

of innocence by proving you guilty in a public trial by jury.

But if you are found guilty, then you're subject to

sentencing under the federal sentencing guidelines that are

capped by the maximum penalties he's described. And you told

me you understood.

And then if you were sentenced to prison, once you

completed your prison term, you would be back in the community

on supervision.

You sort of know that, I think, in theory, because of

the case from Medford. As I understand it, you were on

supervision in that case --

THE DEFENDANT: (Nods head.)

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THE COURT: -- when a warrant issued, alleging that

you had violated a condition of release by -- about where you

were living, or something like that. Isn't that right?

THE DEFENDANT: (Nods head.) Yes.

THE COURT: So do you understand that if convicted

here, the potential includes a prison sentence with supervision

under conditions, and then violation of those conditions could

result in a return to prison?


THE COURT: Mr. Medenbach, I'm going to give to

you -- first, I'm going to ask the clerk to give it to

Mr. Gabriel. It's a waiver of right to counsel. These need to

be in writing.

So I want Mr. Gabriel to review it, I want

Mr. Schindler to look at it with you, and I want you to look at

it. And if you're still wanting to give up your right to

counsel, then once you've read it, please sign it, and then

we'll move to the next step. All right?


THE COURT: Was there anything else you wanted to say

about the issue beyond what we've already covered? About

waiving your right to counsel?

THE DEFENDANT: No, I'm satisfied with what we talked

about.

THE COURT: Thank you, sir.

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(Pause, referring.)

(Document handed to judge.)

THE COURT: All right. Mr. Medenbach, I see your

signature on the waiver. I'm going to read it out loud for the

record.

I, Kenneth Medenbach, the above-named defendant,

being accused of conspiracy to impede federal officers in

violation of Title 18 United States Code Section 372 and theft

of Government property in violation of Title 18 United States

Code Section 641 and being advised of the nature of the

charges, my constitutional right to be represented by counsel,

my constitutional right to self-representation, and the dangers

and disadvantages of self-representation, knowingly and

voluntarily waive my right to counsel and elect to proceed by

representing myself with standby counsel.

It looks like you signed that statement. Is that

your signature, sir?

THE DEFENDANT: Yes, it is.

THE COURT: Has anyone put any pressure on you? I

think I asked you this, but I want to be sure about the record.

Has anyone put any pressure on you to make this

decision --

THE DEFENDANT: No.

THE COURT: -- when you don't want to?

It's your own personal and voluntary decision?

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THE DEFENDANT: Yes, it is.

THE COURT: All right. I'm satisfied Mr. Medenbach

is fully competent to make this decision. He is making a

knowing, intelligent, and voluntary waiver of his right to

counsel.

I am now converting Mr. Schindler's appointment

formally to that of standby counsel, and Mr. Medenbach is the

primary person who will speak on his own behalf.

And then we'll work out, Mr. Schindler, the extent to

which you'll be participating as we go forward.

MR. SCHINDLER: (Nods head.)

THE COURT: So you said -- or Mr. Schindler said,

Mr. Medenbach, you wanted to speak about a motion to dismiss.

Perhaps you would like to address that before we go to the

issue of release.

THE DEFENDANT: Yes.

THE COURT: All right. I'm going to have you remain

seated, so you are near a microphone. You should just know

that ordinarily, when addressing the Court, you should be on

your feet.


THE COURT: Go ahead.

THE DEFENDANT: Motion to dismiss for lack of

jurisdiction.

First, why would we, the people of the United States,

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in order to form a more perfect union, establish justice,

ensure domestic tranquility, provide for the common defense and

both the general welfare and secure the blessings of liberty to

ourselves and our posterity, ordain and establish this

Constitution for the United States of America, then give the

judicial department of the United States of America the power

to tell, we the people, what the Constitution means? We

didn't.

In 1997, in an appeal from the United States District

Court in Washington state, United States versus Medenbach, I

argued against the constitutionality of federal ownership of

public lands in Washington state. I also argued that the

Constitution does not confer upon the federal courts the power

of judicial review, the power to interpret the Constitution.

I stated in -- I stated why Marbury v. Madison was

wrongly decided. The United States Court of Appeals, the Ninth

Circuit concluded my argument against the constitutionality of

judicial review was meritless because I offered no reasoning or

case law to support my contention, and Marbury versus Madison

should be overruled.

I now, as defendant in this case at Bar, offer

reasoning and proof to support my contention that Marbury

versus Madison was wrongly decided.

Article VI, Section 3 of the United States

Constitution states judicial officers both of the United States

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and of the several states shall be bound by oath to support

this Constitution.

The Constitution allows and requires no more than

this one oath of office to support this Constitution. Article

VI, Section 2 states, This Constitution and laws of the United

States, which shall be made in pursuance thereof, shall be the

supreme law of the land.

In 1789, the Judiciary Act, Congress imposed an

unconstitutional second oath of office of understanding

agreeably to the Constitution for judicial officers of the

United States only. Violation of Article VI, Section 3 and

Article VI, Section 2.

In 1803, Supreme Court case of Marbury versus Madison

is unconstitutional, second oath of office of understanding

agreeably to the Constitution was defined in and applied in

Marbury versus Madison as the justification for the power of

judicial review.

This begs the question which oath of office do

judicial officers of the United States obey? Since judicial

officers of the United States are practicing the power of

judicial review, they are obeying their unconstitutional second

oath of office of understanding agreeably to the Constitution

in violation of Article VI, Section 2; Article VI, Section 3;

and the Tenth Amendment, which states the powers are not

delegated to the United States via the Constitution nor

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prohibited back to the states or reserved to the states

respectively or to the people.

In the 1990 judicial improvement act, Congress

replaced this phrase of understanding agreeably to the

Constitution to under the Constitution.

This unconstitutional third oath of office, I

believe, was imposed to obscure the complicated, undercut --

understanding agreeably to the second oath of office of

understanding agreeably to the Constitution. This did not

change the unconstitutional oath of office but understanding it

agreeably to the Constitution and the Constitution of Mar -- to

the Constitution of Marbury versus Madison.

With Marbury versus Madison being wrongly decided

because of the unconstitutional second oath of office of

understanding agreeably to the Constitution applied and nothing

in the Constitution delegating the power to interpret the

Constitution to the United States and the states being

prohibited by the Constitution to interpreting the Constitution

because the state legislative officers, executive officers, and

judicial officers are bound by oath to support the

Constitution, the power to interpret the Constitution is

reserved to we, the people, pursuant to the Tenth Amendment.

With this power, we, the people, have -- can have

direct control of Congress, the president, and the Judicial

Department of the United States. This will truly be a

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Government, governed by the will of the governed, the way it

should have been from the beginning.

The ultimate arbiter of the Constitution, Thomas

Jefferson explained, It is the people of the union, assembled

by their deputies in convention at the call of Congress with

two-thirds of the states.

Second, in the 1976 Federal Land Policy and

Management Act, 43 USC 1701(a), it states: The Congress

declares that it is the policy of the United States that the

public lands of the retained -- be retained in federal

ownership. This is in violation of the Tenth Amendment to the

Constitution, which states the powers not delegated to the

United States via the Constitution are prohibited back to the

states or reserved to the states respectively or to the people.

The power to own public lands in the states is not delegated to

the United States via the Constitution; nor is this power to

own public lands in the states prohibited by the Constitution

to the states. Thus, the power to own public lands in the

states is reserved to the states respectively. In this case,

the state of Oregon.

In light of these previous motions of judicial

officers of the United States' unconstitutional second oath of

office, the unconstitutional Marbury versus Madison decision,

both in violation of Article VI, Section 3, Article VI, Section

2, and the Tenth Amendment; and the 1976 Federal Land Policy

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and Management Act in violation of the Tenth Amendment and my

continued attempts to deal with these matters civilly through

the courts -- who continue to pervert the Constitution -- I, as

do all citizens, have -- of the United States have a moral

obligation and a constitutional right to join well-regulated

militia be it necessary to the security of a free state, and

the right of the people to keep and bear arms shall not be

infringed. Pursuant to the Second Amendment in Harney County,

Oregon, or in any county in the United States. And all

Superseding Indictment counts are in violation of the Second

Amendment and the Tenth Amendments.

Malheur National Wildlife Refuge is not federal land,

and this Court cannot try me on any one of these -- anyone else

for violation of a Government's nonexistent right to occupy the

land.

In Genesis Chapter 1, God created man in his own

image, male and female. God blessed them and commanded them to

be fruitful and multiply, fill the earth, and subdue the earth.

The earth is created for the people to farm, grant, mine, log,

build homes, businesses, roads, and to tax to fund law

enforcement, fire departments, schools, and other miscellaneous

public works. We need the earth's resources to survive on this

planet.

In ancient Israel, God destroyed the temples twice

because the Israelites would not obey God's commands. If we,

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the people of the United States, don't step up and subdue the

earth, stop abortion, stop same-sex marriage (pause), God's

going to destroy the United States of America. (Defendant

crying.) Because this Government is not obeying the

Constitution and the inspired document the United States has.

We, the people, are going to do it.

THE COURT: Thank you, Mr. Medenbach.

Mr. Gabriel, do you have any response?

MR. GABRIEL: Yes, your Honor.

Mr. Medenbach referenced the case from the 1990s,

where he brought this similar claim. He brought a claim

against the United States two years ago, and the same issue was

raised before Judge Panner. Specifically that federal judges

and justices take an oath or affirmation to faithfully and

impartially discharge and perform all duties incumbent upon

them under the Constitution. But he went on to say that that

oath was insufficient, and therefore, courts did not have

jurisdiction.

Judge Panner dismissed that suit, stating that his

claims were wholly insubstantial and frivolous, with no basis

in law or fact.

Then, earlier this year, Mr. Medenbach made the same

claim before Judge McShane, related to the judge's oath and the

lack of subject matter jurisdiction by federal courts, and

Judge McShane summarily denied that motion.

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I -- I believe the reasoning is the same, and that

the motion should be denied. This court does have

jurisdiction.

THE COURT: Mr. Medenbach, do you have any additional

response? Anything in reply to what Mr. Gabriel has argued?

THE DEFENDANT: No.

THE COURT: Well, Mr. Medenbach, if it's any comfort

to you, I take exceedingly seriously the oath of office I took.

THE DEFENDANT: You take two oaths.

THE COURT: Sir, I took the oath, a single oath

that's on record. But I would like to finish. I let you

speak. I want you to listen.

It's not necessary for me to make this point, but I

feel I want to communicate to you as an individual.

I have in fact, throughout my judicial career, tried

every time I had to make a ruling to follow the oath I took --

both as a judge of the circuit court of the state of Oregon and

then beginning in 1999, for this court -- to support and defend

the Constitution of the United States.

I am bound by the holdings of the courts of the

United States, and as a trial judge, I do not have the

authority to disregard Marbury versus Madison or to disregard

the various holdings you've already challenged.

Judge Panner is absolutely correct in the rulings he

made in your case, and I affirm it here. There is not any

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basis for me to dismiss the Indictment against you for lack of

subject matter jurisdiction.

THE DEFENDANT: Can you give me just a minute?

THE COURT: Yes.

(Pause, the defendant conferring with Mr. Schindler.)

MR. SCHINDLER: Sorry, your Honor. Mr. Medenbach is

looking for an additional bit of briefing that he had prepared.

THE COURT: That's fine.

MR. SCHINDLER: Thank you.

THE COURT: We'll wait until he finds it.


THE COURT: We do have a 12 o'clock matter with a

person in custody, so hopefully it won't take too long.

(Pause, Defendant Medenbach and Mr. Schindler

conferring.)


THE COURT: Go ahead, sir.

THE DEFENDANT: Did you want to finish what you were

talking about?

THE COURT: I've just ruled on your motion.

You said you had something additional, argument you

wanted to make. If you do, please make it. I need to take up

your release issue.

THE DEFENDANT: Under USC -- or 28 USC 453 is the

oath of office, to -- under the Constitution, which all federal

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judges are required to take. (Pause, referring.)

Oh, and 5 USC 3331 is the other oath of office you're

required to take.

THE COURT: All right. Thank you, sir. You've made

those points previously. You've made them again now.

The motion to dismiss -- I'll ask the clerk to note

on the minutes for today's proceeding, Mr. Medenbach made an

oral motion to dismiss for lack of subject matter jurisdiction,

for the reasons he stated on the record, and that motion was

denied by the Court.

Now let's move to the release issue.

Mr. Medenbach, what would you like to tell me there.

THE DEFENDANT: I've got an address I can stay at in

La Pine, Oregon. I don't have electricity at my house, in

Crescent, if I was to be put on a monitoring system.

(Pause, the defendant and Mr. Schindler conferring.)

MR. SCHINDLER: Excuse me, Judge Brown?

THE COURT: Yes.

MR. SCHINDLER: If it would be appropriate, could I

just supplement briefly what Mr. Medenbach has said?

THE COURT: With his permission.

MR. SCHINDLER: May I? With your permission?

THE DEFENDANT: Yes. Yes.


THE COURT: Go ahead.

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MR. SCHINDLER: Your Honor, I did a preliminary

analyses of the guidelines in this case because I think it does

merit some consideration up front when we're talking about

pretrial detention of -- of a defendant, what kind of

punishment they're subject to.

Obviously we talk about statutory maximums in the

context of these cases, but we all know that those statutory

maximums are very frequently applied against anyone.

My preliminary analysis indicates that because of the

charges lodged against Mr. Medenbach, we're talking about an

offense level of 10, if convicted at trial on the conspiracy to

impede. And then we're talking about an offense level of 12,

assuming that the truck has value of somewhere around 40,000

dollars. Those are not substantial sentences, your Honor, and

then he has a misdemeanor camping case.

So I understand, and I think that the Pretrial

Services has made a very valid point about noncompliance to

this point. At the same time, we're talking about essentially

asking a man to serve the entire sentence that might be imposed

upon him in a case like this, before he ever gets a chance to

see a jury.

And I understand the Court has suggested that we're

going to have a trial in September. I am thrilled at that

prospect.

THE COURT: Or -- or earlier. Or earlier.

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MR. SCHINDLER: Okay. But I -- I remain skeptical,

under the circumstances, your Honor. And I think that in the

context of -- you know, Mr. Medenbach has been in jail now for

a period of -- what? A month at least -- two months.

THE COURT: Well, not on this case for two months.

MR. SCHINDLER: No, I understand. But, you know,

ultimately, we're not talking about the most serious kind of

continuum -- the most serious end of the continuum of conduct

that exists in federal court.

And I think most importantly, in terms of the

statutory factors and a risk of flight, this man desires to be

in front of the Court, arguing his case. That's the point of

this hearing. That's the point of his conduct. His conduct

isn't about armed confrontation. It's about making legal

points concerning the system and -- and our mistaken

interpretations of the law. And that's what he's here to do.

And so I think that to some extent we've got to

factor that kind of conduct into the Court's detention decision

here today.

I think the scope of the situation is different. But

Mr. Medenbach just had a hearing in front of the Court, a fair

hearing, where the Court listened to what he had to say about

the law. His motion was denied. But he respects that, and

he'll now move on to the next step.

But I think we've got to ask a serious question about

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whether it's appropriate to detain somebody on, you know, what

are -- in the scope of what is prosecuted in federal court --

relatively minor charges.

Mr. Medenbach was arrested long before all of the

kind of dramatic stand-up confrontation issues developed. You

know, he was not there when all of that happened. And so I

think that also merits consideration in the context of the

situation.


MR. SCHINDLER: At the same time, he acknowledges and

accepts that he did not comply with the -- with the initial

release conditions that were put upon him by Judge Clark.

Thank you.

THE COURT: Mr. Gabriel?

MR. GABRIEL: Yes, your Honor. Thank you.

As the Court knows, Mr. Medenbach is currently

detained in the unlawful camping case.

He was ordered to appear in court on that case. He

did, in November. He was released on conditions, your Honor.

And they were minimal conditions. Conditions that included not

occupying federal land. And then he went to the Malheur

National Wildlife Refuge and occupied it.

Even more concerning, your Honor, is that after a

news account, Mr. Medenbach appeared as early as January 4th,

and the occupation only started on January 2nd.

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He was contacted by Pretrial Services, and he did not

tell the truth about where he was. He said he was at home, and

he was at the refuge, unlawfully.

To Mr. Schindler's point, Mr. Medenbach was not

armed -- at least we don't have evidence that he was -- at the

refuge. He stole a truck. He stole a U.S. Fish & Wildlife

truck and took it to town, to Safeway. He was arrested with

that truck.

That was a -- a -- excuse me. That was a violation

of his pretrial release condition -- conditions in that Eugene

case or Medford case. And so he was held by Judge Clark

pending trying on April 5th.

So here, your Honor, the Government is recommending

continued detention because Mr. Medenbach does not recognize

the jurisdiction of this Court and because he has a proven

history of not being willing to comply with court orders.

That is the basis for the Government's detention

request.

It is not danger or even flight in the traditional

sense. It's his inability or unwillingness -- I think is more

accurate -- to comply with any orders of this Court.

THE COURT: All right. Does pretrial have anything

to add?

PRETRIAL SERVICES OFFICER STRANIERI: We would just

echo the Government's concerns, your Honor.

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THE COURT: Okay. Mr. Medenbach or Mr. Schindler,

anything else?

(Pause, Defendant Medenbach and Mr. Schindler

conferring.)

THE COURT: Gentlemen, I need to move on. So,

please, if you're -- if something's going to get said,

please -- I've got people waiting for a 12 o'clock hearing.

THE DEFENDANT: The pickup truck was going to be

brought right back. You know, I drove it to Bend -- or drove

to Burns. We went to get groceries, and then I drove it right

back.

THE COURT: All right. I wanted to make another

point before I come back to resolve the release issue.

It appears from the docket that the other case

with -- we've been calling the camping case, so forth, is on

for trial on April 5. Is that right?

MR. GABRIEL: That's correct, your Honor.

THE COURT: In Medford, before Judge McShane?

MR. GABRIEL: That's my understanding. I have a call

in to AUSA Doug Fong. But I believe that that trial is set for

Medford before Judge McShane on April 5th.

THE COURT: A jury trial?

MR. GABRIEL: A jury trial. Yes, ma'am.

THE COURT: Somehow I don't think Mr. Medenbach can

be here, then, on April 6th at the next status hearing if he's

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engaged in a jury trial in Medford on April 5th.

You need to know of that conflict. And if you want

to take steps about it, you need to do that. Right now, you're

expected to be in two places almost at once. And when that

happens on a calendar, usually a lawyer for the person,

representing the person, gets going to try to work out the

conflict.

So I'm just making that observation. That's

something you're potentially going to want to address. The

hearing on April 6 is going to go forward. If you're not here,

you're not here, and we'll have to deal with the consequence of

that. But I want you to know about that observation that I

just made. I see it potentially not feasible for you to be in

two places.

THE DEFENDANT: Well, that's going to be on the 4th

and 5th down there.

THE COURT: I thought it was the 5th. I may have

misread the calendar. Is it -- what date is it?

MR. GABRIEL: My understanding is that it is April

5th, your Honor.

THE COURT: April 5 is the day set for trial in

Medford.

Maybe you'll be done. Maybe you'll be back. I don't

know.

THE DEFENDANT: On the 6th? Be back here on the 6th?

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THE COURT: Maybe. Maybe, not.

THE DEFENDANT: If I'm not in custody, I can do that.

THE COURT: Well, you're not going to be

Mr. Medenbach.

I -- I agree with Mr. Gabriel's analysis that

fundamentally your positions thus far in the United States

District Court for the District of Oregon show that you do not

respect the orders of the Court. You do not comply with

conditions of release. You were not honest to a pretrial

officer, who is a representative of the Court, when asked about

where you were.

And so given these circumstances, I agree there is

not any condition or combination thereof that can assure your

appearances for the proceedings in this matter.

Now, to Mr. Schindler's point about the length of

detention in this case vis-a-vis any potential sentence that

could be imposed in the event you're found guilty, that issue

gains more ground, has more substance as time passes. So to

the extent you wish to renew this motion on that ground at a

later date, you are certainly free to do so.

So, motion for release on this matter, 1651, is

denied. I do suggest, Mr. Medenbach, that you ask

Mr. Schindler on your behalf to try to deal with this potential

conflict in being in Medford on the 5th and being here in

Portland on the 6th.

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All right. Anything else?

MR. GABRIEL: Nothing from the Government.

THE COURT: Pretrial, anything else?

PRETRIAL SERVICES OFFICER STRANIERI: No, your Honor.

THE COURT: For the record, he is actually detained

in the other matter. Is that right?

PRETRIAL SERVICES OFFICER STRANIERI: That's my

understanding, your Honor.

THE COURT: Do you know?

MR. GABRIEL: Yes, he is detained in the other

matter, your Honor. Yes.


MR. SCHINDLER: But the Court is going to enter an

order of detention here as well.

THE COURT: Yes. Only in this case, not in the other

case. I've only been working in this case. Judge McShane is

presiding on the other matter.

All right. We're in recess on this matter.

I need to meet with counsel on the other, before we

go on the record, please.

(Conclusion of proceedings.)

--oOo--

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I certify, by signing below, that the foregoing is a correct

stenographic transcript of the oral proceedings had in the

above-entitled matter this 28th day of March, 2016. A

transcript without an original signature or conformed signature

is not certified. I further certify that the transcript fees

and format comply with those prescribed by the Court and the

Judicial Conference of the United States.

/S/ Amanda M. LeGore

____________________________________

AMANDA M. LeGORE, CSR, RDR, CRR, FCRR, CE

CSR No. 15-0433 EXP: 3-31-2018

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MOTION TO RECONSIDER ORAL MOTION TO DISMISS – EXHIBIT 2


MCDC



FAX: (503) 345-9372



DISTRICT OF OREGON

PORTLAND DIVISION


Plaintiff,

vs.

KENNETH MEDENBACH,

Defendant(s).


MOTION TO RECONSIDER

ORAL MOTION TO DISMISS

EXHIBIT 2

Exhibit 2 to defendant’s Motion to Reconsider



matts

Exhibit 2 - Page 1

4-11-16 ECF 384 USA v MEDENBACH - Medenbach Motion to Reconsider MtD and Exhibits

Documents

Transcript of 4-11-16 ECF 384 USA v MEDENBACH - Medenbach Motion to Reconsider MtD and Exhibits