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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.
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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
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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:
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“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
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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
judicial Officers, both of the United States and of the several States,
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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
judicial Officers, both of the United States and of the several States,
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.
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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.
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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."
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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:
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“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.
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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.
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Page 1 – MOTION TO RECONSIDER ORAL MOTION TO DISMISS – EXHIBIT 1
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
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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(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 DEFENDANT: I understand.
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 DEFENDANT: I understand.
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 DEFENDANT: I understand.
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 DEFENDANT: Okay.
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 DEFENDANT: Okay.
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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Case 3:16-cr-00051-BR Document 384-1 Filed 04/11/16 Page 25 of 43
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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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Case 3:16-cr-00051-BR Document 384-1 Filed 04/11/16 Page 26 of 43
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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.
MR. SCHINDLER: Thank you.
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 DEFENDANT: Okay.
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.
MR. SCHINDLER: Thank you.
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.
THE COURT: All right.
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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Case 3:16-cr-00051-BR Document 384-1 Filed 04/11/16 Page 39 of 43
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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.
THE COURT: All right.
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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Case 3:16-cr-00051-BR Document 384-1 Filed 04/11/16 Page 42 of 43
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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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Case 3:16-cr-00051-BR Document 384-1 Filed 04/11/16 Page 43 of 43
Page 1 – MOTION TO RECONSIDER ORAL MOTION TO DISMISS – EXHIBIT 2
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
MOTION TO RECONSIDER
ORAL MOTION TO DISMISS
EXHIBIT 2
Exhibit 2 to defendant’s Motion to Reconsider
Case 3:16-cr-00051-BR Document 384-2 Filed 04/11/16 Page 1 of 2
Case 3:16-cr-00051-BR Document 384-2 Filed 04/11/16 Page 2 of 2