IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
) Cause No. CR-00-5037-GF-RFC
UNITED STATES OF AMERICA, )
) DEFENDANT'S MOTION
Plaintiff, ) TO COMPEL DISCOVERY
) RULE 16(a)(1)(C)
BARRY ADAMS, )
Defendant, Pro Se ) (Telephonic Argument requested)
COMES NOW Defendant Adams, pro se, with stand-by counsel,
to Move this Court For
an Order Compelling Disclosure of documents within the possession,
custody, or control of the government, and which are material
to the defendant's defense. RULE 16(a)(1)(C)
Federal Rule of Criminal Procedure 16(a)(1)(C):
(a) Government disclosure of evidence.
(1) Information subject to disclosure.
(C) Documents and Tangible Objects. Upon request of the defendant
the government shall permit the defendant to inspect and copy
or photograph books, papers, documents, photographs, tangible
objects, buildings or places, or copies or portions thereof,
which are within the possession, custody or control of the government,
and which are material to the preparation of the defendant's
defense or are intended for use by the government as evidence
in chief at the trial, or were obtained from or belong to the
I. Request for Discovery
In a letter dated July 14, 2000, Brian Michaels, acting
at the time as legal representative of Mr. Adams, submitted a
letter for Discovery. (see Attachment 1)
In a telephone conversation in December with Mr. Adams,
pro se, Mr. McLean declined to produce more Discovery.
On December 22, 2000, in his first meeting with assigned
stand-by counsel Mr. Hooks,
Mr. Adams found, in the Discovery sent to Mr. Hooks by Mr. Gallagher,
Mr. Jenkin's stand-by counsel, in a similarly charged case before
this Court, a document called
"Statement by Dennis Havig", dated September 25 2000.
See Defendant's Reply to Plaintiff's Consolidated Memorandum of
Opposition - Attachment 8, this case. Mr. Adams did not receive
this Discovery and it had information pertinent to his defense.
On January 17, 2001. Mr. Hooks, on behalf of Mr. Adams,
contacted Mr. McLean
requesting further Discovery. Via telephone conversation, Mr.
McLean advised Mr. Hooks, if the defendant wanted further Discovery,
defendant should file Motion to Compel and list the items.
Mr. McLean indicated that he would then respond appropriately.
II. Discovery is Necessary for Defense
In his defense, Mr. Adams will seek to establish the following:
(a) The "speech" or "expression" of
the event Mr. Adams was cited for is the very act of many different
peoples coming together in one place as a demonstration of the
existence of peace, as fact and unity of purpose. This purpose
draws large numbers of people,
individuals and various groups, many of which are religious groups
or individuals, who come to share worship, prayer, friendship,
or spiritual relationship. Others come to gather as a form of
petition, cultural expression, service, personal growth, renewal,
curiosity, or to express a common unity; i.e. community. The Gathering
fosters "unity through equality" and "participation;"
such essential qualities of "Rainbow-style" gatherings
enables the diverse people to be self-regulating. No unified,
centralized system of governance exists or has been found necessary
or desirable. It is therefore also without method of selecting
representatives or agents.
(b) The true history of these gatherings shows that they
can only happen successfully on
public lands and without centralized decision-making, representatives,
and through enlightened "alternative" applications of
Forest Service "special use" procedures. Legitimate
government purposes have been met through cooperative methods
and processes, by developing operating plans in an open circle
on the land. Therefore, it has not been necessary for the government
to require a representative signer.
(c) The government has used its vast information resources
to generate a "chill" around
these events. It has discouraged the use of voluntary cooperation
to further legitimate purposes by imposing threat of criminal
charges, six months in jail and/or fine, on anyone who may contact
federal agents, or "incident" participants. This move
to block cooperation impermissibly discriminates against a form
of peaceable assembly, itself speech, entitled to equal protection
by the law. Cooperative principles must not be outlawed simply
because they are not the government's first choice. Upholding
a petitioner's right to a soapbox, may demand a less restrictive
means of achieving reasonable goals. Hence the regulation itself
acknowledges a need for alternatives to the generally prescribed
(d) Forest Service has identified the responsible "group'
to be 'Rainbow Family of Living Light." See Defendant's Memorandum
in Support of Motion to Dismiss
Attachment E, this case.
(e) The government has singled out Adams for persecution,
because of the content of his
expression, practice of his Creed, his active way of petitioning
for agency and judicial relief in this matter.
Defendant's Discovery requests are each material to a defense
establishing these principles, and resulting in a verdict of not
guilty by way of Constitutionally protected worship, speech without
an overriding governmental interest. Some of these items may also
be helpful in mitigating Defendant's sentence should he become
III. Discovery Items Requested
The requested items are applicable:
(1) All information relating to the identity of the "Rainbow
Family of Living Light,"
including any members, leaders, officers, or formal body. Government
has maintained that "Rainbow Family of Living Light"
is an "unincorporated association", complete with 'leaders'.
Incident Commander William Fox gave testimony in Pennsylvania,
in 1999, in similar cases, to the existence of said group and
of said leaders. See - Memorandum in Support of Motion to Dismiss,
this case, [pg. 10, also footnote 15].
Defendant must then be an authorized "member"
of this "group" in order to be a "qualified participant",
to receive citation. According to the Forest Service, this "group',
and only this "group" is the sponsor and the responsible
"unincorporated association"; e.g., "Neither these
individuals nor the Rainbow Family, the group with which they
gathered in this case,...". See United States Consolidated
Memorandum in Opposition to Defendants' Motions to Dismiss, this
case, [pg. 3].
Defendant is seeking information on the "existence"
of this "group", how it was
determined by government he is a 'member', who other 'members'
According to 36 CFR 251.54 (d) (e)(2)(ii) "unincorporated
associations" must have legitimate legal status, and must
show their paperwork to use national forest system lands. See
Defendant's Reply to Plaintiff's Consolidated Memorandum of Opposition,
this case, [pg. 8].
The Forest Service has an Incident Management Study Team
who devises the policies
concerning these Gatherings and concerning the 'Rainbow Family
of Living Light". Part of this defendant's defense is to
establish his right to maintain a separate 'legal identity' apart
from any "group". To establish defendant's legal identity
apart from said 'Rainbow
Family of Living Light", defendant needs to identify this
"group". Government is the only
source of information concerning the existence of this "group".
Defendant has a right to access this information for his establishment
of his separate 'legal identity".
Defendant contends he was not a "qualified' 'participant"
or 'spectator", eligible for
citation based on several aspects of defense. The government has
legally determined there is an 'unincorporated association"
called 'Rainbow Family of Living Light", "Rainbow Family",
solely responsible for this Gathering. This Defendant contends
he is not an
"associate member" of this secular 'unincorporation".
To establish this defense, government should supply to defendant
all documents pertaining to the legal existance of this "unincorporated
For example, defendant could possibly subpoena an "officer'
of this 'unincorporated
association". It is defendant's understanding that in all
cases growing out of these Gatherings, defendants have consistently
denied being 'agents' or 'representatives," and
denied the existence of any determinate entity "Rainbow Family
of Living Light, unincorporated association."
(2) Information concerning identifiable "sub-groups"
and "groups" that attended
"Gathering of the Tribes 2000," including Memoranda,
"Daily Update(s)", information provided to media, information
shared to the local community, to the State and County
governmental agencies, etc; including secular and religious organizations,
A.C.L.U., churches, etc..
According to the government, "Rainbow Family of Living
Light" gatherings consists in
"individuals and sub-groups". See Consolidated Memorandum
of Opposition, this case [pg14].
Government information on these gatherings is extensive.
Reports are drawn up each year, and each day, thousands of "safety
stops" and vehicle records are recorded, yet
nowhere in the Discovery is any identification of any "sub-groups"
or "groups" who attended the Gathering. If the presence
of distinct unincorporated and incorporated "groups"
is confirmed, then an individual's assumption of "group liability"
by signing a permit would override, or dissolve the liability
options of such groups, including loss of their right to judicial
review, loss of their right to representation or petition to the
agency. Information on who these "sub-groups" and any
'groups" who attended this "Gathering of the Tribes
2000" is pertinent to the defense presenting this case.
(3) Information pertaining to why Adams was sought out
among all other individuals and groups, for citation. In Discovery
there are reports of nearly daily surveillance or contacts with
Adams. However, documentation of July 1, 2000 is missing, as are
some other days. This information is necessary to present an adequate
defense of denial of "equal protection', "selective
prosecution", "viewpoint discrimination".
(4) All daily updates, reports and Memoranda concerning
the "investigation regarding the leadership and organizers
of this year's Rainbow gathering." The Daily Updates were
posted on Forest Service Internet site <www.fs.fed.us/r-1/b-d>.
Mr. Adams citation is
addressed in the July 3, 2000 Update as "Forest Service officers
cited a member of the Rainbow Family for failure to obtain a permit."
(5) Items in Mr. Demars Motion to Compel Discovery, dated
January 16, 2001. Mr.
Michaels presents, in this Motion, several more items for Discovery.
Upon reading this Motion, Mr. Adams, in his defense, also makes
Motion for this discovery, and uses
Mr. Michaels arguments for same, nearly in their entirety, (please
note some differences). Defendant Adams thanks Mr. Michaels for
the inspiration. Defendant Adams incorporates the following items
from defendant Demars' Motion to Compel Discovery (See "A.
Clean-up Reports, Operating Plans"):
(a) Final Clean-up Report For "Gathering of the Tribes"
in Montana, July,
2000. -- How well this event was cleaned up is relevant to how
much this speech is
protected, in part by offsetting the government's stated needs
to not permit this form of
speech from occurring.
(b) Operating Plan used in 1998, 1999, and 2000 June-July
Annual "Rainbow" Gathering. - - Operating Plans are
the documented communication of how these events
will be managed from purely environmental, resource, and logistical
importantly, because these events have successfully utilized the
Operating Plan over the
years, this year, MONTANA, 2000, Law Enforcement prohibited resource
from engaging in an Operating Plan, thereby reducing the potential
for the success of this
event from a resource perspective - contrary to the government's
continued stated position
to protect the forest resources.
(c) Incident Commander's standing orders on how to enforce
the Permit Requirement at the 2000 Montana Gathering of the Tribes,
including but not limited to, a complete list off all persons
targeted to receive citation for Gathering without a signed permit.
- - Self evident; to determine what evidence there was to single
out and cite Mr. Adams.
(d) All evidence intended to be presented to persuade the
Court to sentence Mr. Adams to a sentence greater than a $50.
Fine. Particularly, evidence intending to sentence Mr. Adams to
Probation or jail. - - Self evident.
(a) "specifically limits the discretion of the Forest
Service to impose conditions directed at curtailing or censoring
expression" at Slip Page 13; and
(b) a Summary of Permits for the year 1999 - 2000, identifying
their purpose as described at page 12 of Slip Opinion. - - Self
evident; as part of requests by Third Circuit decision, identifying
material breaches in the factual record.
(7) On page 27 of the government's Reply Brief, there is
a factual statement alleged in the context of Defendant's facial
Challenge: "The Forest Service has consistently interpreted
this portion of the regulatory scheme to make administrative appeals
(6) Per recent Holding in United States v. Kalb, et al,
(3rd Cir), Slip Opinion, (December 12, 2000): Any memoranda expressing
Forest Service interpretation of Regulations,
only when the agency formally solicits applications. See, e.g.
In Re Epley, 97-04-12-06-01, discretionary review denied,
#97-04-00-0024." PLEASE PROVIDE, a Copy of in Re Epley,
which I believe is a commercial application, and any and all other
times applicants have contested terms and conditions. - - Self
evident; as part of the government's case, it must be disclosed.
Defendant's Request for Telephonic Hearing is, naturally,
submitted to be determined at the discretion of the court, once
the Court identifies a benefit to therein be derived.
RESPECTFULLY SUBMITTED this
19th day of January, 2001.