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,              )
        Plaintiff,                                         )               
                                                             )          PLAINTIFF'S TRIAL 
                  vs.                                       )             MEMORANDUM      
                                                             )
CALIPH JENKINS,                                 )
VAL DEMARS,                                      )
BARRY ADAMS,                                    )
        Defendants                                     )             
___________________________________________________________________________

I. INTRODUCTION

1) The defendants in these separate cases are all charged with violating the same regulation:

3 6 C.F.R. 26 1. I 0(k). Defendant Adams allegedly violated the regulation on or about July 2, 2000. Defendant Jenkins allegedly violated the regulation on or about July 3, 2000. Defendant DeMars allegedly violated the regulation on or about July 5, 2000. It is government counsel's understanding that defendant Adams intends to call defendant DeMars as a witness in his defense. Therefore, defendant DeMars should be tried first so that he is available as a witness for defendant Adams' trial.

There are four elements of the crime charged against each defendant: 1) use; 2) of National Forest land; 3) by a non-commercial group of 75 or more persons either as participants or spectators; and 4) without special use authorization. United States v. Kalb, 234 F.3d 827, 831 (3rd Cir. 2000); United States v. Johnson, 159 F.3d 892 (4" Cir. 1998). This regulation and the penalty for its violation apply to individuals who use the National Forest system as part of a group. Kalb at 83 1.

The government intends to prove these elements against each defendant with clear, concise proof which will be described below. The pretrial filings of defendants, on the other hand, indicate an intention to inject irrelevant matters. In the view, anything that occurred outside Montana before the year 2000 is completely irrelevant to the government's charge against each defendant.

Whether the Rainbow family inflicted damage to National Forest lands or satisfied the Forest Service with its clean-up efforts is completely irrelevant to the charge against each defendant. The plans and conduct of Forest Service Resource managers and law enforcement officers in trying to manage the Rainbow Family gathering are irrelevant to the crime charged against each defendant. This Court has already ruled on the legal questions presented by the defendants. The only question remaining for trial is whether the government can prove the elements of the crime charged against each

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defendant beyond a reasonable doubt. The trial should not be allowed to become a political forum 2 or a rehash of past Rainbow Family/Forest Service relations. Therefore the government intends to 3 object often and strenuously to any defendant's efforts to inject matters irrelevant to the limited issue which remains for trial.

Attached for the Court and counsel's convenience are all the exhibits which the government has presently marked and intends to offer at trial. The government may not offer every exhibit at each trial. The government reserves the right to supplement these exhibits as trial events dictate.

II. UNITED STATES v. JENKINS

Defendant Jenkins is charged with violating the regulation on or about July 3, 2000. At trial, the government anticipates calling two witnesses to prove the crime charged. United States Forest Service Special Agent Duane Moe will testify that on July 3, 2000 he observed the defendant standing at the junction of Forest Service Road 9l8 and the main trail leading to the "Main Meadow" area of the Rainbow gathering. Special Agent Moe will further testify that he observed the defendant directing vehicle traffic and operating a hand held radio. Approximately one hour later, Special Agent Moe returned to that location and again observed the defendant directing vehicle traffic and operating a hand held radio. At that time, Special Agent Moe issued the defendant the Notice of Violation at issue in this case. Special Agent Moe will testify that the defendant's actions and the Rainbow gathering occurred on National Forest land. Special Agent Moe will further testify that the Rainbow gathering he observed was made up of 75 or more persons that had not obtained a Special Use Authorization.

United States Forest Service Special Agent Robin Poague was with Special Agent Moe on July 3d and made similar observations. The government anticipates Special Agent Poague will

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substantially corroborate the testimony of Special Agent Moe. In addition, Special Agent Poague took photographs on July 4" which are attached to this brief. These photographs further prove the extent of the gathering and its occurrence on National Forest land.

III. UNITED STATES v. DEMARS

The government intends to call three witnesses to prove the crime charged against this defendant. United States Forest Service Special Agent Robin Poague will testify that on June 19, 2000 he observed a vehicle belonging to the defendant parked along a Forest Service road adjacent to the Rainbow Family gathering site. Special Agent Poague will also testify that he took the photographs attached to this brief on July 4 th . These photographs show the extent of the Rainbow Family gathering and its location on National Forest land.

United States Forest Service Special Agent Duane Moe will testify that on July 5' he observed the defendant participating in the Rainbow gathering on Forest Service land near Saginaw Creek. He will testify that he observed the defendant's '65 Ford Truck and camper parked on road number 918 adjacent to the gathering site. Agent Moe will testify that the defendant's vehicle had been so parked for approximately two and a half weeks prior to July 5th. Agent Moe will testify that the defendant admitted being a participant in the Rainbow gathering. Agent Moe will confirm that the defendant and the gathering of more than 75 persons were on National Forest lands without the required Special Use authorization.

Forest Service District Ranger Dennis Havig is the District Ranger for the Wisdom Ranger District and the Acting District Ranger for the Wise River District, Beaverhead, Deer Lodge National Forest. Ranger Havig served as the District Ranger during the 2000 Rainbow gathering at issue in this case. Ranger Havig will testify that the Forest Service issued no Special Use authorization for

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the gathering at issue in this case. In addition, Ranger Havig will testify to personal observations he made of the defendant during the relevant time period. Ranger Havig will also testify to certain conversations he had with the defendant at the Rainbow gathering site and subsequent to the gathering.

IV. UNITED STATES v. ADAMS

The government's first witness in this case will be United States Forest Service Special Agent William Fox. Special Agent Fox was the incident commander for law enforcement at the Rainbow Family gathering in 2000. The government anticipates Agent Fox will testify to conversations he had with the defendant beginning in February, 2000. Special Agent Fox will also be the witness through which the government offers the substantial correspondence between the defendant and the United States Forest Service leading up to the Rainbow Family gathering which is attached to this brief as Exhibits 3 - 9. These conversations and correspondence clearly evidence the defendant's knowledge that a permit was required and intention to participate in the gathering without a permit. The government anticipates the defendant will attempt to cross-examine Agent Fox concerning irrelevant matters including those mentioned in the Introduction portion of this brief.

The government respectfully requests this Court sustain its objections to these irrelevant matters.

United States Forest Service Special Agent Duane Moe will testify that on July 2' he observed the defendant participating in the Rainbow gathering on National Forest land. Agent Moe will also testify to statements made by the defendant as outlined in the Notice of Violation. Special Agent Moe will testify that the Forest Service issued no permit for the Rainbow gathering. Finally, Agent Moe will testify that he observed the Rainbow gathering on National Forest land and estimated 22,000 persons in attendance.

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United States Forest Service Special Agent Robin Poague will substantially corroborate the testimony of Special Agent Moe concerning the defendant's actions and statements on July 2 . In addition, Special Agent Poague took the photographs which are attached to this brief as Exhibits 10, 11, and 12 on July 4, 2000. These photographs further corroborate the testimony that the gathering occurred on National Forest land and numbered more than 75 persons.

United States Forest Service District Ranger Dennis Havig will testify that the Forest Service issued no Special Use Authorization for the Rainbow gathering which occurred in this case. In addition, the government anticipates that Ranger Havig will testify to personally informing the defendant that a permit was required for the gathering. The government anticipates Ranger Havig will testify to several statements made by the defendant to him including an acknowledgment that he would be receiving a citation for his participation in the gathering and that he hoped to use the citation as a tool to bring the Forest Service into mediation over the permit issue.

The United States may call Forest Service employee Gene Smalley during its case in chief. If called, Mr. Smalley will testify that on June 28, 2000 he spoke with the defendant at the Rainbow gathering site. During this conversation the defendant told Mr. Smalley that if he received a citation he would personally name individuals on the National Team in a lawsuit.

V. CONCLUSION

This brief is intended as a general statement of the government's anticipated proof at trial. The actual testimony will no doubt be more detailed and specific than outlined herein. The government reserves the right to call additional witnesses and/or offer additional exhibits at each trial. The government anticipates that its case in chief against defendant Jenkins will take approximately 1 hour to present. The government estimates that its case in chief against defendant

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DeMars will take approximately 1 1/2 hours to present. The government estimates that its case in chief against defendant Adams will take approximately 2 hours to present. These estimates are based upon reasonable cross-examination.

DATED this 24' day of January, 2001. SHERRY SCHEEL MATTEUCCI United States Attorney KRIS A. MCLEAN Assistant U.S. Attorney