Federal prosecutors urge judge to reconsider dismissal of case against Cliven Bundy ▪︎ Published: Feb. 07, 2018 By Maxine Bernstein | The Oregonian/OregonLive
Federal prosecutors in Nevada are asking a federal judge to reconsider her dismissal of charges against Cliven Bundy, his sons Ammon and Ryan Bundy and supporter Ryan Payne in their 2014 armed standoff over cattle grazing, arguing that her ruling was erroneous, ''unwarranted and unjust.''
Maxine Bernstein | The Oregonian/OregonLive
Federal prosecutors in Nevada are asking a federal judge to reconsider her dismissal of charges against Cliven Bundy, his sons Ammon and Ryan Bundy and supporter Ryan Payne in their 2014 armed standoff over cattle grazing, arguing that her ruling was erroneous, ''unwarranted and unjust.''
They said U.S. District Judge Gloria M. Navarro failed to consider a less drastic remedy for the evidence violations she found.
In a motion filed Wednesday, the prosecutors also reiterated their unsuccessful argument that the evidence they failed to share until too late wouldn't have been admissible anyway because they didn't believe the defendants could argue that they acted in self-defense, were provoked or intimidated.
They urged the judge to consider the fallout from her Jan. 8 dismissal, suggesting it will endanger other federal officers who typically patrol remote public lands alone.
"This case has major ramifications for all public lands law enforcement officers,'' Elizabeth White, the Nevada U.S. attorney's appellate chief, wrote in a 29-page motion.
"Dismissing this entire case with prejudice, based on the government's non-disclosure of mostly duplicative evidence of law enforcement's pre-impoundment surveillance and preparation, would encourage the defendants, their supporters and the public to disrespect the law and the lawful orders of the courts.''
With prejudice means prosecutors can't seek a new trial.
The judge found that prosecutors didn't turn over evidence to defense attorneys that dealt with an FBI surveillance camera, federal snipers and other officers positioned outside the Bundy ranch in April 2014.
The senior Bundy, 71, Ammon Bundy, 45, and Ryan Bundy, 42, and Payne, 34, were indicted on conspiracy and other allegations, accused of rallying militia members and armed supporters to stop federal officers from impounding Bundy cattle near Bunkerville. Government authorities were acting on a court order filed after Cliven Bundy failed to pay grazing fees and fines for two decades. The outnumbered federal contingent retreated and halted the cattle roundup on April 12, 2014.
Navarro last month dismissed the Bundy prosecution, citing "flagrant misconduct" by prosecutors and the FBI in not disclosing evidence before and during trial. The judge listed six separate types of evidence withheld and ruled that each violation was willful.
She found the government misconduct was "outrageous'' and "egregious'' because the prosecution team and the FBI didn't give defense lawyers information that they had specifically requested.
The decision to file a motion to reconsider the dismissal instead of filing an immediate appeal is a tactical choice, federal legal experts said. The Nevada prosecutors may believe they can expand on arguments they made earlier and change the judge's mind, or they may want to include information that they hadn't presented before but believe they need to now to have in the court record before seeking an appeal.
___________________________________ ☆ Document: Transcript of U.S. District Judge Gloria M. Navarro's dismissal ruling
https://www.documentcloud.org/documents/4357325-JudgeNavarroJan8dismissalruling
☆ Document: Federal prosecutors' motion asking judge to reconsider
http://media.oregonlive.com/oregon-standoff/other/2018/02/07/NVMOTIONTORECONSIDER.pdf
☆ Document: Federal prosecutors' motion to dismiss with prejudice case against 4 other defendants
http://media.oregonlive.com/oregon-standoff/other/2018/02/07/NVmotiontodismiss4remainingdefs.pdf ___________________________________
The Nevada U.S. Attorney's Office noted in its motion, as it previously had in December arguments, that the judge in a separate trial of standoff co-defendants last April rejected a defense request for a self-defense instruction to jurors, finding then that the record "belies the defendants' contention that the agents used excessive force.''
The prosecutors argued that the information about a surveillance camera, presence of FBI SWAT officers or snipers and officers at listening and observation posts around the Bundy ranch related to preparation between April 5 and April 8, 2014, for the cattle roundup.
That all came before a confrontation with federal officers on either April 9, 2014, when officers stunned Ammon Bundy with a Taser gun and knocked his aunt to the ground as they tried to block a federal convoy, or the April 12, 2014, standoff in the Toquop Wash near Bunkerville.
"To the extent the court's dismissal with prejudice is predicated on the materiality of the late-disclosed evidence to defendant's theories of 'self-defense, provocation and intimidation,'' it is in error,'' White wrote. "The government's 'failure' to produce information to help the defendants develop a 'defense' they had no right to make does not violate Brady.'' Brady is the 1963 landmark U.S. Supreme Court case that requires prosecutors to share any evidence that may be favorable to the defense.
Navarro, however, specifically addressed those concerns in her dismissal ruling.
She said prosecutors were "well aware'' that theories of self-defense, provocation and intimidation might become relevant if the defendants could provide sufficient proof to the court, noting it was part of a prior court order entered in the case.
In their latest motion, prosecutors argued that the dismissal of the case with prejudice was a "drastic measure.'' They argued the court could have dismissed one or more charges or dismissed the case without prejudice, allowing a new trial.
They suggested that the court could have ordered that the evidence provided too late wasn't to be presented at trial or removed the conspiracy charge in the federal indictment, which alleged that defendants used deceit and falsely told supporters that the Bundy ranch was surrounded by snipers. The judge also could have dismissed an extortion charge, which alleged defendants used social media in aid of the allegation, they argued.
"Dismissal of one or more counts would be an extreme sanction, to be sure, but less drastic than dismissing the entire indictment, and more appropriate given the nature of the Brady violations the Court found,'' the prosecutors wrote.
Ryan Bundy, reached by phone Wednesday night, said he wasn't worried.
"Number one, the judge slammed them,'' he said. "It's ridiculous to think anything could come of that.''
Also Wednesday, Navarro granted federal prosecutors' request to cancel the scheduled Feb. 26 trial for remaining defendants Mel Bundy, David Bundy, Joseph O'Shaughnessy and Jason Woods, and dismiss their case with prejudice, in light of the dismissal of the case against the lead defendants and the government's request that the judge reconsider that ruling.
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Comparing history to the events of today for an expectation of the future, for our world and mankind as a whole.
Under Section 107 of the Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.
“The Battle of Bunkerville” was the Stand-Off in the Spring of 2014 headed by the U.S. Department of the Interior’s BLM (Bureau of Land Management) along the Virgin River in Southern Nevada.
On the other-side, were several hundred Americans Standing in the Gap in a Peaceful Pushback as both a protective buffer for the Bundy family, and to protest the government’s roundup and attempted confiscation of several hundred head of Bundy cattle.
USA vs Bundy et al. ▪︎ United States v. Bundy, Case No. 2:16-cr-00046-GMN-PAL (D. Nev. Dec. 30, 2016)The Bundy Ranch Standoff and Trial Report by Vincent Easley II
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