National Review: Ninth Circuit Affirms 2016 Dismissal of Bundy Case

Federal law enforcement officers block a road during protests

From the National Review, Government Misconduct Frees Cliven Bundy as the 9th Circuit affirms the dismissal with prejudice of the case against the Bundys over cattle grazing, land use fees, and the resulting standoff in Nevada.

Politically charged prosecutions — even ones that are thoroughly justified — often end badly for the justice system. So it appears with the federal prosecutions of Cliven Bundy and his sons. The government blew its case against Bundy’s sons by overcharging them, resulting in a jury acquittal in 2016. Today, the Ninth Circuit affirmed the dismissal of Bundy’s own federal indictment (as well as that of several of his co-defendants) on the grounds that the government had waited until the middle of trial to disclose information that would have helped Bundy’s case, in violation of Brady v. Maryland. The misconduct was so severe and prejudicial to the Bundy clan’s case that the court barred the government from bringing the same charges again. The opinion was written by Jay Bybee, a George W. Bush appointee, but joined by judges appointed by Bill Clinton and Barack Obama.

The Bundy indictment charged extortion, threats to federal officers, and a variety of related crimes due to the armed standoff around the Bundy ranch arising from a longstanding dispute over unpaid grazing fees claimed by the Bureau of Land Management. The trial court rejected the Bundy clan’s self-defense theory, but, as the court wrote, “A central pillar of the government’s case was the allegation that the defendants recruited armed followers by intentionally deceiving those followers into believing that the Bundys feared for their lives because government snipers surrounded their ranch,” a charge that was touted in the government’s opening statement to the jury.

The Bundys asked for video shot by a camera they said the FBI had trained on them; the government called it a “fantastical fishing expedition,” but the camera’s existence and its live feed to the BLM command center was confirmed four days into the trial. The resulting hearing disclosed as well federal patrols “armed with AR-15 rifles” around the compound. The trial court gave the prosecution the benefit of the doubt that withholding this information was a good-faith decision, but several days later, more FBI interviews (form 302s) were disclosed discussing agents in full tactical gear watching the compound and the insertion of agents the FBI itself described as “snipers.” This only came to light after the trial judge had excluded evidence based on the government’s repeated insistence that there were no snipers. The Ninth Circuit summarized why withholding this evidence was so harmful to the Bundys’ ability to present a defense:

The defendants claim that the Bundys feared they were surrounded by heavily armed snipers. Keeping the defense from gathering as much evidence as possible to show that there was a reasonable basis to fear that snipers surrounded the property was itself harmful. Moreover, the Felix 302 actually refers to the BLM agent in the overwatch position as a “sniper.” Indeed, the Felix 302 uses both “tactical over watch position” and “sniper” to refer to the same agent. This was tangible documentation showing that the government’s own officials understood agents in overwatch positions to be equivalent to “snipers.” Even if the defendants had some other evidence of agents taking “overwatch” positions around the Bundy property, the Felix 302 supported their theory in ways that [documents provided earlier] did not. The Felix 302, therefore, adds credibility to the Bundys’ claims that they feared the presence of “snipers” and it should have been disclosed prior to trial. In sum, like the evidence regarding the camera, these documents could have helped the defense show that the defendants genuinely feared the presence of snipers—contradicting the allegations that the defendants intentionally lied about being surrounded by snipers to inflame supporters.

In the Ninth Circuit’s view, it was “preposterous and reckless” for the government to withhold this evidence:

Of particular concern is the government’s handling of evidence related to the presence of snipers. This was a hot-button issue. The term is evocative, rhetorically charged, and would have been a dog whistle for summoning members of private militias in ways that screaming “surveillance cameras!” would not. The government said the Bundys’ claim of “snipers” was “false” and “deceitful,” yet the government’s own documents referred to its agents as “snipers.” The government disputed the relevance of this information, fixating on the question of whether the officers in the “overwatch” were technically “snipers.” The district court had to remind the government that these were questions for the jury.

The failure to produce evidence regarding “snipers” was particularly troubling for the district court because, during the Tier 3 trial of other co-defendants, the district court prohibited testimony regarding the presence of snipers, based on the government’s assurances that there were no snipers involved in the impound operation. The district court even removed a testifying defendant from the stand in that trial because the defendant kept stating that snipers were present. The district court was understandably exasperated when evidence came to light in this trial, showing that the government referred to its agents as “snipers.”

In short, the government had to know the import that any evidence regarding snipers, or agents who looked and functioned like snipers, would have in this case. Nevertheless, it withheld a slate of information bolstering the claim that the defendants could have had a reasonable basis for believing there were snipers in the area.

The court also found that the government improperly made “a conscious choice” to withhold a series of “threat assessments” that had downgraded earlier concerns about the threat posed by Bundy, which the defense could have used to challenge the necessity for a “militarized” response. The Ninth Circuit concluded that the trial judge had acted reasonably by dismissing the case rather than just ordering a new trial, given the “need to impose a sanction that will serve to deter future prosecutions from engaging in the same misconduct as occurred here”:

We note the government’s failure to acknowledge and confess any wrongdoing during the course of this case—especially as to material misrepresentations to the district court about the presence of snipers. Rather than accepting responsibility, the government blamed the defense for not requesting more specific information. Even in its motion for reconsideration, the government continued to maintain that it never had an obligation to turn these documents over and that any omission on the government’s part was the fault of the defendants for not doing a better job of showing why this information was relevant. Only on appeal has the government admitted that it should have turned these documents over.

Bundy Charges Dismissed with Prejudice

From AZCentral.com Jan. 8, 2018

Nevada rancher Cliven Bundy, his two sons and a militia member will not face a retrial on charges that they led an armed rebellion against federal agents in 2014.

A federal judge on Monday said the federal prosecutors’ conduct was “outrageous” and “violated due process rights” of the defendants.

U.S. District Court Judge Gloria Navarro dismissed the charges against the four men “with prejudice,” meaning they cannot face trial again. She said a new trial would not be sufficient to address the problems in the case and would provide the prosecution with an unfair advantage going forward.

The judge criticized both the prosecution and the FBI for not providing evidence to the defense as required under court rules. “The court finds that the universal sense of justice has been violated,” Navarro said…

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Related:

USA Today: Cliven Bundy-FBI Debacle: Another Example of Why the Feds Need to Be Leashed

Judge Declares Mistrial in Bundy Ranch Trial

From AZ Central:

A federal judge has declared a mistrial in the case against Nevada rancher Cliven Bundy, saying U.S. prosecutors willfully withheld critical and “potentially exculpatory” evidence from the defense.

Judge Gloria Navarro dismissed jurors Wednesday, several weeks after the trial began against Bundy, his sons Ammon and Ryan Bundy, and militia member Ryan Payne, who were accused of leading an armed standoff with federal land agents in 2014.

Navarro cited five key pieces of information that prosecutors did not disclose: records about surveillance and snipers at the Bundy Ranch; unredacted FBI logs about activity at the ranch in the days around the standoff; threat assessments about the Bundys dating to 2012; and internal affairs reports about the BLM.

Withheld evidence at issue

Navarro methodically laid out her reasoning for about an hour, citing legal standards and case law, before delivering her ruling.

She said the evidence that was withheld could have been favorable to the accused and could have affected the outcome of the case.

Navarro stopped short of dismissing charges against the four men. It is unclear whether the case will be retried because Navarro did not rule whether the mistrial was with or without prejudice.

She has set another hearing for January and has tentatively scheduled a new trial to begin Feb. 26.

Navarro suspended the trial two weeks ago and warned of a potential mistrial after prosecutors for the first time disclosed several documents that appeared to support defense claims about the government’s use of video surveillance and sniper teams during the standoff.

Prosecutors have long maintained the FBI was not involved in the standoff and that no video surveillance or sniper teams were used. They charged defendants with making false claims about snipers and videos to incite militia in the runup to the standoff.

Lawyers raise self-defense

Documents turned over by the prosecution after the start of the trial indicated the FBI played an active role in the standoff and that surveillance cameras and armed tactical teams were positioned around the Bundy Ranch.

Defense lawyers filed motions to dismiss the case, arguing the new documents provided critical evidence that would have allowed them to challenge the government’s charges, impeach government witnesses and lay the foundation for self-defense claims.

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Or read about it at Redoubt News

No Guilty Verdicts in Bundy Ranch Trial

From AZCentral, Bundy Ranch standoff trial ends with zero guilty verdicts

 A federal jury in Las Vegas did not return any guilty verdicts Tuesday against four men accused of taking up arms against federal agents during the Bundy Ranch standoff in 2014.

Jurors dealt government prosecutors a stinging defeat in the case when, after four days of deliberations, they returned not-guilty verdicts on the most serious charges and deadlocked on a handful of others.

Richard Lovelien of Oklahoma and Steven Stewart of Idaho were acquitted on all counts and walked out of court Tuesday night free after spending more than a year in prison…

Two other defendants, Eric Parker and O. Scott Drexler, both of Idaho, were acquitted on the most serious charges of conspiracy and extortion, but jurors failed to reach unanimous verdicts on weapons and assault charges…

This marks the second time a jury failed to convict the defendants on charges related to the standoff…

A jury in April deadlocked on charges against the four men. It convicted two other defendants on multiple counts. But it could not agree on conspiracy charges — a key component of the government’s case — against any of the six.

The government launched its second prosecution last month. The case climaxed Aug. 11 when Navarro abruptly ended court by ordering Parker off the stand and striking his testimony from the record as jurors watched.

The defendant was attempting to tell jurors what he saw during the standoff over a barrage of objections from prosecutors. Navarro ruled Parker violated court orders by discussing prohibited topics. Parker returned to the defense table and started crying while Navarro dismissed the jurors.

Marchese said jurors told him Tuesday the incident was a factor in their verdicts.

“That weighed heavily in their decision,” Marchese said. “They wanted to hear him speak. It was very bothersome to them. They felt like they weren’t getting the whole story.”

Read the entire story at AZCentral by clicking here