Newspaper column: Bundys may have to face trial after all

Cliven Bundy walks out of federal court with his wife Carol on Monday, Jan. 8, 2018, in Las Vegas, after a judge dismissed criminal charges against him and his sons accused of leading an armed uprising against federal authorities in 2014. (R-J pix by K.M Cannon

This past week prosecutors appealed to the 9th U.S. Circuit Court of Appeals the decision by a Nevada federal judge to dismiss with prejudice all charges against Bunkerville rancher Cliven Bundy, two of his sons and a self-style militiaman from Montana because the government failed to disclose potentially exculpatory evidence to the defense. 

Knowing the track record of the liberal 9th Circuit, odds are the court will order the defendants back to face charges.

The Bundy family has grazed cattle on public land in Clark County since the 1880s, but 25 years ago the Bureau of Land Management told the family it could no longer graze cattle in the spring because they might harm the hatchlings of the threatened desert tortoise — a contention range biologists say is bogus. Since those months are the only ones in which cattle gain weight on the desert range, Bundy refused to comply and stopped paying the BLM its grazing fees. 

In April 2014, saying Bundy owed more than $1 million in grazing fees and trespass fines, contract cowboys backed by heavily armed BLM and FBI agents started rounding up the Bundy cattle. In response, armed men from across the West gathered for a face-off with the federal agents.

To avert a potential bloodbath the agents backed down and left, but Bundy and others were later indicted on charges that included obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Two of three scheduled trials took place, but a year ago during the third trial of Cliven Bundy and his co-defendants Judge Gloria Navarro abruptly halted proceedings and ruled that the prosecutors had willfully and flagrantly failed to disclose evidence that could have been used by the defense, including information about an FBI surveillance camera, documents citing the presence of snipers, certain maps, FBI logs, threat assessments that showed the Bundys weren’t violent, documents reportedly showing that no threatened desert tortoises were ever found to be harmed by Bundy’s cattle, and internal affairs documents detailing possible misdeeds by the Bureau of Land Management agent in charge, who was later fired.

The judge ruled the dismissal was with prejudice, meaning charges could not be brought against them again. 

Curiously, most of that information cited would have allowed the defense to argue the defendants were provoked and were acting in self-defense, arguments the judge previously ruled were impermissible. The appeal goes into excruciating detail about this seeming contradiction.

In response to the appeal, Bundy’s lawyer Larry Klayman asked the appellate court to dismiss the prosecution’s appeal because it had missed the filing deadline. Though the prosecution asked for deadlines extensions, the court has not yet granted such an extension.

According to press accounts, Klayman also called the appeal “unprofessional and grossly unethical,” adding, “They are apparently hopeful that this court, if an appeal is heard, will relieve them from the prospect that their careers at the Department of Justice are over, much more the potential for disbarment. Given the record, this ‘Hail Mary’ attempt to skate from their own liability is destined to fail.”

But the appeal, penned by Nevada Assistant U.S. Attorney Elizabeth White, argues,  “Any missteps were inadvertent (or at worst negligent), and those errors did not merit the court’s strong condemnation of the prosecution team.”

White also argued that court precedents show the appropriate remedy for failing to disclose would be either the dismissal of some charges or a new trial, not outright dismissal. 

In arguing that disclosure of evidence might jeopardize the safety of witnesses and agents, the appeal dredged up a long-discredited base canard. 

The brief stated, “Its goal was to produce all relevant information while protecting victims, witnesses, and law enforcement officers from harassment and threats, and from the violence that had already taken the lives of two police officers and a civilian at the hands of two of Bundy’s extremist followers.”

This refers to the fact that in June 2014, Jerad and Amanda Miller, killed two Las Vegas police officers and another man before being killed in a shootout with police.

What was not mentioned is that the Millers were a couple of leftist lunatics who showed up at the Bundy ranch standoff but were told by the Bundys to leave because of their “very radical” views. They were not Bundy’s “extremist followers.”

Despite this error, the appellate court is likely to look favorably on the prosecution’s appeal. 

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Groups should not be forced to reveal donors

The uberliberal 9th U.S. Circuit Court of Appeals, whose jurisdiction includes Nevada, recently struck another blow against free speech, saying the state of California may force non-profits to reveal their donors.

According to The Wall Street Journal, in 2016 a federal judge ruled that the Americans for Prosperity Foundation did not have to give its donor list to the California attorney general’s office. 

Judge Manuel Real agreed with the foundation’s lawyers that the state had no legitimate law-enforcement interest in obtaining the names. He also said that the attorney general’s failure to keep donor names confidential subjected donors to a risk of harassment and retaliation.

The 9th Circuit panel shrugged this off and found the attorney general had a “strong interest” in obtaining donor names in order to investigate potential fraud.

This is significant for Nevada because there is a law on the books here that says any group that engages in “express advocacy” in elections must register with the Secretary of State and report donors and expenditures. 

In 2013 a Carson City judge fined a Virginia-based group called Alliance for America’s Future (AAF) more than $100,000 for airing television commercials praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010. Though the group argued the law was unconstitutional under the First Amendment, the judge found in the penumbra of the Constitution a whole new right.

He wrote, “No amount of civil penalties can redress the injury to Nevada voters caused by refusal to timely provide them with the information to which they are entitled, thus there is no adequate remedy at law.” 

He ruled the voters are entitled to the names of donors who sponsored the message, which would have been a surprise to James Madison, John Jay, Alexander Hamilton and Thomas Paine, all of whom wrote anonymously. 

In 2014 AAF reached a settlement with Secretary of State Ross Miller before the case reached the state Supreme Court. The group paid a $40,000 fine, registered as a political action committee and filed contribution and expenditure reports. 

Even though the U.S. Supreme Court in Citizens United v. FEC let stand the requirement under McCain-Feingold that donors be revealed, Justice Clarence Thomas made a compelling argument that it is clearly an abridgment of free speech  rights to force people to surrender their right to anonymously express their views about elections, candidates and issues with donations to like-minded groups.

Thomas’ dissent concluded that such laws had spawned a cottage industry that uses forcibly disclosed donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree. 

Thomas wrote, “The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. … Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …’”

In the recent California case one of the groups siding with the foundation was the NAACP. In 1958 the U.S. Supreme Court ruled that the state of Alabama could not force the NAACP to reveal its donors, citing the potential for intimidation and violence against donors. 

But the 9th Circuit panel dismissed this concern. Though the panel admitted, “The Foundation’s evidence undeniably shows that some individuals publicly associated with the Foundation have been subjected to threats, harassment or economic reprisals,” it shrugged this off by concluding, “Such harassment, however, is not a foregone conclusion.” 

What if the threats had been to the judiciary?

Americans for Prosperity has said it will seek a rehearing before the full 9th Circuit, and appeal to the U.S. Supreme Court if that fails. By all means appeal, and we urge the Nevada attorney general to file a friend of the court brief in support.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

9th U.S. Circuit Court of Appeals in San Francisco (Getty Images via WSJ)

Editorial: Courts are solidifying gun rights

The courts in recent years have been nailing down ever more solidly the right to keep and bear arms.

In the District of Columbia the U.S. Supreme Court struck down restrictive ordinances that required that guns be kept at home disassembled or nonfunctional with a trigger lock mechanism, saying this violated the Second Amendment.

Justice Antonin Scalia opined that the Second Amendment reference to a “militia” is a prefatory clause that does not limit the operative clause of the amendment, which guarantees “an individual right to possess and carry weapons in case of confrontation.”

In the case of McDonald v. Chicago the high court overruled a 7th U.S. Circuit Court of Appeals and held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense apply to the states. This overturned a Chicago ordinance banning the possession of handguns.

Justice Samuel Alito wrote that rights “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment.

Now, a panel of the usually reliably liberal 9th U.S. Circuit Court of Appeals has ruled 2-1, in the case of Young v. Hawaii, that states may not prohibit open carry, though the ruling still lets states require permits for concealed carry.

“But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” writes Judge Diarmuid O’Scannlain. “We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.’ … While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’”

Nevada is one of 30 states that currently allow open carry, while 15 require permits, including neighboring Utah, for open carry and five states, including California of course, plus the District of Columbia prohibit open carry.

Judge Scannlain further pointed out that the right to self protection is one of those unalienable rights that existed prior to the Constitution and the Bill of Rights merely restrained Congress from infringing.

The ruling cited the English Declaration of 1689 as having enshrined “the right of having and using arms for self-preservation and defence.”

“In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. …” the judge explained. “In determining whether the pre-existing right codified by the Second Amendment was ‘fundamental to our scheme of ordered liberty,’ the Court stressed the centrality of self-defense: ‘Self-defense is a basic right, recognized by many legal systems from ancient times to the present day …’”

Perhaps, such sound reasoning will deter Democratic legislators in 2019 from trying to restrict gun rights, as they have so often in the past.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Judicial bias depends on the party involved

Bias, like beauty, is in the eye of the beholder.

Earlier this year a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals overturned a decision by Reno federal Judge Robert Clive Jones involving water rights in the Walker River Basin and ordered him removed from the case, saying he was biased against the federal government’s attorneys.

“We reluctantly conclude that reassignment is appropriate here because we believe (1) that Judge Jones would have substantial difficulty putting out of his mind previously expressed views about the federal government and its attorneys, and (2) that reassignment will preserve the appearance of justice,” wrote Judge A. Wallace Tashima, noting that in two previous cases the 9th Circuit had said Jones “harbored animus toward the federal agencies” and that “the judge’s bias and prejudgment are a matter of public record …”

In the Walker River case the previous evidence of bias was based on the fact Jones had stated, “[E]ven though the government in many cases didn’t have the right to insist upon a permit … nevertheless, the government in many cases has insisted upon it. … I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for … trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

Sounds like a factual assessment rather than bias.

The other case in which bias was alleged involved the Hage family ranch near Tonopah in which Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

He ruled the government had interfered in the case by urging others to apply for the Hages’ grazing permits, by applying themselves for the Hages’ water rights and by issuing trespass notices against witnesses soon after they had testified.

Now, if one wants to consider bias, perhaps one should review the federal judge’s behavior in the trial of some of the defendants in the 2014 Bundy ranch standoff, in which federal agents attempted to confiscate Bunkerville rancher Cliven Bundy’s cattle for trespassing on federal land without a permit. The agents backed down when confronted by armed protesters.

Federal Judge Gloria Navarro granted the prosecution’s sweeping call for limits on defense evidence — including arguments that the defendants felt justified to show up and protest the confiscation of Bundy’s cattle because of abusive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

Navarro noted in her ruling, “The Court also rejected Defendants’ proposed instructions on the First and Second Amendment because they are not legally cognizable defenses, or in other words, the law does not recognize these Amendments as legal defenses to the crimes charged.”

Navarro later declared a mistrial because prosecutors failed to disclose evidence of that “abusive force,” which was barred from being presented as evidence.

Then there is the federal judge who heard the trial of Cliven Bundy’s sons Ammon and Ryan and others for the 41-day armed takeover of the Malheur National Wildlife Refuge in Oregon to protest the lengthy sentences assessed two ranchers for letting backfires burn a few acres of federal land.

After they were acquitted, Utah lawyer and rancher Todd Macfarlane reported in the spring issue of Range magazine that the judge in the case, Anna Brown, once was quoted as saying, “The federal government has so many resources at its disposal, and is so meticulous in its work, that I would never expect to see a criminal defendant acquitted in my court.”

Macfarlane described the judge’s treatment of the prosecution and defense in the trial as grossly disparate.

“What I have learned since then is that this is not unique to the Bundy cases. According to a growing body of evidence, federal judges have become so accustomed to favoring the prosecution that they no longer seem to recognize what they’re doing,” he wrote.

No one raised so much as an eyebrow over the behavior of Navarro and Brown in their cases, but Judge Jones gets slapped down — not so much for showing bias, but for which party he allegedly showed bias.

One person’s bias is another’s hard-earned experience.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Malheur standoff (AP pix)

Bunkerville standoff case likely to be determined by the 9th Circuit

Cliven Bundy released from jail. (Photo by R-J’s K.M. Cannon via AP)

As Yogi Berra said, “It ain’t over till the fat lady sings.”

In the matter of the Bunkerville standoff case, the fat lady may be the 9th U.S. Circuit Court of Appeals. Though the judge on Monday dismissed the case against Cliven Bundy, two of his sons and a Montana militia man “with prejudice,” meaning the charges can’t simply be refiled and another trial scheduled, according to the Reuters account, The Associated Press notes that the U.S. attorney, Dayle Elieson, released a one-sentence statement saying she will make a determination about whether to challenge the ruling before the appellate court.

Four years after the standoff, in which armed protesters faced off with heavily armed BLM agents attempting to impound Bundy’s cattle for failure to pay $1 million in grazing fees and fines for two decades, and millions of tax dollars spent by the prosecution, what are the chances the feds will not appeal to the reliably liberal and prosecution-sympathetic 9th Circuit?

Witness the court’s pro-government rulings in both the Walker River Irrigation District and the Wayne Hage ranch cases. On both cases the court found that a federal judge’s hard-earned, keen-eyed determination that the federal land agencies were running rough shod over the defendants amounted to bias on the judge’s part rather than accurate judgment.

In the Walker River case the court found evidence of bias in the fact that the judge had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Another factor may be that nearly all the disclosure evidence that the prosecution failed to turn over to the defense, which resulted in a mistrial and the dismissal of charges, were deemed not admissible in earlier trials. Could that be grounds for appeals in the handful of convictions in those trials, since the discovery was not available then? One man was sentenced to 68 years in prison.

For example, the judge noted that the prosecution failed to give to the defense log entries that said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no excuse, the judge chided.

In an earlier trial, the same judge kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense. The judge had ruled that evidence of provocation was not admissible.

Also, according to AP, the judge has set a Feb. 26 trial date for four defendants still awaiting trial, including two more Bundy sons, Mel and David. What will they be allowed to argue in their defense, if the trial goes forward?

 

 

Immigration: Court says Trump can’t do what Carter and Reagan did

A difference without a distinction?

The 9th U.S. Circuit Court of Appeals has refused to reinstate President Trump’s executive order restricting immigration from six majority Muslim nations.

“In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States,’” the three-judge panel wrote.

The also stated that the order “runs afoul of other provisions of the INA (Immigration and Naturalization Act) that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.”

But about halfway through the 86-page ruling the judges seemed to condense the nationality discrimination engaged in by Presidents Carter and Reagan (cites deleted):

“In two instances, former Presidents have distinguished classes of aliens on the basis of nationality. But these distinctions were made not because of a particular concern that entry of the individuals themselves would be detrimental, but rather, as retaliatory diplomatic measures responsive to government conduct directed at the United States. For example, President Carter’s proclamation barring the future entry of Iranians occurred during the exigent circumstance of the Iranian hostage crisis. This was one of many sanctions imposed to increase political pressure on the Iranian government to ensure the safe return of American hostages. … President Reagan’s suspension of entry of certain Cuban nationals as immigrants came as a response to the Cuban government’s own suspension of “all types of procedures regarding the execution” of an immigration agreement between the United States and Cuba, which had “disrupt[ed] normal migration procedures between the two countries.”

Then in head scratching turn the judges declared: “Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban,’” noting a tweet in which Trump stated: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”

In fact, the order states that Trump’s executive order explains:

Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.

So, Carter and Reagan can bar immigration from Iran and Cuba, based on what the government did nor did not do, but Trump can’t do the same with the six rouge countries identified in his order, which explains specifically that those countries can’t or won’t help vet travelers?

Sounds like a distinction without a difference. In fact, Trump offered specific rationale for his actions, which amounted to “retaliatory diplomatic measures responsive to government conduct directed at the United States.”

The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. — F. Scott Fitzgerald

Protesters opposed Trump travel ban. (LATimes pix)

Editorial: A suggestion for a presidential commutation

The Hammond family.

President Obama has now commuted the federal prison sentences of more than 1,000 prisoners, mostly non-violent drug offenders. Most have served far more time in prison than if they committed the same crime today, because previous mandatory sentencing laws have been relaxed.

Which brings us to H.R. 5815 — Resource Management Practices Protection Act of 2016 — introduced by Oregon Rep. Greg Walden. The bill would amend the Antiterrorism and Effective Death Penalty Act of 1996, which was passed following the Oklahoma City bombing and requires a minimum of five years in prison for anyone convicted of damaging federal property by fire or explosives.

The bill would exempt from prosecution anyone who sets a fire on his own property to prevent damage — such as a backfire — or if that person is using a generally accepted practice for managing vegetation on timber, grazing, or farm land and fire doesn’t result in death or serious bodily injury — even if that fire spreads to federally controlled land.

Which brings us to Dwight Hammond and his son Steven, two Oregon ranchers now serving mandatory five-year sentences because fires set on their own property escaped onto federal land, burning a grand total of 140 acres — one was a controlled burn and the other a backfire to protect their own property from a lightning sparked blaze.

Even if passed, the bill would not result in the freeing of the Hammonds but could protect others from such frivolous prosecution in the future.

The bill has cosponsors from Idaho, Washington, Arizona and Utah but none from Nevada.

When the Hammonds were first convicted veteran federal Judge Michael Hogan refused to impose the five-year mandatory minimum, saying that was “grossly disproportionate to the severity of the offenses here.”

The judge reasoned, “Out in the wilderness here, I don’t think that’s what the Congress intended. And in addition, it just would not be — would not meet any idea I have of justice, proportionality.” He gave the father three months in jail and the son a year and a day.

The U.S. attorney appealed and the 9th U.S. Circuit Court of Appeals, based in San Francisco, ordered the Hammonds must serve the remainder of that five-year sentence.

It was the resentencing of the Hammonds that prompted protesters to take over the buildings at the Malheur National Wildlife Refuge for more than a month this past January. But the Hammonds made it clear at the time they had nothing to do with the protesters and peacefully turned themselves in to the authorities and have been jailed since.

The protesters included two of the Bunkerville Bundy brothers, Ammon and Ryan, already notorious for their standoff with federal agents in 2014 who were trying to confiscate their cattle.

A jury earlier this year refused to convict the Bundys and five other protesters for the refuge takeover, but the Bundys and others face charges next year over the Bunkerville incident.

Obama announced in 2014 that he would use commutations to right the wrong of overly harsh sentences that did not fit the crime.

White House Counsel Kathryn Ruemmler said at the time, “The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice.”

The Hammonds would appear to fit in that category.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Illegal immigrant felons may avoid deportation by donning an ‘anchor dress’

You can now add to the judicially recognized “anchor babies” concept the “anchor dress.”

A three-judge panel of the 9th U.S. Circuit Court of Appeals has determined that a convicted felon illegal immigrant may not yet be deported to Mexico because he identifies as a women, wears dresses and claims to have been raped and tortured by Mexican officials.

The panel said judges had erred in assuming that recent changes in Mexican law allowing same-sex marriage reflected a relaxing of attitudes toward the transgendered. According to the ruling, the evidence of abuse is based only on the word of the petitioner Erin Carey Averdano-Hernandez, which an immigration judge found “credible.”

 

In 2006, Avendano-Hernandez  committed two separate drunk driving offenses. One of these injured two people and resulted in a felony conviction. After a year in jail, he was deported to Mexico, but returned and was arrested.

The 9th Circuit judges remanded the case saying the petitioner was eligible to stay in the U.S. under the Convention Against Torture (CAT).

To those judges the word of a deportee effectively takes precedent over any presumption of law abiding by Mexican officials:

The agency, however, wrongly concluded that no evidence showed “that any Mexican public official has consented to or acquiesced in prior acts of torture committed against homosexuals or members of the transgender community.” In fact, Avendano-Hernandez was tortured “by . . . public official[s]”—an alternative way of showing government involvement in a CAT applicant’s torture. 8 C.F.R. § 1208.18(a)(1). Avendano-Hernandez provided credible testimony that she was severely assaulted by Mexican officials on two separate occasions: first, by uniformed, on-duty police officers, who are the “prototypical state actor[s] for asylum purposes,” BoerSedano, 418 F.3d at 1088, and second, by uniformed, onduty members of the military. Such police and military officers are “public officials” for the purposes of CAT.