Prosecution asks judge to reconsider Bundy case dismissal

Cliven Bundy released from jail. (AP pix)

Who didn’t see this coming?

On Wednesday federal prosecutors asked the federal judge to reconsider her decision to dismiss with prejudice the indictment against Bunkerville rancher Cliven Bundy, two of this sons and a Montana militiaman for the armed standoff with federal agents attempting to impound Bundy’s cattle in 2014 for failure to pay grazing fees and fines amounting to about $1 million.

The reason, as we noted here previously, is that the evidence the prosecution failed to turn over — which prompted the dismissal — had previously been deemed inadmissible and, therefore, could not be exculpatory under the Brady rule.

“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,” the appeal states. “Because these theories are not cognizable on the undisputed facts, they cannot form the basis of a Brady violation.”

The Appellate Chief for the U.S. Attorney’s Office Elizabeth White further argued, “The government believes the Court’s ruling is clearly erroneous in at least two ways, i.e., 1) it dismissed the superseding indictment with prejudice for ‘outrageous’ and ‘flagrant’ government misconduct predicated on the government’s failure to disclose certain documents that could be used only to support the legally non-cognizable and unsupportable defenses of self-defense, ‘provocation,’ and ‘intimidation’; or arguably to rebut three overt acts (out of more than 70) in furtherance of the alleged conspiracy; and 2) even assuming its findings of discovery violations were correct, the Court failed to consider less drastic remedies or tailor the remedy to the violations, as required by Ninth Circuit law. Reconsideration is therefore warranted.”

The Oregonian cited so-called federal legal experts who said the move was a tactical choice. They could have appealed directly to the 9th U.S. Circuit Court of Appeals instead. “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,” the paper stated.

In another document the prosecution asked that the indictment of the remaining four defendants yet to face trial — Bundy sons Mel and Dave and two others — be dismissed with prejudice.

The chances of the judge reversing herself are slim, so expect this to be heard by the 9th Circuit.


Why the Bundy charges were dismissed and what next?

Cliven Bundy

Columnist Bob Barr took a gander at the reasons behind the judge’s dismissal of charges against Cliven Bundy, two of his sons and a Montana militiaman in the Bunkerville standoff and described the government’s behavior thusly:

What appears to have been at the heart of the Justice Department’s unconscionable behavior was sheer hubris; the arrogance that comes from a superior sense of status and power, built on decades of legislative and judicial decisions concluding that the federal government can do whatever it wants, whenever it wants, to whoever it wants and that its actions are not to be questioned.

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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?



Will remaining Bundy defendants face a new trial?

Bunkerville standoff (Reuters pix)

On Monday federal Judge Gloria Navarro will hear arguments as to whether Cliven Bundy, two of his sons and a Montana militia man should again face trial on charges growing out of the Bunkerville standoff with BLM agents attempting to impound Bundy’s cattle in 2014.

The judge declared a mistrial in December when she ruled the prosecution had failed to timely turn over evidence to the defendants.

Now she must decide whether that mistrial is with prejudice, meaning no retrial, or without prejudice, meaning still another trial.

The first trial also ended in a mistrial for four of six defendants when the jury could not reach unanimous verdicts. Of the remaining four, two were acquitted during retrial and two others pleaded guilty to misdeamnors and were released on time served after the jurors again could not reach unanimous verdicts.

One of those convicted was sentenced to 68 years in prison. In doing so Navarro called the man and other protesters “playground bullies,” adding, “You don’t just go to the tax office and threaten them to not collect taxes.”

During the sentencing to seven years in prison of a protester who copped a plea, Navarro called him “a bully vigilante, threatening peacekeepers of the community.”

What are the chances of Navarro declaring the mistrial is with prejudice?

All the remaining defendants, except Cliven Bundy, have been released on what amounts to house arrest. Bundy refused to agree to the conditions of release and remains jailed for almost two years now.

Six more defendants, including two more Bundy sons, Dave and Mel Bundy, are scheduled to be tried 30 days after the end of the current trial, if there is one. What will become of that trial if this one does not go on?

Millions have been spent prosecuting this case. What are the odds?



Welcome to the Star Chamber

Justice must not only be done, but it must be seen to be done.

Much of the evidence in the high-profile Bunkerville standoff case has been cloaked in secrecy due to a blanket court protective order that requires just about everything filed in the case to be filed under seal.

Ammon Bundy (R-J pix)

Now, U.S. District Judge Gloria Navarro is conducting hearings behind closed doors. After dismissing the jury until Dec. 20, the judge closed the court to all but the parties in the trial to hear arguments about whether the prosecution failed to disclose evidence to the defendants in a timely manner, according to a press account.

Cliven Bundy, his sons Ammon and Ryan, and self-styled militia member Ryan Payne face felony charges, including conspiracy, assault and threats against federal officers, firearms counts, obstruction and extortion for which a conviction could carry a sentence of 170 year in prison. They are accused of staging an armed confrontation in 2014 with BLM agents who were rounding up Bundy’s cattle for failing to pay grazing fees for for 20 years. The roundup to collect $1 million in grazing fees is said to have cost $3 million, though it is questionable whether Bundy’s mangy range cows were worth even $1 million. Who knows how much the string of trials is costing taxpayers.

Ryan Bundy (R-J pix)

Prosecutors have been given until Friday to respond to the judge’s questions about whether they failed to meet deadlines for providing discovery evidence on at least seven occasions and and 14 other potential violations of the defendants’ rights.

The judge has hinted that failure by the prosecution to adequately respond could result in a mistrial because the failures might be “sufficient to undermine the confidence in the outcome of the trial,” but defense attorney are asking that the charges be dismissed outright  due to prosecutorial misconduct.


The newspaper quoted Cliven Bundy’s attorney Bret Whipple as saying, “I hope to get the case dismissed before the jurors come back.”

Daniel Hill, an attorney for Ammon Bundy, said, “That’s exactly what dismissal is designed for — when the government proceeds while violating their constitutional mandates.”

But, since the hearings were behind closed doors, the taxpayers were denied the ability see just how serious the allegations against their tax-funded prosecutors really are. We can’t see what we are paying for — justice or injustice.

Justice must not only be done, but it must be seen to be done.



Head spinning developments in the so-far ‘non-trial’ of Bunkerville defendants

Caution: Following the Bunkerville standoff trial proceedings can cause whiplash.

Today the federal judge again delayed the start of the trial for Cliven Bundy, his sons Ammon and Ryan, and self-styled militia member Ryan Payne. This time for a week. She agreed to hold hearings after Cliven Bundy’s attorney asked the charges be dropped because the prosecution had failed to reveal any recordings or notes taken off live surveillance video of the Bundy ranch during the April 2014 standoff. Ryan Bundy raised the question as to whether there was surveillance video several weeks ago.

“If it has potentially useful information, then the defense is entitled to it,” the judge is quoted by Reuters as saying. “I‘m not convinced that it doesn’t exist.”

The federal agents reportedly shredded documents after the standoff ended.

And now, after more than a year and a half in jail, the judge said she would hold a hearing Thursday to determine the four men should be hould be released from jail during the trial. “It’s possible a halfway-house setting could be devised,” the judge is quoted as saying by the AP. Now but not a year and half ago?

The four face felony charges, including conspiracy, assault and threats against federal officers, firearms counts, obstruction and extortion for which a conviction could carry a sentence of 170 year in prison.

So far, in the case — which goes out of the armed protest against the BLM attempted confiscation of Bundy’s cattle for refusing to pay grazing fees — two have been acquitted by a jury, two have pleaded to a misdemeanor and released on time served, one pleaded to conspiracy charge and faces up to six years in prison, another was convicted and sentenced to seven years another was convicted and sentenced to 68 years in prison and still another was convicted and is awaiting sentencing but faces up to 30 years.
 The trial of six more defendants, including two more Bundy sons, Dave and Mel Bundy, is scheduled for 30 days after the current trial ends.

Equal justice or crapshoot?

Outside courthouse (R-J pix)

What fate awaits the Bunkerville standoff defendants in latest trial?

Bunkerville standoff. (R-J pix)

Equal justice under the law?

Today Bunkerville rancher Cliven Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, go on trial in federal court in Las Vegas for charges stemming from the April 2014 armed standoff with BLM agents attempting to confiscate Bundy’s cattle for failure to pay grazing fees on public land. Charges include obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

They have been jailed for nearly two years pending trial. The trial is expected to take months to complete. Six more defendants, including two more Bundy sons, Dave and Mel Bundy, is scheduled for 30 days after the current trial ends.

In an earlier trial defendants Ricky Lovelien of Oklahoma and Steven Stewart of Idaho were acquitted of all charges by a jury. That jury acquitted two others of many charges but could not reach a unanimous verdict on four counts against Eric Parker and two counts against Scott Drexler, both of Idaho. Parker’s attorney told The Associated Press that a juror told him that votes were 11-1 for acquittal on those six counts.

Parker and Drexler have since pleaded guilty to a misdemeanor and released for time served.

Internet blogger Peter Santilli entered a guilty plea to a conspiracy charge earlier this month and faces a potential six-year term.

Gerald “Jerry” DeLemus of New Hampshire pleaded guilty to conspiracy to commit an offense against the U.S. and interstate travel in aid of extortion. He was sentenced to seven years in prison.

A jury convicted Gregory Burleson of Arizona of eight counts, including assault, threats, extortion, obstruction of justice, and multiple gun charges. He was sentenced to more than 68 years in federal prison. Todd Engel of Idaho was convicted by the same jury but apparently has not yet been sentenced but faces up to 30 years in prison.

The fate of those now on trial may depend largely upon who is picked as jurors. The judge in the case has ruled that the defendants may not argue that their actions were justified by the First Amendment right to free speech or their Second Amendment right to bear arms. She concluded, “The Court will not permit argument, evidence, or testimony regarding Defendants’ beliefs about the constitution as such beliefs are irrelevant and a possible jury nullification attempt.”

So far the Bunkerville prosecutions have not resulted in equal outcomes.

Facade of U.S. Supreme Court