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.

Bundy prosecutors keep flogging a false scenario

Federal prosecutors trying to get charges reinstated against Bunkerville rancher Cliven Bundy and his sons have dragged out a base canard once again.

A judge threw out the case because the prosecutors had failed to disclose potentially exculpatory evidence to the defense.

In a section of the 88-page brief filed with the 9th U.S. Circuit Court of Appeals that argues that prosecutors were simply trying to balance disclose of data against “protecting witnesses and victims from real and on-going threats,” prosecutors note that “in June 2014, Jerad and Amanda Miller, two extremists who had been at Bundy’s property in April, murdered two Las Vegas police officers as they ate lunch, then draped a Gadsden flag over one of the officers and shouted this was the start of ‘a revolution,’ and later killed a civilian as well.”

What they continue to neglect to mention is that the Millers were a couple of leftist, anti-authoritarian lunatics who showed up at the Bundy ranch standoff with BLM agents trying to confiscate his cattle but were told by the Bundys to leave because of their “very radical” views.

The couple also showed up at a left-leaning march in Lafayette, Ind., the previous November, according to a CBS affiliate in Chicago.

While living in Lafayette, Jerad Miller and his wife Amanda took part in the “Million Mask March,” a gathering of protesters from the Occupy movement, anarchists, and hacktivists, the television station reported.

Linking the lunatic Millers with the Bundys is ridiculous. The Millers were killed in a standoff with police.

Jerad and Amanda Miller

 

Newspaper column: Bundy lawsuit addresses public land ownership

A civil lawsuit filed on behalf of Bunkerville rancher Cliven Bundy in state district court asks the court to declare that the public land on which Bundy grazes his cattle is owned by Nevada and Clark County, not the federal government.

The chances of success are most likely slim and none, but the suit raises some salient points about the power of the federal bureaucracy to hold sway over more than 85 percent of the land in Nevada.

Bundy and his sons are notorious for the 2014 armed standoff with Bureau of Land Management agents who attempted to confiscate his cattle for his failure to pay $1 million in grazing fees and fines over two decades. Federal criminal charges against the remaining defendants in that case were dismissed when the judge ruled the prosecution failed to turn over potentially exculpatory evidence to the defendants.

Cliven Bundy (R-J pix)

The civil lawsuit — drafted by Larry Klayman, often described as an activist right-wing lawyer and founder of Judicial Watch, and Craig Mueller, who earlier this year lost a primary bid for attorney general — cites court cases, U.S. and Nevada constitutional history, the Treaty of Guadalupe Hidalgo in which Mexico ceded much of the West to the United States and legislative proclamations.

The suit notes the state Legislature has never consented to allow the U.S. government to own more than 85 percent of the land within the state’s borders.

When the Constitution was being drafted James Madison raised concerns about giving Congress too much power to purchase land in the states, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Constitutional Convention delegate Rufus King moved to add the phrase “by consent of the legislature of the state” to the section that mentioned the federal government owning forts, docks and “other needful Buildings.” It passed unanimously. With the exception of the Nevada Test Site, few of the federal land holdings in Nevada have been with the consent of the Legislature.

Bundy’s suit further explains the intent of a section of the Nevada Constitution known as the Disclaimer Clause that said the state does “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

Klayman and Mueller write, “The intent of the Territorial Legislature was not to ceed (sic) the land to the US Government ‘forever’, but to clear title of all unappropriated lands within the Territory so U.S. Congress could dispose of the lands to the State of Nevada.”

Which is probably why the admission document promised 5 percent of the proceeds to Nevada when land would be “sold by the United States subsequent to the admission of said state into the Union …”

In fact, though the suit doesn’t mention it, that so-called Disclaimer Clause was repealed by the voters in 1996, “effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary …” Might the court make such a legal determination? Doubtful.

The lawsuit also mentions a section of Nevada Revised Statutes 321 that declared, “The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada’s borders because: … The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states. … The purported right of ownership and control of the public lands within the State of Nevada by the United States is without foundation and violates the clear intent of the Constitution of the United States.”

Not only has the Legislature not consented, it has vehemently protested.

The lawsuit points out on four occasions that the Bundy ranch has been in existence for 141 years, during which it has held water, grazing and property rights, adding that Bundy “has suffered substantial injury, as his cattle are his only source of income … (and) is entitled to declaratory judgment that the lands upon which he and his family have conducted its ranching, The Bundy Ranch, for generations is property belonging to the People of Nevada and its subdivision, Clark County …”

The suit raises some serious questions.

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.

Newspaper column: Pardon for Oregon ranchers just the first step

Etched in stone above the entrance of the U.S. Supreme Court building in Washington are the words: “Equal justice under law.”

The treatment of father and son Oregon ranchers by the federal judicial system makes a travesty of those words, though President Trump’s pardon this past week is a first step toward rectifying their injustice.

In 2001 Dwight Hammond and his son Steven started a fire on their own Harney County ranch to burn off juniper and sagebrush. The fire accidentally escaped their property and burned 139 acres of Bureau of Land Management land.

In 2006, lightning started several fires and the Hammonds set a backfire to try to prevent the fire from spreading to their crops and buildings. That fire burned a single acre of public land.

Hammonds return home. (AP pix)

The White House statement explaining the presidential pardon noted that the judge who originally sentenced Dwight Hammond to three months and Steven to a year had said that prosecutors’ demands that the pair be sentenced to a minimum mandatory five years under a 1996 anti-terrorism law passed after the Oklahoma City bombing would “shock the conscience” and be “grossly disproportionate to the severity” of their conduct.

“The previous administration, however, filed an overzealous appeal that resulted in the Hammonds being sentenced to five years in prison,” the statement reads. “This was unjust.”

That resentencing is what prompted the 41-day takeover of the Malheur National Wildlife Refuge in protest, though the Hammonds themselves did not condone the protest and instead quietly returned to prison.

Most of the protesters, including two of Bunkerville rancher Cliven Bundy’s sons, were later acquitted of federal charges.

The White House statement concluded, “Dwight Hammond is now 76 years old and has served approximately three years in prison. Steven Hammond is 49 and has served approximately four years in prison. They have also paid $400,000 to the United States to settle a related civil suit. The Hammonds are devoted family men, respected contributors to their local community, and have widespread support from their neighbors, local law enforcement, and farmers and ranchers across the West. Justice is overdue for Dwight and Steven Hammond, both of whom are entirely deserving of these Grants of Executive Clemency.”

This is an understatement considering that in the five years after the passage of the 1996 anti-terrorism law at least 16 members of self-styled environmental groups ALF and ELF conspired to damage or destroy private and government property. None was sentenced to more than 36 months.

Then there were the two 2012 fires near the Hammonds’ ranch. Though started by lightning strikes, federal authorities used backfires in an attempt to contain the Long Draw and Miller Homestead fires. Instead, the fires consumed nearly 620,000 acres. No one was charged.

In 2000 the National Park Service decided to use a ‘’prescribed’’ burn to clear debris in the Bandelier National Monument area, but when winds picked up the fire destroyed 400 homes and forced the evacuation of 18,000 people in Los Alamos and shut down the nuclear weapons operations at Los Alamos National Laboratory.

The supervisor who ordered the preventive fire, like the 2001 fire set by the Hammonds, was suspended but later retired. No charges.

A 2012 “prescribed” burn by a Colorado state agency southwest of Denver killed three people and destroyed or damaged more than two dozen homes. No charges.

In October 2016 a “prescribed” burn by a state agency in Northern Nevada consumed 2,300 acres, destroyed 23 homes and 17 out buildings and resulted in smoke inhalation injuries to four people. Damages estimated at $4 million. The state agency apologized.

A few weeks ago a “prescribed” burn in the Florida panhandle destroyed 36 homes and burned 800 areas.

Also earlier this summer, a “prescribed” burn in Emery County, Utah, meant to clear off 2,400 acres of dead timber and other fire fuel spread to cover more than 18,000 acres.

Meanwhile, after years in jail and supervised probation and a $400,000 fine, the Hammonds also lost their grazing permit in 2014.

The Hammonds have returned home, but equal justice under law will not be served until their property and livelihoods are restored.

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.

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.

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)