Cliven Bundy standoff case thrown out in another stunning blow to government

The Oregonian 1/8/18 by Maxine Bernstein

LAS VEGAS -- A judge Monday threw out criminal charges against Nevada cattleman Cliven Bundy, his two sons and a co-defendant in their 2014 standoff with federal agents, citing "flagrant misconduct" by prosecutors and the FBI in not disclosing evidence before and during trial.

"The government's conduct in this case was indeed outrageous," said U.S. District Judge Gloria M. Navarro. "There has been flagrant misconduct, substantial prejudice and no lesser remedy is sufficient."

The judge issued her ruling before a packed courtroom with nearly 100 spectators inside and more than a dozen others waiting outside the doors. Cliven Bundy's lawyer put his arm around his client. Supporters held hands, wiped tears from their eyes and hugged. One looked up and whispered, "Thank you, Lord.''

The dismissal with prejudice, meaning prosecutors can't seek a new trial, marked an embarrassing nadir for the government, which now has failed to convict the Bundys in two major federal cases stemming from separate armed standoffs.

The second stunning victory for the Bundys and their followers may serve to bolster their fight against federal control of public land, but it's not clear how their movement has fared.

The three have spent most of the last two years in jail. Ammon Bundy, who led the 2016 takeover of the Malheur National Wildlife Refuge in Oregon, owes at least $180,000 in legal fees in that case and said most of the national clients for his business, a vehicle fleet service, have left out of fear.

But he promised to keep working for his cause. "I'm not done fighting by any means," he said. 

Cliven Bundy called himself a "political prisoner" for 700 days and said his argument lies with local authorities, not the federal government.

"I come in this courtroom an innocent man and I'm going to leave as an innocent man," he said.

"My defense is a 15-second defense," he said. "I raised my cattle only on Clark County, Nevada, land and I have no contract with the federal government. This court has no jurisdiction and authority over this matter."

The Bundy patriarch said Nevada's governor, Clark County, Nevada, commissioners and the sheriff were "aiders and abettors'' and "terrorists'' for failing to protect his family's rights, property and liberties.

He said he plans to go home and have a "good steak,'' continue to graze his cattle and will talk more at a news conference Tuesday outside the Clark County Sheriff's Office.

Bundy, 71, sons Ammon Bundy, 45, and Ryan Bundy, 42, and co-defendant Ryan Payne, 34, were indicted last year on conspiracy and other allegations, accused of rallying militia members and armed supporters to stop federal officers from impounding Bundy cattle in April 2014 near Bunkerville.

The government authorities were acting on a court order filed after Cliven Bundy failed to pay grazing fees and fines for two decades. Outnumbered, the federal contingent retreated and halted the cattle impoundment on April 12, 2014.

Prosecutors and the lead FBI agents in the case quietly sat listening to the judge's ruling. They didn't make any statements in court.

Later, Nevada's interim U.S. Attorney Dayle Elieson, released a short statement, saying, "We respect the court's ruling and will make a determination about the next appropriate steps.''

The government may appeal the dismissal. The prosecution team in recent weeks added a new assistant U.S. attorney, Elizabeth White, the chief appellate lawyer in the Nevada U.S. Attorney's Office. Attorney General Jeff Sessions also sent an evidence discovery expert to the federal prosecutors' office in Las Vegas to review the case.

Public land advocates fear the fumbling of the Nevada case, following the 2016 jury acquittals of the Bundy brothers and others in the armed takeover of the Oregon wildlife refuge, will buoy the Bundys' claims of federal government overreach and embolden militias to engage in future showdowns over who has authority over public land.

"This is an outrage, a total miscarriage of justice,'' said Patrick Donnelly, Nevada state director for the Center for Biological Diversity, outside the courthouse. "The prosecution mangled this case. It should have been a slam dunk.''

Donnelly said he thinks the dismissal will invigorate the Bundys' "fringe movement,'' though he doesn't think their actions have led to a huge rise in support.

"Bundy is an outlier," he said. "This whole movement is an outlier fringe movement. But it only takes a handful.''

Jonathan Greenblatt, chief executive officer of the Anti-Defamation League, decried the government's mistakes and also predicted similar confrontations in the future.

"This case represented the last opportunity for justice in this case of extremists who had organized in armed opposition to the government,'' he said.

The judge on Dec. 20 had declared a mistrial in the case after finding prosecutors withheld six types of evidence from defendants, representing at least 1,000 pages of documents, that should have been shared at least a month before the trial started in November. She said then that she would consider whether to dismiss the case outright or allow a new trial.

On Monday, she spent a half-hour delivering a scathing assessment of the prosecution's and the FBI's conduct as she tossed out the charges.

Navarro found prosecutors engaged in a "deliberate attempt to mislead" and made several misrepresentations to both the defense and the court about evidence related to a surveillance camera and snipers outside the Bundy ranch in early April 2014, as well as threat assessments made in the case.

"The court is troubled by the prosecution's failure to look beyond the FBI file," she said.

She said she "seriously questions" that the FBI "inexplicably placed'' but "perhaps hid" a tactical operations log that referred to the presence of snipers outside the Bundy residence on a "thumb drive inside a vehicle for three years,'' when the government has had four years to prepare the case.

"The court has found that a universal sense of justice has been violated,'' Navarro said.

The judge said it was especially egregious that the prosecutors chose not to share documents that the defendants specifically asked for in pretrial motions and "grossly shocking'' that the prosecutors claimed they weren't aware the material would help the defendants in their defense.

"The government was well aware of theories of self-defense, provocation and intimidation,'' Navarro said. "Here the prosecution has minimized the extent of prosecutorial misconduct.''

Just before the hearing, Ryan Bundy led relatives and supporters in prayer in the courtroom corridor, even saying a prayer for the judge.

"Father in heaven ... we thank you for the protection that was given to us over this duration of time and through this trouble," he said, his head bowed as he held his cowboy hat over his chest. "We ask that you bless Judge Navarro and she will choose to side with thee and liberty. ... Father in heaven, we need our father home. Father in heaven, we need freedom back in our land."

After the judge's decision, Ryan Bundy said, "It's about time. It's about time."

Ammon Bundy, holding black bound copies of the Bible and the Book of Mormon, called his wife and said he was heading back to Emmett, Idaho. "I'm going to go home, take care of my family and go to work," he said.

He also plans to celebrate his youngest child's birthday. The boy, Elias, turned 3 on Monday and Bundy missed the first two birthdays while he was in custody or at the Malheur refuge.

Ammon and Ryan Bundy have been out of jail since November, when they were allowed to stay in private homes under GPS monitoring. But their father declined to be released then because he said other defendants remained behind bars.

After the dismissal, Cliven Bundy tried to walk out of the courtroom in his blue jail garb and ankle shackles but was blocked by deputy marshals. He was released soon after, wearing a cowboy hat, gray tweed blazer and cowboy boots. He took hugs and handshakes from supporters.

For Ryan Payne, who awaits sentencing after pleading guilty to conspiracy in the Oregon refuge takeover, the judge's ruling was "bittersweet,'' said his attorney, assistant federal public defender Brenda Weksler. Payne was ordered to report to the U.S. Marshal's Service.

He remained on GPS monitoring and home detention late Monday. He'll appear by phone in a hearing Tuesday with Oregon's U.S. District Judge Anna J. Brown to determine if he'll be held while awaiting sentencing in the refuge case.

"This prosecution has really been a tragedy for everyone involved,'' said Ryan Norwood, Payne's co-counsel. "Ryan Bundy, Cliven and Ammon lost two years of their lives from this.''

Co-defendants convicted during two earlier Bunkerville trials are likely to seek the dismissal of their cases through appeals, arguing that they went to trial without the evidence that came out piecemeal during this trial.

But defendants still awaiting trial -- Cliven Bundy's sons Melvin Bundy and Dave Bundy, Jason Woods and Joseph O'Shaughnessy -- are in a different category. The judge ruled that they couldn't join their father and brothers' motion to dismiss the charges because they failed to demonstrate how the prosecution's violations harmed their rights. The deadlines for the government's sharing of evidence hasn't expired yet for their cases, and the judge set their trial date for Feb. 26.

Prosecutors had argued that any failure to provide evidence was "inadvertent'' or because they reasonably believed the law didn't require them to share the material. They had sought a new trial, contending that they "neither flagrantly violated nor recklessly disregarded" their evidence obligations, but believed the material they failed to promptly share wasn't relevant for the defendants' defense.

Lead prosecutor Steven Myhre wrote in a court brief that he and his colleagues believed the court's restrictions barring self-defense arguments during the earlier Nevada standoff trials meant his team didn't have to share information about certain aspects of the law enforcement response. Myhre until last week served as Nevada's acting U.S. attorney but is now back in his earlier role as first assistant U.S. attorney.

The judge, however, found the prosecutors' violations were "willful" and led to due process violations. She said they waited too long to provide FBI and other agency reports, tactical logs and maps on surveillance, including the location of a camera and snipers, outside the Bundy ranch; threat assessments that indicated the Bundys weren't violent; and nearly 500 pages of U.S. Bureau of Land Management internal affairs documents that included paperwork indicating that cattle grazing hadn't threatened the desert tortoise, considered an endangered species.

Late disclosures of evidence trickled out just before and during the start of the trial "by happenstance,'' defense lawyers noted. One government witness under cross-examination by Ryan Bundy, for example, acknowledged watching live-feed video images from an FBI surveillance camera and another referenced a 2012 FBI threat assessment that determined the Bundys weren't likely to be violent.

In pretrial motions, Ryan Bundy requested evidence on any "mysterious devices'' outside the Bundy ranch in early April 2014 and Payne's lawyers sought all threat assessments in July 2017, but prosecutors didn't turn over the information until ordered days before or during trial.

Defense lawyers argued that the government didn't "seem to recognize'' or "professed ignorance'' on what constituted Brady material, required by the 1963 landmark U.S. Supreme Court ruling in Brady v. Maryland to be shared with the defense.

They urged dismissal, saying it was the only remedy for the government's callous disregard of its constitutional obligations to share any potentially favorable evidence with the defense.

Cliven Bundy's lawyer said he took no joy in seeing other lawyers getting rebuked for misconduct, but called the judge's ruling the right one.

At the end of the day, Bret Whipple said, the biggest takeaway from the dismissal is the importance of "fairness and due process.''

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