Bundy standoff case thrown out in another stunning blow to
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
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,
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
"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
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
Just before the hearing, Ryan Bundy led relatives and supporters
in prayer in the courtroom corridor, even saying a prayer for
"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
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.
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
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
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