United States v. Bundy
| Decision Date | 30 December 2016 |
| Docket Number | Case No. 2:16-cr-00046-GMN-PAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CLIVEN BUNDY, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
(Mots. to Dismiss - ECF Nos. 702, 710)
This matter is before the court on Defendants Peter T. Santilli, Jr. and Ryan W. Payne's Motions to Dismiss (ECF No. 702, 710). These Motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice. On December 9, 2016, the court held a hearing on these Motions. Present was counsel for Payne, William Carrico, Brenda Weksler, Ryan Norwood, and Cristen Thayer, counsel for Santilli, Chris Rasmussen, and counsel for the government, Steven Myhre, Nicholas Dickinson, Nadia Ahmed, and Erin Creegan.
The court has considered the Motions, the Joinders of Defendants Cliven D. Bundy, Melvin D. Bundy, Ammon E. Bundy, Peter T. Santilli, Jr., Dave H. Bundy, Joseph D. O'Shaughnessy, Eric J. Parker, O. Scott Drexler, Richard R. Lovelien, Steven A. Stewart, Todd C. Engel, Gregory P. Burleson, Micah L. McGuire, Jason D. Woods (ECF Nos. 713, 715, 721, 722, 728, 739, 761, 762, 779, 784, 821, 827, 836, 846, 880), the government's Response (ECF No. 921), Payne's Reply (ECF No. 950), and the arguments of counsel at the hearing.
The superseding indictment (ECF No. 27) in this case arises out of a series of events related to a Bureau of Land Management ("BLM") impoundment of Cliven Bundy's cattle following a two-decade-long battle with the federal government. Beginning in 1993, Cliven Bundy continued to graze cattle on land commonly referred to as the "Bunkerville Allotment" without paying required grazing fees or obtaining required permits. The United States initiated civil litigation against Cliven Bundy in 1998 in the United States District Court for the District of Nevada. The court found that Cliven Bundy had engaged in unauthorized and unlawful grazing of his livestock on property owned by the United States and administered by the Department of the Interior through the BLM. The court permanently enjoined Cliven Bundy from grazing his livestock on the Allotment, ordered him to remove them, and authorized the BLM to impound any unauthorized cattle. Bundy did not remove his cattle or comply with the court's order and injunction. The United States went back to court. Subsequent orders were entered in 1999 and 2013 by different judges in this district permanently enjoining Bundy from trespassing on the Allotment and land administered by the National Park Services ("NPS") in the Lake Mead National Recreation Area,1 ordering Bundy to remove his cattle, and explicitly authorizing the United States to seize, remove, and impound any of Bundy's cattle for future trespasses, provided that written notice was given to Bundy.
On February 17, 2014, the BLM entered into a contract with a civilian contractor in Utah to round up and gather Bundy's trespass cattle. BLM developed an impoundment plan to establish a base of operations on public lands near Bunkerville, Nevada, about seven miles from the Bundy ranch in an area commonly referred to as the Toquop Wash. On March 20, 2014, BLM also entered into a contract with an auctioneer in Utah who was to sell impounded cattle at a public sale. Bundy was formally notified that impoundment operations would take place on March 14, 2014. The following day, Bundy allegedly threatened to interfere with the impoundment operation by stating publicly that he was "ready to do battle" with the BLM, and would "do whatever it takes" to protect "his property." The superseding indictment alleges that after being notified that BLM intended to impound his cattle, Bundy began to threaten to interfere with the impoundment operation, and made public statements he intended to organize people to come to Nevada in a "range war" with BLM and would do whatever it took to protect his cattle and property.
The superseding indictment alleges that, beginning in March 2014, the 19 defendants charged in this case planned, organized, conspired, led and/or participated as followers and gunmen in a massive armed assault against federal law enforcement officers to threaten, intimidate, and extort the officers into abandoning approximately 400 head of cattle owned by Cliven Bundy. The removal and impoundment operation began on April 5, 2014. On April 12, 2014, defendants and hundreds of recruited "followers" executed a plan to recover the cattle by force, threats, and intimidation. Defendants and their followers demanded that officers leave and abandon the cattle and threatened to use force if the officers did not do so. The superseding indictment alleges armed gunmen took sniper positions behind concrete barriers and aimed their assault rifles at the officers. Defendants and their followers outnumbered the officers by more than 4 to 1, and the potential firefight posed a threat to the lives of the officers, as well as unarmed bystanders which included children. Thus, the officers were forced to leave and abandon the impounded cattle.
After the April 12, 2014 confrontation with federal officers, the superseding indictment alleges that the leaders and organizers of the conspiracy organized armed security patrols and check points in and around Cliven Bundy's Bunkerville ranch to deter and prevent any future law enforcement actions against Bundy or his co-conspirators, and to protect Bundy's cattle from future law enforcement actions.
As relevant to the current motions, all 19 defendants are charged in the following counts:
Counts Three, Six, Nine, and Fifteen (the "§ 924(c) Counts") each allege use and carry of a firearm in relation to a crime of violence pursuant to 18 U.S.C. § 924(c) and § 2.2 Santilli and Payne's motions contend that the § 924(c) Counts must be dismissed because the predicate crimes alleged in Counts Two, Five, Eight, and Fourteen (collectively, the "underlying charges") are not crimes of violence within the meaning of 18 U.S.C. § 924(c)(3). Section 924(c) defines the term "crime of violence" as a felony offense that:
18 U.S.C. § 924(c)(3). Subsection (A) is often referred to as the "force clause" or the "elements clause," and subsection (B) is known as the "residual clause" or the "risk-of-force clause."
Santilli's Motion (ECF No. 902) contends that Count Three must be dismissed because the conspiracy offense charged in Count Two is not a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3). Count Two charges defendants with conspiracy to impede or injure a federal officer in violation of 18 U.S.C. § 372. The motion asserts that, under the categorical approach, § 372 criminalizes more conduct than the conduct defined as a "crime of violence" in § 924(c)(3)(A) (the "force clause") because a conspiracy does not require physical force or "attach the requisite mens rea," i.e., the statute does not require that the physical force be inflicted intentionally, as opposed to recklessly or negligently. Additionally, § 372 is an indivisible statutewith regard to the phrase "force, intimidation, or threat" because these words refer to three means of conspiring to prevent a federal official from discharging his duties, not alternative elements of the offense. Therefore, the court cannot apply the modified categorical approach in its analysis. Santilli argues that even if § 372 is divisible, the alternative elements of § 372 would still fail to state a crime of violence under the force clause.
Santilli also argues that the alternative "crime of violence" definition stated in § 924(c)(3)(B) (the "residual clause") is void for vagueness. The Supreme Court recently struck down a similar provision defining "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because it was unconstitutionally vague. Johnson v. United States, --- U.S. ----, 135 S. Ct 2551 (2015) ("Johnson II"). Pursuant to Johnson II, Count Three cannot qualify as a...
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