United States v. Bundy, Case No. 2:16-cr-00046-GMN-PAL

• Decision Date: 07 February 2017
• Docket Number: Case No. 2:16-cr-00046-GMN-PAL
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. RYAN BUNDY, Defendant.
• Court: U.S. District Court — District of Nevada

UNITED STATES OF AMERICA, Plaintiff, v. RYAN BUNDY, Defendant.

Case No. 2:16-cr-00046-GMN-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

February 7, 2017

ORDER

This matter is before the Court on Defendant Ryan C. Bundy's Motion for Own Recognizance or Bail Pending Trial (ECF No. 1082). On January 9, 2017, the Court granted Defendant's motion to reopen the detention hearing to afford him the opportunity to (1) present evidence to refute the probable cause finding underlying the superceding indictment and the rebuttable presumption that Defendant poses a substantial risk of nonappearance and a danger to the community; and (2) to present evidence showing that he does not pose a risk of nonappearance or danger to the community and that conditions of pretrial release can be fashioned. See Order (ECF No. 1263) (the provisions of which are incorporated into this order as if set forth in their entirety).

BACKGROUND AND DISCUSSION

The reopened detention hearing was conducted on January 31, 2017. Mr. Bundy elected to testify under oath and be subject to cross-examination. He testified at length on his own behalf and was cross-examined by counsel for the Government. Defendant called three other witnesses: (1) retired Las Vegas Metropolitan Police Department (LVMPD) officer Mark McEwen, (2) Shem Teerlink, and (3) Defendant's wife, Angela Bundy. Defendant also submitted numerous letters from family members, friends, and members of his community attesting to his good character, and their belief that he is not a danger to any other person or the community, and that he does not pose a risk of nonappearance. See Notice of Filing Exhibits A Through Q Letters in Support of Ryan C. Bundy (ECF Nos. 1445, 1473, 1533).

The Government submitted to following exhibits as rebuttal to Defendant's evidence:

1. Audio of a March 17, 2014 telephone conversation between Defendant Ryan Bundy and BLM Special Agent Johnson;

2. Video of events on March 28, 2014 when trucks and cattle trailers operated by BLM contractors entered the area to commence cattle removal operations and were met by some of the Defendants or their supporters who were on foot or horseback;

3, 4. Video interviews with Defendant Ammon Bundy on April 12, 2014 as he proceeded in a vehicle to the Impoundment Site where BLM officers and cattle were located;

5. Video of the encounter between Defendant Ammon Bundy and BLM Special Agent D. Love at the gate to the Impoundment Site;

6. Video of the encounter between Defendant Ammon Bundy and Las Vegas Metropolitan Police Officer T. Roberts at the gate to the Impoundment Site;

7. Video of Defendant Ryan Bundy and BLM Special Agent D. Love discussing the release of the cattle;

8. Video interview of Defendant Ammon Bundy on April 12, 2014 following the release of the cattle;

9. Video of Defendant Ryan Bundy addressing Defendants' supporters regarding the resolution of the incident on April 12, 2014;

10. Video of an interview with Defendant Ammon Bundy on April 12, 2014 after the release of the cattle and conclusion of the incident at the Impoundment Site;

11. November 1, 2016 Washington Post newspaper article that quotes Defendant Ryan Bundy; and

12. Court Minute Order regarding the hearing on December 9, 2016.

Because these exhibits were not played or presented during the hearing itself, the Court granted Defendant Bundy leave to file a written objection or response to the Government's exhibits. Defendant Bundy filed his written response and objection to the Government's exhibits on February 7, 2017. Response (ECF No. 1532). The Court has read and considered that response and objection.

18 U.S.C. § 3142(g) states that in determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of any other person and the community, the court shall take into account (1) the nature and circumstances of the offense charged,including whether the offense is a crime of violence, or involves a firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the defendant including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

As previously stated, Defendant Bundy's family ties, residential and employment history, and lack of any history of alcohol or controlled substance abuse generally support a finding that he does not pose a risk of nonappearance or a danger to the community, and that to the extent he does, conditions of pretrial release could be fashioned to address those risks. Order (ECF No. 1263), pg. 13. Defendant presented additional evidence at the hearing in support of his strong family and community ties, his work history, and his generally responsible and peaceful nature. This includes numerous letters from family members, friends, and members of Defendant's community. It also includes the hearing testimony of Defendant's long time friend Shem Teerlink, retired LVMPD Officer Mark McEwen and Defendant's wife, Angela Bundy, who testified to Defendant's good moral character, and responsible and caring nature, as a spouse, parent, family member and friend. The issue is whether Defendant should nevertheless be detained as a risk of nonappearance or danger to the community based on the nature and circumstances of the charges against him, the weight of the evidence in support of those charges, and other information provided to the Court relating to the risk of nonappearance or danger to the community.

18 U.S.C. § 3142(f) states that "[t]he facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence." The Government has the burden of showing by a preponderance of the evidence that the defendant poses a risk of flight. United States v. Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015) (citing United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991).

18 U.S.C. § 3142(j) states that "[n]othing in this section shall be construed as modifying orlimiting the presumption of innocense." Although the Court is allowed to consider the weight of the evidence against the accused in determining whether he should be detained, this is the least important of the various factors. United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). Motamedi further states:

Although the statute permits the court to consider the nature of the offense and the evidence of guilt, the statute neither requires nor permits a pretrial determination that the person is guilty. See United v. Edson, 487 F.2d 370, 372 (1st Cir. 1973); United States v. Alston, 420 F.2d 176, 179 (D.C.Cir. 1969). These factors may be considered only in terms of the likelihood that the person will fail to appear or will pose a danger to any person or to the community. See 18 U.S.C. § 3142(g); Edson, 487 F.2d at 372. Otherwise, if the court impermissibly makes a preliminary determination of guilt, the refusal to grant release could become in substance a matter of punishment.

Id.

The superceding indictment charges Defendant with (1) conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371; (2) conspiracy to impede or injure a federal officer in violation of 18 U.S.C. § 372; (3) use and carry of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) and 2; (4) assault on a federal officer in violation of 18 U.S.C. § 111(a)(1), (b) and 2; (5) threatening a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B) and 2; (6) obstruction of the due administration of justice in violation of 18 U.S.C. § 1503 and 2; (7) interference with interstate commerce by extortion in violation of 18 U.S.C. § 1951 and 2; and (8) interstate travel in aid of extortion, 18 U.S.C. § 1952 and 2. Superceding Indictment (ECF No. 27). Some of these charges give rise to a rebuttable presumption that Defendant poses a substantial risk of nonappearance and a danger to the community. Order (ECF No. 1263), pg. 7.

The superceding indictment alleges that "[o]n March 17, 2014, a BLM Special Agent notified [Defendant Ryan Bundy] that the Special Agent was available to answer any questions about the impoundment operation. [Defendant Ryan Bundy] became angry and threatened to interfere, stating that he and his family would 'do whatever it takes' and he would 'have several hundred' with him to prevent the BLM from removing the trespass cattle. When asked whether his use of 'whatever it takes' included physical force or violence, [Defendant Ryan Bundy] replied: 'I will do whatever it takes; you interpret that the way you want.'" Superceding Indictment (ECF No. 27), ¶ 51.

The superceding indictment alleges that on April 12, 2014 Defendant Cliven Bundy led a rallyof hundreds of his followers at a Staging Site located approximately 3.5 miles from the Impoundment Site, and directed gunmen and other followers to travel to the Impoundment Site, and to shutdown the freeway near the Impoundment Site. ¶ 125. Defendants Ammon Bundy and Mel Bundy led groups of gunmen and Followers to the Impoundment Site where armed gunmen and Followers confronted federal law enforcement officers. ¶¶ 128-131. The gunmen took up positions from which they trained firearms on the federal officers in the Impoundment Site. Because of the threat of armed violence posed by the gunmen, the federal officers were forced to give into the Defendants' demands and leave the Impoundment Site, abandoning the cattle to Defendant Cliven Bundy. ¶ 142. The...