United States v. Bundy

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: BYBEE, Circuit Judge
• Citation: United States v. Bundy, 968 F.3d 1019 (9th Cir. 2020)
• Decision Date: 06 August 2020
• Docket Number: No. 18-10287,18-10287
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Cliven D. BUNDY, aka Cliven Bundy; Ryan C. Bundy; Ammon E. Bundy; Ryan W. Payne, Defendants-Appellees.

968 F.3d 1019

UNITED STATES of America, Plaintiff-Appellant,

v.Cliven D. BUNDY, aka Cliven Bundy; Ryan C. Bundy; Ammon E. Bundy; Ryan W. Payne, Defendants-Appellees.

No. 18-10287

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 29, 2020 Las Vegas, Nevada

Filed August 6, 2020

Elizabeth O. White (argued), Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney's Office, Reno, Nevada; for Plaintiff-Appellant.

Larry E. Klayman (argued), Washington, D.C., for Defendant-Appellee Cliven D. Bundy.

Amy B. Cleary (argued), Cristen C. Thayer, and Ellesse Henderson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellee Ryan W. Payne.

Daniel Hill, Hill Firm, Las Vegas, Nevada, for Defendant-Appellee Ammon E. Bundy.

Alyssa D. Bell, Cohen Williams LLP, Los Angeles, California, for Defendant-Appellee Ryan C. Bundy.

Before: William A. Fletcher, Jay S. Bybee, and Paul J. Watford, Circuit Judges.

BYBEE, Circuit Judge:

Cliven Bundy, two of his sons, Ryan and Ammon Bundy, and sixteen other persons were charged with obstructing federal law enforcement officials carrying out lawful court orders. The indictments followed a well-publicized effort by the Bureau of Land Management (BLM) to impound Cliven Bundy's cattle for a twenty-year failure to pay federal grazing fees. Bundy and hundreds of armed supporters from around the United States forced federal officials to abandon the impoundment plan. Fortunately, no one was injured in the confrontation.

Days into the Bundys’ trial, the government began disclosing information in its possession that, under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was arguably useful to the defense and should have been produced to the defendants well before trial. As additional documents came forth, the district court held a series of hearings, eventually deciding that the trial could not go forward and that the indictments must be dismissed with prejudice. Under Brady , "[t]he prosecution is trusted to turn over evidence to the defense because its interest ‘is not that it shall win a case, but that justice shall be done.’ " Amado v. Gonzalez , 758 F.3d 1119, 1133–34 (9th Cir. 2014) (quoting Strickler v. Greene , 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ). A district court is imbued with discretion in the supervision of proceedings before it and may dismiss an action when, in its judgment, "the defendant suffers substantial prejudice and where no lesser remedial action is available." United States v. Chapman , 524 F.3d 1073, 1087 (9th Cir. 2008) (citations and quotation marks omitted). Finding no abuse of discretion, we affirm the judgment of the district court.

I. BACKGROUND

A. Factual History

This case stems from an infamous standoff between Cliven Bundy, his sons,¹ and groups of dedicated followers and BLM. Bundy lives on 160 acres of land near Bunkerville, Nevada, about eighty miles northeast of Las Vegas, near the Arizona border. It is rugged, Mojave-dry country, bounded by the Gold Butte National Monument and the Lake Mead National Recreation Area, and watered by the Virgin River—which, by any standards, is more a creek than a river. For decades, Bundy and his family have grazed their cattle on the more than half a million acres of surrounding federal land. Since the early 1990s, Bundy has refused to obtain permits and pay fees and fines for grazing his cattle on the federal lands surrounding his property. Several court orders previously found that Bundy's cattle were trespassing on federal land and ordered Bundy to remove his cattle or risk having them impounded. See United States v. Bundy , No. 2:12-cv-0804, 2013 WL 3463610, at *1–3 (D. Nev. July 9, 2013) (authorizing the government to "seize and remove to impound any of Bundy's cattle for any future trespasses"); see also United States v. Bundy , 178 F.3d 1301 (9th Cir. 1999) (unpublished table decision). Bundy ignored those orders, claiming that he had "vested grazing rights" and that the State of Nevada, not the United States, was the rightful owner of the lands.

In early 2014, BLM began putting into place a large-scale operation to impound Bundy's cattle. The plan called for contractors from Utah to round up cattle that were trespassing on federal land. The cattle would then be sold at auction. BLM notified Bundy of its intentions in mid-March of 2014. Bundy did not respond to the notices, but in interviews with local papers stated that he was "ready to do battle with the BLM," that he would muster family, friends, and supporters, and "do whatever we have to after that."

BLM made extensive preparations for "Operation Gold Butte Impound." Coordinating with agents from the National Park Service and Federal Bureau of Investigation, BLM anticipated resistance from Bundy and his supporters. It planned to escort the contractors in and out of the area each day. BLM established a Listening Post/Observation Post (LP/OP) "strategically placed at elevated positions around the Bundy residence each evening" where agents were outfitted with binoculars, spotting scopes, night-vision goggles, and thermal-imaging devices. The LP/OP personnel were to have "agency-issued rifles with them at all times." BLM also established a Tactical Operations Center (TOC), Forward Operating Base (FOB), a media site, and a "free speech area."

On-site operations began the first week of April. On April 6, 2014, another of Bundy's sons, Dave Bundy, blocked a BLM convoy on a state route and was arrested. The Bundys responded by inviting private militia groups such as Operation Mutual Aid, 3 Percenters Club, Freedom and Fighters, and Oath Keepers to come to their defense. The Bundys claimed that the government was taking their cattle and holding one of the Bundys prisoner, and had snipers in position surrounding the Bundy compound. Among those who responded was defendant Ryan Payne, who was a founder of Operation Mutual Aid. Hundreds of Bundy supporters, many heavily armed, poured into the area.

On April 9, 2014, Ammon Bundy led a mob to block a BLM convoy and was tased by officers. Payne used the incident to contact additional militia groups and solicit their help. By April 11, BLM had seized approximately 400 animals. FBI agents informed BLM that the gathering militia posed a significant threat to federal officials and private contractors, and advised BLM to cease the operation. The next day, Bundy and his supporters, then estimated to be more than 200 people, assembled to reclaim Bundy's cattle. Clark County Sheriff Doug Gillespie intervened with Bundy and told the group that BLM had called off the impoundment. Bundy made additional demands, and when they were not met, told the crowd that it was time to "get those cattle." The crowd then moved to the entrance of the impoundment site, located in a dry-wash bed under an Interstate 15 bridge. Armed supporters took up threatening and tactically advantageous positions, pointing guns at BLM officers. Additional supporters arrived, some on horseback, swelling Bundy's ranks to more than 400 people. The Bundys demanded that the officers leave. Heavily outnumbered and interested in avoiding bloodshed, federal officials evacuated the impoundment site and left the cattle for the Bundys to reclaim.

B. Procedural History

1. The Indictment

In March 2016, a federal grand jury indicted nineteen defendants, including Bundy, his sons Ammon and Ryan, and Ryan Payne (collectively, "the defendants"), for a slate of federal crimes stemming from the standoff, including impeding federal officers, threatening federal law enforcement, and extortion, along with conspiracy to commit these crimes. The district court divided the defendants into three groups, according to their degree of involvement. Cliven Bundy, Ryan Bundy, Ammon Bundy, Ryan Payne, and another militia leader, Peter Santilli, were placed in Tier 1. The district began with a trial for the Tier 3 defendants, to be followed by Tier 1 and Tier 2.²

A central pillar of the government's case was the allegation that the defendants recruited armed followers by intentionally deceiving those followers into believing that the Bundys feared for their lives because government snipers surrounded their ranch. According to the indictment, once the large group of supporters had amassed, the defendants were then able to use their followers to thwart the impound operation. Specifically, ¶ 58 of the indictment alleged that the defendants "used deceit and deception to recruit gunmen and other Followers," flooding the internet with "false, deceitful, and deceptive images" for the "unlawful purpose of interfering with impoundment operations, obstructing the execution of federal court Orders and using force and violence against federal law enforcement officials." Paragraph 84 further stated that the defendants had created "false, deceitful and deceptive statements to the effect that the BLM supposedly: employed snipers against Bundy family members ...." As for Ryan Payne, ¶ 88 alleged that on April 7, 2014, he had posted messages to followers "stating falsely, among other things, that the Bundy Ranch was surrounded by BLM snipers, that the Bundy family was isolated, and that the BLM wanted BUNDY dead." Regarding Bundy, ¶ 92 of the indictment recounted how, on April 8, 2014, he had broadcast a statement saying, "they have my house surrounded ... the federal government is stealing my property ... [the BLM] are armed with assault rifles ... they have snipers." The indictment contended that this statement was deceitful and made with "the purpose of recruiting gunmen and other Followers" to come to the Bundy Ranch and obstruct the impoundment.

2. The Motion-in-Limine Order

In preparation for trial, the defendants requested any potentially exculpatory evidence under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),...