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United States v. Bundy

United States District Court, D. Nevada

January 9, 2017

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

          ORDER

          GEORGE FOLEY, JR. United States Magistrate Judge.

         This matter is before the Court on Defendant Ryan Bundy's Motion for Own Recognizance or Bail Pending Trial (ECF No. 1082), filed on December 8, 2016. The Government filed its Response (ECF No. 1157) on December 19, 2016 and Defendant filed his Reply (ECF No. 1184) on December 22, 2016. The Court conducted a hearing in this matter on December 23, 2016.

         BACKGROUND

         Defendant Ryan Bundy was initially charged with four other defendants, including his father and brother, in a criminal indictment filed on February 17, 2016. (ECF No. 5) A superceding indictment, filed on March 2, 2016, added fourteen additional defendants. Defendant Ryan Bundy is charged with the following offenses: (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).

         On the date the indictment was filed, Ryan Bundy was already in federal custody in the District of Oregon on charges arising from the alleged take-over of a national wildlife refuge area in January 2016. Defendant was transported to the District of Nevada for his initial appearance and arraignment on April 15, 2016. Mr. Bundy advised the Court that he wished to represent himself. The Court appointed counsel to represent him pending a Faretta hearing. Mr. Bundy declined to enter a plea and a not guilty plea was entered on his behalf. The Government moved to detain Mr. Bundy pending trial as a substantial risk of nonappearance and danger to the community. Defendant requested a continuance of the detention hearing so that he could be interviewed by Pretrial Services. The Court ordered that Defendant be temporarily detained and scheduled the detention hearing for April 20, 2016. Minutes of Proceedings (ECF No. 247). The Court conducted a Faretta hearing on April 19, 2016 and granted Ryan Bundy's request to represent himself. His court appointed attorney, Angela Dows, was appointed as standby counsel. Minutes of Proceedings (ECF No. 285).

         On April 20, 2016, Mr. Bundy moved for a further continuance of the detention hearing, arguing that he was “in need of an evidentiary hearing. We have evidence that can be brought forth but is not here, cannot be had today.” Transcript of Detention Hearing (ECF No. 1140), pgs. 4-5. He also stated that he had been incarcerated under lockdown status and had had little access to his “legal team.” Id. The Court denied the request for a further continuance, but stated that if Defendant was detained, he could move to reopen the hearing if there was information that was not known to him at the time of the hearing and that had a material bearing on whether conditions of release could be fashioned. Id. at pg. 6. Government's counsel proceeded to make his proffer in support of detention. The Government noted that Mr. Bundy was charged with four counts of the use and carry of a firearm in relation to a crime of violence pursuant to 18 U.S.C. § 924(c), which give rise to a rebuttable presumption that Defendant poses a substantial risk of nonappearance and danger to the community. Id. at pg. 7. The Government based its proffer on the factual allegations set forth in the superceding indictment. Id. at pgs 7-16.[1]

         The Government also discussed Mr. Bundy's alleged involvement in the subsequent armed occupation of the national refuge area in Oregon. Id. at pgs. 16-17.

         In response to the Government's proffer, Mr. Bundy argued that “there was no assault made” and that the proffer was “clear full of lies, untruths, statements attributing to me that were not made by me, acts that were attributed to me that were not made by me.” Id. at pg. 18. Mr. Bundy further stated: “And we made no action of aggression at all. Our acts were simply in defense of our rights, both rights protected by state, protected by the Constitution of the United States, protected by water rights, protected by our grazing rights.” Id. at pg. 18. Mr. Bundy reiterated that he had much evidence that he wanted to bring forth to demonstrate the falsity of the Government's allegations. Id. at pg. 19.

         The Court found that the charges against Defendant pursuant to 18 U.S.C. § 924(c) gave rise to a rebuttable presumption that he poses a substantial risk of nonappearance and a danger to the community. The Court discussed the factual allegations contained in the Government's proffer and the superceding indictment showing the danger to the community posed by Mr. Bundy, as well as his unwillingness to comply with court orders. Id. at pgs. 20-22. The Court also discussed the allegations regarding Mr. Bundy's alleged involvement in the takeover of the national refuge area in Oregon. Id. at pgs. 22-23. The Court acknowledged that Mr. Bundy has family and community ties in the State of Nevada, as well as a history of employment. With respect to Defendant's family ties, however, the Court noted that Defendant is charged, along with other members of his family, with having conspired to and committing the armed assault on federal officers. The Court found that Defendant poses a substantial risk of nonappearance. It also found by clear and convincing evidence that he poses a substantial risk of danger to the community. The Court further found that there are no conditions or combination of conditions that can be fashioned to reasonably assure the Defendant's appearance or protect the community against the risk of danger posed by him. Id. at pgs. 24-25. The Court reiterated that Defendant was not foreclosed from filing a motion to reopen the detention hearing on the basis that he wished to present evidence that was not available to him at the time of the hearing. Id. at pg. 25. The written detention order also stated that it was entered without prejudice to Defendant's right to move to reopen the detention hearing. Order (ECF No. 298), pg. 2.

         Following a court hearing on April 22, 2016, Mr. Bundy was transported back to the District of Oregon. He remained in custody in the District of Oregon through the conclusion of the criminal trial in that district. On October 27, 2016, Mr. Bundy was acquitted on two of three charges against him. The jury could not reach a verdict on the third charge of theft of government property. United States v. Ryan Bundy, District of Oregon Case No. 3:16-cr-00051-BR, Verdict (ECF No. 1511). Defendant Bundy was thereafter transferred to the District of Nevada and he is presently in custody and awaiting trial in this district.

         The District Judge overruled Mr. Bundy's objection to the undersigned's detention order on December 7, 2016. Order (ECF No. 1078). On December 12, 2016, the Court entered an order separating the trials of the remaining seventeen defendants into three tiers and trials. Defendants Cliven Bundy, Ryan Bundy, Ammon Bundy, Peter Santilli and Ryan Payne are in Tier 1. The Court ordered that trial of the Defendants in Tier 3 shall proceed on February 6, 2017. Trial of the Defendants in Tier 1 shall proceed 30 days after conclusion of the trial of the Tier 3 Defendants. Order (ECF No. 1098). It therefore appears unlikely that Defendant Ryan Bundy's trial will begin prior to April 2017 and, depending on the duration of the first trial, may not commence until May 2017.

         In his instant Motion for Own Recognizance or Bail Pending Trial (ECF No. 1082), Defendant Bundy asserts that there are new and substantially changed conditions since the last detention hearing on April 20, 2016; the most significant change being his and the other defendants' acquittals in the criminal case in the District of Oregon. Id. at pg. 1. Defendant goes on to argue against the underpinning of the Supreme Court's decision in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095 (1987), which held that the Bail Reform Act, 18 U.S.C. §§ 3141, et seq., is not unconstitutional on its face. Id. at pgs. 3-8. Defendant further argues that his prolonged pretrial detention, ten months as of the filing of his motion, [2] violates his Fifth Amendment right to due process of law. Id. at pgs. 8-23.

         In his Reply (ECF No. 1184), Defendant Bundy argues that he is entitled to “a full evidentiary hearing” on the following issues:

         1. “[T]o establish admissible evidence of the locus delicti of the alleged criminal acts which would establish the Vicinage of the crime and determine the proper court with general jurisdiction for the trial.” Id. at pg. 3. (This issue apparently relates to the allegation that Defendant Bundy traveled from Nevada to Utah where he allegedly threatened a contract auctioneer who was assisting the BLM. It may also relate to the alleged offenses in the District of Oregon which were pending at the time of the detention hearing in April 2016, but upon which Defendant has since been acquitted.)

         2. To determine if Defendant blocked or interfered with the BLM's contractors and/or if Ryan Bundy threatened any person at the auction in Utah.

         3. To determine if the “private contractor(s)” were federal officers or qualify as “Public Law Enforcement” and jurisdictional issues relating to the same.

         4. To determine if the government falsely alleged that a peaceful public protest qualified as an “assault” on federal officers.

         Defendant Bundy argues that if the assault never happened, then the attorneys presenting the false charges should be sanctioned and that the Magistrate Judge's findings based on those false pleadings should be stricken. Reply (ECF No. 1184), pgs. 3-4.

         Defendant Bundy states that he needs to subpoena the following witnesses for the evidentiary hearing: Deputy Sheriff Mark Quinn, Deputy Sheriff Thomas Roberts, and former Deputy Sheriff, now Sheriff, Joseph Lombardo. He states that each of these individuals were present during the “so called assault.” Defendant also states that he has numerous other witnesses who will testify about the alleged assault or his contention that it was a peaceful public protest. Id. at pg. 4.

         Defendant Bundy states as an offer of proof that during the alleged assault, he was sitting peacefully in Deputy Sheriff McQuinn's squad car exercising his Second Amendment right to carry personal protection. He states that the local Sheriff negotiated with the BLM for withdrawal of the government assets and release of the cattle and the Sheriff met with Cliven Bundy and announced that the BLM was going to withdraw. Defendant also alleges that Cliven Bundy was not at the scene of the alleged assault; that Defendant Ammon Bundy was not armed and was accompanied at the protest by Deputy Sheriff Tom Roberts; that during the alleged assault, Ryan Bundy, Ammon Bundy and other public protesters cooperated with and had the full support of local law enforcement; and that the only violence committed during the entire period was by the BLM. In this regard, Defendant alleges that a BLM “thug” violently assaulted his 57 year old aunt. Id. at pgs. 4-5. Finally, Defendant Bundy challenges the authority of the Government to enforce a civil court order in the state of Nevada and outside the territory of the United States. Id. at pg. 6.

         DISCUSSION

         1. Defendant's Motion to Reopen the Detention Hearing.

         The Bail Reform Act provides that the detention hearing may be reopened at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community. 18 U.S.C. § 3142(f)(2). In considering Defendant Bundy's motion to be released from detention, the Court begins by discussing the grounds on which a defendant may be detained and the requirements for conducting a detention hearing.

         § 3142(f)(1) provides that upon motion by the Government, the judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in § 3142(c) will reasonably assure the appearance of the defendant and the safety of the community in certain types of cases, including a case that involves a crime of violence for which a maximum term of 10 years or more is prescribed (subsection (A)), or any felony that is not otherwise a crime of violence that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon (subsection (E)). § 3142(f)(2)(A) states that the judicial officer shall conduct a detention hearing upon motion of the Government or upon the judicial officer's own motion, in a case that involves a serious risk that such person will flee.

         § 3142(e)(3)(B) provides a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the defendant and the safety of the community if the judicial officer finds that there is probable cause to ...


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