United States District Court, D. Nevada
January 9, 2017
UNITED STATES OF AMERICA, Plaintiff,
RYAN C. BUNDY, Defendant.
ORDER (EX PARTE MOT FOR CONTACT - ECF NO.
A. LEEN UNITED STATES MAGISTRATE JUDGE.
the court is Defendant Ryan C. Bundy's Ex Parte Motion
for Ryan C. Bundy to be Allowed In-Custody Contact Visits
From His Defense Team (ECF No. 1044), and First Supplement to
Ex Parte Motion for Ryan C. Bundy to be Allowed In-Custody
Contact Visits from His Defense Team (ECF No. 1070). The
Motion and Supplement are referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and
1-7 of the Local Rules of Practice.
Bundy is representing himself and has court-appointed standby
counsel available to assist upon his request. See
Mins. of Proceedings (ECF No. 285). The motion was filed by
standby counsel who advises that she was “specifically
authorized” to file it. The motion requests an order
allowing contact visits with five individuals to assist in
trial preparation: Shawna Cox, Dan H. Bailey, Jeremy Lee,
Roger Roots, and Claude “Rick” Koerber. Mr. Bundy
indicates that these individuals will assist in: “(a)
review of underlying facts/discovery, (b) motion/brief
research and writing, (c) trial/witness preparation, (d)
investigation, (e) paperwork delivery to/from for purposes of
filing with the court.” The supplement adds one
additional individual to the list: Julie Embry.
Ninth Circuit has held that an “incarcerated defendant
may not meaningfully exercise his right to represent himself
without access to law books, witnesses, or other tools to
prepare a defense.” Milton v. Morris, 767 F.2d
1443, 1446 (9th Cir. 1985) (citing Faretta v.
California, 422 U.S. 806, 818 (1975)). Thus, “time
to prepare and some access to materials and witnesses are
fundamental to a meaningful right of representation.”
Id. However, the “right of access is not
unlimited.” United States v. Sarno, 73 F.3d
1470, 1491 (9th Cir. 1995). It must be “balanced
against the legitimate security needs or resource constraints
of the prison.” Id.; see also United
States v. Robinson, 913 F.2d 712, 717 (9th Cir. 1990).
Ninth Circuit has held that a pro se defendant's due
process right is satisfied where court-appointed counsel is
available to assist the defendant in preparing his defense.
Milton, 767 F.2d at 1446 (defendant has no
“due process right of access to a court maintained
library, so long as he is afforded some alternative means for
assistance in the preparation of his defense”). Other
reasonable alternatives that are consistent with jail or
prison management may also meet the requirement of reasonable
access to resources. Id. at 1447. However, there is
no right to alternative requests. See, e.g.,
Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005)
(“Faretta says nothing about any specific
legal aid” owed to a pro se defendant); United
States v. Moreland, 622 F.3d 1147, 1156 (9th Cir. 2010)
(rejecting argument that pro se defendant's right was
violated where he “received assistance from standby
counsel, just not the degree of assistance he later decided
he wanted.”); United States v. Coppola, 198 F.
App'x 629, 633 (9th Cir. 2006) (finding that
“denial of specific resources at particular times did
not result in any prejudice” where pro se defendant
received standby counsel, legal research materials, and
computer access); United States v. Age, 944 F.2d 910
(9th Cir. 1991) (“The fact that a direct line would
provide more convenient access to counsel does not, of
course, mean that such facilities are constitutionally
required; as the Supreme Court has said, an accused who
elects to defend himself ‘relinquishes ... many of the
traditional benefits associated with the right to
counsel'.” (quoting Faretta, 422 U.S. at
Bundy is not entitled to designate lay persons, supporters,
or others as a part of his defense team for the purpose of
receiving access to and contact visits with these individuals
on the same terms as detention facility staff and the United
States Marshal Service (“USMS”) provide for
counsel of record. He is also not entitled to designate an
out of state attorney, who has not applied for admission pro
hac vice, as his legal representative.
Roots filed a declaration (ECF No. 1077) captioned
“Notice of Interference by U.S. Marshals and the
Corrections Corporation of America” in this case on
December 6, 2016. In it Mr. Roots identifies himself as a
resident of Montana and an attorney licensed in Rhode Island
and various federal circuits, including the Ninth Circuit,
who has helped Mr. Bundy with researching and
“preparing various things for his defense over the past
year.” He indicates that he functioned as a paralegal
for Mr. Bundy in the Oregon prosecution and was present at
his defense table throughout the trial. The notice states
that Mr. Roots attempted to visit Mr. Bundy at the detention
facility in Pahrump “to help Ryan Bundy prepare for
this defense” and that he was carrying various defense
documents “urgently requiring his signature for filing
in this and other courts.” Mr. Roots is not admitted to
the bar of this state or admitted pro have vice in this case.
He may not engage in the unauthorized practice of law in this
district. Mr. Bundy has court appointed standby counsel to
assist him. If Mr. Bundy believes he needs additional CJA
resources to assist in his defense he may apply for that
assistance, the court will consider his request, and if
appropriate, appoint an investigator or paralegal qualified
to provide CJA defense services.
court has previously directed the USMS to investigate and
report the Nevada Southern Detention Center's policies
regarding defendants' access to discovery materials.
See July 7, 2016 Order (ECF No. 588). The USMS has
worked with staff at the Southern Nevada Detention Center to
provide all of the defendants in this case with electronic
access to discovery materials, and law library access. The
detention center's law library has 17 computers, 13 of
which also have access to Lexis/Nexis. Detainees are allowed
access to the law library 25 hours per week. Id. The
USMS recently updated the court concerning inmate access to
All of the defendants in this case are housed in G units
which are used for inmates that need additional time. G unit
inmates can use the law library computers on Monday,
Wednesday and Friday for 5 hours in the morning, and on
Tuesday and Thursday for 3 hours in the afternoon. A computer
with Lexis/Nexis is also available in every G unit which can
be used during dayroom hours between 6 a.m. and 9 p.m., 7
days a week. CCA has approved allowing co-defendants to have
access to the computer in the G units as a group so that they
can work on their case together.
See Nov. 28, 2016 Order (ECF No. 1033). In addition,
the court has granted two prior motions requesting a joint
meeting among all of the defendants and their counsel. At the
request of the court, staff at the detention center also
agreed to accommodate a weekly meeting among the defendants
and their counsel to facilitate their trial preparation.
Id. at 2.
court also appointed a Coordinating Discovery Attorney
(“CDA”) in the beginning of this case to assist
the defendants and their counsel. Without publically
disclosing the work product provided, the CDA has a
substantial staff devoted to this case, and has contracted
with vendors to assist the defendants in discovery review and
trial preparation. The CDA provides monthly status reports
which outline the results of his activities and progress on
behalf of the defendants. Standby counsel has had full access
to the CDA's work product.
Bundy has already been given access to multiple tools to
prepare his defense, including access to standby counsel,
extended time in the law library, the substantial services of
the CDA and his staff and vendors, and joint defense
meetings. In short, the court will not approve contact visits
or other access on terms provided for counsel of record to
individuals Mr. Bundy designates as members of his defense
team. Mr. Bundy has standby counsel and may apply for
additional CJA resources if he believes he needs them.
ORDERED: Defendant Ryan C. Bundy's Ex Parte Motion for
Ryan C. Bundy to be Allowed In-Custody Contact Visits From
His Defense Team (ECF No. 1044) is DENIED.