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United States v. Payne

United States District Court, D. Nevada

June 18, 2017

RYAN W. PAYNE, Defendant.


          Gloria M. Navarro, Chief Judge United States District Court

         Pending before the Court is Defendant Ryan W. Payne's (“Payne's”) Objection (ECF No. 1224) to Magistrate Judge Peggy A. Leen's Order (ECF No. 1171) denying Payne's Motion to Change Venue (ECF No. 750).[1] The Government filed a Response (ECF No. 1322).

         Also pending before the Court is Payne's related Motion for the Court to Issue Summons to the Jurors from the Entire District of Nevada. (ECF No. 1355).[2] The Government filed a Response (ECF No. 1494), and Payne filed a Reply (ECF No. 1551).

         I. BACKGROUND

         On March 2, 2016, a federal grand jury sitting in the District of Nevada returned a Superseding Indictment charging nineteen defendants with numerous counts related to a confrontation on April 12, 2014, with Bureau of Land Management (“BLM”) Officers in Bunkerville, Nevada. (ECF No. 27). On December 12, 2016, Judge Leen entered an Order (ECF No. 1098) severing the nineteen defendants in this case into three tiers and informing the parties that each trial will commence thirty days after the conclusion of the previous trial.

         On February 6, 2017, the first trial began with the six defendants constituting tier three: defendants Richard Lovelien (“Lovelien”), Todd Engel (“Engel”), Gregory Burleson (“Burleson”), Eric Parker (“Parker”), O. Scott Drexler (“Drexler”), and Steven Stewart (“Stewart”). (ECF No. 1528). On April 24, 2017, the jury rendered a partial verdict, finding Burleson guilty as to Counts 5, 6, 8, 9, 12, 14, 15, and 16, and Engel guilty as to Counts 12 and 16. (ECF No. 1887). However, the jury deadlocked on the remaining counts for these two defendants and all counts as to the other four defendants. (Id.). Subsequently, the Court made a finding of manifest necessity and declared a mistrial on all deadlocked counts. (Id.). The Court dismissed the remaining counts against Burleson and Engel upon the Government's motions (ECF Nos. 1998, 2012), and the remaining tier three defendants are set to begin retrial on July 10, 2017 (see ECF No. 2053). Payne is a tier one defendant, set for trial thirty days following the retrial of the tier three defendants. (See ECF No. 1975).

         11. LEGAL STANDARD

         When reviewing the order of a magistrate judge, a district judge should only set aside the order if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); D. Nev. R. IB 3-1(a). A magistrate judge's order is “clearly erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” See Burdick v. Comm'r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). When reviewing the order, however, the magistrate judge “is afforded broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007) (citation omitted). The district judge “may not simply substitute its judgment” for that of the magistrate judge. Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991).


         A. Objection (ECF No. 1224)

         Payne originally sought to transfer venue because of alleged “inflammatory and prejudicial local media coverage.” (Mot. Transfer Venue 5:2, ECF No. 750). In the alternative, Payne sought to conduct the jury trial in Reno or “at least pick the jury from the northern Nevada jury pool, ” reasoning that pretrial publicity has been less pervasive in Reno. (Id. 13:12- 13). Payne's motion argued that presumed prejudice existed, requiring the preemptive transfer of venue, but he also requested leave to renew his motion to transfer venue during voir dire should he be able to demonstrate actual prejudice. (Id. 13:6-11). Examining the presumed prejudice factors set forth by the U.S. Supreme Court in United States v. Skilling, 561 U.S. 358, 382-83 (2010), Judge Leen found that “Payne has not met his burden of showing that this is such an extreme case that [the court] must presume prejudice based on prejudicial pretrial publicity.” (Order on Mot. Transfer Venue 11:26-15:9, ECF No. 1171).

         Payne now raises four objections to Judge Leen's Order. First, he asserts that Judge Leen erred by not addressing his alternative requests to “hold the trial in Reno or to choose the jury from Reno.” (Obj. 6:18-19, ECF No. 1224). Second, he contends that Judge Leen erred by “downplay[ing] the significance of the prejudicial connections the media and political campaigns established between the June 2014 shootings of two Las Vegas police officers and the Bunkerville protest.” (Id. 8:14-16). Third, Payne objects to Judge Leen's “sua sponte” reliance on the District of Nevada's Jury Selection Plan pursuant to 18 U.S.C. 1863(a) regarding the size and characteristics of the community, along with her determination that this factor weighs against presuming prejudice. (See Id. 10:18-13:2). Finally, Payne argues that Judge Leen erred by “equat[ing] the media coverage in the Las Vegas area to that which purportedly occurred nationwide” and finding that the “prejudicial media coverage in Las Vegas has diminished.” (Id. 13:3-5).

         As to Payne's first objection, the Court finds that Judge Leen did, in fact, consider Payne's alternative requests regarding Reno. Specifically, Judge Leen's Order stated:

Payne'e [sic] motion asks the court to find a presumption of prejudice requires a transfer of venue from the unofficial southern division of the District of Nevada to another federal district within the Ninth Circuit or to the unofficial northern division in Reno, or alternatively, that the court select a jury from the ...

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