United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
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). The Government filed a Response (ECF No.
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). The Government filed a
Response (ECF No. 1494), and Payne filed a Reply (ECF No.
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
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).
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).
Objection (ECF No. 1224)
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).
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).
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 ...