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United States v. Bundy

United States District Court, D. Nevada

September 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CLIVEN BUNDY Defendants.

          ORDER (EMRG. MOT. RELEASE- ECF NO. 2066) (MOT. REOPEN DET. - ECF NO. 2069) (MOT. FOR RULING - ECF NO. 2303)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on a joint Emergency Motion to Release Defendants on Due Process Grounds (ECF No. 2066) filed by Ryan Payne, Cliven Bundy, Ammon Bundy, Peter Santilli, Mel Bundy, Dave Bundy, Brian Cavalier, Joseph O'Shaughnessy, and Jason Woods. Defendant Ryan Payne subsequently filed a Motion for Ruling (ECF No. 2303) on the joint motion for release. Defendants Cliven Bundy, Peter Santilli, Ammon Bundy, Brian Cavalier, Dave Bundy, Mel Bundy, and Jason Woods filed Motions for Joinder (ECF Nos. 2307, 2310, 2311, 2315, 2316, 2327, 2334) to Payne's request for expedited treatment. The court has considered the motions, the Government's Response (ECF No. 2107), and the moving defendants' Reply (ECF No. 2134).

         Defendant Ryan Bundy filed a Motion Joinder (ECF No 2093) to the joint motion for release as well as a separate Motion to Reopen Detention or Alternatively, Grant Pretrial Release based on Due Process Violation (ECF No. 2069). Magistrate Judge George W. Foley decided the motion to reopen, deferring the substantive due process arguments to the undersigned. See Order (ECF No. 2182).

         These motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

         BACKGROUND

         I. The Indictment

         Nineteen defendants are charged in a 16-count Superseding Indictment (ECF No. 27) returned March 2, 2016. The superseding indictment in this case arises out of a series of events related to a Bureau of Land Management (“BLM”) impoundment of Cliven Bundy's cattle following a two-decade-long battle with the federal government. Beginning in 1993, Cliven Bundy continued to graze cattle on land commonly referred to as the “Bunkerville Allotment” without paying required grazing fees or obtaining required permits. The United States initiated civil litigation against Cliven Bundy in 1998 in the United States District Court for the District of Nevada. The court found that Cliven Bundy had engaged in unauthorized and unlawful grazing of his livestock on property owned by the United States and administered by the Department of the Interior through the BLM. The court permanently enjoined Cliven Bundy from grazing his livestock on the Allotment, ordered him to remove them, and authorized the BLM to impound any unauthorized cattle. Bundy did not remove his cattle or comply with the court's order and injunction. The United States went back to court. Subsequent orders were entered in 1999 and 2013 by different judges in this district permanently enjoining Bundy from trespassing on the Allotment and land administered by the National Park Service (“NPS”) in the Lake Mead National Recreation Area, [1] ordering Bundy to remove his cattle, and explicitly authorizing the United States to seize, remove, and impound any of Bundy's cattle for future trespasses, provided that written notice was given to Bundy.

         On February 17, 2014, the BLM entered into a contract with a civilian contractor in Utah to round up and gather Bundy's trespass cattle. BLM developed an impoundment plan to establish a base of operations on public lands near Bunkerville, Nevada, about seven miles from the Bundy ranch in an area commonly referred to as the Toquop Wash. On March 20, 2014, BLM also entered into a contract with an auctioneer in Utah who was to sell impounded cattle at a public sale. Bundy was formally notified that impoundment operations would take place on March 14, 2014. The following day, Bundy allegedly threatened to interfere with the impoundment operation by stating publicly that he was “ready to do battle” with the BLM, and would “do whatever it takes” to protect “his property.” The Superseding Indictment alleges that after being notified that BLM intended to impound his cattle, Bundy began to threaten to interfere with the impoundment operation, and made public statements he intended to organize people to come to Nevada in a “range war” with BLM and would do whatever it took to protect his cattle and property.

         The Superseding Indictment alleges that, beginning in March 2014, the 19 defendants charged in this case planned, organized, conspired, led and/or participated as followers and gunmen in a massive armed assault against federal law enforcement officers to threaten, intimidate, and extort the officers into abandoning approximately 400 head of cattle owned by Cliven Bundy. The removal and impoundment operation began on April 5, 2014. On April 12, 2014, defendants and hundreds of recruited “followers” executed a plan to recover the cattle by force, threats, and intimidation. Defendants and their followers demanded that officers leave and abandon the cattle and threatened to use force if the officers did not do so. The Superseding Indictment alleges armed gunmen took sniper positions behind concrete barriers and aimed their assault rifles at the officers. Defendants and their followers outnumbered the officers by more than 4 to 1, and the potential firefight posed a threat to the lives of the officers, as well as unarmed bystanders which included children. Thus, the officers were forced to leave and abandon the impounded cattle.

         After the April 2014 confrontation with federal officers, the superseding indictment alleges that the leaders and organizers of the conspiracy organized armed security patrols and check points in and around Cliven Bundy's Bunkerville ranch to deter and prevent any future law enforcement actions against Bundy or his co-conspirators, and to protect Bundy's cattle from future law enforcement actions.

         II. Procedural History

         Cliven Bundy was initially arrested on February 11, 2016, in the District of Oregon on a criminal Complaint (ECF No. 1) and warrant issued in this district. An Indictment (ECF No. 5) was returned February 17, 2016, charging Bundy and co-defendants Ryan Bundy, Ammon Bundy, Ryan Payne, and Peter Santilli with 16 felony counts. A Superseding Indictment (ECF No. 27)

         naming additional defendants was returned March 2, 2016. All 19 defendants made their appearances in this case in this district between March 4 and April 15, 2016. At the initial appearance of each defendant, the government stated its position that this was a complex case that would require special scheduling review. All 19 defendants were detained pending trial.

         In an Order (ECF No. 198) entered March 25, 2016, the court directed the parties to meet and confer as required by LCR 16-1 to discuss whether this case should be designated as complex, and, if so, to attempt to arrive at an agreed-upon complex scheduling order addressing five specified topics for discussion. The order gave the parties until April 18, 2016, to file a stipulated proposed complex case schedule if all parties were able to agree, or if they were not, to file a proposed schedule with supporting points and authorities stating each party's position with respect to whether or not the case should be designated as complex, a proposed schedule for discovery, pretrial motions, and trial, and any exclusions of time deemed appropriate under the Speedy Trial Act (“STA”), 18 U.S.C. §§ 3161-3174.

         A Proposed Complex Case Schedule (ECF No. 270) was filed on April 18, 2016. In it, the government and 13 of the 19 defendants agreed that the case should be designated as complex. The 13 defendants who stipulated to the proposed schedule included: Cliven Bundy, Mel Bundy, Dave Bundy, Blaine Cooper, Gerald Delemus, O. Scott Drexler, Richard Lovelien, Steven Stewart, Todd Engel, Gregory Burleson, Joseph O'Shaughnessy, Micah McGuire and Jason Woods. Id. at 2. Three defendants, Ammon Bundy, Peter Santilli, and Brian Cavalier, indicated that they would “defer the decision to agree or disagree, pending further consultation with counsel and/or have taken no position as to the filing of this pleading.” Id. at 3. Three defendants, Ryan Bundy, Eric Parker, and Ryan Payne, disagreed that the case should be designated as a complex case “to the extent time is excluded under the STA.” Id.

         The same 13 defendants who stipulated that the case should be designated as complex, agreed that the May 2, 2016 trial date should be vacated, and the trial in this matter should be set on the first available trial stack beginning in or around February 2017. Id. at 8. Three defendants, Ammon Bundy, Peter Santilli, and Brian Cavalier, “deferred the decision to agree or disagree about a trial date pending further consultation with counsel, or have not taken a position.” Id.

         The same 13 defendants who stipulated the case should be designated as complex and a trial date set in February 2017, also stipulated “that all time from the entry of Defendants' pleas in this case until the trial of this matter is excluded for purposes of the STA pursuant to 18 U.S.C. § 3161(h)(7)(A) as the ends of justice outweigh the interest of the public and the defendants in a speedy trial.” Id. at 9. Ammon Bundy, Peter Santilli and Brian Cavalier “deferred the decision to agree or disagree about the exclusion of time, pending further consultation with counsel, or have taken no position on the matter.” Id. at 9-10. Ryan Bundy stated he disagreed “to the extent any exclusion of time denies him the right to a speedy trial under the STA.” Id. at 10. Eric Parker stated he disagreed “with no further position stated.” Id. Ryan Payne stated he disagreed “with the exclusion of time to the extent it denies him the right to a speedy trial under the STA.” Id.

         The court held a scheduling and case management conference on April 22, 2016, to determine whether this case should be designated as complex. Mins. of Proceedings (ECF No. 327). Eighteen of the 19 defendants appeared with their counsel. Defendant Ryan Bundy appeared pro se with standby counsel, Angela Dows. At the scheduling and case management conference, many of the defendants who had initially stipulated to the complex case schedule and a February 2017 trial date, changed positions. The positions of each of the defendants were stated on the record at the hearing and memorialized in the court's Case Management Order (ECF No. 321) entered April 26, 2016. The court found the case was a complex case within the meaning of 18 U.S.C. § 3161(h)(7)(B)(ii), and set the trial for February 6, 2017. The Case Management Order made findings concerning why this case was deemed complex within the meaning of 18 U.S.C. § 3161(h)(7)(B), and findings on exclusion of time for purposes of the STA. The Case Management Order also set deadlines for filing motions to sever, motions for filing pretrial motions and notices required by Rule 12 of the Federal Rules of Criminal Procedure and LCR 12(1)(b). Only Defendant Brian D. Cavalier filed objections (ECF No. 314) to the Case Management Order asking the district judge to review those findings, the complex case designation, and the trial date. The central argument of the objections stemmed from Cavalier's perceived violation of his speedy trial rights. Chief United States District Judge Gloria M. Navarro overruled the objections finding that several of the STA's enumerated exclusion periods applied. June 13, 2016 Order (ECF No. 523) at 4-7.

         Two of the 19 defendants charged in the superseding indictment in this case, Blaine Cooper and Gerald Delemus, entered into plea agreements. The remaining defendants filed motions to sever advancing a variety of different proposals from individual trials to proposed groupings of defendants for trial. The government opposed the defendants' motions to sever arguing the defendants were properly joined for trial, and that a joint trial is particularly appropriate in a conspiracy case. The court denied the defendants' motions to sever. Dec. 12-13, 2016 Orders (ECF Nos. 1098, 1100-06, 1108-13).

         In October 2016, the defendants who were also charged in the Oregon prosecution, Ammon Bundy, Ryan Bundy, Ryan Payne, Brian Cavalier, Joseph O'Shaughnessy, and Blaine Cooper were acquitted. The government dismissed charges against Peter Santilli in the Oregon indictment shortly before trial in that case. When it became apparent that the defendants who had not already entered into plea agreements intended to proceed to trial in this district, the government filed what it called a “supplement” (ECF No. 971) on November 13, 2016, asking that the court sever this case into three groups for trial in the interest of judicial economy. The government argued a joint trial with 17 defendants would unreasonably increase the total amount of trial time, result in greater delay, confusion and make it difficult to maintain an orderly and efficient proceeding. After setting a briefing schedule for the defendants to respond to the government's proposal, the court granted the government's request to sever the case into three groups for trial, but did not grant the government's suggested order of those three trials. See Orders (ECF Nos. 1098, 1100-06, 1108- 13). The orders provided that the first group of six defendants (the Tier 3 defendants) would proceed to trial February 6, 2017, with the second group (the Tier 1 defendants) to proceed to trial 30 days after conclusion of the first trial, and the third group (the Tier 2 defendants) to proceed to trial 30 days after conclusion of the second trial.

         The first trial of the six defendants in Tier 3 went forward on February 6, 2017, and concluded on April 24, 2017, when the jury returned a partial verdict convicting only defendants Engle and Burleson of some of the counts. Mins. of Proceedings (ECF No. 1887). As a result, Judge Navarro declared a mistrial on all deadlocked counts. Id. The district judge reset the trial of the other four defendants for whom the jury did not reach a verdict for June 26, 2017, within 70 days of declaring the mistrial pursuant to 18 U.S.C. § 3161(e). May 17, 2017 Order (ECF No. 1975). On May 25, 2017, at calendar call, the four remaining Tier 3 defendants orally moved to continue the trial from June 26, 2017, to July 10, 2017. Mins. of Proceedings (ECF No. 2012). The government objected. Id. The parties subsequently stipulated to the continuance and that the time was excludable under 18 U.S.C. § 3161(h)(7)(A) when considering the factors under 18 U.S.C. §§ 3161(h)(7)(b)(i) and 3161(h)(7)(b)(iv). June 10, 2017 Order (ECF No. 2053) (granting Stipulation (ECF No. 2020)); June 15, 2017 Order Regarding Trial (ECF No. 2061).

         The second trial of the four remaining Tier 3 defendants began July 10, 2017, and ended August 22, 2017, when the jury returned a partial verdict acquitting defendants Lovelien and Stewart, and finding defendants Parker and Drexler not guilty of certain counts. Mins. of Proceedings (ECF No. 2283). The jury was unable to reach a verdict on the remaining counts as to Parker and Drexler and the district judge declared a mistrial as to those counts. Id. The following day, the district judge released Parker and Drexler on Pretrial Services supervision on various conditions. Aug. 23, 2017 Mins. of Proceedings (ECF Nos. 2295, 2297). The government indicated it intended to retry Parker and Drexler and could be ready as soon as the court could be ready. The district judge set their retrial for September 25, 2017. She set ...


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