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United States v. Bundy

United States District Court, D. Nevada

September 20, 2017

RYAN C. BUNDY, Defendant.


          Gloria M. Navarro, Chief Judge

         Pending before the Court is the Report and Recommendation (ECF No. 1251) entered by Magistrate Judge Peggy A. Leen on January 6, 2017, denying Defendant Ryan C. Bundy's (“Defendant's”) Motions to Dismiss (ECF Nos. 1030, 1031). Defendant timely filed his Objection. (ECF No. 1370). The Government timely filed a Response, “oppos[ing] that objection for the reasons articulated in its original responses.” (ECF No. 1505).

         I. BACKGROUND

         On March 2, 2016, a federal grand jury sitting in the District of Nevada returned a Superseding Indictment charging Defendant and eighteen other co-defendants with sixteen counts related to a confrontation occurring on April 12, 2014, with Bureau of Land Management (“BLM”) Officers in Bunkerville, Nevada. (Superseding Indictment, ECF No. 27).

         Defendant filed two motions to dismiss. The first motion seeks to dismiss Counts Six, Nine, Thirteen, Fourteen, and Fifteen[1] of the Superseding Indictment for failing to state a sufficient nexus with interstate commerce to invoke federal jurisdiction. (Mot. Dismiss Interstate Commerce at 1, ECF No. 1030). The second motion seeks to dismiss Counts One, Five, Six, Eight, Nine, Eleven, Thirteen, Fourteen, and Fifteen as multiplicitous and cumulative, and therefore, a violation of the Fifth Amendment's prohibition of double jeopardy. (Mot. Dismiss Multiplicity at 1, ECF No. 1031). In her Report and Recommendation, Judge Leen rejected these arguments and recommended denial of both motions. (R. & R. 13:19- 15:25, 20:5-22:10, ECF No. 1251).


         A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).


         Defendant does not assert any specific objections to Judge Leen's Report and Recommendation denying his Motions to Dismiss, but rather he reiterates the same arguments from his original motions and requests that this Court reject Judge Leen's determinations. (Obj., ECF No. 1370). First, regarding the nexus with interstate commerce, Defendant again argues, “Federal law has long recognized that grazing cattle are not in interstate commerce.” (Id. at 2); (compare with Mot. Dismiss Interstate Commerce at 4) (arguing that “the grazing cattle in question were not in commerce”).[2] Judge Leen explained in her Report and Recommendation: “Congress has authority under the Commerce Clause to regulate the market for commodities, which includes livestock such as cattle. See, e.g., Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 475 n.11 (1997).” (R. & R. 13:22-25). The Court agrees with Judge Leen that to survive a motion to dismiss the Hobbs Act Extortion counts for failing to provide a sufficient nexus to interstate commerce, “it is enough that the superseding indictment alleges defendants knowingly committed extortion because, as a matter of law, the market for cattle is ‘commerce over which the United States has jurisdiction.'” (R. & R. 14:3-6) (quoting Taylor v. United States, 136 S.Ct. 2074, 2081 (2016)).

         This analysis further comports with the Ninth Circuit's prior ruling that “to establish the interstate commerce element of a Hobbs Act charge, the government need only establish that a defendant's acts had a de minimis effect on interstate commerce, ” and the effect need only be probable or potential, not actual. United States v. Lynch, 437 F.3d 902, 908-09 (9th Cir. 2006). The Ninth Circuit has consistently held that the interstate commerce element need not be expressly articulated in the indictment to survive a motion to dismiss; however, this does not absolve the Government from its burden to prove this element at trial. See United States v. Woodruff, 50 F.3d 673, 677 (9th Cir. 1995), as amended (Apr. 19, 1995) (concluding that “in light of the [Hobb's Act's] adjudicated broad reach, ” even an indictment without any allegations of interstate commerce can sufficiently inform a defendant of the charges against him). Thus, having reviewed the record de novo regarding Defendant's Motion to Dismiss for Interstate Commerce grounds, the Court agrees with the analysis and findings of Judge Leen in her Report and Recommendation (ECF No. 1251) denying the Motion and incorporates them by reference in this Order.

         Next, regarding Defendant's Motion to Dismiss for Multiplicity, Defendant contends that the various counts constitute “lesser-included offenses of other counts, ” which violates double jeopardy. (Obj. at 4). Defendant also argues that Counts Four and Five, Assaulting a Federal Officer in violation of 18 U.S.C. § 111(b), already include firearm enhancements, so the corresponding Use and Carry of a Firearm in relation to a Crime of Violence in Count Six is a “double firearm enhancement.” (Id. at 5-6). Defendant further objects to Judge Leen's use of the test from Blockburger v. United States, 284 U.S. 299 (1932), which he states “does not by itself resolve all double jeopardy questions[ because t]he test does not apply to many scenarios.” (Obj. at 8-9).[3]

         The Court agrees with Judge Leen that the test from Blockburger v. United States, 284 U.S. 299, 304 (1932) is the appropriate test for determining if double jeopardy applies. See, e.g., Rutledge v. United States, 517 U.S. 292, 297 (1996) (“For over half a century we have determined whether a defendant has been punished twice for the ‘same offense' by applying the rule set forth in [Blockburger].”). Under Blockburger, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304. Similarly, a lesser-included offense, which “requires no proof beyond that which is required for conviction of the greater [offense], ” would also violate double jeopardy. See United States v. Jose, 425 F.3d 1237, 1241 (9th Cir. 2005) (citing Brown v. Ohio, 432 U.S. 161, 168 (1977)); see also United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008) (“[T]he double jeopardy prohibition is implicated when both statutes prohibit the same offense or when one offense is a lesser included offense of the other.”).

         Here, the Court also agrees with Judge Leen that the crimes alleged against Defendant in the Superseding Indictment all maintain different elements and require proof of different facts.

         Judge Leen's Report and Recommendation goes through each charged offense, examining and comparing the elements consistent with the Blockburger test. (R. & R. 20:6-21). For example, Judge Leen explains: “[T]o prove forcible assault on a federal officer under § 111(b), the government must prove that defendants forcibly assaulted a federal officer. See 9th Cir. Model Crim. Jury Instruction 8.4 (approved Dec. 2015). No other offense [charged] requires proof of this fact.” (Id. 20:7-10). Additionally, upon examination of the two conspiracy charges, the alleged objects of the conspiracy are distinct; therefore, each conspiracy count requires proof of a fact that the other does not. (See Superseding Indictment 38:19-41:9); (see also R. & R. 21:8- 22:4). Conspiracy under 18 U.S.C. § 371 (Count One) and 18 U.S.C. § 372 (Count Two) also differ in that § 371 requires an overt act, while § 372 does not. Compare § 371 with ยง 372. Lastly regarding the conspiracy charges, ...

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