United States District Court, D. Nevada
M. Navarro, Chief Judge
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).
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
filed two motions to dismiss. The first motion seeks to
dismiss Counts Six, Nine, Thirteen, Fourteen, and
Fifteen 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.
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
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”). 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)).
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.
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
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.”).
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.
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 § 372. Lastly
regarding the conspiracy charges, ...