United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is the Government's Motion to Reconsider
Order Dismissing Indictment with Prejudice, (ECF No. 3175).
Defendants Ryan Bundy (“R. Bundy”), Ryan Payne
(“Payne”), and Cliven Bundy (“C.
Bundy”) (collectively “Defendants”) filed
Responses, (ECF Nos. 3192, 3194, 3195). The Government
filed a Reply, (ECF No. 3199). For the reasons discussed
below, the Government's Motion to Reconsider is
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging nineteen
defendants with sixteen counts related to a confrontation on
April 12, 2014, with Bureau of Land Management
(“BLM”) Officers in Bunkerville, Nevada. (ECF No.
December 20, 2017, the Court granted a motion for mistrial,
(ECF No. 2856), finding that the Government's failure to
disclose evidence resulted in numerous Brady
violations. (Mins. of Proceedings, ECF No. 3041).
Specifically, the Court found that the Government willfully
failed to disclose potentially exculpatory, favorable and
material information including, but not limited to, the
following documents and their contents: (1) the Federal
Bureau of Investigation's (“FBI's”) Law
Enforcement Operation Order; (2) the FBI Burke 302 about
Egbert; (3) the FBI 302 about BLM Delmolino authored by
Special Agent Willis; (4) the FBI 302 about BLM Special Agent
Felix observing the listening post/observation posts
(“LPOPs”); (5) the FBI 302 about BLM Racker
assignment to LPOP; (6) the unredacted FBI TOC log; and (7)
the various threat assessments by different agencies
including the FBI and BLM. (See generally Tr., ECF
No. 3049); (see also Tr. 13:7-22, ECF No. 3122).
the Court's declaration of mistrial, the Court ordered a
hearing on the issue of whether dismissal should be granted
with or without prejudice and provided additional time for
briefing on the issue. (Mins. of Proceedings, ECF No. 3041).
On January 8, 2018, the Court granted Defendants' motions
to dismiss with prejudice, (ECF Nos. 2883, 2906, 3082, 3085
[public documents 3057, 3058, 3087 and 3088 respectively]).
(Mins. of Proceedings, ECF No. 3116). The Court found that
dismissal with prejudice was necessary for two reasons.
First, the Government's outrageous conduct amounted to a
due process violation. (Tr. 21:8-11, ECF No. 3122). Second,
the Court determined that the Government's flagrant
misconduct resulted in substantial prejudice to Defendants.
(Id. 21:14-15). Due to the Government's flagrant
misconduct and the resulting prejudice, the Court found that
dismissal with prejudice was proper under its supervisory
powers to: (1) remedy the constitutional violation, (2)
protect judicial integrity by ensuring that a conviction
rests only on appropriate considerations validly before a
jury, and (3) deter future illegal conduct. (Id.
instant Motion, the Government requests that the Court
reconsider its Order, (ECF No. 3116), dismissing the
indictment with prejudice. (Mot. to Reconsider 1:20-24, ECF
motion for reconsideration should not be granted, absent
highly unusual circumstances.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation
omitted). Reconsideration is appropriate where: (1) the court
is presented with newly discovered evidence, (2) the court
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law. School Dist. No. 1J, Multnomah County v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
motion for reconsideration is not a mechanism for rearguing
issues presented in the original filings. See Backlund v.
Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985); see
also D. Nev. LR 59-1(b) (“Motions for
reconsideration are disfavored. A movant must not repeat
arguments already presented unless (and only to the extent)
necessary to explain controlling, intervening law or to argue
new facts. A movant who repeats arguments will be subject to
appropriate sanctions.”). Furthermore, a motion for
reconsideration “may not be used to raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier in the litigation.”
Carroll, 342 F.3d at 945.
instant Motion, the Government claims that the Court's
ruling dismissing the indictment with prejudice is clearly
erroneous for two reasons: (1) the dismissal was
“predicated on the government's failure to disclose
certain documents that could be used only to support the
legally non-cognizable and unsupportable defenses of
self-defense, ‘provocation,' and
‘intimidation'; [sic] or arguably to rebut three
overt acts . . . in furtherance of the alleged
conspiracy;” and (2) “the Court failed to
consider less drastic remedies or tailor the remedy to the
violations, as required.” (Mot. to Reconsider 2:1-8,
ECF No. 3175). Additionally, the Government argues that
dismissal with prejudice is “unwarranted and
unjust.” (Id. 26:3). The Court will address
each argument in turn.
Defenses and Overt Acts
Self-Defense and ...