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United States v. Bundy

United States District Court, D. Nevada

July 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CLIVEN D. BUNDY, RYAN C. BUNDY, AMMON E. BUNDY, and RYAN W. PAYNE, Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending 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).[1] The Government filed a Reply, (ECF No. 3199). For the reasons discussed below, the Government's Motion to Reconsider is DENIED.

         I. BACKGROUND

         On 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. 27).

         On 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).

         Following 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. 21:20-24).

         In the 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 No. 3175).

         II. LEGAL STANDARD

         “[A] 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).

         A 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.

         III. DISCUSSION

         In the 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.

         A. Defenses and Overt Acts

         1. Self-Defense and ...


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