Case 2:16-cr-00046-GMN-PAL Document 1355 Filed 01/19/17 Page 1 of 8

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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
BRENDA WEKSLER
State Bar No. 8124
Assistant Federal Public Defender
RYAN NORWOOD
Assistant Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Brenda_Weksler@fd.org

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Attorneys for Ryan W. Payne

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
Plaintiff,

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v.
RYAN W. PAYNE,

Case No. 2:16-cr-046-GMN-PAL
DEFENDANT RYAN W.
PAYNE’S MOTION FOR THE
COURT TO ISSUE SUMMONS
TO JURORS FROM THE
ENTIRE DISTRICT OF
NEVADA

Defendant.
Certification: This Motion is timely filed.

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Defendant Ryan W. Payne, by and through his counsel of record, Brenda Weksler and

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Ryan Norwood, Assistant Federal Public Defenders, hereby submits this Motion for the Court

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to Issue Summons to Jurors from the Entire District of Nevada. This pleading is based on the

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Memorandum of Points and Authorities attached hereto.

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 Case 2:16-cr-00046-GMN-PAL Document 1355 Filed 01/19/17 Page 2 of 8

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DATED this 19th of January, 2017.
RENE L. VALLADARES
Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender

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THE LAW PROVIDES FOR TRIAL BEFORE A FAIR CROSS SECTION
OF THE COMMUNITY AND THIS SHOULD INCLUDE A JURY POOL
DRAWN FROM THE ENTIRE DISTRICT OF NEVADA

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“[T]he American concept of the jury trial contemplates a jury drawn from a fair cross

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section of the community” as “an essential component of the Sixth Amendment right to a jury

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trial.” Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975). The impartial jury must be drawn from

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“the State and district wherein the crime shall have been committed, which district shall have

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been previously ascertained by law.” U.S. Const. amend. VI.

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I.

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The Jury Selection and Service Act of 1968 allows for splitting a district into divisions

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and using only one division’s jury wheel for petit juries: “[A]ll litigants in Federal court entitled

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to trial by jury shall have the right to grand and petit juries selected at random from a fair cross

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section of the community in the district or division wherein the court convenes.” 28 U.S.C. §

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1861.

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Although a petit jury may be drawn constitutionally from only one division and not the

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whole district, see United States v. Herbert, 698 F.2d 981, 984 (9th Cir. 1983) (citing

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Ruthenberg v. United States, 245 U.S. 480 (1918)), nothing precludes the Court from drawing

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jurors from the district when the unique circumstances of the case and fundamental fairness

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require it. The language of the statute (“fair cross section of the community in the district or

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division”) endorses Mr. Payne’s request, as does the Eighth Amended Plan of the United States

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District Court for the District of Nevada for the Random Selection of Grand and Petit Jurors §

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2 (“It is the policy of the United States that all litigants in the Federal Courts entitled to trial by

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jury shall have the right to grand and petit juries selected at random from a fair cross section of

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the community in the district or division wherein the court convenes.”).

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Finally, Federal Rule of Criminal Procedure 18 contemplates several factors regarding

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the place of trial (convenience of the defendant, any victim, and the witnesses), but it is

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otherwise silent regarding the places from which prospective jurors may be drawn. Thus, there

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is no legal impediment to prevent the Court from issuing summonses to prospective jurors from
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the entire District of Nevada. While Mr. Payne acknowledges that there is no controlling

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authority that mandates it, there is no alternative mechanism in this case that will likely ensure

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Mr. Payne is tried before a jury representing a fair cross section of the community.

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II.

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A JURY POOL DRAWN EQUALLY FROM THE ENTIRE DISTRICT OF
NEVADA WILL ENSURE FAIRNESS

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This case has received substantial pretrial publicity and is politically charged. Hardly a

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day passes that a media story is not published regarding some aspect of this case – the alleged

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underlying events, the issues raised by the events, court proceedings, stories about individual

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defendants, etc. It is the defendants’ expectation that 100% of the prospective jurors from the

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Las Vegas division will have some degree of familiarity with the case due to pretrial press

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coverage which has saturated the community. Under the unique facts and circumstances of this

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case, broadening the prospective jury pool will greatly increase the chances of seating a fair and

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impartial jury.

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The question of whether to issue summonses to jurors in the entire district is inextricably

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linked to the question of venue. The government initiates criminal prosecutions and thus, has

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the first crack at selecting the venue. See United States v. Salinas, 373 F.3d 161, 163 (1st Cir.

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2014) (citing United States v. Pace, 314 F.3d 344, 349 (9th Cir. 2002)). “The purpose of limiting

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criminal prosecutions to ‘a district in which the offense was committed’ is to provide a ‘safety

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net, which ensures that a criminal defendant cannot be tried in a distant, remote, or unfriendly

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forum solely at the prosecutor’s whim.’” United States v. Bravo-Fernandez, 756 F. Supp. 2d

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184, 206 (D.P.R. 2010) (quoting Salinas, 373 F.3d at 164).

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This Court has denied the motion for change of venue, which painstakingly details the

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media analysis of the publicity surrounding the case.1 In order to mitigate the effect of media

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Mr. Payne has requested this Court reconsider that decision, which remains pending.
ECF No. 1224.
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coverage in the Las Vegas division, this request is made so that the empaneled jury may “lay

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aside [their] impression or opinion and render a verdict based on the evidence presented in

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court.” Hayes v. Ayers, 632 F.3d 500, 511 (9th Cir. 2011) (quoting Irvin v. Dowd, 366 U.S. 717,

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723 (1961)).

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While Mr. Payne asserts he will not be able to receive a fair trial anywhere in the District

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of Nevada, issuing summonses to prospective jurors equally from each of the three divisions

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will at least mitigate against some of the concerns raised in the Motion to Transfer Venue.

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In the District of Nevada, “voter registration lists represent a fair cross section of the

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community.” Eighth Amended Plan of the United States District Court for the District of

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Nevada for the Random Selection of Grand and Petit Jurors § 4. Because all of the jurors in this

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case will be registered voters, voter registration is the relevant data from which the defendants

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can demonstrate the differences between the three divisions within the District.

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In modern America, the distinction between “liberals” and “conservatives” is generally

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considered to be a difference between the two major political parties – Democrats as “liberals”

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and Republicans as “conservatives.” A political difference between the two parties also extends

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to their respective ideologies regarding the appropriate size and power of the federal

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government. That distinction was at the heart of the protest in this case that the government has

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charged as crimes – disputes over federal ownership and management of public lands. Indeed,

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whether political figures who were vocal during the events surrounding this case supported the

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Bundys or not coincided with their political affiliation. For example, then Assemblywoman

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Michelle Fiore and then Congressman Crescent Hardy, both Republicans, were vehement

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Bundy supporters. Conversely, then State Senator Ruben Kihuen and Nicole Cannizzaro, who

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ran for the State Senate in November 2016, ran part of their campaigns exposing the Bundys as

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domestic terrorists, a term that was originally used by Senator Harry Reid, one of the highest

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ranking Democrats, to describe the Bundys.

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According to the Nevada Secretary of State’s Office, the following charts represent the

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differences in voter registration in January 2016 by political party in the three divisions within

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the District of Nevada2:

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Las Vegas
Reno
Elko
TOTALS

Democrats Independent

Libertarian Nonpartisan

Other

Republican

452,983
125,619
7,288
585,890

8,201
3,882
317
12,400

7,680
4,111
165
11,956

317,362
157,038
19,212
493,612

47,439
20,904
1,980
70,323

216,281
72,442
6,596
295,319

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The differences between the Las Vegas Division as compared to the other two divisions,

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is significant. For example, in raw numbers, there are 135,621 more Democrats (452, 983) than

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Republicans (317,362) in the Las Vegas Division. By comparison, in the Reno Division, there

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are 31,419 more Republicans (157,038) than Democrats (125,619). Likewise, in the Elko

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division, there are 11,924 more Republicans (19,212) than Democrats (7,288). Thus, a

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simplistic review of voter registration data leads to the conclusion that a jury pool from the Las

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Vegas division will include more jurors registered to a more “liberal” political party than the

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other two divisions. To avoid this discrepancy and to ensure that justice may be done, the Court

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should issue summonses to prospective jurors from beyond the Las Vegas division. Irrespective

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of the number of summonses issued, the defendant respectfully requests that it be done equally

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for each division.

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See Office of the Nevada Secretary of State, January 2016 Voter Registration
Statistics, Totally Voters by County and Party, Exhibit A, available at
http://nvsos.gov/sos/home/showdocument?id=4060 (last visited Jan. 19, 2017).

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DATED this 19th day of January, 2017.
Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender

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 Case 2:16-cr-00046-GMN-PAL Document 1355 Filed 01/19/17 Page 8 of 8

CERTIFICATE OF ELECTRONIC SERVICE

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The undersigned hereby certifies that she is an employee of the Federal Public Defender

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for the District of Nevada and is a person of such age and discretion as to be competent to serve

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papers.

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That on January 19, 2017, she served an electronic copy of the above and foregoing

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DEFENDANT RYAN W. PAYNE’S MOTION FOR THE COURT TO ISSUE

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SUMMONS TO JURORS FROM THE ENTIRE DISTRICT OF NEVADA by electronic

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service (ECF) to the person named below:

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DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
Assistant United States Attorney
NICHOLAS DICKINSON
Assistant United States Attorney
STEVEN MYHRE
Assistant United States Attorney
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101
/s/ Lauren Pullen
Employee of the Federal Public Defender

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 Case Document 1355-1 Filed 01/19/17 Page 1 of 2

EXHIBIT 

EXHIBIT 

Case 2:16-cr-00046-GMN-PAL Document 1355-1 Filed 01/19/17 Page 2 of 2

Office of Nevada Secretary of State Barbara K. Cegavske
January 2016 Voter Registration Statistics
Total Voters by County and Party
County
Carson City
Churchill
Clark
Douglas
Elko
Esmeralda
Eureka
Humboldt
Lander
Lincoln
Lyon
Mineral
Nye
Pershing
Storey
Washoe
White Pine
Statewide

Democrat

Independent
American

Libertarian

Nonpartisan

Other

Republican

8,593

1,630

250

4,764

204

12,179

2,747

795

98

2,132

55

7,360

Total
27,620
13,187

444,134

45,323

7,945

211,177

7,536

303,682

1,019,797

7,884

1,723

305

5,398

196

16,974

32,480

4,191

1,255

199

4,230

98

12,466

22,439

120

50

6

67

4

322

569

112

56

10

113

2

620

913

1,609

396

75

1,453

47

4,010

7,590

562

142

12

485

10

1,606

2,817

701

134

15

318

11

1,476

2,655

8,290

2,495

316

5,959

259

15,531

32,850

1,086

181

24

425

12

1,157

2,885

8,028

1,932

235

4,719

129

11,882

26,925

665

134

20

514

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1,162

2,503

702

192

36

497

15

1,279

2,721

95,090

13,612

2,821

52,268

3,352

99,790

266,933

1,376

273

33

800

18

2,116

4,616

585,890

70,323

12,400

295,319

11,956

493,612

1,469,500

Pursuant to state and federal law there may be a change in the number of registered voters after a statewide general election due to required
maintenance of the statewide voter registration list.
This report has been generated from Nevada's statewide voter registration database. The transmission of registration information between the counties and the
statewide database does not take place in real time. As a result, the numbers reflected in this report may not represent registration numbers reflected in the county
database at the precise moment a report is generated.
"Total Voter Registration" reflects all registered voters in the state that will be eligible to vote by the next federal primary or general election. This includes the
following voter statuses: active, inactive, and P-17. Not all county databases may have voters in all voter status categories.
"Active Voter" status includes any registered voter that is legally entitled to vote. This category includes new registrants who have provided all critical eligibility criteria
but are missing additional non-critical information from their applications, as well as existing registered voters whose records are being updated or changed.
"Inactive Voter" status includes any voter for whom a county has received: 1) a returned residency confirmation mailing without a forwarding address within the
same county, or 2) information obtained through the United States Postal Service National Change of Address (NCOA) database indicating that a voter has moved
outside the county. An inactive voter is eligible to vote so long as they have met all other legal requirements to vote.
"P-17 Voter" status includes any registered voter who was under 18 years of age at the time his or her voter registration was submitted, but will be age 18 years of
age or older by the next federal primary or general election and who has met all other legal requirements to vote.
Last updated: 2/1/2016 8:58 AM