2:16-cr-046-GMN-PAL - January 8, 2018 1 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 UNITED STATES OF AMERICA, 5 6 Plaintiff, vs. 7 CLIVEN D. BUNDY (1), RYAN C. BUNDY (2), 8 AMMON E. BUNDY (3), RYAN W. PAYNE (4), 9 Defendants. 10 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cr-046-GMN-PAL Las Vegas, Nevada Monday, January 8, 2018 Courtroom 7C, 9:28 a.m. MOTION TO DISMISS C E R T I F I E D C O P Y 11 12 13 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE GLORIA M. NAVARRO UNITED STATES DISTRICT CHIEF JUDGE 14 APPEARANCES: 15 For the Plaintiff: 16 17 18 19 UNITED STATES ATTORNEY'S OFFICE BY: STEVEN W. MYHRE DANIEL R. SCHIESS NADIA JANJUA AHMED 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, Nevada 89101 (702) 388-6336 20 21 (Appearances continued on Page 2) 22 Court reporter: 23 Heather K. Newman, RPR, CRR, CCR #774 333 South Las Vegas Boulevard Las Vegas, NV 89101 (702) 471-0002 HN@nvd.uscourts.gov 24 25 Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 2 1 APPEARANCES CONTINUED: 2 For the Defendant Cliven D. Bundy: 3 4 5 6 JUSTICE LAW CENTER BY: BRET O. WHIPPLE 1100 South Tenth Street Las Vegas, NV 89104 (702) 257-9500 For the Defendant Ryan C. Bundy: 7 RYAN C. BUNDY, PRO SE 8 THE FLETCHER FIRM, PC BY: MAYSOUN FLETCHER 5510 South Fort Apache, Suite 5 Las Vegas, NV 89148 (702) 835-1542 9 10 11 For the Defendant Ammon E. Bundy: 12 13 14 HILL FIRM BY: DANIEL HILL 228 South Fourth Street, 3rd Floor Las Vegas, NV 89101 (702) 848-5000 15 16 17 JM PHILPOT ATTORNEYS AT LAW BY: JAY MORGAN PHILPOT 1063 East Alpine Drive Alpine, UT 84004 (801) 891-4499 18 For the Defendant Ryan W. Payne: 19 20 21 22 FEDERAL PUBLIC DEFENDER'S OFFICE BY: RYAN NORWOOD BRENDA WEKSLER 411 East Bonneville Avenue, Suite 250 Las Vegas, NV 89101 (702) 388-6577 23 24 25 HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 3 1 APPEARANCES CONTINUED: 2 For Intervenors LVRJ and Battle Born Media: 3 4 5 6 7 McLETCHIE SHELL LLC BY: MARGARET A. McLETCHIE 701 East Bridger Avenue, Suite 520 Las Vegas, NV 89101 (702) 728-5300 Also present: 8 Sharon Gavin, FBI Special Agent Joel Willis, FBI Special Agent Mike Abercrombie, FBI Special Agent 9 Mamie Ott, Legal Assistant 10 Nicole Reitz, IT Brian Glynn, IT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 4 1 LAS VEGAS, NEVADA; MONDAY, JANUARY 8, 2018; 9:28 A.M. 2 --oOo-- 3 P R O C E E D I N G S 4 COURTROOM ADMINISTRATOR: 5 THE COURT: 6 COURTROOM ADMINISTRATOR: Thank you. All rise. You may be seated. This is the time set for 7 the Motion Hearing regarding Documents No. 2883 and 2906, 8 sealed Motions to Dismiss and Document No. 3010, Motion to 9 Unseal Intervenors -- by Intervenors in Case Number 10 2:16-cr-046-GMN-PAL, United States of America vs. Cliven Bundy, 11 Ryan Bundy, Ammon Bundy, and Ryan Payne. 12 Counsel, please make your appearances for the record. 13 MR. MYHRE: 14 15 16 17 Good morning, Your Honor. Steve Myhre, Dan Schiess, Nadia Ahmed on behalf of the United States. THE COURT: Good morning, Mr. Schiess. Good morning, Ms. Ahmed, and good morning, Mr. Myhre. MR. WHIPPLE: Good morning, Your Honor. 18 Brett Whipple -- as well Happy New Year to you. 19 on behalf of Mr. Cliven Bundy. 20 THE COURT: 21 PRO SE RYAN BUNDY: Brett Whipple Good morning, Mr. Whipple, Mr. Bundy. Ryan C. of the Bundy family here 22 by special appearance with Maysoun Fletcher assisting and on -- 23 and for the record, I reserve all right. 24 25 THE COURT: Good morning, Mr. Bundy. Good morning, Ms. Fletcher. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 5 1 MR. HILL: 2 Your Honor. 3 of Ammon Bundy. 4 5 6 7 8 9 10 11 12 13 Good morning and Happy New Year, Dan Hill along with Morgan Philpot here on behalf THE COURT: Good morning, Mr. Hill, Mr. Philpot and Mr. Bundy. MS. WEKSLER: Good morning, Your Honor. Brenda Weksler and Ryan Norwood on behalf of Mr. Payne. THE COURT: Good morning, Ms. Weksler, Mr. Norwood, and good morning, Mr. Payne. So before we begin, I would like to make some preliminary remarks just to -MS. McLETCHIE: Maggie McLetchie -- 14 THE COURT: 15 MS. McLETCHIE: 16 Good morning, Your Honor. Oh, I'm sorry. -- for the Intervenors Las Vegas Review Journal and Battle Born Media. 17 THE COURT: Thank you. Good morning, Ms. McLetchie. 18 All right. So before we begin, I just wanted to make 19 some preliminary remarks to remind everyone and to set clear 20 the expectations of how court will be conducted this morning. 21 Please remember this is a courtroom; it is not a 22 sporting event. So it is never appropriate to make any 23 expression of your opinion, whether verbally or through your 24 body language, no matter how much you may agree or disagree 25 with what is being said. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 6 1 In addition, we do not allow electronic devices in 2 the courtroom. There is no audio or video recording permitted 3 in the courtroom. 4 to have electronic devices so that they may be able to do their 5 job. 6 who is permitted to have an electronic device so long as the 7 audio and speaker is covered. Therefore, only the attorneys are permitted There is one paralegal -- I think I see him back there -- 8 Do you have that with you today, sir? 9 UNIDENTIFIED SPEAKER: 10 I kept it in my briefcase, Your Honor. 11 THE COURT: Okay. Thank you, sir. 12 So please be aware that the marshals are authorized 13 to remove any individual who is seen with an electronic device, 14 whether it's on or off. Whether it's in vibrate or privacy 15 mode, does not matter. If you have the device, they will be 16 able to remove you and you may not be able to re-enter. 17 Likewise, if you make any distracting or inappropriate 18 expressions, the marshals also have the authority to remove you 19 in order to preserve the atmosphere in the courtroom. 20 Now, the Court has reviewed the following briefs: 21 Number 83 -- I'm sorry -- 2883 is the sealed version. 22 public version is 3057. 23 2906. 24 also reviewed Documents 3082 and 3085. 25 those documents are 3087 and 3088. The The Court has also reviewed Docket No. The public version of that is 3058. And the Court has The public versions of HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 7 1 2 The Court does grant Cliven Bundy's Motion for Joinder, which is Number 3096. 3 Now, in Payne's Motion to Dismiss, Mr. Payne's Motion 4 to Dismiss, which is Number 3085, he does request that the 5 Indictment be dismissed based on three possible theories: 6 The first being that the case barred by the double 7 jeopardy clause; the second being that outrageous government 8 conduct that amounts to a due process violation justifies 9 dismissal; and the third theory is that dismissal under the 10 Court's supervisory power for outrageous governmental 11 misconduct is appropriate. 12 13 The Court first will address the double jeopardy argument. 14 Double jeopardy does attach once a jury has been 15 sworn. Pursuant to United States v. Alexander, Ninth Circuit 16 case decided in 1998, "If a case is dismissed after jeopardy 17 attaches but before the jury reaches a verdict, a defendant may 18 be tried again for the same crime only in two circumstances: 19 Number one, if he consents to the dismissal, or number two, if 20 the district court determines that the dismissal was required 21 by manifest necessity," quoting from Chapman, Ninth Circuit 22 case decided in 2008 as well as Oregon v. Kennedy, United 23 States Supreme Court case decided in 1982. 24 already granted the mistrial based on manifest necessity so it 25 follows that the defendants may be retried under this theory. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 Here, the Court has (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 8 1 However, defendant Payne argues that the Double 2 Jeopardy Clause still bars retrial "where the government 3 conduct in question is intended to 'goad' the defendant into 4 moving for a mistrial," quoting Oregon v. Kennedy. 5 what has occurred throughout the trial up to this point, the 6 Court finds no evidence that the government's failure to 7 disclose evidence was a strategy decision on the prosecution's 8 part to abort the trial. 9 attempted to provide the defense with the identified Brady Considering Rather, it appears the government has 10 evidence in order to move forward with trial and not to 11 purposely goad the defense into moving for mistrial. 12 13 For these reasons, the Court finds the Double Jeopardy Clause does not bar retrial. 14 Next we have the claim of outrageous government 15 conduct and that a dismissal is appropriate for either -- 16 either under a due process violation theory or under the 17 Court's supervisory powers. 18 "A district court may dismiss an Indictment on the 19 ground of outrageous government conduct if the conduct amounts 20 to due process violation," quoting from Simpson, Ninth Circuit 21 case. 22 process violation, the Court may nonetheless dismiss a case for 23 outrageous government misconduct under its supervisory powers. 24 25 If the conduct does not rise to the level of a due So turning first to the due process violation allegation. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 9 1 To violate due process, governmental conduct must be, 2 and I quote, "so grossly shocking and so outrageous as to 3 violate the universal sense of justice," quoting from United 4 States v. Restrepo, Ninth Circuit case decided in '91, and also 5 United States vs. Ramirez, Supreme Court case decided in 1983. 6 Due process is not violated unless the conduct is 7 attributable to and directed by the government, United States 8 v. Barrera-Moreno, Ninth Circuit case decided in 1991. 9 "Outrageous government conduct occurs when the 10 actions of law enforcement officers or informants are so 11 outrageous that due process principles would absolutely bar the 12 government from invoking judicial processes to obtain a 13 conviction," United States v. Archie, which is 2016 case out of 14 the District of Nevada as well as United States v. Black, Ninth 15 Circuit case decided in 2013 and United States v. Russell, U.S. 16 Supreme Court case decided in 1973. 17 Now, dismissal under this "extremely high" standard 18 is appropriate only in "extreme cases in which the government's 19 conduct violates fundamental fairness," U.S. v. Pedrin, 20 P-e-d-r-i-n, Ninth Circuit case decided in 2015 quoting from 21 United States v. Smith, Ninth Circuit decided in 1991. 22 So when reviewing a claim alleging that the 23 Indictment should be dismissed because the government's conduct 24 was outrageous, evidence is viewed in the light most favorable 25 to the government, United States v. Gurolla, G-u-r-o-l-l-a, HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 10 1 2 3 4 Ninth Circuit case decided 2003. The concept of outrageous government conduct focuses on the government's actions, United States v. Restrepo. Here in this case, both the prosecution and the 5 investigative agencies are equally responsible for the failure 6 to produce Brady materials to the defense. 7 mistrial hearing, the Court explained, in detail, that numerous 8 documents, and the information contained in such documents, 9 should have been provided to the defense and the Court finds In the prior 10 this conduct especially egregious because the government chose 11 not to provide this evidence, even after the defense 12 specifically requested it. 13 The Court finds the prosecution's representations 14 that it was unaware of the materiality of the Brady evidence is 15 grossly shocking. 16 Court's order, which is on the docket, Number 2770, that a 17 self-defense theory may become relevant if the defense was able 18 to provide an offer of proof, outside the presence of the jury. 19 Moreover, in that same order, Number 2770, the Court 20 specifically denied the government's motion to exclude all the 21 reference to perceived government misconduct to the extent it 22 is relevant to defenses raised by the defendants. 23 government was well aware that theories of self-defense, 24 provocation, and intimidation might become relevant if the 25 defense could provide a sufficient offer of proof to the Court. The prosecution was on notice after the HEATHER K. NEWMAN, FOCR, RPR, CCR 774 So the (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 11 1 However, the prosecution denied the defense its opportunity to 2 provide favorable evidence to support their theories as a 3 result of the government's withholding of evidence and this 4 amounts to a Brady violation. 5 For example, the government claims it failed to 6 disclose this evidence because the FBI did not provide the 7 documents to the prosecution team. 8 a duty to learn of favorable evidence known to other government 9 agents, including the police, if those persons were involved in However, the prosecutor has 10 the investigation or prosecution of the case, citing Kyles v. 11 Whitley, United States Supreme Court case decided 1995. 12 Clearly, the FBI was involved in the prosecution of this case. 13 Based on the prosecution's failure to look for evidence outside 14 of that provided by the FBI and the FBI's failure to provide 15 evidence that is potentially exculpatory to the prosecution for 16 discovery purposes, the Court finds that a universal sense of 17 justice has been violated. 18 is still outstanding Brady discovery based on the government's 19 most recent assertion that, and I quote, "the government 20 expects a thorough review of the discovery will result in the 21 production of other documents to the defense," and I'm citing 22 from the most recent filing by the government, Number 3081, 23 Page 45, Footnote 20. 24 25 The Court is convinced that there Alternatively, a district court may exercise its supervisory powers in three different enumerated ways: HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 12 1 Number one, "to remedy unconstitutional or statutory 2 violation"; number two, "to protect judicial integrity by 3 ensuring that a conviction rests on appropriate considerations 4 validly before a jury"; or number three, "to deter future 5 illegal conduct," quoting from Simpson, Ninth Circuit case 6 decided '91. 7 In United States vs. W. R. Grace, the Ninth Circuit 8 clarified that the exercise of the Court's inherent powers is 9 not limited to these three grounds enumerated in Simpson, and 10 11 that was an en banc decision by the Ninth Circuit in 2008. "Dismissal is appropriate when the investigatory or 12 prosecutorial process has violated a federal Constitution or 13 statutory right and no lesser remedial action is available," 14 quoting from Barrera-Moreno. 15 The Ninth Circuit has recognized that exercise of a 16 supervisory power is an appropriate means of policing ethical 17 misconduct by prosecutors, United States v. Lopez, Ninth 18 Circuit case decided in 1993. 19 20 21 So "dismissal under the Court's supervisory powers for prosecutorial misconduct requires both: "Number one, flagrant misbehavior, and number two, 22 substantial prejudice," citing United States v. Kearns, 23 K-e-a-r-n-s, Ninth Circuit case decided in 1993. 24 25 Neither accidental nor mere negligent governmental conduct is sufficient. The idea of prejudice entails that the HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 13 1 government's conduct had at least some impact on the verdict 2 and thus redounded to the defendant's prejudice. 3 In order for the Court to dismiss an Indictment under 4 the supervisory powers, the Court must find that there has been 5 flagrant prosecutorial misconduct, substantial prejudice to the 6 defendants, and that no lesser remedial action is available. 7 The Court found previously that there had been 8 multiple Brady violations because the government failed to 9 produce evidence that bolstered the defense and was useful to 10 rebut the government's theory. 11 concluded that the government willfully failed to disclose 12 potentially exculpatory, favorable and material information, 13 including, but not limited to, the following documents and 14 their contents: 15 Additionally, the Court The FBI Law Enforcement Operation order; the FBI 16 Burke 302 about Agent Egbert; the FBI 302 about BLM Agent 17 Delmolino authored by FBI Agent Willis; the FBI 302 about BLM 18 Special Agent Felix observing the LP/OP, the Listening 19 Post/Operation Post; the FBI 302 about BLM Racker and his 20 assignment to the LP/OP; the unredacted FBI TOC log; and the 21 various threat assessments created by different agencies, 22 including the BLM and FBI. 23 24 25 It seems no coincidence that most, if not all, of these documents are authored by the FBI. I do need to make one correction. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 Apparently I (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 14 1 previously identified -- or should I say misidentified -- a 2 report or some information as being contained in an Internal 3 Affairs report. 4 Task Force report, the JTTF prepared on March 14th of 2014. 5 This is the document that recorded that at a meeting Love had 6 stated that he had requested that the FBI place a surveillance 7 camera. 8 9 It was actually in the FBI Joint Terrorism So the Court looks to Chapman, U.S. v. Chapman. And in Chapman, the district court dismissed an Indictment pursuant 10 to its supervisory powers based on discovery violations that 11 involved 650 pages of undisclosed documents that the Court 12 classified as Brady material. 13 found that "the Assistant U.S. Attorney acted flagrantly, 14 willfully and in bad faith" and that he had made "affirmative 15 misrepresentations to the Court," that the defendants would be 16 prejudiced by a new trial and that no lesser standard would 17 adequately remedy the harm done after reviewing the totality of 18 the proceedings before it. 19 The district court in Chapman The Ninth Circuit held that the Chapman court did not 20 abuse its discretion by dismissing the Indictment pursuant to 21 its supervisory powers. 22 Here, defendant Payne argues that the government's 23 conduct was more egregious than the facts before the Chapman 24 court. 25 discovery issues on the eve of trial and that there was at He argues that there were more than mere hints of the HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 15 1 least a thousand pages of discovery disclosed between 2 November 8th and December 15th of 2017, all which should have 3 been disclosed by October 1st. 4 The government argues that this case is different 5 from the Chapman case because here the prosecution did not fail 6 to produce evidence it knew to be material. 7 contends it merely inadvertently failed to disclose evidence, 8 or that the defense had all the information in the undisclosed 9 documents because the government had previously provided other The government 10 documents with substantially the same content. 11 government contends that the documents that the Court ruled to 12 be untimely disclosed, in violation of Brady, not including the 13 OIG reports, is actually fewer than 200 pages. 14 Further, the "The prosecutor has a 'sworn duty' to assure that the 15 defendant has a fair and impartial trial. His interest in a 16 particular case is not necessarily to win, but to do justice," 17 citing from Chapman. 18 minimized the extent of prosecutorial misconduct by arguing 19 that they believed the various items previously undisclosed, 20 like the threat assessments, were not helpful or exculpatory, 21 or that they did not need to be -- or that they did not provide 22 evidence that snipers had been inserted or did not need to, 23 because the use of snipers was already known to the defense. 24 Another argument is that the FBI did not provide the 25 information to the prosecution. Here, the prosecution seems to have HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 16 1 The Court acknowledges that merely negligent 2 government conduct is not sufficient to establish flagrant 3 misbehavior. 4 stated, "we never suggested that flagrant misbehavior does not 5 embrace reckless disregard for the prosecution's constitutional 6 obligations." 7 flagrant misbehavior. 8 an ongoing duty to learn of favorable evidence known to other 9 government agents, including the police, if those persons are However, as the appellate court in Chapman In other words, reckless disregard may amount to As the Court has noted, a prosecutor has 10 involved in the investigation or prosecution of the case. 11 Therefore, the fact that the prosecution failed to look beyond 12 the files provided by the FBI is not mere negligence; it is a 13 reckless disregard for its Constitution obligations to learn 14 and seek out favorable evidence. 15 the FBI to provide the required information amounted to an 16 intentional abdication of its responsibility. 17 The prosecution's reliance on For example, the prosecution was aware of the 18 existence of a camera set to provide a live feed. The claims 19 that the FBI 302 authored by Burke on April 8th of 2014 about 20 Egbert led the prosecution to believe that it did not need to 21 follow up on the camera feed because the 302 report said that 22 the camera was not configured to record. 23 decision to not follow up was not mere negligence. 24 Court noted previously, the government's proffer that views 25 from a surveillance camera were never viewed by anyone nor But the prosecution's HEATHER K. NEWMAN, FOCR, RPR, CCR 774 As the (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 17 1 recorded or reported in some format was simply inconceivable. 2 That the prosecution accepted this implausible claim, whether 3 it was provided by the FBI, is just another example of its 4 reckless disregard to fulfill its constitutional duties to 5 learn about evidence favorable to the defense that may have 6 existed as a result of someone's notes and observations of the 7 surveillance camera's live feed of the Bundy Ranch. 8 9 Further, the prosecutors' alleged reliance on the information in the FBI files was misplaced. The Court finds 10 that the FBI's failure to timely produce information to the 11 prosecution amounts to reckless disregard or flagrant 12 misbehavior, especially in light of the fact that the FBI was 13 directly involved in the operation, prior to the operation, 14 during, and after the alleged conspiracy timeline. 15 seriously questions why the FBI inexplicably placed (or perhaps 16 hid) potentially exculpatory electronic information about the 17 placement of FBI snipers in such an unconventional location, on 18 a thumb drive, inside a vehicle, for over three years. 19 Compounding the Court's concern is that the FBI had almost four 20 full years to prepare the trial and two years to disclose the 21 information to the prosecution and that their agents were 22 physically present during the last two trials where the 23 existence of snipers was contentiously debated. 24 the Court is not required to identify the responsible persons 25 with such specificity. The Court Regardless, And I add, the Court is not aware of HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 18 1 any other situation where the FBI has acted in disregard such 2 as this. 3 whether it's of the FBI or other enforcement -- law enforcement 4 agencies under these circumstances, to the government 5 prosecution team, citing United States vs. Barrera-Moreno 6 decided by the Ninth Circuit in 1991, analyzing the Court's 7 supervisory power, stating, and I quote, that "dismissal is 8 appropriate when the investigatory or prosecutorial process has 9 violated a federal constitutional or statutory right and no 10 11 The law attributes, nevertheless, the conduct, lesser remedial action is available." This case is distinguished from Chapman in that the 12 prosecution in this case has kept a record of what has been 13 produced and what has not been produced. 14 recognizes that the government has attempted to locate all 15 outstanding discovery. 16 involves voluminous discovery and the government willfully 17 failed to produce Brady material. 18 made several misrepresentations to the defense, and to the 19 Court, regarding the existence of the cameras, the snipers, the 20 materiality of prior threat assessments and its diligent and 21 fully complying -- its diligence in fully complying with its 22 constitutional obligations. 23 whether individuals were technically "snipers" or not "snipers" 24 was disingenuous, especially considering that the undisclosed 25 documents authored by the FBI, the ones located on the thumb The Court also However, like Chapman, this case Additionally, the government For example, representations about HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 19 1 drive inside a vehicle, expressly refer to these individuals as 2 "snipers" at least three different occasions. 3 arguments about whether they were actually "deployed" or merely 4 "training" was a deliberate attempt to mislead and to obscure 5 the truth. 6 reason to withhold information. 7 noted by the defense in the brief and the Court does not 8 disagree with these representations. 9 Likewise, These are arguments for closing argument and not a Numerous other instances are Thus, the Court does find that there has been 10 flagrant prosecutorial misconduct in this case even if the 11 documents themselves were not intentionally withheld from the 12 defense. 13 Defendant Payne argues that the defense has been 14 prejudiced because there -- they have already set forth the 15 legal and factual particulars of their defense by revealing 16 voir dire strategy, the evidence they expect to support their 17 defense in their opening statements, revealing their strategy 18 in cross-examination, and the defense correctly avers that this 19 revealed information will allow the government to try and 20 correct its faltering case. 21 the lack of success of the government at prior trials; the tone 22 and the direction of the jury questions in this case, both 23 those questions that were read and not read to the witness; and 24 the new yet unexplored issues related to the Wooten e-mail, the 25 FBI special agent who was formally assigned to lead the Specifically, the defense notes HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 20 1 investigation but abruptly was removed in February of 2017, 2 allegedly by the prosecution because he complained of Special 3 Agent in Charge Dan Love's misconduct, the investigating law 4 enforcement officer's bias, the government's bias, and the 5 failure to disclose exculpatory evidence. 6 The Court agrees that retrying the case would only 7 advantage the government by allowing them to strengthen their 8 witnesses' testimony based on the knowledge gained from the 9 information provided by the defense and revealed thus far. 10 government would be able to perfect its opening statements 11 based on the revealed defense strategy in its opening and the 12 government would also be able to conduct more strategic voir 13 dire at the retrial. 14 The The Court is troubled by the prosecution's failure to 15 look beyond the FBI file that was provided and construes the 16 Brady violations in concert as a reckless disregard of its 17 discovery obligations. 18 prejudice the defendants will suffer as a result of a retrial 19 warrant the extreme measure of dismissing the Indictment 20 because no lesser sanction would adequately defer -- deter 21 future investigatory and prosecutorial misconduct. 22 The government's recklessness and the The government is only proposed a new trial as the 23 appropriate remedy for their discovery violations. 24 its conduct has caused the integrity of a future trial and any 25 resulting conviction to be even more questionable. HEATHER K. NEWMAN, FOCR, RPR, CCR 774 However, Both the (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 21 1 defense and the community possess the right to expect a fair 2 process with a reliable conclusion. 3 Court's position that none of the alternative sanctions 4 available are as certain to impress the government with the 5 Court's resoluteness in holding prosecutors and their 6 investigative agencies to the ethical standards which regulate 7 the legal profession as a whole. 8 9 Therefore, it is the The Court finds that the government's conduct in this case was indeed outrageous, amounting to a due process 10 violation, and that a new trial is not an adequate sanction for 11 this due process violation. 12 Even if the government's conduct did not rise to the 13 level of a due process violation, the Court would nonetheless 14 dismiss under its supervisory powers because there has been 15 flagrant misconduct, substantial prejudice, and no lesser 16 remedy is sufficient. 17 defendants: 18 Bundy, and dismissal is justified for all three of the 19 enumerated reasons provided by the law: 20 Dismissal is necessary as to these four Ryan Payne, Ryan Bundy, Ammon Bundy, and Cliven Number one, to properly remedy the constitutional 21 violation; number two, to protect judicial integrity by 22 ensuring that a conviction rests only on appropriate 23 considerations validly before a jury; and number three, to 24 deter future illegal conduct. 25 It is herein ordered that the defendants' Motion to HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 22 1 Dismiss with prejudice, Number 2883, public version 3057, as 2 well as Document No. 2906, public version 3058, and 3 Document 3082 and 3085, public version 3087 and 3088, are 4 hereby granted. 5 The Court hereby vacates the detention orders for 6 Cliven Bundy. The Court vacates the pretrial release orders 7 and exonerates the bonds of Ryan Payne, Ryan Bundy, and Ammon 8 Bundy. 9 Office immediately per Judge Brown's order from Oregon, but Mr. Payne is still to report to the U.S. Marshal's 10 rather than having you remanded into custody right now 11 immediately, I will order you to report to the U.S. Marshal's 12 Office as soon as this hearing is concluded. 13 The Calendar Call in trial date is likewise vacated 14 as to these four defendants, and the trial for the remaining 15 defendants will remain scheduled for February 26th at 8:30 a.m. 16 with Calendar Call February 15th at 9:00 a.m. 17 So the Court will take about a 15-minute recess. 18 It's 9:56 now. So, about until 10:15 so that the proper 19 paperwork can be provided to the defendants and then we'll 20 resume and take up the Intervenors' Motion to Unseal, which is 21 number 3010 on the docket. 22 COURTROOM ADMINISTRATOR: 23 Off record. 24 25 All rise. (Recess was taken at 9:56 a.m.) /// HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002 2:16-cr-046-GMN-PAL - January 8, 2018 1 --oOo-- 2 COURT REPORTER'S CERTIFICATE 3 4 I, Heather K. Newman, Official Court Reporter, United 5 States District Court, District of Nevada, Las Vegas, Nevada, 6 do hereby certify that pursuant to Section 753, Title 28, 7 United States Code, the foregoing is a true, complete, and 8 correct transcript of the proceedings had in connection with 9 the above-entitled matter. 10 11 12 DATED: 1-9-2018 _/s/ Heather K. Newman Heather K. Newman, CCR #774 OFFICIAL FEDERAL REPORTER 13 14 15 16 17 18 19 20 21 22 23 24 25 HEATHER K. NEWMAN, FOCR, RPR, CCR 774 (702)471-0002