Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 1 of 78 CA No. 18-10287 D. Ct. No. 2:16-CR-46-GMN IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________ UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CLIVEN D. BUNDY, RYAN C. BUNDY, AMMON E. BUNDY, and RYAN W. PAYNE, Defendants-Appellees. ________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA GOVERNMENT’S OPENING BRIEF NICHOLAS A. TRUTANICH United States Attorney ELIZABETH O. WHITE Appellate Chief and Assistant U.S. Attorney District of Nevada 400 South Virginia, Suite 900 Reno, Nevada 89501 Attorneys for the United States Date submitted: March 20, 2019 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 2 of 78 TABLE OF CONTENTS Table of Authorities ............................................................................ vi Map of Area ....................................................................................... ix I. INTRODUCTION AND SUMMARY OF ARGUMENT .................. 1 II. STATEMENT OF JURISDICTION AND BAIL STATUS ................. 4 III. ISSUE PRESENTED FOR REVIEW .................................................. 4 Whether the district court erred in dismissing the indictment with prejudice based on the timing of the government’s production of certain documents, where any government missteps were inadvertent; the record does not support the court’s findings of flagrant misconduct or substantial prejudice; and lesser sanctions could remedy any possible harm. ...................................................................................... 4 IV. STATEMENT OF THE CASE AND THE FACTS ............................. 5 A. Cliven Bundy Unlawfully Grazes His Cattle on Public Land for Decades, Ignoring Multiple Federal Court Orders to Cease. ........ 5 B. BLM Formulates a Plan to Enforce the Court Orders, and Bundy Vows a “Range War.” ..................................................... 6 C. Defendants Recruit Militia to Stop the Impoundment. ................. 7 D. Bundy Riles up His Militia Supporters Who, on His Order, Travel Several Miles to the Impoundment Site to “Free” Bundy’s Cattle by Means of Armed Assault. ............................... 9 E. Indictment and Trials of the Tier-3 Defendants .......................... 12 F. Security and Discovery Concerns .............................................. 13 G. The Court Rejects Affirmative Defenses of “Provocation,” “Intimidation,” and Self-Defense. ............................................ 16 ii Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 3 of 78 V. H. Discovery Litigation ................................................................ 17 I. Defendants’ New Overt Acts Theory ........................................ 19 J. Final Motions to Dismiss and Mistrial Ruling .......................... 21 K. Ruling on Dismissal with Prejudice .......................................... 23 ARGUMENT ................................................................................... 26 Dismissal with Prejudice Based on the Timing of the Government’s Production of Certain Documents Was Unwarranted Because Any Government Missteps Were Inadvertent; the Record Does Not Support the Court’s Findings of Substantial Prejudice and of Flagrant or Outrageous Government Misconduct; and Lesser Sanctions Were Sufficient to Remedy Any Harm. ....................................................... 26 A. Standards of Review ................................................................ 26 B. Analytical Framework .............................................................. 26 C. The Government’s Inadvertent Failure to Disclose Duplicative Documents Does Not Justify Dismissal with Prejudice. ............. 29 1. The government’s failure through simple inadvertence to disclose duplicative maps and three FBI 302s was neither flagrant misconduct nor substantially prejudicial. ............ 31 a. The additional maps contained no new information, and not disclosing them earlier was neither flagrant nor substantially prejudicial. ................................................ 31 b. Any relevant information in the Felix 302 was timely disclosed, as the defense’s pleading made plain. ................ 33 c. The court’s ruling equating FBI authorship with willful suppression, and thus flagrant misconduct, is erroneous. ... 35 iii Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 4 of 78 2. 3. D. The government’s failure to produce one document it was unable to find and one document it had no reason to know about does not warrant the extreme sanction of dismissal. ........................................................................ 38 a. The government produced the desert tortoise report as soon as we found it, and our failure to discover it earlier was not unreasonable. ............................................................ 38 b. The government produced the TOC log as soon as we learned about it, and our failure to discover it earlier did not constitute “flagrant” or “outrageous” misconduct. ....... 41 The government’s failure to appreciate the possible relevance of certain documents was not unreasonable in light of the court’s earlier rulings, and does not constitute “flagrant” misconduct...................................................... 46 a. The court explicitly found the materiality of information about the surveillance camera was not apparent until November 8, 2017; and in any event, the court’s finding of “substantial prejudice” fails because the defendants had, and used, this information at trial. ................................. 46 b. The government’s November 2017 production of threat assessments prepared for an unexecuted 2012 impoundment operation does not constitute “flagrant” or “outrageous” misconduct. .............................................. 51 The Court’s Other Basis for Finding Flagrant Misconduct and Substantial Prejudice Also Fails Because It Had Repeatedly Ruled BLM’s Purported “Militarization” Did Not Justify Defendants’ Alleged Crimes, and Self-Defense Was Not Cognizable in This Case............................................................ 55 1. “Provocation” and “intimidation” are not cognizable defenses. .......................................................................... 56 2. Self-defense was not available here. ................................ 56 iv Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 5 of 78 3. VI. The government’s reasonable reliance on the district court’s repeated, consistent rulings on these issues cannot amount to “flagrant” or “outrageous” misconduct............ 57 E. Inadvertent, or Even Negligent, Brady Violations Do Not Warrant the Extreme Remedy of Dismissal of an Indictment. .... 58 F. The Court’s Cursory Findings of Substantial Prejudice Are Erroneous, and in Any Event Are Insufficient to Warrant Dismissal. ................................................................................ 62 G. Dismissal with Prejudice Was Unwarranted Because Several Lesser Sanctions Were Available............................................... 64 1. Striking three allegations from the indictment................... 65 2. Dismissing Count 1 or Count 16, or both ......................... 65 CONCLUSION................................................................................. 67 VII. STATEMENT OF RELATED CASES.............................................. 68 CERTIFICATE OF COMPLIANCE v Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 6 of 78 TABLE OF AUTHORITIES Federal Cases California v. Hodari D., 499 U.S. 621 (1991) .................................................. 57 Cunningham v. Wong, 704 F.3d 1143 (9th Cir. 2013) ..................................... 49 Giglio v. United States, 405 U.S. 150 (1972) ................................................... 28 Hinojosa v. City of Terrell, Tex., 834 F.2d 1223 (5th Cir. 1988) ........................ 57 Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011).......................................35, 55 United States v. Barrera-Moreno, 951 F.2d 1089 (9th Cir. 1991) ..................26, 27 United States v. Branch, 91 F.3d 699 (5th Cir. 1996) ....................................... 56 United States v. Bundy, 2:98-cv-531-JBR (D. Nev.) .......................................... 5 United States v. Bundy, 178 F.3d 1301 (9th Cir. 1999) (unpublished) ................ 5 United States v. Bundy, 2:12-cv-804-LDG, 2013 WL 3463610 (D. Nev. July 9, 2013) ................................................... 5 United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) ..................... 26, 27, 28 United States v. Chung, 659 F.3d 815 (9th Cir. 2011) ...................................... 54 United States v. Doe, 125 F.3d 1249 (9th Cir. 1997) ...................................27, 62 United States v. Feola, 420 U.S. 671 (1975) .................................................... 17 United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992)....................................... 64 United States v. Jacobs, 855 F.2d 652 (9th Cir. 1988) ...................................... 26 United States v. Kearns, 5 F.3d 1251 (9th Cir. 1993) ................................. passim vi Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 7 of 78 United States v. Kohring, 637 F.3d 895 (9th Cir. 2011) ...............................28, 37 United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993) ....................................28, 41 United States v. Michael, 5:15-cr-86 (E.D. Pa.)................................................ 14 United States v. Morrison, 449 U.S. 361 (1981) ..........................................28, 64 United States v. Nobari, 574 F.3d 1065 (9th Cir. 2009) .................................... 27 United States v. Restrepo, 930 F.2d 705 (9th Cir. 1991) .................................... 27 United States v. Rogers, 751 F.2d 1074 (9th Cir. 1985) .................................... 27 United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987).................................. 59 United States v. Simpson, 927 F.2d 1088 (9th Cir. 1991).................................. 27 United States v. Sovie, 122 F.3d 122 (2d Cir. 1997) ......................................... 56 United States v. Span, 75 F.3d 1383 (9th Cir. 1996) ........................................ 17 United States v. Span, 970 F.2d 573 (9th Cir. 1992) ........................................ 57 United States v. Struckman, 611 F.3d 560 (9th Cir. 2010) ...........................27, 28 United States v. Taylor, 487 U.S. 326 (1988)................................................... 67 United States v. Taylor, 680 F.2d 378 (5th Cir. 1982) ...................................... 56 United States v. Toilolo, 666 F. App’x 618 (9th Cir. 2016) ..........................28, 59 United States v. Wilson, 698 F.3d 969 (7th Cir. 2012) ..................................... 56 vii Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 8 of 78 Federal Statutes 18 U.S.C. § 3231 ........................................................................................... 4 18 U.S.C. § 3731 ........................................................................................... 4 Federal Rules Fed. R. App. P. 4(b) ...................................................................................... 4 Fed. R. App. P. 32(a) .................................................................................. 69 viii Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 9 of 78 MAP Showing 1) Impound Site (“ICP”), 2) Security Posts at Highway, 3) Rally Site/Militia Camp, 4) Forward Operating Base, and 5) Bundy property ix Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 10 of 78 I. INTRODUCTION AND SUMMARY OF ARGUMENT After grazing his cattle illegally on public land for more than 20 years and in flagrant violation of multiple federal court orders, Cliven Bundy, with his codefendants, orchestrated a massive armed assault on law-enforcement officers working to enforce those orders. On the day of the assault, at Bundy’s direction, his followers travelled en masse five miles from their rally site to the wash where officers were working. Brandishing firearms from superior tactical positions, they demanded officers abandon their post and the lawfully corralled cattle. To prevent the bloodshed that was certain to follow if they remained, officers acceded to the armed militia’s extortionate demands. The sound judgment of law enforcement kept the peace that day, but the federal court’s orders remain unenforced, and Bundy continues to unlawfully graze his cattle on federal land in violation of those orders. In nearly two years of pre-trial litigation, the government disclosed more than 1.4 terabytes of discovery. Prosecutors painstakingly reviewed hundreds of thousands of pages, seeking to produce all relevant information while protecting victims, witnesses, and others from threats and violence. On December 20, 2017, after weeks of being inundated with motions to dismiss filed faster than it could consider them, the court declared a mistrial, 1 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 11 of 78 accepting defendants’ assertions that a handful of documents, if produced earlier, might have helped them develop “provocation,” “intimidation,” or self-defense theories—theories the court had repeatedly found unavailable—or rebut three allegations in the indictment. The court found the government’s failure to produce these documents sooner “willful,” often solely because the FBI created or possessed them. And it found defendants suffered prejudice, even though the documents were disclosed in time to use at trial. On January 8, 2018, the court dismissed the indictment against these defendants with prejudice. Although the court had previously found nondisclosure of certain documents reasonable explicitly because any possible materiality was not apparent, it now found “grossly shocking” the government’s “representations that it was unaware of the materiality” of those documents; and it found “willful” and “flagrant” nondisclosures it had earlier found understandable. Moreover, based on a single document prosecutors had no reason to know existed, it concluded the prosecution team’s conduct amounted to an “intentional abdication of its responsibility.” Assuming the government’s missteps with respect to one or more documents violated Brady, the court’s factual findings—even if accurate—would not justify dismissing the indictment with prejudice. And here, its findings were erroneous in several respects. 2 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 12 of 78 First, the court’s findings of “flagrant” misconduct rested on an assumption that the government hid certain information—like the existence of a surveillance camera, the FBI’s presence, officers in “sniper” roles, and assessments of the threat the Bundys posed. But the government timely disclosed significant discovery about all of those matters, and we demonstrated that defense claims to the contrary were untrue. No precedent supports the court’s conclusion that FBI authorship or possession of documents alone proves “willful” suppression, and the government’s prior disclosures belie any suggestion of intentional misconduct. Second, the government disclosed the information in time for defendants to use it at trial—and they did. The record does not support the court’s findings of substantial prejudice. The court’s alternative basis for finding flagrant misconduct similarly lacks merit. It found the materials relevant to “provocation,” “intimidation,” and selfdefense theories, but as it had repeatedly—and correctly—explained, those defenses were not available in this case. Finally, even if the court correctly found a Brady violation with respect to one or more documents, the extraordinary sanction of dismissal with prejudice was unwarranted. Any missteps were inadvertent (or at worst negligent), and did not merit the court’s strong condemnation of the prosecution team. Defendants suffered no substantial prejudice. And critically, after finding a handful of 3 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 13 of 78 documents might have been useful to rebut three overt acts alleged in the indictment, the court was required to tailor the remedy to the violation and consider options less drastic than dismissal with prejudice. This Court should reverse. II. STATEMENT OF JURISDICTION AND BAIL STATUS The government appeals the district court’s orders dismissing an indictment with prejudice and denying reconsideration. District court jurisdiction rested on 18 U.S.C. § 3231. It dismissed the indictment on January 8, 2018. See 1ER:16–38 (transcript). The government timely moved for reconsideration on February 7, 2018, Clerk’s Record (“CR”):3175, which the court denied on July 3, 2018, 1ER:4–14. The government filed a timely notice of appeal on August 2, 2018. 1ER:1–3; see Fed. R. App. P. 4(b)(1). This Court’s jurisdiction rests on 18 U.S.C. § 3731. Defendants are not in custody. III. ISSUE PRESENTED FOR REVIEW Whether the district court erred in dismissing the indictment with prejudice based on the timing of the government’s production of certain documents, where any government missteps were inadvertent; the record does 4 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 14 of 78 not support the court’s findings of flagrant misconduct or substantial prejudice; and lesser sanctions would remedy any possible harm. IV. STATEMENT OF THE CASE AND THE FACTS A. Cliven Bundy Unlawfully Grazes His Cattle on Public Land for Decades, Ignoring Multiple Federal Court Orders to Cease. Cliven Bundy lives on 160 acres of rural land near Bunkerville, Nevada, surrounded by hundreds of thousands of acres of federal public land. See 6ER:1072. Since 1993, Bundy has grazed his cattle unlawfully on that federal public land. 6ER:1016–23, 1047–48. In 1998, BLM sued Bundy for trespass, and the district court ordered him to remove his cattle. United States v. Bundy, 2:98-cv-531-JBR, at CR:19, aff’d, 178 F.3d 1301 (9th Cir. 1999) (unpublished). Bundy ignored that order, and the court issued another one in 1999, fining Bundy for each day he refused to comply. Id. at CR:46. Bundy ignored that order as well. BLM sued again after Bundy’s cows began trespassing into the Lake Mead National Recreation Area. In 2013, the court again ordered Bundy to remove them. United States v. Bundy, 2:12-cv-804-LDG, 2013 WL 3463610 (D. Nev. July 9, 2013); 2:98-cv-531-LRH, at CR:56. Those orders authorized BLM to remove the cattle if Bundy refused, and ordered him not to interfere. 6ER:1036–37, 1049–50. As before, Bundy ignored the orders. 5 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 15 of 78 B. BLM Formulates a Plan to Enforce the Court Orders, and Bundy Vows a “Range War.” BLM began planning to remove the estimated 1,000 head of trespass cattle roaming more than 575,000 acres of difficult terrain. 6ER:1056–57, 1066; see 3ER:159 (Operations Plan). It planned to establish a base of operations (“the impoundment site”) on public lands at the Toquop Wash, about seven miles from Bundy’s property. 6ER:1076, 1082. BLM and National Park Service would provide security, and FBI would investigate incidents involving federal personnel. 6ER:1085; 3ER:163. Officers would take Listening Post/Observation Post (“LP/OP”) positions on public lands to watch over the impoundment site, Bundy’s property, and points of egress and ingress. 3ER:167–68. Finally, FBI SWAT—staged at a Forward Operating Base on public land about 1.5 miles from Bundy’s property—would back up BLM in case of an assault or hostage situation. 3ER:169; see supra, map p. ix. In March 2014, BLM notified Bundy about the impoundment. 3ER:311– 312. Bundy declared he was “ready to do battle,” and he would “do whatever it takes” to protect “[his] property” and organize “lots of groups” to “come from hundreds of miles away” for his “range war” with BLM. 3ER:313–14, 319. Cliven’s son Ryan said they would “have several hundred” people to prevent BLM from removing the cattle. 3ER:412–13; see Gov’t. Exh. 15-d. 6 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 16 of 78 As impoundment preparations began, Bundy and his followers interfered. They blocked an equipment convoy, threatening civilian contractors; and Ryan Bundy and others traveled to Utah to intimidate the auctioneer hired to sell the cattle. 3ER:321–22, 329–31; 6ER:1147. C. Defendants Recruit Militia to Stop the Impoundment. Between April 6 and 12, the Bundys initiated several confrontations with law enforcement. On April 6, Dave Bundy was arrested when he positioned himself to block a BLM convoy and refused to leave. 3ER:332–333; see Trial 1, Def. Exh. 5008-F (video), admitted CR:1785, at 155. After that arrest, defendant Ryan Payne contacted Cliven Bundy and offered assistance from Payne’s network of self-proclaimed militia groups. See 5ER:883–84. Bundy invited Payne to bring his militia forces to Bunkerville. 5ER:884–895. Payne established his militia headquarters on Bundy’s property, using social media to call for additional support. See, e.g., 5ER:886–95. The defendants set up a rally point with a make-shift stage near Bundy’s property, five miles from the impoundment site, where militia members gathered to hear speeches. 5ER:942–43; see supra, map p. ix. Codefendant Peter Santilli broadcast Internet messages calling for more armed supporters to join them. 5ER:986–88. 7 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 17 of 78 On April 9, Ammon Bundy led a mob blocking a BLM convoy; during the assault, officers tased him. See Trial 1, Def. Exh. 5006-E (video), admitted CR:1785, at 119. Defendants used the incident to recruit more militia. See, e.g., Trial 1, Gov’t Exh. 221; 5ER:898–900). Militia members armed with AK-47 and AR-15-style assault rifles and other munitions arrived from all over the country. 5ER:896 (Message from Payne: “We have 300 coming as of now. Numbers increasing.”). By Friday, April 11, hundreds of militia extremists were camped out at the rally site. Friday morning, BLM stopped operations for the weekend, expecting to resume the following Monday. 5ER:1001–05. That afternoon, however, FBI called to inform BLM leadership about a dire shift in their threat assessment. 5ER:1005–06. FBI said they “had never seen that number of purported militia groups and organizations coming together … to support one common cause,” and recommended BLM cease the impoundment. 5ER:1008. FBI warned that any effort by BLM to gather cattle, or leave the area, or transfer the cattle, could be a “flash point” resulting in violence. Ibid. Learning that any action they might take could trigger a violent response, BLM decided to end the operation, evacuate as many civilian contractors as possible, and enhance security until they could determine how to safely remove their equipment and the cattle. 5ER:1009–10. 8 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 18 of 78 D. Bundy Riles up His Militia Supporters Who, on His Order, Travel Several Miles to the Impoundment Site to “Free” His Cattle by Means of Armed Assault. On April 12, Clark County Sheriff Doug Gillespie went to meet with Bundy. 5ER:942–44. When he arrived, Gillespie was directed to the rally site stage, where about two hundred people, many carrying firearms, were gathered. 5ER:943. When Bundy took the stage, Gillespie told him and the crowd that BLM had called off the impoundment and would be leaving. See 5ER:950 (Trial 1, Gov’t. Exh. 425) (video). He said he wanted to talk with Bundy about how removal of BLM personnel and assets could be “facilitated in a safe way.” Ibid. Someone yelled about cows, and Gillespie added: “the cows are where they have been for the last few days and that is what needs to be discussed,” telling Bundy, “you and I need to have a conversation about it.” Ibid. When Gillespie finished, Bundy said he was “not here to negotiate with the Sheriff.” Ibid. Instead, he delivered an ultimatum, ordering Gillespie to go to the impoundment site, disarm the officers, and “deliver[]” their weapons to Bundy, on the stage, within an hour. Ibid. Gillespie left to report what had happened. 5ER:952. An hour later, Bundy returned to the stage and told the crowd it was time to “get those cattle.” See Trial 1, Gov’t Exh. 59 (video); admitted, CR:1786, at 211. Gunmen and supporters loaded into vehicles and travelled en masse five 9 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 19 of 78 miles to the impoundment site. Ibid.; see 5ER:838 (Co-defendant’s message: “Bundy gave the Sheriff 1 hour to disarm the BLM … he did not reply. We are now going to free the cattle by any means.”). When the followers arrived at the wash, the only thing separating the throng from the impoundment site was a makeshift metal gate underneath the southbound I-15 bridge. The few BLM officers guarding the gate immediately called for backup. When Mel Bundy arrived with about 40 followers on horses, the combined force of about 270 moved from under the northbound I-15 bridge toward the officers: Bundy’s militia gunmen took aggressive, prone positions on the bridges, and the embankments underneath: 10 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 20 of 78 Trial 1 Gov’t Exh. 449 (admitted, CR:1828, at 193–94); 11 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 21 of 78 Trial 1 Gov’t Exh. 440; CR:1825, at 149. Seeing this, officers immediately began ordering the crowd to disperse, but the gunmen and followers continued toward the gate. Bundy’s followers out-numbered law-enforcement officers about 400 to 25, 5ER:879, and officers reported “more guns than they could count.” CR:1672, at 175. To avoid bloodshed, BLM was forced to give in to Bundy’s demands. Approaching the gate, Special Agent-in-Charge Dan Love told Ammon and Dave Bundy he would release the cattle, but first everyone had to move back so officers could safely disengage. The Bundys refused, saying, “You need to leave … that’s the terms … you are on Nevada State property … the time is now.” Trial 1 Gov’t. Exh. 432 (video); CR:1818, at 109. Seeing no other way to prevent disaster, Love acceded to the threats and ordered his officers to leave, abandoning the post, impoundment site, and cattle. CR:3176, at 135. E. Indictment and Trials of the Tier-3 Defendants On March 2, 2016, a federal grand jury returned a sixteen-count superseding indictment charging Bundy and eighteen codefendants with conspiring to commit an offense against the United States; conspiring to impede and injure a federal officer; assaulting a federal officer; threatening a federal officer; obstructing justice; interfering with interstate commerce; interstate travel in aid of racketeering; and using firearms in relation to crimes of 12 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 22 of 78 violence. CR:27; 6ER:1178–1240. The court severed the defendants into three groups for trial, with “Tier 1” comprising the alleged leaders of the conspiracy: Cliven, Ammon, and Ryan Bundy; Ryan Payne; and Peter Santilli. CR:1098. The court ordered trial of Tier 3 first, then Tier 1, and then Tier 2. Ibid. In the first Tier-3 trial, the jury convicted Gregory Burleson and Todd Engel on some counts, hanging as to other counts and defendants. CR:1903. On retrial, the jury acquitted two defendants on all charges and two others on some charges, hanging as to other charges. CR:2290. The court scheduled the Tier-1 trial for October 2017. CR:2331, 2632.1 F. Security and Discovery Concerns Before trial, prosecutors sought to balance orderly disclosure of more than 1.4 terabytes of digital data2 with protecting witnesses and victims from real and on-going threats and violence. In issuing a protective order, the magistrate judge noted several examples of vigilantism and harassment suffered After nearly two weeks of jury selection, interrupted by hearings, the parties presented opening statements on November 14, 2017, CR:2862, and the first witness testified the next day (“Day 7” of trial), CR:2876. When the court declared a mistrial on December 20, the jury had sat for only eight partial days, and only four of the government’s 41 anticipated witnesses had testified. 1 The government produced more than 200,000 pages of printed material, 2,000 video recordings, and 1,600 audio recordings. 2 13 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 23 of 78 by victims, witnesses, and law-enforcement officers. See 6ER:1154–76. She recounted how Bundy’s on-line followers prompted more than 500 threatening and harassing phone calls to a BLM Chief Ranger, including at least one obscene death threat. 6ER:1160–61 (“We’re gonna find you; we’re gonna kill you, you f***ing BLM thug, you f***ing f**got.”).3 She included in her order a copy of a photograph (redacted by the government for officer safety) that had been shared on-line more than 1,400 times: 6ER:1160. That caller was convicted of threatening a federal law-enforcement officer and transmitting a threatening communication. United States v. Michael, No. 5:15-cr-86-MSG, at CR:27 (E.D. Pa. Aug. 3, 2015). 14 3 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 24 of 78 Most troubling, the magistrate judge described how, in June 2014, two extremists who had been at Bundy’s property in April murdered two Las Vegas police officers as they ate lunch, then draped a Gadsden flag over one of the officers and shouted this was the start of “a revolution,” later killing a civilian as well. 6ER:1161.4 Cognizant that discovery leaked into the public domain notwithstanding protective orders, prosecutors tried to produce everything relevant and material without unnecessarily subjecting to threats or violence individuals with no relevant information. The government also tried to avoid inundating defendants with irrelevant material. This concern was especially acute after Ammon Bundy preemptively warned the government against doing so. CR 290, at 6; see id. at 7 (suggesting See https://lasvegassun.com/news/2014/jun/09/look/ (last accessed 1/31/19). The district judge also received threats. In December 2017, a Bundy supporter posted on social media that the judge and prosecutor should be “cavity searched – shackled – beaten” and confined until “we the people” decide their “verdicts.” CR:3218, at 6. The court confirmed “[c]hambers and court staff continued to receive harassing, and at times threatening, communications about this case” for months after the court dismissed the indictment. 3ER:373. See also, e.g., August 26, 2017, YouTube video of Bundy supporter stating, with respect to Chief Judge Navarro, “we need to pick up our guns, go march over there, and drag that b**ch out of the courtroom by her f***ing little ankles, and throw her in a cell,” available at https://www.youtube.com/watch?v=l0Hx6-r3nmA (last accessed 3/13/19). 15 4 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 25 of 78 the government might thwart speedy trial rights “by dumping hundreds of thousands of irrelevant pages of so-called discovery in the defendant’s lap”). G. The Court Rejects Affirmative Defenses of “Provocation,” “Intimidation,” and Self-Defense. Throughout the litigation, defendants sought to blame BLM for the assault. Because neither “provocation” nor “intimidation” is a cognizable defense to the charges in the indictment, and because officers used no physical force at all at the impoundment site, the court consistently rejected this strategy. At the first Tier-3 trial, the court rejected a self-defense jury instruction because “the record belies the defendants’ contention that the agents used excessive force.” 5ER:844–45. It explained that officers’ alleged “militarization of Bunkerville … warlike garb … [and] weapons” did not constitute excessive force, especially where “agents did not even attempt to seize or arrest the protestors.” Ibid. It further rejected a “justification” jury instruction, because “any threat to the defendants was not unlawful.” 5ER:848. The court reiterated this view during the second Tier-3 trial, explaining: “a law enforcement officer is permitted to be in uniform, to take a position during an operation, and to have a weapon.” See 5ER:813–14. Indeed, it added, “[t]he pointing of the weapon when people are not cooperating and obeying legitimate orders and directions to leave the area, to move back, and so forth … 16 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 26 of 78 could not be excessive force.” 5ER:813. Where no officer put hands on any individual or attempted any violence, “the Court can’t find that it’s subjectively reasonable” to claim excessive force. 5ER:814. Relying in part on those rulings, the government moved in limine before the Tier-1 trial to exclude evidence purporting to suggest BLM officers were “militarized”; “occupied” Bunkerville; or “brutalized” protestors. CR:2514, at 16. Bundy responded he was entitled to argue “preparation for self-defense to offer an innocent explanation as to why they were armed and prepared to defen[d] themselves from excessive force.” CR:2555, at 15. The court rejected Bundy’s contention, explaining that this Court recognizes two forms of self-defense to assaulting an officer—(1) “ignorance of the official status of the person assaulted,” and (2) “an excessive force defense,” 5ER:802 n.2 (citing United States v. Feola, 420 U.S. 671, 686 (1975); United States v. Span, 75 F.3d 1383, 1389 (9th Cir. 1996))—neither of which applied here. It said evidence relating to self-defense “is irrelevant” absent an offer of proof to establish the elements of that defense. 5ER:802. H. Discovery Litigation Despite the government’s massive disclosures, defendants repeatedly made demands for discovery and then alleged discovery violations when the government responded. In what became a familiar cycle, the court would hold 17 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 27 of 78 a hearing and conclude the government acted reasonably, but direct us to disclose additional information anyway. Our compliance would generate another round of Brady allegations and motions to dismiss, and the cycle repeated. As the Tier-1 trial got underway, defendants began filing such motions at a frantic pace, making allegations of misconduct faster than the government could respond or the court could rule.5 As a result, at a hearing on one motion, defendants would raise unbriefed accusations from a later motion, and by the time prosecutors demonstrated one defense claim was meritless, more were piled on. Accusations were also internally inconsistent, complaining about too little, then too much, discovery—within the same hearing. See, e.g., 8ER:1570, 1592 (defendants claiming the government never disclosed the Forward Operating Base (“FOB”) location); id. at 1636–38 (prosecutors showing the See CR:2727 (Oct. 18); CR:2828 (Nov. 6); CR:2842 (Nov. 8); CR:2848 (Nov. 13); CR:2856 (Nov. 14); CR:2883 (Nov. 20); CR:2906 (Nov. 27); CR:2959 (Dec. 6); CR:2980 (Dec. 11); CR:3027 (Dec. 19); CR:3038 (Dec. 19); see also CR:2836 (Nov. 6 supplement to CR:2828); CR:2892 (Nov. 21 supplement to CR:2842); CR:2907 (Nov. 27 supplement to CR:2856). 5 18 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 28 of 78 court earlier-produced discovery detailing FOB location); id. at 1640 (defendant complaining this was a “needle in the haystack” of too much discovery).6 Between the defendants’ deluge of overlapping motions to dismiss, demonstrably untrue claims of withheld information, and contradictory accusations of misconduct, the discovery litigation—which the court allowed to continue even as trial began—became increasingly chaotic and frenzied. I. Defendants’ New Overt Acts Theory Although defendants had long argued that evidence of government surveillance or “over-militarization” supported a self-defense or “provocation” theory, it was not until November 8, 2017—a week after jury selection began— that they first claimed it could rebut allegations that they falsely said Bundy’s property was surrounded by BLM snipers. See 4ER:650–54; 680–82. In sum, defendants argued that if they perceived a surveillance camera to be a sniper, or thought agents surveilling Bundy’s property were snipers, then statements about being surrounded by snipers were not false. See 4ER:681 See also CR:2886, at 52 (Ammon Bundy asserting a 302 disclosed November 2017 was “the first time we’ve ever heard of a SWAT team”); but see 3ER:167–68 (Operation Plan, disclosed May 2017), at 15 (“FBI will stage two SWAT teams … and two hostage negotiators at the Forward Operating Base.”). 19 6 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 29 of 78 (“[T]he key thing here is that they felt that they were surrounded.”) (emphasis added). After hearing this new theory, the court reiterated it had previously found no materiality regarding the camera, but it credited the new argument as grounds for reassessing that conclusion: “it appears from the Court’s [earlier] order that there was no apparent or readily apparent materiality of the item requested, and so the Government does not appear to have acted in bad faith by not providing that.” 4ER:709–10 (emphasis added). “But, now,” the court continued, “this Court believes that the Defense has provided sufficient evidence of materiality and a basis for disclosure of information.” 4ER:710 (emphasis added). The court extended that reasoning to requested additional information about officer positions, firearms, and surveillance. It said it now accepted as reasonable that the “information is relevant to developing a possible defense to” alleged false statements “about the existence of snipers and being isolated and surrounded, feeling isolated and surrounded.” 4ER:721–22. As the government complied with the court’s new ruling, defendants filed motions to dismiss based on the responsive disclosures. The cycle continued. On November 13, after the court denied one motion to dismiss, finding “no Brady violation … much less a pattern of any Brady violations,” 8ER:1586, 20 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 30 of 78 Ammon Bundy filed another motion to dismiss based in part on the disclosure of a “TOC log.” CR:2848.7 The Court denied that motion too, 8ER:1612–13, but ordered prosecutors to review the FBI’s police assist file again, “now that we’re much more clear about what the defense is.” Id. at 1684. The following morning, the government requested a continuance to gather any responsive emails concerning defendants’ new theory. 4ER:610–612. The court denied the request, and trial began. 4ER:618. J. Final Motions to Dismiss and Mistrial Ruling After the government’s opening statement, Ammon Bundy filed a motion for mistrial based on our request for a continuance. CR:2856. A few days later, after the government made disclosures in response to the court’s new orders, Payne filed two more motions to dismiss based on those disclosures. CR:2883, 2906. The government filed a consolidated response. CR:2914. At a November 29 hearing, the court said “it appears … the Government has been diligent, has tried to provide all of the information that it has, [and] has tried to seek out any information out there that is required to be provided ….” 4ER:510. It said the TOC log “doesn’t seem like it’s something … the attorneys from the U.S. Attorney’s Office[] would necessarily have been able to 7 The log is discussed in the argument section below. 21 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 31 of 78 locate by any diligent means.” Ibid. It took the motions under submission, however, noting a trial recess until December 11. 4ER:551. When court reconvened, the judge recited her “inclinations” on the record. See 3ER:386–407. Defendants also discussed at length untested accusations in the “Wooten memo.” 8ER:1490–97.8 The government requested an evidentiary hearing on that issue, but defendants opposed it, see id. at 1518, and the court did not order one. On December 14, the government filed a court-authorized sur-reply, explaining why it believed the documents were neither relevant nor material to any issue or cognizable defense and, to the extent any information in the documents was relevant, it was duplicative. See CR:3005. The so-called “Wooten memo” is a November 27, 2017, email from BLM Special Agent Larry Wooten to Associate Deputy Attorney General Andrew Goldsmith, which makes lurid accusations of misconduct against BLM and prosecutors. Prosecutors received the email from Goldsmith on November 29 and disclosed it to the court in camera December 1, requesting a protective order to allow disclosure to defendants. The court entered the order on December 8 and we promptly disclosed it. Notwithstanding the protective order, The Oregonian published a news article about the email December 14, writing “Prosecutors shared [the email] last week with defense lawyers … but it’s not part of the public court record.” The court later noted the leak and criticized the “flagrant disobedience of the court’s orders” and “open disrespect for the orders of this court.” 3ER:374. 22 8 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 32 of 78 On December 18, Payne filed yet another pleading. CR:3027. In addition to disputing the government’s sur-reply, Payne mentioned additional documents the government had produced, but he did not attach those documents. See id. at 19 n.8. On December 20, 2017, the court declared a mistrial. See 1ER:39–74. After reciting the Brady standard, 1ER:43–44, it addressed each item of “untimely evidence,” and in nearly every case found a “willful” Brady violation. The court first found that two documents mentioning a surveillance camera “bolster the defense and [are] useful to rebut the Government’s theory”; and it found willful, untimely disclosure, and prejudice to defendants’ trial strategies. 1ER:46–47. It made nearly identical findings with respect to the other documents—including some first mentioned in Payne’s December 18 pleading which, as far as we are aware, the court had not seen. See 1ER:49–58. The court found “multiple Brady violations” and “manifest necessity” for a mistrial. 1ER:61–62. It ordered briefing on “whether the mistrial should be with or without prejudice.” See 1ER:63, 65, 66, 69. K. Ruling on Dismissal with Prejudice On January 8, 2018, the court orally dismissed the indictment as to these defendants with prejudice. CR:3122; 1ER:16–38 (transcript). The court no longer found the government’s conduct reasonable in light of the new defense 23 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 33 of 78 strategy, but instead found it “especially egregious because the government chose not to provide this evidence, even after the defense specifically requested it.” 1ER:25.9 Despite its earlier rulings that the materiality of some documents had not been apparent, see 4ER:709–10, the court now found “grossly shocking” the prosecution’s “representations that it was unaware of the materiality” of that evidence. 1ER:25. The court said prosecutors were on notice since its October 23, 2017, ruling that “theories of self-defense, provocation, and intimidation might become relevant.” Ibid. It said “the government claims it failed to disclose this evidence because the FBI did not provide the documents to the prosecution team,” 1ER:26,10 but “the prosecutor has a duty to learn of favorable evidence known to other government agents.” Ibid. “Based on the prosecution’s failure to look for evidence outside of that provided by the FBI and the FBI’s failure to provide evidence that is potentially exculpatory to the prosecution,” the court concluded, a “universal sense of justice has been violated.” Ibid. The court said the government’s argument—that it believed certain documents were neither helpful nor exculpatory, or that the information in 9 The court did not say what evidence it was referring to. 10 The TOC log was the only document we said the FBI had not provided. 24 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 34 of 78 them was already known to the defense—was an effort to “minimize[] the extent of prosecutorial misconduct”; and that the prosecution team’s “reliance on the FBI to provide the required information amounted to an intentional abdication of its responsibility.” 1ER:30–31. The court acknowledged that the “government has attempted to locate all outstanding discovery,” yet repeated its earlier, unexplained finding that the government made “misrepresentations … regarding the existence of the cameras, the snipers, the materiality of prior threat assessments and its … diligence in fully complying with its constitutional obligations.” 1ER:33. The court therefore found “there has been flagrant prosecutorial misconduct in this case even if the documents themselves were not intentionally withheld from the defense.” 1ER:34. The court concluded that “retrying the case would only advantage the government,” and it dismissed the case with prejudice both on due process grounds and as an exercise of its supervisory authority. 1ER:36. The government timely moved for reconsideration. CR:3175. Defendants responded, CR:3192, 3194, 3195; and the government replied. CR:3199. On July 3, 2018, the court denied the motion. 1ER:4–14. 25 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 35 of 78 V. ARGUMENT Dismissal with Prejudice Based on the Timing of the Government’s Production of Certain Documents Was Unwarranted Because Any Government Missteps Were Inadvertent; the Record Does Not Support the Court’s Findings of Substantial Prejudice and Flagrant or Outrageous Government Misconduct; and Lesser Sanctions Were Sufficient to Remedy Any Harm. A. Standards of Review “Dismissal of an indictment on due process grounds is reviewed de novo; dismissal based on the court’s supervisory powers is reviewed for abuse of discretion.” United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). “[A]bsent flagrant and prejudicial prosecutorial misconduct, this [C]ourt will find that the district court’s dismissal of an indictment is an abuse of its discretion.” United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988). Where “the sanction imposed [is] disproportionately harsh in relation to the alleged misconduct, the district court abuse[s] its discretion in dismissing the indictment and [this Court] must reverse.” Id. at 656. B. Analytical Framework Dismissal. Where both flagrancy and substantial prejudice are shown, a court may dismiss an indictment as outrageous government conduct that amounts to a due process violation, or as an exercise of the court’s supervisory powers. United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008). Under 26 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 36 of 78 either theory, dismissal is permitted only in extreme cases. United States v. Nobari, 574 F.3d 1065, 1081 (9th Cir. 2009)); United States v. Doe, 125 F.3d 1249, 1257 (9th Cir. 1997) (“This is a high standard … and even in some of the most egregious situations it has not been met” (citation omitted)); United States v. Struckman, 611 F.3d 560, 577 (9th Cir. 2010) (“‘Because it is a drastic step, dismissing an indictment is a disfavored remedy.’”) (quoting United States v. Rogers, 751 F.2d 1074, 1076–77 (9th Cir. 1985)). “To violate due process, governmental conduct must be ‘so grossly shocking and so outrageous as to violate the universal sense of justice.’” BarreraMoreno, 951 F.2d at 1092 (quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991)); see also Nobari, 574 F.3d at 1081. “Dismissal under the court’s supervisory powers for prosecutorial misconduct requires (1) flagrant misbehavior and (2) substantial prejudice.” United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993). Such dismissal is appropriate only when “no lesser remedial action is available.” Barrera-Moreno, 951 F.2d at 1092. Dismissal with prejudice. Because “‘[d]ismissing an indictment with prejudice encroaches on the prosecutor’s charging authority,’ this sanction may be permitted only ‘in cases of flagrant prosecutorial misconduct.’” Chapman, 524 F.3d at 1085 (quoting United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991)). 27 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 37 of 78 “[A]ccidental or merely negligent governmental conduct is insufficient to establish flagrant misbehavior.” Ibid.; see United States v. Toilolo, 666 F. App’x 618, 620 (9th Cir. 2016) (unpublished) (“‘extremely high’ due process dismissal standard” not met even where the prosecution was “sloppy, inexcusably tardy, and almost grossly negligent”). Brady and Giglio violations “are just like other constitutional violations,” and although a “district court may dismiss the indictment when the prosecution’s actions rise … to the level of flagrant prosecutorial misconduct,” the “appropriate remedy will usually be a new trial.” Chapman, 524 F.3d at 1086 (citing Giglio v. United States, 405 U.S. 150, 153–154 (1972)); see United States v. Kohring, 637 F.3d 895, 912–913 (9th Cir. 2011) (same). “‘[R]emedies should be tailored to the injury suffered … and should not unnecessarily infringe on competing interests.’” Struckman, 611 F.3d at 577 (quoting United States v. Morrison, 449 U.S. 361, 364 (1981)). In this Court, the “extreme remedy” of dismissal is justified only when “the government’s conduct … caused substantial prejudice to the defendant and [was] flagrant in its disregard for the limits of appropriate professional conduct.” United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993). 28 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 38 of 78 C. The Government’s Inadvertent Failure to Disclose Duplicative Documents Does Not Justify Dismissal with Prejudice. This case involves more than 1.4 terabytes of produced discovery. Yet the court dismissed the indictment with prejudice based on the government’s November and December 2017 disclosures of just a handful of documents, several of which were not submitted to the court for its review before it ruled. The documents underlying the court’s dismissal with prejudice generally fall into three groups: those not disclosed through simple inadvertence; those we did not know about or were unable to find; and those not produced based on the prosecution team’s considered judgment that they were irrelevant to any issues or cognizable defense. Though overlapping, the first group generally includes (1) maps produced in December 2017, (2) the Felix supplemental 302, (3) the Delmolino supplemental 302, and (4) the Racker 302, see 2ER:75-88; the second group includes (5) a BLM report about the Mojave Desert Tortoise habitat and (6) a logistics record kept by the never-activated FBI SWAT team (i.e., the “TOC log”), 2ER:89–97; and the third group includes (7) two documents mentioning the surveillance camera (i.e., the Burke 302, and the FBI Operations Order); 29 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 39 of 78 and (8) threat assessments prepared for an unexecuted 2012 impoundment, see 2ER:98–155.11 Prosecutors spent hundreds of hours reviewing documents with the goal of producing all relevant material while avoiding a “document dump”; meeting speedy trial obligations; and protecting witnesses, victims, and others from threats and violence. They kept a meticulous index, documenting production of thousands of pieces of discovery. See 9ER:1695–1778. Despite these efforts, a few things were missed. But any errors were inadvertent, or at worst negligent, and even if they constituted Brady violations in one or more instances, they do not support the extreme sanction of dismissal with prejudice of the indictment. Moreover, the court’s findings of misconduct and prejudice rested on its assumption that the government withheld information about certain matters. But Except for the tortoise report, these documents are in ER Volume II, in the order discussed here, and comprise 81 pages (less than .1% of the 200,000 pages produced). The first half of ER Volume III includes documents relevant to those issues, also in the order discussed here. The rest of the ER includes materials in traditional, reverse-chronological order. 11 The tortoise report is about five pages long, with about 350 pages of attachments, including memoranda of interviews, handwritten notes, and a 159-page 2007 Biological report. As far as we can tell, defendants did not provide the report to the district court for its review, and thus it is not part of the record. At this Court’s request, the government will file a motion to expand the record and transmit these materials to the Court. 30 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 40 of 78 the government timely disclosed significant information about all of those matters, belying any suggestion of willful suppression and undermining any finding of substantial prejudice. 1. The government’s failure through simple inadvertence to disclose duplicative maps and three FBI 302s was neither flagrant misconduct nor substantially prejudicial. a. The additional maps contained no new information, and not disclosing them earlier was neither flagrant nor substantially prejudicial. In June 2016, the government disclosed several maps reflecting the pre-set coordinates by which officers identified their locations during the impoundment, i.e., the drop point (“DP”) locations. 3ER:171–173. These maps clearly identified all of the drop point locations near Bundy’s property, including DP-X, which was identified in other discovery as a Lookout Post/Observation Post (“LP/OP”): 3ER:173. On December 15, 2017, in response to defense requests, we produced additional maps which, in all material respects, mirror the earlier-produced maps. 2ER:75–83: 31 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 41 of 78 2ER:75. In his December 18, 2017, pleading, without attaching copies of the new maps or noting the previously produced maps, Payne asserted the newlyproduced maps were “relevant to Payne’s theory of defense.” CR:3027, at 16 n.3; see also id. at 19 n.8 (asserting the maps “show[] the exact location for the LPOPs during the impound operations”). In its mistrial ruling two days later, the court—without giving the government an opportunity to respond—found the maps “do appear to be Brady information.” 1ER:53. Without explanation, it also found the maps “do appear to have been withheld willfully and they do prejudice the Defense.” Ibid. A side-by-side comparison of the 2016-produced maps and the 2017produced maps shows the court’s finding of prejudice is erroneous.12 The only claim of relevance Payne made with respect to the maps was their identification Nothing in the record suggests the court was provided the maps for review before making this finding. 32 12 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 42 of 78 of the “DP” locations, but the government had produced maps showing those exact “DP” locations more than a year earlier. Compare 2ER:75–83 with 3ER:171–173. This earlier, identical disclosure undermines any claim that delayed disclosure of the later maps was “willful” suppression constituting “flagrant misconduct,” or that it caused “substantial prejudice.” b. Any relevant information in the Felix 302 was timely disclosed, as the defense’s pleading made plain. Long before trial, the government produced significant discovery about the events surrounding Dave Bundy’s arrest on April 6, 2014. In June 2016, we produced emails from BLM Rangers Russell and Brunk describing how they were in overwatch position, how Russell “had Agent Brunk’s AR15,” and how Brunk at one point “took a prone position with [his] shotgun beside [him].” 3ER:174–175. In March 2017, we produced a video of the arrest, showing Brunk and Russell in overwatch. See 3ER:177 (Def. Exh. 5008-F). At the first Tier-3 trial, a government witness identified the officers “up on the ridge” in the video as Brunk and Russell, 3ER:179; and Brunk himself testified he was “above the immediate scene” during the arrest. 3ER:193-194. In December 2017, in response to Payne’s mid-trial request for discovery about specific agents, the government found a 2015 supplemental 302 it had inadvertently not produced earlier, summarizing an interview with National 33 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 43 of 78 Park Service Officer Ernesto Felix.13 It stated that “Felix observed a BLM Agent on high ground in a ‘tactical over watch position’ southwest of [where] Dave’s arrest occurred.” 2ER:84. In a footnote in his December 18 pleading, Payne noted production of an “FBI 302 regarding BLM SA Felix observing a BLM officer in a ‘tactical over watch position’ on April 6, 2014 (referring to BLM Rangers Brunk or Russell during Dave Bundy arrest).” See CR:3027, at 19 n.8 (emphasis added). Without attaching the 302, Payne claimed it “bolster[ed] the notion that snipers were in the area and that the Bundy household was surrounded.” Ibid. Two days later—without giving the government an opportunity to respond and apparently without having been provided a copy of it—the court found the supplemental 302 “favorable” and “potentially exculpatory”; found “willful” suppression based on FBI authorship;14 and found “prejudice” due to “Defense represent[ations] that they would have proposed different questions for the jury voir dire, exercised their challenges differently, and provided a The government disclosed more than 400 FBI 302s and BLM memoranda of activity (“MOAs”), see 9ER:1697–1729, including reports for all officers who testified at trial and many who, like Felix, did not. 13 As explained in the next subsection, this conclusion is erroneous as a matter of law. 14 34 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 44 of 78 stronger opening statement.” 1ER:50.15 These findings and conclusions are wrong. The supplemental 302 provided no new information about BLM agents in overwatch during Dave Bundy’s arrest. Indeed, the fact Payne knew Felix was “referring to BLM Rangers Brunk or Russell,” CR:3027, at 19 n.8, proves he already had that information. Felix’s statement that he saw one of these officers could hardly “bolster” the undisputed fact of Brunk and Russell’s overwatch position during the arrest more than the officers’ own email messages and the video showing them there, or Brunk’s own trial testimony. Any possible relevance of the supplemental 302 was entirely duplicative, see Rhoades v. Henry, 638 F.3d 1027, 1038–39 (9th Cir. 2011) (no disclosure violation where one of three reports was produced and the other two added no new details), and the court’s finding of prejudice was erroneous. c. The court’s ruling equating FBI authorship with willful suppression, and thus flagrant misconduct, is erroneous. The government disclosed BLM Agent Delmolino’s 2014 302 and his 2014 MOA, see 9ER:1735, 3ER:197–198, but inadvertently failed to disclose his 2015 supplemental 302 until November 7, a week before opening statements. As explained in Section F, below, the defense made no such representations with respect to this document. 35 15 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 45 of 78 See: 9ER:1755.16 In declaring a mistrial, the court said this 302 was “potentially exculpatory” because it “provides information regarding BLM individuals wearing tactical gear, not plain clothes, [and] carrying AR-15s,” and it “potentially rebuts” claims the defendants lied about snipers isolating the Bundys. 1ER:49–50. The court found “willful” suppression regarding that 302 and the Racker 302 “because the FBI created” them.17 1ER:50. The court’s finding—repeated as to several other documents—that “because the FBI created these documents” the suppression was a “willful failure to disclose,” is incorrect as a matter of law. Drawing this authorshipwillfulness nexus effectively imposes strict liability for discovery errors, virtually The supplemental 302 recounted Delmolino being posted near Bundy’s property the nights of April 5-6 and 6-7, 2014, and noted he wore “BLM tactical clothing” and “carried a BLM AR-15 rifle.” 2ER:86. 16 In discovery produced March 2017, prosecutors identified the six officers assigned to nightwatch above Bundy’s residence during the impoundment. See 3ER:199 (names redacted on public docket per court’s order, see 3ER:373). But months later, after trial began, Payne claimed the defense did not have that information, CR:2906, at 7 n.5, and requested discovery about those officers. In response, the government produced the 2014 Racker 302, which states “Racker conducted LP/OP duties in the area of the Bundy Ranch” for a time. 2ER:88. In his December 18, 2017, pleading, Payne noted that disclosure. See CR:3027, at 19 n.8. Payne made no argument, but simply claimed the 302 “bolster[ed] the notion that snipers were in the area and that the Bundy household was surrounded.” Ibid. 36 17 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 46 of 78 eliminating the possibility of inadvertent nondisclosure. The court cited no authority supporting such a rule, and the government is aware of none. The court further found this “willful” nondisclosure constituted “flagrant” government misconduct sufficient to justify the extraordinary sanction of dismissal with prejudice. Such an expansive interpretation of “flagrant” would require dismissal with prejudice for virtually every Brady violation. This Court rejects that view. See, e.g., Kearns, 5 F.3d at 1255 (even “negligent” or “grossly negligent” conduct did not rise to the level of “flagrant misconduct”); Kohring, 637 F.3d at 912–913 (appropriate remedy for Brady/Giglio violation is usually new trial). Moreover, even if information about BLM officers’ gear and weapons near Bundy’s property April 5–7 could plausibly be used to defend against charges of assault five miles away on April 12, the government had produced ample discovery about it. See, e.g., 3ER:167–68 (discovery produced May 2017 noting “[t]eams will be strategically placed at elevated positions around the Bundy residence each evening,” with “agency issued rifles”); 3ER:205 (discovery describing “24/7 coverage” on Bundy’s house); see also 3ER:213–214 (302 showing plan enacted). Indeed, in a July 2017 pleading, Payne noted that discovery already produced “makes clear that the Bundy residence was being surveilled 24/7 by means of a covert LP/OP Team…equipped with spotting 37 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 47 of 78 scopes, night vision goggles, thermal imaging devices, and rifles at all times.” CR:2159, at 5 (emphasis added). Any error in providing duplicative documents about these matters cannot amount to “flagrant misconduct.” Moreover, defendants knew about the law enforcement presence around Bundy’s residence—including from the supplemental Delmolino 302 produced before trial—and used that information at trial. Accordingly, the court’s finding of substantial prejudice as to this category of information was erroneous. 2. The government’s failure to produce one document it was unable to find and one document it had no reason to know about does not warrant the extreme sanction of dismissal. a. The government produced the desert tortoise report as soon as we found it, and our failure to discover it earlier was not unreasonable. In November 2017, the government produced two documents referring to an “OIG report” “direct[ing] the BLM to enforce” the court orders against Bundy, see 2ER:131 (2012 BLM OLES Threat Assessment), and finding “BLM failed to manage the land by not enforcing” the orders, see CR:2883, Exh. K (JTTF meeting minutes). Earlier, prosecutors had asked BLM Special Agent Kent Kleman to find this “OIG report.” Kleman contacted several people within BLM and the Department of the Interior’s Office of Inspector General, but could not find any such report. See 3ER:220–222 (Kleman’s notes summarizing search). 38 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 48 of 78 On November 20 and 21, 2017, defendants complained the government had not produced the so-called “OIG report.” CR:2902, at 137–138; CR:2904, at 89. The government explained it had been unable to find, but would continue to look for, the report. CR:2904, at 94, 100–101. We also noted OIG’s report database was equally available to the defense, so they could search for it as well. Id. at 94. On December 2, 2017, prosecutors found several pages of a report titled “Mojave Desert Tortoise Complaint,” located the full December 2010 report, and learned that report—from BLM Internal Affairs, not the OIG—was the socalled “OIG report.”18 The government immediately produced the report, along with a letter from the chief of BLM’s Office of Professional Responsibility explaining why it had been so difficult to locate. 3ER:218–19. Payne asserted the defense could have used the report to cross-examine former BLM District Manager Mary Jo Rugwell. 8ER:1476. They theorized An anonymous October 2009 call to the Department of the Interior’s OIG complained that illegal grazing was harming Mojave Desert Tortoise habitat in violation of the Endangered Species Act. OIG referred the matter to BLM Internal Affairs for investigation. 3ER:218. In 2010, the investigator interviewed range, wildlife, and law-enforcement specialists who were “extremely disappointed” in BLM’s efforts to stop illegal grazers, including Bundy. The question whether tortoise habitat was actually being harmed was outside the scope of the investigation, but the report concluded BLM’s inaction made it vulnerable to Endangered Species Act lawsuits. 39 18 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 49 of 78 BLM overstated the threat posed by the Bundys to justify its earlier failure to protect the desert tortoise habitat. CR:2904, at 103–04. The government responded that such an inference, even if plausible, would be pertinent only if defendants could then argue BLM’s “militarized” presence provoked the assault. CR:3005, at 34. But because the court had rejected that argument, evidence supporting it was irrelevant. Ibid. In granting the mistrial, the court made its same Brady findings with respect to the tortoise report, 1ER:57, and concluded it “would have been useful to potentially impeach Ms. Rugwell who testified that there had been a detrimental impact on the desert tortoise habitat.” Ibid. The court also found the information was “willfully suppressed.” Id. at 57–58. This finding, and the underlying legal conclusion, are wrong. First, whether Bundy’s illegal grazing harmed tortoise habitat is irrelevant to any fact of consequence in this case, so the government’s failure to locate and provide the report earlier could not have prejudiced the defense. Second, it does not appear the defendants provided the report to the court, so it is unclear how the court reached its finding that the report was material.19 And third, the court Indeed, the court’s statement that the report “allegedly … suggests” there was no documented injury to the tortoises implies that it relied on the defendants’ description of the report to support its findings. Because dismissal 40 19 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 50 of 78 gave no explanation for its finding of “willful” suppression except to say the report “was available to the government,” and to suggest the government was at fault for misidentifying it as an OIG report. 1ER:19. These facts undermine the court’s findings. b. The government produced the TOC log as soon as we learned about it, and our failure to discover it earlier did not constitute “flagrant” or “outrageous” misconduct. From April 5–8, FBI provided back-up support for the impoundment from a Tactical Operation Center (“TOC”), a trailer used as a mobile operations center at the Forward Operating Base, about 1.5 miles from Bundy’s property. 3ER:169. During its limited involvement, the TOC maintained an administrative log—a “timeline of activities related to SWAT operations for accountability purposes.” 3ER:225; see 2ER:89–97 (TOC log). Most entries recount personnel and asset locations. See, e.g., 2ER:91, 95 (“ET’s Justin and Thomas heading to town to get diesel”; “Helo relocates from Mesquite airport to ICP”). A few noted observations. See, e.g., id. at 93 (“Individuals in cars on 170 are outside vehicles with cameras and phones”). Because FBI never with prejudice is an extreme sanction the court may impose only when it finds flagrant misconduct causing substantial prejudice, see Lopez, 4 F.3d at 1464, a district court clearly errs—and abuses its discretion—by delegating that inquiry to the defense. 41 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 51 of 78 activated its SWAT teams, this logistics record was never added to the investigative file or to FBI’s “police assist” file, but instead remained on a thumb drive in the TOC trailer. 3ER:225. At a November 8 hearing, after the government confirmed that a shortlived surveillance camera near Bundy’s property did not record, the court asked whether observations from the camera might have been documented in notes or reports. 4ER:643. The prosecutor confirmed neither the “investigative file” nor the FBI’s “police assist” file contained any such records. 4ER:643–44. The next day, as FBI Special Agent Sharon Gavin researched the matter, another agent told her that camera observations might have been noted on the TOC log. 3ER:228. That agent found the log, still on a thumb drive in the TOC trailer, and Gavin reviewed it, finding four entries related to camera observations on April 5–6, 2015, 3ER:225: (1) “5:35 p.m. -- Small silver SUV arriving at subject’s house”; (2) “5:40 p.m. -- Red/Burgundy SUV tinted windows arrived at subject’s house”; and (3) “6:07 p.m. -- Bundy located at the Gold Butte Camera on the phone.” (4) “11:22 a.m. -- Quad observed crossing Bundy property in front of camera, shortly after, camera feed was lost.” 2ER:91, 92. 42 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 52 of 78 Gavin also noted two April 5 entries about “snipers inserted (training).” See 2ER:90, 91. She investigated, and the SWAT team leader explained the entries referenced two sniper-designated SWAT operators who surveyed the area by helicopter for viable sniper locations should the need arise, but “[a]t no time were any snipers deployed by the FBI during the Gold Butte Operation.” 3ER:228.20 The government disclosed the log the following day, immediately prompting another defense motion to dismiss. In its mistrial order, the court found the TOC log “favorable” and “potentially exculpatory” because “it provides information about the family being surveilled by a camera, and specifically lists three log entries using the word ‘snipers,’ including snipers being inserted and that they were on standby.” 1ER:51. The court believed earlier production of the TOC log would have potentially helped the defense rebut three overt act allegations that the Bundys falsely claimed isolation by snipers. Ibid. The court again found “willful” suppression based on FBI authorship and nondisclosure. 1ER:52. And it stated the TOC log’s revelation—that two sniper-trained agents surveyed the area in case the use of FBI snipers ever As explained below, officers from the National Park Service and Metro Police Department (“LVMPD”) SWAT team did assume “sniper” roles at various times. 43 20 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 53 of 78 became necessary—further demonstrated willfulness because, the court said, “the Government[] strong[ly] insiste[d] in prior trials that no snipers existed.” Ibid. The court found prejudice, stating that the “suppression” prevented the defense from “using the information about the snipers in opening statement and rebutting elements of the indictment.” 1ER:53. These findings fail. First, to the extent the court found misconduct or substantial prejudice based on the defense’s assertion that the government did not disclose the existence of law-enforcement snipers, those findings are clearly erroneous because the government disclosed several reports explicitly discussing lawenforcement officers in “sniper” roles. See CR:3081, at 33 (citing 9ER:1736 (GB.018868: 302 recounting National Park Service Officer J.S. responding to the impoundment site as “part of the designated sniper team”)); ibid. (citing 9ER:1736 (GB.018876–9: MOA recounting National Park Service Officer J.L. working with a “precision rifle” and a “spotter” on April 11, and the next day identifying a LVMPD SWAT “sniper team”); see also id. at 33–34 (noting other discovery describing officers in “tactical,” “marksmen,” and “sniper” positions). Second, the court’s statement regarding “the Government’s strong insistence in prior trials that no snipers existed,” is incorrect. The dispute in the prior trials involved defense claims that BLM Rangers Russell and Brunk (in 44 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 54 of 78 visible overwatch during Dave Bundy’s arrest on April 6) were “snipers,” and that officers in overwatch on the mesa northeast of the impound site on April 12 were “snipers.” They were not. See, e.g., 5ER:984 (BLM Ranger Briscoe testifying the “LP/OP” on the mesa was for overwatch only, and not a place officers could “use force from”).21 The government refuted claims that officers in visible overwatch were “snipers,” but did not “insist” that no snipers existed. Indeed, a Park Service ranger testified in the first trial that he deployed his “designated marksman team”; described the role of that team; and agreed when defense counsel asked “So a designated marksman team is similar to, like, a sniper team; correct? A: Yes.” 3ER:243. The record belies the court’s finding that the government insisted “no snipers existed.” And without that finding, its finding of “flagrant” misconduct fails. Earlier government disclosures disprove defendants’ claims that we withheld the fact that officers were present in sniper positions, information they had and used at trial. Whatever helpfulness the TOC log’s duplicative The government generally called officers who took precision rifle positions “marksmen,” while defendants generally sought to characterize any law-enforcement officer with a rifle as a “sniper.” We challenged defendants’ use of that charged term because it was inaccurate and because they used it to imply law enforcement misconduct or provocation. 21 45 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 55 of 78 references to snipers provided, defendants cannot show substantial prejudice given their advance knowledge and use of that information at trial.22 3. The government’s failure to appreciate the possible relevance of certain documents was not unreasonable in light of the court’s earlier rulings, and does not constitute “flagrant” misconduct. a. The court explicitly found the materiality of information about the surveillance camera was not apparent until November 8, 2017; and in any event, the court’s finding of “substantial prejudice” fails because the defendants had, and used, this information at trial. Of the hundreds of 302s the FBI prepared in this case, one documented Special Agent Burke’s investigation of a lost live-camera feed near Bundy’s property on April 6, 2014. 2ER:98. Burke recounted that “[t]he camera (which In dismissing the indictment with prejudice, the court said the government’s “representations about whether individuals were technically ‘snipers’ or not ‘snipers’ was disingenuous”; that “arguments about whether [snipers] were actually ‘deployed’ or merely ‘training’ was a deliberate attempt to mislead and to obscure the truth”; and that “[n]umerous other instances are noted by the defense in the brief and the Court does not disagree with these representations.” 1ER:33–34. It gave no explanation for any of these statements, and we can divine none. Noting that an officer in clearly visible overwatch is not a “sniper” is not disingenuous, especially where defendants used that loaded term in connection with their non-cognizable provocation theory. Presumably the court’s second statement refers to the TOC log’s notation “Snipers inserted (Training),” see 2ER:90, but it took no evidence on that issue, so we are at a loss as to how it determined “the truth” or concluded the government was attempting to obscure that “truth.” As for its last statement, we do not know what “instances … noted by the defense” the court is referring to, and we were given no opportunity to respond to any accusations in that defense brief, as the court ordered simultaneous briefs and did not invite argument before ruling. 46 22 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 56 of 78 is not configured to record) had been placed into position”; the live feed was lost shortly after Ryan Bundy drove by it on an ATV; and after Burke found ATV tracks near the damaged, inoperable camera, he took it back to the Forward Operating Base. Ibid. On November 3, 2017, Cliven Bundy requested “video recordings” from the camera, and on November 7, the government produced the Burke 302 to confirm the camera was not configured to record. 5ER:730–31. Relatedly, in compliance with a November 13, 2017, order, on November 17 we disclosed an FBI Law Enforcement Operations Order that mentions the camera. That 15-page, fill-in-the-blank document describes the “mission” of the operation; provides basic information about Cliven and Ryan Bundy; and identifies allocated FBI personnel and equipment. See 2ER:99–113. Id. Page 7 of the Order notes the surveillance camera. 2ER:105. Pointing to the Burke 302 and page 7 of the Order, the court ruled that information about the camera’s existence and its proximity and surveillance of the Bundy home “potentially rebuts” allegations that the Bundys falsely claimed they were surrounded by BLM snipers. 1ER:46–47. It found “willful” nondisclosure based on FBI authorship. 1ER:47. And it found prejudice based on defense representations “that they would have proposed different jury 47 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 57 of 78 questions for voir dire; and they would have exercised their peremptory challenges differently; and provided a stronger opening statement.” 1ER:48. The court’s findings are wrong. The fact that officers used a nonrecording surveillance camera during the impoundment operation for better situational awareness in a remote area is unremarkable, and is neither exculpatory nor impeaching. Thus, documents noting that use do not constitute Brady information. To bolster their claim, defendants argued the mere existence of the camera could “rebut” the notion that they falsely claimed the BLM “employed snipers against Bundy family members,” see 6ER:1196; that “Bundy Ranch was surrounded by snipers,” see 6ER:1197; and that “they have [Bundy’s] house surrounded,” see 6ER:1198. And the court apparently accepted defendants’ argument that a lone surveillance camera could be construed as BLM snipers surrounding the Bundy property. But even if that argument were plausible, the court had already specifically found that the government’s failure to anticipate it did not constitute bad faith. After the government disclosed the Burke 302, the court reconfirmed its prior ruling that “there was no apparent or readily apparent materiality” of information surrounding the surveillance camera until defendants unveiled their new argument that the camera could have been mistaken for a sniper. See 48 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 58 of 78 4ER:709–10. The court’s ruling that the materiality was not apparent earlier negates any finding of flagrant misconduct. Moreover, defendants had long known about the camera. In a 2014 undercover interview, Ryan Bundy discussed the camera and admitted knocking it over; the government produced that video to all defendants in May 2016, more than a year before trial. See 9ER:1775 (1D68). Then, at a November 8, 2017, hearing on another motion to dismiss, a defense witness testified that “everyone” at Bundy’s property saw the conspicuous camera and talked about it. See 3ER:267 (“And somebody had pointed out, Hey, there’s a camera up there, and we all looked at it like, Oh, okay.”).23 And in his opening statement, Ryan Bundy described “see[ing] surveillance cameras on the hills.” 3ER:283. Thus, to the extent the court based its dismissal decision on a factual finding that the government committed outrageous misconduct by hiding the existence of the camera, it clearly erred. See Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) (no suppression where defendant is aware of the essential facts). The witness testified he was not sure whether the “Bundy boys” or Cliven knew about it, but said the camera was clearly visible and became “kind of like a joke.” 3ER:278–79. 23 49 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 59 of 78 The court also clearly erred in finding substantial prejudice based on the defendants’ “inability” to use this information in opening statements. See 1ER:48. The defendants not only could use the information—the Burke 302 was disclosed before opening statements—they did, with both Cliven and Ryan Bundy discussing the camera during their openings (and with Ryan Bundy talking explicitly about knowing the camera was there at the time). See 2ER:250, 260, 283. Because the defense long knew about the camera, and made use of it at trial, the court clearly erred in finding “substantial prejudice” sufficient to warrant the dismissal of the indictment. The court also clearly erred in finding that the government “falsely represented that the camera view of the Bundy home was incidental and not intentional” and that prosecutors called the defendants’ request for information about the camera a “fantastic fishing expedition.” 1ER:47. The government made no such representations. At a hearing two weeks before opening statements, the court asked National Park Ranger Mary Hinson about the surveillance camera’s capabilities, and she responded its purpose was to “monitor the Bundy house, the roadway, the—where the cattle gathering was going to be coming and 50 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 60 of 78 going, where we had law enforcement officers out in the area.” 5ER:778.24 And although the government characterized as “fantastical” Ryan Bundy’s suggestion that the surveillance camera was a “mysterious devi[c]e[]” capable of “painting” the Bundy home for artillery or aerial “target acquisition,” see CR:2299, at 3, it never denied existence of the camera, but rather responded that even if the camera everyone knew about was capable of such things, that was immaterial to the charges in the indictment. CR:2340, at 3. The government neither denied existence of the camera nor represented that it did not monitor Bundy’s house. Findings to the contrary are clearly erroneous. b. The government’s November 2017 production of threat assessments prepared for an unexecuted 2012 impoundment operation does not constitute “flagrant” or “outrageous” misconduct. In March 2014, in anticipation of the impoundment, BLM prepared a report assessing the overall threat level as “moderate,” and assessing the threat posed by various individuals and groups as low, low/moderate, or moderate. We found one stray remark—in the government’s cross-examination of Hinson—that could be interpreted as implying the camera’s view of Bundy’s house was incidental. See 5ER:795 (“Q. –[S]o the camera that was placed on public land in that area, was it meant to give you a view of that general area? A. Yes. Q. And it happened to be that that included the Bundy residence? A. Yes.”). But the government’s generalized question did not undermine Hinson’s unequivocal testimony that monitoring Bundy’s house was one purpose for the camera, and cannot support a finding that we “falsely represent[ed]” it was not. 51 24 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 61 of 78 3ER:200–12. The government produced the 13-page threat assessment to the defense in May 2017, many months before trial. Also in March 2014, the FBI’s Behavioral Analysis Unit (“BAU”) followed up on its 2012 threat assessment of Cliven Bundy, found no “need to change its previous assessment,” and concurred in BLM’s March 2014 threat assessment. 3ER:293–94. The government produced the 2014 FBI-BAU report to defendants in June 2016, more than a year before trial. And in January 2017, we produced the grand jury testimony of BLM Special Agent-in-Charge Dan Love, who testified that, while BLM saw a “high likelihood” of interference from Cliven Bundy and his family, they believed at the outset that the likelihood of a violent encounter was “low to nonexistent.” 3ER:345. At trial, Rugwell testified on cross-examination that, before the 2014 impoundment operation, she had reviewed an FBI assessment prepared in anticipation for a 2012 impoundment which never took place, and said that assessment indicated Cliven Bundy was not a threat. 4ER:566.25 In response, Rugwell’s recollection was incorrect. In fact, the FBI’s 2012 assessment found a “low to moderate risk of significant or imminent … predatory acts of targeted violence” by Bundy, but warned of a greater likelihood “that Bundy might engage in more affective, spontaneous, and opportunistic acts of violence in the future.” 2ER:120. 25 52 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 62 of 78 the defense requested any threat assessments related to the unexecuted 2012 impoundment. 4ER:580–588. The government produced the 2012 FBI-BAU assessment, 2ER:114–123; and a 2012 Southern Nevada Counterterrorism Unit threat assessment, which anticipated little risk of violence in 2012 from Bundy, 2ER:124–129. It also produced a “GAR risk assessment” for the 2014 impoundment. 2ER:146–155.26 Shortly thereafter, it produced the BLM’s 2012 Threat Assessment. 2ER:131–145. Those disclosures prompted additional defense motions to dismiss. CR:2883, 2959, 2906. In declaring a mistrial, the court recited the same non-specific Brady findings as to these assessments. 1ER:54. It noted “favorable information about the Bundys’ desire for a nonviolent resolution” in one of the reports, a statement in another report “that the BLM antagonizes the Bundy family,” and a statement in a third report that the Bundys “will probably get in your face, but not get into a shootout.” 1ER:54, 55. The court also added that BLM’s “failure” to implement a “strategic communication plan” “bolsters the Defense theory that even if the information received by Mr. Payne from the Bundy This document, prepared to help law enforcement foresee and mitigate risks, is not a “threat assessment,” but the district court grouped it with the threat assessments, so we include it in that part of the discussion below. 53 26 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 63 of 78 media campaign was incorrect, that no alternative information was available for him to discover the truth directly from the Government.” 1ER:55. The court found “willful” “late” disclosure because the FBI had most of the documents. Ibid. It found prejudice based on defense representations that they could have used the information to cross examine Rugwell, to propose different voir dire questions, and to exercise peremptory challenges differently. 1ER:56. And it further found, without explanation, that information in the assessments “provides a stronger opening statement that they were prevented from giving, using information about snipers in their opening arguments and rebutting elements of the indictment.” Ibid. The record does not support these findings. First, we cannot understand how a passing reference to BLM’s media and public information plan—regardless whether that plan was implemented— could “bolster” the defense. The court cited no authority for the proposition that the government’s failure to correct a defendant’s misunderstanding of a situation absolves that defendant of guilt for unlawful acts, including a massive armed assault. This finding is clearly erroneous. Second, the court found the 2012 BLM threat assessment “favorable” because it recounts a 2012 interview with an animal control officer who said he thought the Bundys “will probably get in your face, but not get into a shoot54 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 64 of 78 out.” 1ER:55 (quoting 2ER:140). But for Brady purposes, information is “favorable” if it is exculpatory or impeaching. See United States v. Chung, 659 F.3d 815, 831 (9th Cir. 2011). The fact that, two years earlier, someone speculated the Bundys would “probably … not get into a shoot-out” neither negates any element of the charged offenses nor undermines the relevant testimony of any government witnesses. Finally, the court’s findings presume the government withheld BLM’s assessment that Cliven Bundy did not pose a significant threat for physical violence. But the government disclosed that information, months earlier, specifically acknowledging that, prior to the 2014 impoundment, BLM expected him to interfere but thought the likelihood of a violent encounter was low to nonexistent. 3ER:345; see Rhoades, 638 F.3d at 1038–39 (no disclosure violation where one of three reports turned over and other reports added no new details). Because defendants had this information in time to use it, the court’s finding of substantial prejudice is likewise clearly erroneous. D. The Court’s Other Basis for Finding Flagrant or Outrageous Misconduct Also Fails because It Had Repeatedly Ruled BLM’s Purported “Militarization” Did Not Justify Defendants’ Alleged Crimes, and Self-Defense Was Not Cognizable in This Case. The court found “grossly shocking” and “flagrant” misconduct, concluding that, after October 23, 2017, “the government was well aware that 55 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 65 of 78 theories of self-defense, provocation, and intimidation might become relevant.” 1ER:25. But the court had earlier found these defense theories were unavailable absent a showing of actual use of excessive force by the officers. And even if that earlier finding was incorrect, the government’s good-faith reliance on it precludes a finding of willful or “flagrant” misconduct. 1. “Provocation” and “intimidation” are not cognizable defenses. Federal law does not recognize defenses of “provocation” or “intimidation.” See United States v. Taylor, 680 F.2d 378, 380 (5th Cir. 1982) (federal officer’s words, no matter how provoking, provide no legal basis for assaulting officer); United States v. Sovie, 122 F.3d 122, 126 (2d Cir. 1997) (“provocation” does not excuse illegal threats); cf. United States v. Wilson, 698 F.3d 969, 972 (7th Cir. 2012) (rejecting racial provocation self-defense). The lawful presence of law-enforcement officers doing their jobs cannot justify assaulting them, even if the defendant believes they are “overmilitarized.” Cf. United States v. Branch, 91 F.3d 699, 714 (5th Cir. 1996) (“We do not need citizen avengers who are authorized to respond to unlawful police conduct by gunning down the offending officers.”) (quotation marks omitted). 2. Self-defense was not available here. Federal law recognizes an affirmative defense of self-defense to assaulting a federal officer, but in only two limited circumstances: (1) where a defendant 56 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 66 of 78 resists an attack, reasonably believing the attacker is not an officer; or (2) where a defendant reasonably resists excessive force by an officer. United States v. Span, 970 F.2d 573, 576–577 (9th Cir. 1992). Defendants never disputed the identity of the officers they confronted and threatened in the wash, and the officers used no force, let alone excessive force.27 Although a suspect has a right to resist excessive force by an officer, merely displaying service weapons does not trigger a right to resist. See Hinojosa v. City of Terrell, Tex., 834 F.2d 1223, 1231 (5th Cir. 1988) (displaying weapon conditionally threatening force not excessive force); cf. California v. Hodari D., 499 U.S. 621, 625–626 (1991) (show of authority without application of force not a seizure). 3. The government’s reasonable reliance on the court’s repeated, consistent rulings on this issue cannot amount to “flagrant” or “outrageous” misconduct. The district court’s October 23, 2017, order explained that self-defense is only available where (1) the defendant did not know the official status of the person assaulted, or (2) the defendant used force in response to the actual use of Although officers used force in response to the April 9 convoy attack, defendants have never linked their self-defense theory to that assault or disputed that Ammon Bundy attacked first. In any event, the court did not dismiss the case on that basis. 57 27 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 67 of 78 excessive force by an officer, see 5ER:802 n.2. None of the documents on which the court based its findings of “flagrant” misconduct or “substantial” prejudice touched on either element. Indeed, the court had repeatedly explained that officers’ alleged “militarization of Bunkerville … warlike garb … [and] weapons” did not constitute excessive force. 5ER:845; see also 5ER:813–14. Even assuming these could be valid defenses, to the extent the government erred in failing to appreciate that information about lawenforcement officers’ tactical gear, weapons, and official duties were relevant to a possible “provocation” or self-defense claim, that error was based on its reasonable, good-faith reliance on the court’s repeated rulings that such information was not relevant here. While the court may have changed its mind on this issue, that change does not transform the government’s actions into “flagrant” or “outrageous” misconduct. E. Inadvertent, or Even Negligent, Brady Violations Do Not Warrant the Extreme Remedy of Dismissal of an Indictment. The government’s efforts to promptly produce everything relevant or material to the defense were not error-free. We overlooked three 302s from nontestifying officers; we did not believe additional information about the surveillance camera was material; we did not know about the TOC log, and we searched at length for an “OIG report” only to discover what we were looking 58 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 68 of 78 for was not an OIG report at all, but rather an Internal Affairs report about a citizen complaint concerning desert tortoise habitat. To the extent any of these shortcomings constituted Brady violations, they were clearly inadvertent and not willful. In dismissing the indictment with prejudice, however, the court found government errors it had only weeks earlier deemed diligent and reasonable now to be “flagrant,” “reckless,” “intentional,” “grossly shocking,” and in violation of a “universal sense of justice.” See 1ER:25–26, 31–36. The court’s conclusions fail as a matter of law; and the record and the facts do not support its condemnation of the prosecution team in this case. Apparently referring to the TOC log, the court concluded “that a universal sense of justice has been violated” because, it said, the prosecutors “fail[ed] to look for evidence outside of that provided by the FBI” and the FBI “fail[ed] to provide evidence that is potentially exculpatory to the prosecution.” 1ER:26. As a matter of law, that explanation is inadequate to warrant dismissal. See, e.g., Toilolo, 666 F. App’x at 620 (“Dismissing an indictment on due process grounds historically has been employed in a ‘slim category of cases’ involving police brutality or ‘physical or psychological coercion against the defendant.’” (quoting United States v. Simpson, 813 F.2d 1462, 1465–66 (9th Cir. 1987)); 59 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 69 of 78 Kearns, 5 F.3d at 1253 (dismissal under the court’s supervisory powers requires “flagrant misbehavior” and “substantial prejudice”). Under the district court’s reasoning, every lapse by a prosecution team in seeking discoverable information from investigative agencies, and every failure of an investigative agency to provide potentially exculpatory evidence to the prosecution for discovery purposes, would warrant dismissal of an indictment. That is not the rule. Kearns is on point. There, seeing no written confidential-informant agreement in its files, officers informed prosecutors that no written agreement existed. Prosecutors in turn misrepresented to defense counsel that the informant had only an oral agreement. 5 F.3d at 1253. Prosecutors disclosed the written agreement as soon as they found it, but when the court learned prosecutors had affirmatively misrepresented that the agreement was not in writing, it dismissed the indictment. Ibid. This Court reversed. It found that the police department’s “erroneous response appear[ed] to have been due to incompetence and other non-invidious factors rather than to intentional deception,” and noted prosecutors turned over the written agreement as soon as they received it. Id. at 1254. The Court thus concluded that “dismissal of the indictment … on the ground of prosecutorial misconduct cannot stand.” Ibid. 60 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 70 of 78 Here, with respect to the TOC log, the government’s case is even stronger. Prosecutors did not simply rely on FBI’s representations, but rather confirmed that the investigative file and the FBI police assist file had been searched for any documentation of surveillance camera observations. Even when the log was discovered, the camera and sniper entries were entirely innocuous. Neither the government nor FBI had reason to foresee, for example, any exculpatory or impeachment value in the fact that a silver SUV arrived at Bundy’s property on April 5; or that sniper-trained SWAT officers surveyed the area to determine viable locations should the need arise. Cooperation agreements with testifying witnesses are clearly Giglio material, so the Kearns court might well have concluded that prosecutors are obliged not to simply take the police at their word that no written agreement exists. But even there, this Court did not find the government’s failure to do so a due process violation. If failing to discover obvious Giglio material does not in and of itself violate due process, then failing to “follow up” on a 302 and search beyond the investigative and support files for documents memorializing innocuous observations from a camera likewise cannot violate due process or a “universal sense of justice.” Kearns forecloses the district court’s dismissal based on the TOC log, its only stated basis for its finding a “universal sense of justice has been violated.” 61 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 71 of 78 The court’s other conclusion—that the government’s failure to appreciate the materiality of the surveillance camera was “grossly shocking”—fails as well, in light of its earlier explicit finding that “there was no apparent or readily apparent materiality” of the surveillance camera until the defendants raised their novel “we-might-have-mistaken-the-camera-for-a-sniper” argument on November 8. Under this Court’s precedent, the district court’s conclusion that the government’s errors met the exceedingly high standard to warrant dismissal of the indictment, on either due process or supervisory authority grounds, must be reversed. See, e.g., United States v. Doe, 125 F.3d 1249, 1257 (9th Cir. 1997). F. The Court’s Cursory Findings of Substantial Prejudice Are Erroneous, and in Any Event Are Insufficient to Warrant Dismissal. In granting a mistrial, the district court recited a nearly identical “finding” of prejudice with respect to each item: As to the prejudice, the Court does find that this suppression has undermined the confidence in the outcome of the case; that the Defense represents that they would have proposed different jury questions for voir dire; and they would have exercised their peremptory challenges differently; and provided a stronger opening statement. 1ER:48 (surveillance camera information); see also 1ER:50 (same, Delmolino 302, Felix 302, Racker 302); 1ER:52 (similar, TOC log); 1ER:56 (similar, threat assessments); 1ER:58 (same, desert tortoise report); 1ER:53 (stating, with 62 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 72 of 78 respect to the maps, “They do appear to have been withheld willfully and they do prejudice the Defense”). With respect to the Felix 302, the Racker 302, the maps, and the desert tortoise report, it does not appear the court was provided those documents before it ruled. Moreover, contrary to the court’s conclusory statements, with respect to the 302s and maps, defendants made no representation that they would have “proposed different jury questions for voir dire”; “exercised their peremptory challenges differently”; or “provided a stronger opening statement” if they had received them earlier. Compare CR:3027 (defense pleading). The court’s findings and conclusions with respect to those items are clearly erroneous, and given that it articulated nearly identical findings and conclusions with respect to the other items, no basis exists on which this Court could conclude with confidence that the district court undertook the required prejudice analysis with respect to any of the items. And for the reasons stated above with respect to each specific item, the court’s prejudice analysis fails. In any event, we have not found a case dismissing an indictment with prejudice on the ground that defendants would have approached jury selection or opening statements differently if they had received discovery materials earlier. If that alone justified the extraordinary sanction, virtually every Brady violation discovered during or after trial would warrant dismissal with 63 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 73 of 78 prejudice. This is not the rule. See Chapman, 524 F.3d at 1086 (noting that the “appropriate remedy” for Brady/Giglio violations “will usually be a new trial”). G. Dismissal with Prejudice Was Unwarranted Because Lesser Sanctions Were Available. “[D]ismissal of an indictment, particularly with prejudice, is a drastic measure.” United States v. Isgro, 974 F.2d 1091, 1098 (9th Cir. 1992). “Accordingly, the Supreme Court has cautioned that when faced with prosecutorial misconduct, a court should ‘tailor[ ] relief appropriate in the circumstances.’” Ibid.; see Morrison, 449 U.S. at 365 (“Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances….”). Thus, even if this Court concludes the timing of the government’s disclosures constituted Brady violations warranting sanction, dismissal of the indictment was inappropriate because lesser sanctions would have sufficed to remedy any violations.28 After the court declared a mistrial, it ordered briefing on the question whether “the mistrial should be with or without prejudice.” 1ER:63, 65, 66, 69. The parties briefed that question, focusing on whether the government committed flagrant misconduct causing substantial prejudice. Neither the government nor any defendant briefed the question of what lesser sanctions might be appropriate if the court disagreed with their position on flagrant misconduct and substantial prejudice, and the court did not hear argument at the January 8, 2018, hearing. The government requested reconsideration, arguing the court erred by failing to consider lesser sanctions. CR:3175. In 64 28 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 74 of 78 1. Striking three allegations from the indictment If the timing of the government’s disclosures hampered the defense’s ability to rebut three specific overt-act allegations in the indictment, striking those allegations and precluding the government from introducing evidence to support them would fully remedy that prejudice. If the government is precluded from arguing in its case in chief that the defendants’ representations about being “surrounded by snipers” were false, the defendants would not be prejudiced from any “late” disclosure of material they wish to use to dispute the falsity of those representations. 2. Dismissing Count 1 or 16, or both If that remedy is insufficient, dismissing Count 1, the conspiracy count that requires proof of an overt act, would certainly cure any prejudice the defendants suffered to their ability to rebut the overt-act allegations that they falsely stated BLM snipers were surrounding Bundy’s property. Moreover, Count 16 concerns defendants’ use of the Internet in aid of extortion, so depending on the nature of prejudice the Court finds, dismissal of that count denying reconsideration, the court stated it had considered unspecified lesser sanctions, but found them insufficient. 1ER:13. 65 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 75 of 78 could also be appropriate. Indeed, the court might have considered dismissing both Counts 1 and 16. Dismissing one or more counts would be an extreme sanction, to be sure, but less drastic than dismissing the entire indictment with prejudice, and more appropriate given the nature of the Brady violations the court found. Even under the district court’s interpretation of the government’s Brady obligations, and its stated findings regarding the potential value of the purported “latedisclosed” material, dismissal of the counts to which that material relates would have entirely remedied the violations. Accepting defendants’ argument, the court found that retrying the case would “only advantage the government,” because prosecutors could strengthen witnesses’ testimony “based on the knowledge gained from the information provided by the defense and revealed thus far,” “perfect its opening statements based on the revealed defense strategy,” and “conduct more strategic voir dire.” 1ER:35. But if the court tailored the relief to “neutralize the taint,” 449 U.S. at 365, of the misconduct it found, by precluding the government from making any arguments based on the overt acts alleging false statements or dismissing 66 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 76 of 78 the counts to which those allegations related, those perceived advantages to the government would disappear.29 VI. CONCLUSION For the reasons stated above, the government respectfully requests this Court reverse the district court’s dismissal of the indictment and remand for further proceedings. Dated this 20th day of March, 2019. NICHOLAS A. TRUTANICH United States Attorney s/ Elizabeth O. White ELIZABETH O. WHITE Appellate Chief and Assistant United States Attorney 400 South Virginia, Suite 900 Reno, NV 89501 775-784-5438 Attorneys for the United States Indeed, the court could have dismissed the indictment without prejudice. See United States v. Taylor, 487 U.S. 326, 342 (1988) (“Dismissal without prejudice is not a toothless sanction” because, among other things, “it forces the Government to obtain a new indictment if it decides to re-prosecute”). 67 29 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 77 of 78 VII. STATEMENT OF RELATED CASES Todd Engel and Gregory Burleson, codefendants who were convicted in the first trial in this matter, have filed notices of appeal. Engel’s appeal has been docketed as 18-10293, and his opening brief is due in this Court on April 5, 2019. Burleson’s appeal has been docketed as 17-10319; proceedings on his appeal have been stayed pending the district court’s ruling on his motion for a new trial. s/ Elizabeth O. White ELIZABETH O. WHITE Appellate Chief and Assistant United States Attorney Dated: March 20, 2019 68 Case: 18-10287, 03/20/2019, ID: 11235416, DktEntry: 52, Page 78 of 78 CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(c) AND CIRCUIT RULE 32-1 I hereby certify that: Pursuant to Fed. R. App. P. 32(a)(7)(c) and Ninth Circuit Rule 32-1, the attached opening brief is proportionately spaced, has a typeface of 14 points, and contains 14,000 words. s/ Elizabeth O. White ELIZABETH O. WHITE Appellate Chief and Assistant United States Attorney Dated: March 20, 2019 69