Federal prosecutors argue that a Nevada judge’s dismissal of a federal conspiracy case against Cliven Bundy, his two sons and a co-defendant was not justified, according to their opening brief filed Wednesday with the 9th U.S. Circuit Court of Appeals.
U.S. District Judge Gloria M. Navarro’s ruling in January 2018 that prosecutors willfully withheld key evidence in the case was “erroneous,’’ they argue. Yet, even if they were to concede that they had violated federal law governing their evidence discovery obligations, the judge should have considered less severe penalties, such as throwing out some of the charges or allowing the government to bring a new prosecution against the Bundys, the brief says.
“The extraordinary remedy of dismissal with prejudice was far out of proportion to such violations,’’ wrote Elizabeth O. White, appellate chief in the U.S. Attorney’s Office in Nevada.
“Any missteps were inadvertent (or at worst negligent), and those errors did not merit the court’s strong condemnation of the prosecution team.’’
White asked the appeals panel to reverse Navarro’s dismissal and send the case back to federal court in Nevada.
The government’s 88-page opening brief rehashed many of the same arguments prosecutors made to Navarro when they asked the judge to reconsider the dismissal. Navarro wasn’t swayed.
The senior Bundy, sons Ammon Bundy and Ryan Bundy, and Ryan Payne, a militia leader from Montana, had been indicted on federal conspiracy and other allegations, accused of rallying militia members and armed supporters to stop federal officers from impounding Bundy cattle near Bunkerville. Government authorities were acting on a court order filed after Cliven Bundy failed to pay grazing fees and fines for two decades. The outnumbered federal contingent retreated and halted the cattle roundup on April 12, 2014.
Navarro had found prosecutors engaged in a "deliberate attempt to mislead'' and made several misrepresentations to both the defense and the court about evidence related to a surveillance camera and snipers outside the Bundy ranch in early April 2014, as well as threat assessments made in the case.
She found the government misconduct was "outrageous'' and "egregious'' because the prosecution team and the FBI didn't give defense lawyers information that they had specifically requested.
According to White, the government failed to disclose some documents as a result of “simple inadvertence,’’ others because prosecutors weren’t aware they existed or couldn’t find them, and some because prosecutors didn’t think they were relevant to the defendants’ case.
The government also complained that defense lawyers filed a deluge of discovery motions “at a frantic pace, making allegations of misconduct faster than the government could respond.’’
White reiterated prosecutors’ argument that they considered some of the material irrelevant, contending the judge had rejected a defense attempt to argue that the defendants acted in self-defense during the standoff.
Navarro, however, specifically addressed those concerns in her dismissal ruling. She said prosecutors were "well aware'' that theories of self-defense, provocation and intimidation might become relevant if the defendants could provide sufficient proof to the court, noting it was part of a prior court order entered in the case.
In a footnote of the lengthy brief, White made a passing reference to the explosive memo provided to defense lawyers during trial that prompted Cliven Bundy’s lawyer to file a motion to dismiss the case. The memo was written by Larry Wooten, who had been the lead case agent and investigator for the U.S. Bureau of Land Management after the tense confrontation outside the Bundy Ranch. But Wooten said he was removed from the investigation after he complained to the U.S. Attorney’s Office in Nevada about agents’ misconduct, recklessness and unrestrained antipathy toward the Bundy family.
White characterized the memo as containing “lurid accusations of misconduct’’ against the Bureau of Land Management, and said prosecutors turned it over to the defense two days after they received it from Associate Deputy Attorney General Andrew Goldsmith.
The government’s opening brief for its appeal contained photos of militia members with rifles pointed from the I-15 highway overlooking the Toquap Wash where the standoff occurred, and other incendiary social media posts from Bundy followers.
“The government sought to balance orderly disclosure of more than 1.4 terabytes of digital data with protecting witnesses and victims from real and on-going threats,’’ White wrote.
Cliven Bundy’s lawyer, Larry Klayman, didn’t wait a beat with a motion Wednesday to strike the government’s brief and all appeal actions, arguing they’re “void and of no force and effect.’’
-- Maxine Bernstein
Email at mbernstein@oregonian.com
Follow on Twitter @maxoregonian
Visit subscription.oregonlive.com/newsletters to get Oregonian/OregonLive journalism delivered to your email inbox.