On February 6, 2019, Federal Prosecutors asked the 9th U.S. Circuit Court to bring Cliven Bundy, two of his sons Ryan and Ammon and Ryan W. Payne back into court to again face felony charges. The charges stem from a 2014-armed standoff with federal officers who were acting to round up Bundy’s cattle for auction to satisfy more than $1 million in unpaid grazing fees and trespass fines. The appeal notes that Bundy continues to unlawfully graze his cattle on public lands.
In July 2018, Nevada Chief Judge Gloria Navarro dismissed the 16-count indictment against Bundy and his co-defendants with prejudice. She alleged that prosecutors withheld information from the defendants. Prosecutors argue that the “with prejudice,” comment denied them an opportunity for a retrial.
DOJ Appellate Chief and Assistant U.S. Attorney Elizabeth White argued that Judge Navarro could have dismissed two of the 16-count indictment or dismissed the case without prejudice. Either or both of those choices would have allowed the Justice Department to obtain a new indictment against the defendants.
“The prosecution team spent hundreds of hours reviewing documents with the goal of producing everything that was relevant or material, while at the same time avoiding a disorganized ‘document dump’; meeting speedy trial obligations; and protecting witnesses, victims, and others from the very real possibility of threats and violence, “White wrote.
“Prosecutors kept a meticulous discovery index, documenting production of thousands of pieces of discovery,” she added, pointing to the 1.4 terabytes of discovery in the trial. “Despite these diligent efforts, the results were not without error. But any errors were inadvertent, or at worst negligent, and thus … they do not support the extreme sanction of dismissal with prejudice of the indictment.”
In the appeal, Prosecutors also sought to place blame on Bundy, his sons and Payne and their respective defense attorneys for a “frenzied” courtroom atmosphere.
“Defendants’ accusations were also internally inconsistent, complaining about too little, and then too much, discovery — even within the same hearing,” White wrote.
“Despite the government’s massive disclosures, defendants repeatedly made demands for discovery and then filed motions to dismiss alleging discovery violations when the government responded,” White asserted.
“In what became a familiar cycle, the district court would hold 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,” she said, referring to the 1963 Supreme Court case Brady v. Maryland, which requires federal prosecutors to turn over exculpatory evidence to the defense.
In the appeal, the Justice Department repeatedly emphasized Bundy’s failure to pay grazing fees or trespass fines.
“The sound judgment of law enforcement kept the peace that day [in 2014], but the federal court’s orders remain unenforced, and Bundy continues to unlawfully graze his cattle on federal land in violation of those orders,” White noted in her opening brief.new bundy trial