On Friday a Federal prosecutor asked the 9th U.S. Circuit Court of Appeals to send Cliven Bundy, his sons Ammon, Ryan and Montana resident Ryan Pain into court to again face charges filed following a 2014 standoff near Bunkerville,NV.
Assistant U.S. Attorney Elizabeth White admitted that prosecutors in the first trial “fell short” in turning over evidence to the defense during the trial.
“In undertaking an enormous task, we missed a few things,” White argued before a three-judge panel via videoconference. “We overlooked a document here, or we didn’t appreciate the potential relevance of a document there. … But falling short simply does not warrant the extreme sanction of dismissing a criminal indictment.”
White suggested U.S. District Judge Gloria Navarro went too far in her ultimate decision in the Bundy trial, and said prosecutors had not intentionally tried to misdirect the defendants and jurors. A new trial, she argued, would “certainly cure” the problems in the original trial.
“Even if this court concludes that the government should have turned over those documents earlier, there is simply no basis on which to conclude that our failure to do so constituted flagrant misbehavior that resulted in substantial prejudice to the defense that could not be cured by a remedy less than dismissal of the criminal indictment,” White said. “And it’s certainly not so grossly shocking or outrageous as to violate the universal sense of justice.”
Jufdge Navarro dismissed the original charges against the Bundy’s and Payne after concluding that Prosecutors willfully withheld video surveillance, maps and FBI interview information in violation of due process required by the U.S. Constitution, she said.
Bundy attorney Larry Klayman, argued that testimony in the trial amounted to prosecutorial miscounduct and entrapment.
“There was flagrant abuse here, gross abuse,” he said. “And Judge Navarro made the exact correct decision.”
Assistant Federal Public Defender Amy Cleary, who represents Ammon and Ryan, with Montana militia leader Ryan Payne, argued that all of the evidence that prosecutors withheld would have supported the defendants.
Cliven Bundy refuses to recognize the federal government’s ownership of millions of acres of public land. He continually failed to pay federal grazing fees due for grazing his cows on federal land near the Lake Mead National Recreation Area since the 1990s.
The 2014 armed standoff occurred after federal agents tried to execute a court order to round up Bundy’s cattle on federal land and auction them off to pay his back due grazing fees. The encounter ended without injury after Bureau of Land Management officers called off the roundup.
Prior to the confrontation Bundy called upon far right extremists to join him in the standoff and defend his debunked legal theory that counties and states, not the federal government, should own public land.
Photos and social media posts showed militia training their rifles on armed BLM officers who had come to round up Bundy’s cattle.
Seven other defendants had pleaded guilty without having the benefit of the favorable evidence. Two more defendants were convicted at a separate trial in 2017, including Todd Engel, whose lawyer argued on Friday for an appeal of his conviction.