Unsealed motions in NV Bundy case detail prosecution’s violations

The Oregonian – by Maxine Bernstein

In a July 5 email, Ryan Payne’s lawyers asked prosecutors for copies of all threat assessments prepared before the April 2014 standoff between Cliven Bundy’s supporters and federal officers trying to impound Bundy’s cattle for years of failing to pay grazing fees and fines.

Prosecutors characterized the defendants’ continued push for the assessments as another in their “long list of frivolous and vexatious pleadings.”  

Prosecutors didn’t turn over the assessments to Payne, Bundy and Bundy’s two sons, Ammon and Ryan Bundy, until the four were in the midst of a trial last month and a government witness under cross-examination acknowledged familiarity with one of the reports.

The threat assessments by the FBI Behavioral Analysis Unit, the Southern Nevada Counterterrorism Task Force, FBI Joint Terrorism Task Force and Gold Butte Cattle Impound Risk Assessment found the Bundys weren’t likely to use violence.

They were just one example of the prosecution team’s callous disregard of its constitutional obligations to share with the defense any potentially favorable evidence, according to Payne’s lawyers, assistant federal public defenders Brenda Weksler and Ryan Norwood.

The date of the defense attorneys’ initial request for the crucial threat reports and their late disclosure is among the information revealed in newly unsealed motions by Payne’s lawyers to dismiss the case.

The motions contain redactions throughout as the trial judge had requested.

The paperwork discloses that prosecutors had sought to continue the trial, once U.S. District Judge Gloria M. Navarro on Dec. 11 signaled she was concerned about more than a handful of potential evidence violations by the government attorneys.

Prosecutors argued that much of the material turned over late to the defense was “irrelevant” and that the defense theories that the Bundys recruited militia to the Bunkerville area in 2014 because they feared federal snipers or federal surveillance weren’t valid legal arguments.

Instead, Navarro on Dec. 20 declared a mistrial, finding at least six types of Brady discovery violations and that prosecutors “willfully” withheld the evidence, resulting in due process violations. She set a hearing for Jan. 8 to determine if the case should be dismissed with prejudice, meaning it can’t be retried. The government and defendants have until Friday to file their written arguments.

The unsealed motions filed by Payne’s lawyers also signal what his lawyers are likely to argue in Friday’s legal brief: that prosecutors repeatedly failed to abide by deadlines set to share favorable evidence with the defense, were dismissive of specific requests for evidence, engaged in a “pattern to ridicule and disparage the defense” requests and then made “brazen proffers” to the court that specific information sought didn’texist, only to find out later they were mistaken.

Further, the government has continually failed to take responsibility for its misconduct, Weksler argued in a December motion.

“Here the government cannot seem to recognize what constitutes Brady material, maintains it has done nothing wrong, blames the defense for improper and ‘late demands,’ and for ‘filing serial motions to dismiss based on proclaimed discovery violations,’ ” Payne’s lawyers wrote. “This Court should be ‘troubled’ by the government’s actions and its ‘failure to grasp the severity of the prosecutorial misconduct’ involved here, as well as the importance of its constitutionally imposed discovery obligations.”

Beyond the threat assessments, other evidence that defendants obtained “piecemeal” during the trial included information about an FBI surveillance camera on a hill overlooking the Bundy home with a live-feed image viewed in a command center and snipers positioned outside the Bundy ranch.

Those would have bolstered the defense argument that Payne summoned militia members and supporters to Nevada because he feared the Bundys were surrounded by federal officers and isolated before the April 12, 2014, standoff.

The information also directly refutes the federal indictment, which alleges the Bundys and Payne used deceit to draw supporters, by falsely claiming snipers were surrounding the Bundy home.

The threat assessments, as well as evidence on a surveillance camera and federal snipers, also wasn’t shared with the defendants prosecuted in two earlier Nevada trials this year, Payne’s attorneys pointed out.

“It bears reminding that this Court sentenced one of these defendants in the Trial 1 group to 68 years and another one is pending sentencing,” Weksler and Norwood wrote.

The government’s delay in turning over the evidence prejudiced Payne and his co-defendants, his lawyers argued. The material would have been helpful for Payne’s opening statement to jurors and to impeach the government’s first witness, Mary Jo Rugwell, former head of the U.S. Bureau of Land Management office in southern Nevada, who referenced one of the threat assessments. She was cross-examined and excused as a government witness before the defense got the report.

The Bundys and Payne are charged with federal conspiracy to impede federal land managers through intimidation, threat or force, assault on a federal officer and extortion stemming from the standoff.

Here’s some other details from the motions:

— Prosecutors dismissed a defense request for an Office of Inspector General’s report on fired Bureau of Land Management agent Dan Love as something of an “urban legend.” In early December, though, prosecutors turned over nearly 500 pages of internal affairs reports on Love.

— After Rugwell, the Bureau of Land Management manager, testified in November, prosecutors sent defense lawyers an email on Dec. 1, saying they inadvertently had forgotten to share notes the FBI had taken prior to Rugwell’s testimony when she was being prepped as a witness. In those notes, Rugwell referenced a 2012 FBI Behavioral Analysis Unit Threat Assessment. Rugwell also referenced it during testimony. Defense lawyers demanded a copy of the assessment after Rugwell testified, yet prosecutors questioned its relevance before they were ordered to share it with the defense.

“The defense is anxious to learn how, even based on that discussion alone, it did not occur to the government to turn over information it knew the witness was relying on,” Payne’s lawyers wrote in their motion.

— By late November, the defense had asked the court at least twice to appoint a “discovery monitor” to make sure defendants were receiving all the evidence they were entitled to receive. None was appointed.

However, a day after the judge declared a mistrial, the U.S. Department of Justice released a statement saying Attorney General Jeff Sessions took “this issue very seriously and has personally directed that an expert in the Department’s discovery obligations” be sent to Las Vegas to examine the case and provide advice as to next steps.

— Payne’s lawyers briefly suggest that a Nov. 29 whistleblower memo from a Bureau of Land Management agent, complaining that the U.S. Attorney’s Office didn’t want to hear about potential evidence being withheld by his agency, should disqualify the prosecutors from future work on this case, if it’s allowed to be retried.

—The U.S. Attorney’s guidelines on sharing evidence in criminal trialsstate prosecutors’ obligations clearly: “It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.”

DOCUMENTS UNSEALED WEDNESDAY:

–Ryan Payne motion to dismiss based on discovery provided Nov. 17, 2017

–Ryan Payne motion to dismiss based on discovery provided Nov. 21, 2017

–Ryan Payne motion to dismiss based on continuing pattern of evidence violations

–Ryan Payne reply to a government response to motion to dismiss

— Maxine Bernstein

http://www.oregonlive.com/oregon-standoff/2017/12/newly-unsealed_motions_in_nv_b.html