In a July 5, 2017 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 attempting to impound the Bundy family cattle for years of failing to pay grazing fees and fines.
Prosecutors handling the Nevada standoff case characterized defendants’ continued push for access to the threat assessments as another in their “long list of frivolous and vexatious pleadings.”
Prosecutors didn’t turn over the multiple threat assessments to Payne and his co-defendants, Nevada cattleman Cliven Bundy and his two sons, Ammon and Ryan Bundy, until the four were in the midst of trial in mid-November, and a government witness under cross-examination acknowledged familiarity with one of the reports.
The government’s withholding of multiple 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 – which found the Bundys were not likely to use violence – was 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 assessment reports, and their late disclosure is among the information disclosed in newly-filed, unsealed motions by Payne’s lawyers to dismiss the case.
Late Wednesday, Payne’s lawyers effectively unsealed three motions to dismiss that they filed under seal either in late November or early December in U.S. District Court in Nevada, as well as their reply to a government response. The motions contain redactions throughout, as the trial judge had requested.
The newly-revealed paperwork discloses that prosecutors had sought to continue the trial, once U.S. District Judge Gloria M. Navarro on Dec. 11 had signaled that she was concerned about more than a handful of potential evidence discovery violations by the U.S. attorneys.
Prosecutors had argued that much of the material turned over late to the defense was “irrelevant,” and that the defense theories that the defendants recruited militia to the Bunkerville area in 2014 because the Bundys were in fear of federal snipers or federal surveillance were not valid legal arguments.
Instead, Navarro on Dec. 20 declared a mistrial, finding at least six types of Brady evidence 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 newly-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 discovery with the defense, were dismissive of specific requests for evidence by the defense, engaged in a “pattern to ridicule and disparage the defense” requests, and then made “brazen proffers” to the court that specific information sought did not exist, 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 it’s ‘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, evidence that defendants obtained “piece meal” during trial 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 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 prior to 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 multiple threat assessments, as well as evidence on a surveillance camera and federal snipers also was not shared with the defendants prosecuted in two prior Nevada trials this year, Payne’s attorneys pointed out in the newly-unsealed filings.
“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, referring to sentenced defendant Greg Burleson and Todd Engel, who awaits sentencing.
The government’s delay in turning over the evidence prejudiced Payne and his co-defendants, his lawyers argued. The material would have been helpful to bolster Payne’s opening statement to jurors, and to impeach the government’s first witness, Mary Jo Rugwell, former head of the 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 their hands on 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 2014 standoff.
Here’s some other details from the newly-disclosed 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 the Bureau of Land Management manager Rugwell 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 the Nov. 29 Bureau of Land Management agent’s whistleblower memo, 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 discovery evidence in criminal trials state 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:paynemotiondismissunsealed1
— Maxine Bernstein