The Botched Cliven Bundy Case Was Just The Latest Example Of Prosecutorial Misconduct In Las Vegas

WHEN A FEDERAL JUDGE dismissed the indictment against cattle rancher Cliven Bundy earlier this year due to what she described as “outrageous” misconduct by Nevada prosecutors, she repeatedly referred to similar wrongdoing in a case from a decade earlier. In that older case, an appeals court delivered an incredibly rare ruling: The prosecutorial misconduct was so severe the court threw out dozens of criminal charges and barred the government from filing new ones.

As it happens, that older case — U.S. v. Chapman, decided by the 9th Circuit Court of Appeals in 2008 — also originated with the U.S. Attorney’s Office in Las Vegas. In fact, the same veteran prosecutor who led the Bundy case also tried to downplay his colleague’s similar misconduct in Chapman.

In both cases, prosecutors were found to have violated their constitutional obligations to provide defendants with important evidence that could have helped them fight the charges.

An ongoing, nationwide examination of federal prosecutors by The Intercept shows the Nevada office has a history of error and misconduct, though it doesn’t always rise to the level of dismissing a case.

The 16-count indictment a judge threw out against Bundy, two of his sons, and a co-defendant stemmed from an April 2014 armed standoff in Bunkerville, Nevada. The government alleged the four men conspired to obstruct federal agents from rounding up Bundy’s cattle that were grazing on federal lands, including by recruiting squadrons of armed gunmen.

A judge found that prosecutors, including then-acting U.S. Attorney Steven Myhre, withheld more than 3,000 pages of FBI reports and other documents and misled the court. This is the same sort of misconduct that led to the dismissal of the indictment in Chapman. In that 2008 case — now considered a landmark in prosecutorial oversight — Myhre’s colleague failed to hand over hundreds of pages, including plea agreements with government witnesses.

Myhre and his team had a front seat to both cases, and in the intervening years, his office was warned multiple times about the havoc that misconduct can wreak, including withholding evidence and making misrepresentations at trial.

The Nevada U.S. Attorney’s Office, which has asked the judge to reconsider her dismissal of the Bundy indictment, declined to answer any questions for this article. Myhre was replaced as acting U.S. attorney days before the Bundy indictmentwas dismissed.

Given the rarity with which judges dismiss charges, even for serious infractions, some experts wonder if there are more fundamental problems with the Nevada federal prosecutor’s office. Laurie Levenson, a professor at Loyola Law School in Los Angeles who previously served as a federal prosecutor, said there seems to be “a range of problems” with the Nevada U.S. Attorney’s Office, “from clerical errors to intentional violations.”

“Although the courts have displayed some patience, they are clearly warning the government to ‘get its act together,’” Levenson wrote by email.

WASHINGTON, DC - OCTOBER 26: U.S. Attorney General Jeff Sessions speaks at the Heritage Foundation's Legal Strategy Forum, October 26, 2017 in Washington, DC. His remarks focused on Constitutional principals and the rule of law. (Photo by Drew Angerer/Getty Images)

U.S. Attorney General Jeff Sessions speaks at the Heritage Foundation’s Legal Strategy Forum, on October 26, 2017 in Washington, D.C.

Photo: Drew Angerer/Getty Images

MYHRE LED THE Bunkerville prosecutions, even after Attorney General Jeff Sessions named him acting U.S. attorney for Nevada in March 2017. Sessions praised Myhre for continuing to handle such high-profile trial work while heading the office. “I’ve got to tell you, it’s impressive when you have a tough case, a controversial case, and you’ve got the top guy leading the battle, going to court, standing up and defending the office and the principles of the law,” Sessions said of Myhre’s handling of the Bundy cases in a July 2017 speech, according to the Las Vegas Review-Journal.

But in dismissing the indictments against Bundy, District Court Judge Gloria Navarro found that Myhre and his office had violated their constitutional obligations. She noted key similarities between the misconduct in Chapman and the government’s missteps in the Bundy case, including the prosecutors’ failure to turn over “voluminous” documents. In opposing dismissal, Myhre also cited Chapman numerous times, attempting to distinguish the Bundy prosecutions from such a landmark case.

What neither Myhre nor Navarro mentioned, according to hearing transcripts, was the crucial role Myhre himself played in Chapman, in which he unsuccessfully attempted to salvage an indictment that had been dismissed over a colleague’s flagrant misconduct.

In 2003, a Las Vegas grand jury returned more than 60 counts of securities fraud, racketeering, and money laundering against Daniel Chapman and four co-defendants. Prosecutors alleged the defendants sold and merged a number of shell companies at a profit of over $12 million. Two of Chapman’s co-defendants later pleaded guilty.

But ahead of the trial in 2006, Assistant U.S. Attorney Gregory Damm failed to turn over some basic evidence regarding government witnesses, including their rap sheets and plea agreements. When the defense complained about this missing documentation, Damm assured the court that he had, in fact, handed over all relevant materials. But this wasn’t enough for the judge.

“Where’s the proof of it? Show it to me,” the judge told the prosecutor. “You make statements that you can’t back up, and you’d better be careful, Mr. Damm.

“Don’t roll your eyes at me, sir, or you will be spending the night with the marshals.”

Unable to provide such proof, Damm sent more than 650 pages to the defendants’ lawyers, including agreements with some witnesses who had already testified before the jury.

The judge was incensed over Damm’s “unconscionable” failure to provide the defense with evidence that might impeach these witnesses’ credibility. He took the same steps as Navarro did with the Bundy case: He declared a mistrial, and then dismissed all charges against Chapman and the other defendants entirely. The judge found that Damm had acted “flagrantly, willfully, and in bad faith,” although he waffled on whether Damm’s misconduct had been intentional.

“For over two weeks of trial, the prosecutor consistently claimed that he had disclosed the required material to the defendants,” the trial judge said at the dismissal hearing. “And I accepted that, I accepted Mr. Damm’s statement as an officer of the court. … Only after I excoriated the assistant U.S. attorney in the strongest terms did he then offer an apology to the court, not a heartfelt apology, but simply a response to me.”

Myhre, first in his capacity as first assistant U.S. attorney and then as acting U.S. attorney for Nevada, tried to rescue the charges. He asked the 9th Circuit Court of Appeals to send the matter back for a new trial before a different judge.

In a 2007 brief, Myhre tried to downplay the gravity of Damm’s actions, calling the documents Damm withheld “unremarkable” and insufficient to justify dismissal. “Nondisclosure of them could not possibly offend due process,” he wrote. “Defendants’ effort to recast the issue as misrepresentation by the government is a thinly veiled attempt at misdirection.” The judge’s ruling was arbitrary, he wrote, and motivated partly by “personal bias” against the prosecutor.

Several months later, standing before a three-judge panel of the 9th Circuit, Myhre said dismissing the indictments was like using “a mallet to swat an ant.” Asked at one point to lower his voice, he apologized and explained his frustration about the accusations against Damm.

“I’ve had a prosecutor with a number of years,” Myhre said, “who basically was accused and been found by the federal judge to have engaged in willful and flagrant misconduct.” But Myhre said he was not making excuses for Damm’s actions. “What I’m saying is that prosecutors are not perfect,” he argued, noting that mistakes of all kinds are made in every trial. “But the issue is, Are we going to penalize society for the mistakes of a prosecutor?”

Myhre said judges shouldn’t dismiss cases “willy-nilly” or toss them out because “someone is outraged.”

“It has to be shocking and outrageous conduct,” he told the panel of judges.

The 9th Circuit panel unanimously rejected Myhre’s characterization, deeming Damm’s actions “prosecutorial misconduct in its highest form.”

They agreed with the trial judge that Damm violated his obligations under Brady v. Maryland, a 1963 case in which the U.S. Supreme Court ruled that prosecutors must disclose exculpatory evidence. In a subsequent case, the Supreme Court held that the “Brady rule” also applies to materials that might cast doubt on witnesses’ credibility.

The Chapman opinion called out Myhre and the Nevada prosecutor’s office for attempting to minimize the extent of Damm’s misrepresentations to the trial judge. Not only did Damm try to “paper over his mistake” at trial, the 9th Circuit concluded, but Myhre and his colleagues also later changed tune and claimed they didn’t need to disclose the 650 pages of evidence at all.

“The government’s tactics on appeal only reinforce our conclusion that it still has failed to grasp the severity of the prosecutorial misconduct involved here, as well as the importance of its constitutionally imposed discovery obligations,” the panel ruled.

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The Lloyd D. George United States Courthouse, which houses the 9th Circuit Court of Appeals in Las Vegas.

Photo: Google. Screenshot: The Intercept

BEFORE HANDING DOWN their ruling, one of the justices asked Myhre whether the case had been referred to the Office of Professional Responsibility, which oversees misconduct investigations and discipline for the Justice Department. Myhre said it had.

However, it’s unclear if Damm suffered any disciplinary or professional repercussions for his misconduct. Despite the strong language of its ruling, the 9th Circuit didn’t even identify him by name. Indeed, it is rare for judges to name prosecutors — even those they find have committed serious infractions — in their written opinions, making it difficult for the public to know about any repeated misconduct.

According to several media reports from the time, the Office of Professional Responsibility conducted a review, but found nothing worth discipline.

State Bar of Nevada records reflect no discipline against Damm, and the Nevada U.S. Attorney’s Office declined to tell The Intercept whether he was subject to any internal discipline or retraining. Reached by phone, Damm declined to comment.

The office also declined to say what steps, if any, it took to prevent similar misconduct from happening again. Since Chapman, judges have warned Nevada federal prosecutors at least twice that cases might be thrown out because of prosecutors’ failure to properly disclose important materials. Damm was a prosecutor on one of the cases.

In 2016, Damm was part of a team prosecuting a man and a woman for breaking into three stores, armed with guns, and stealing about $1 million worth of jewelry. In that case, the Nevada U.S. Attorney’s Office waited until the morning of trial to provide defense attorneys with witness and exhibit lists despite the fact that the judge had ordered them to be turned over several days earlier.

“How is that fair to the defendants,” the judge asked Kimberly Frayn, the lead prosecutor and Damm’s co-counsel, “to go to trial not knowing what witnesses are going to be called and not knowing what exhibits are going to be introduced against them? Tell me how that’s fair and just.”

Frayn suggested this was standard practice, but the judge said he was “borderline irate.” He pointed out that one of the defendants managed to get his materials submitted properly despite representing himself while in prison.

The judge considered dismissing the charges, according to hearing transcripts, but instead decided to limit the government to a single day to present its case. This was not a perfect remedy, the judge pointed out, since it “still shortchanges the defendants” some of the preparation time they would have had “had the government done its job.”

“I’m not going to allow the government’s creation of this problem to interfere with the defendants’ preparation for their trial to the extent I can avoid that,” the judge said.

After apologizing to the court, the Nevada U.S. Attorney’s Office quickly struck incredible deals with two of the defendants. The alleged ringleader of the robbery crew, who faced a possible 100 years in prison, according to the Review-Journal, saw that whittled down to two years of time served under his plea agreement. Damm retired the next month, a move that the office told the Review-Journal had been planned before the trial.

The U.S. Attorney for Nevada at the time, Daniel Bogden, also told the Review-Journal that his office was “fully reviewing the matter to determine precisely what occurred.” In response to a request from The Intercept, the Nevada U.S. Attorney’s Office declined to say what came of that review.

Daniel Medwed, a law professor at Northeastern University who studies prosecutorial accountability, says it’s important to distinguish the constitutional violations in Chapman from the lesser violation of the judge’s orders in the 2016 case. “But taken together, it suggests a pattern of disregard for disclosure obligations, both constitutional and statutory,” Medwed said.

In 2015, the 9th Circuit upheld a drug and firearms conviction despite “inexplicable” misconduct by a veteran Nevada prosecutor, Amber Craig, in her arguments to the jury. Known as “harmless error,” judges sometimes find egregious misconduct but uphold a conviction because they determine the jury would have reached the same conclusion even if the prosecutor hadn’t acted improperly.

A judge also scolded Nevada prosecutors in a 2012 wire fraud case after the government failed to provide one of the defendants with a 33-page affidavit containing details of witness interviews. A magistrate judge ruled that it was not necessary to dismiss the case, but was concerned that prosecutors failed to turn over such an important document sooner.

“The court should not be forced to intervene due to conduct such as this, and any future conduct of this nature by the government will result in this court exercising its supervisory powers and recommending severe sanctions, and possibly the dismissal of the indictment,” he warned.

Bennett Gershman, a law professor at Pace University who has written extensively about prosecutors, said the Nevada office has “behaved irresponsibly and unprofessionally in meeting its constitutional and ethical duties relating to discovery and disclosure.”

But “whether it’s an office culture, or misconduct by a handful of assistants,” he said, “is hard to say.”

File - In this Dec. 20, 2017, file photo from left, Ammon Bundy, Ryan Payne, Jeanette Finicum, widow of Robert "LaVoy" Finicum, Ryan Bundy, Angela Bundy, wife of Ryan Bundy and Jamie Bundy, daughter of Ryan Bundy, walk out of a federal courthouse in Las Vegas. A U.S. judge who declared a mistrial could on Monday, Jan. 8, 2018, kill the much-watched criminal prosecution of a Nevada rancher accused of leading an armed uprising against federal authorities in April 2014. Chief U.S. District Judge Gloria Navarro's decision in Las Vegas is sure to echo among states' rights advocates in Western states where the federal government controls vast expanses that some people want to remain unused and others want open to grazing, mining and oil and gas drilling. (AP Photo/John Locher, File)

From left, Ammon Bundy; Ryan Payne; Jeanette Finicum, widow of Robert “LaVoy” Finicum; Ryan Bundy; Angela Bundy, wife of Ryan Bundy; and Jamie Bundy, daughter of Ryan Bundy, walk out of a federal courthouse in Las Vegas on Dec. 20, 2017.

Photo: John Locher/AP

DISMISSAL IS CONSIDERED an extreme remedy for prosecutor misconduct. Judges often declare a mistrial but let the indictments stand, thus allowing prosecutors the option of taking the case before another grand jury.

As Myhre noted in his brief, the Chapman case seems to be the only ruling in which the 9th Circuit has ever upheld outright dismissal of indictments due to prosecutorial misconduct. And Navarro found plenty of similarities when comparing Damm’s misconduct in Chapman to Myhre’s actions in the Bundy trial.

As in Chapman, Myhre and his office failed to turn over hundreds of pages of evidence, particularly FBI reports, logs, maps, and threat assessments, Navarro found. And, like Damm, Myhre and his office made “several misrepresentations” to the defense and the court, both about the existence of certain evidence and its importance, she ruled.

In one instance, Navarro said, the prosecution made “a deliberate attempt to mislead and to obscure the truth.” At the mistrial hearing in December, she criticized Myhre for calling an internal affairs report about one of the Bundy investigators an “urban legend.” When the report surfaced, Myhre told the court his “urban legend” comment was “based on the government’s inability to verify its existence, let alone find it,” and not an attempt to deceive.

To be sure, Navarro did find some key differences between the cases. She gave prosecutors credit, for instance, for keeping a log of which documents had already been turned over, which Damm did not do. She also placed considerable blame on the FBI for the failures, saying “both the prosecution and the investigative agencies are equally responsible.”

Prosecutors also tried to distinguish between the two cases. This put Myhre in the odd position of reframing Chapman as a relatively clear case of misconduct by his own office. Ten years after he had downplayed the misconduct in Chapman, Myhre wrote, “Unlike in Chapman, in this case the government acted in good faith, relying on its understanding of the law and its discovery obligations.” Where once he argued the plea agreements, rap sheets, and other documents in Chapman were “unremarkable,” Myhre now characterized them as “perhaps the most obvious Giglio evidence there is.”

In Giglio v. United States, the Supreme Court ruled that prosecutors must provide evidence that might cast doubt on the credibility of witnesses. “The government did not withhold anything it knew to be material or obvious Giglio material like a prior conviction,” Myhre wrote in his 2017 motion.

Experts split on whether this recasting of Chapman by the same office that spawned it — and the same prosecutor who argued it — was problematic. Medwed, the Northeastern University professor, didn’t consider it unethical. “If now, years later, it suits his interest,” Medwed said, “I don’t see any real problem with changing the interpretation.”

Levenson, on the other hand, said, “I don’t think you can get away with saying two contradictory things,” quipping that she hoped Myhre “wears an asbestos suit” when he goes before the judge. Gershman said it seemed like “Myhre either forgot what he argued in Chapman, or hoped nobody would ever find out.”

“He is playing fast and loose with the truth, something no lawyer, let alone a prosecutor should ever do,” he said.

Ultimately, Myhre’s arguments didn’t sway Judge Navarro.

“Here, the prosecution seems to have minimized the extent of prosecutorial misconduct by arguing that they believed the various items previously undisclosed, like the threat assessments, were not helpful or exculpatory,” Navarro said at the dismissal hearing in January.

She found it “grossly shocking” how Myhre claimed prosecutors were “unaware” that these kinds of documents were material to the case.

Navarro didn’t explore any of the more incendiary allegations against Myhre brought by a whistleblower, including claims that Myhre adopted a “don’t ask, don’t tell” attitude about potential inappropriate conduct by federal agents working on the Bunkerville investigation. The Nevada U.S. Attorney’s Office has denied the whistleblower’s allegations and called them “false in all material aspects” in court filings.

After weighing possible sanctions, Navarro decided dismissal was the most appropriate, both to uphold the defendants’ due process rights and to deter “future investigatory and prosecutorial misconduct.”

“None of the alternative sanctions available are as certain to impress the government with the court’s resoluteness in holding prosecutors and their investigative agencies to the ethical standards which regulate the legal profession as a whole,” she said.

In briefs filed in February, the U.S. Attorney’s Office in Nevada urged Navarro to reconsider, saying her ruling was “clearly erroneous.”

The office argued Navarro failed to adequately consider less drastic remedies, such as dismissing some of the charges, or tossing all of them but allowing prosecutors to seek new ones. As of April 25, the court had not yet ruled on this appeal, according to federal records.

After the court dismissed the Bundy indictment, Justice Department officials ordered a review, saying they would send a “discovery expert” to Las Vegas. A department spokesperson declined to elaborate on the status of that review or say whether Myhre had been referred to the Office of Professional Responsibility.

Posted in Bundy Ranch, Cliven Bundy, Court, Dan Love, FBI, Freedom, Jeff Sessions, Las Vegas, Nevada, News, Oversight, Politics, Ryan Bundy, Ryan Payne, The Intercept, US Dept of the Interior.

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