Federal prosecutors are urging a Nevada judge to not dismiss criminal charges against Cliven Bundy, the Nevada cattleman and antigovernment icon, and three other men, claiming the government’s failure to release certain records was merely inadvertent.
In declaring a mistrial last month, U.S. District Judge Gloria Navarro said she was dismissing a jury panel and halting the criminal conspiracy trial because federal prosecutors had failed to turn over certain FBI reports to defense attorneys.
The judge has set a hearing for next Monday where she’s expected to rule whether her mistrial order will be with or without prejudice.
If the mistrial order is accompanied by a “without prejudice” ruling, Cliven Bundy, his sons Ammon and Ryan Bundy and Montana militiaman Ryan Payne will return to a Las Vegas courtroom next month for another jury trial.
The withheld FBI reports that triggered the mistrial detail the FBI’s use of a remotely controlled camera near the Bundy’s cattle ranch and the deployment of federal agents acting as “snipers” during a failed 2014 cattle roundup.
Acting U.S. Attorney Steven Myhre, in a 55-page legal filing, said the prosecution’s failure to release the records at issue was not “a flagrant or reckless disregard of its obligations” to provide defense attorneys with material that potentially could be exculpatory to the defendants or used to fashion a different defense.
“The government’s conduct in this case does not meet this high standard for dismissal” of the criminal case, Myhre said.
The prosecution’s failure to release the FBI records was “due to simple inadvertence” or “good-faith, reasonable” beliefs the information was not subject to disclosure, Myhre said, adding that he now understands the judge ruled otherwise.
Some of the details in the withheld documents were referenced in other documents released months ago to defense attorneys, Myhre said in the legal brief.
“While the government inadvertently failed to disclose these [FBI reports], its failure does not amount to a flagrant or intentional violation of its discovery obligations,” the federal prosecutor said.
Defense attorneys and the defendants “clearly knew” from other documents they received that as many as five Bureau of Land Management agents were assigned to observation points near the Bundy home during the impoundment.
“Because the government provided nearly identical information through other sources, no bad motive can be inferred from belated disclosure of these [FBI reports],” the federal prosecutor said in his filing.
“The government did not intentionally delay production or act in flagrant disregard of its Constitutional and statutory obligations. Thus, dismissal with prejudice is not warranted.”
The cattle impoundment — ordered by another federal judge for nonpayment of federal grazing fees — was aborted in April 2014 when hundreds of Bundy supporters, including militia groups, “Patriot” and other armed civilians responded to the desert scene near Bunkerville, Nevada. Some of the armed Bundy supporters were photographed pointing firearms at federal agents.
The federal prosecutor, citing an appeals court case, said a trial judge should only dismiss charges if “both flagrancy and substantial prejudice are shown” and if
“outrageous government conduct” amounts to a due process violation, or as an “appropriate exercise of the court’s supervisory powers.”
“The standards to dismiss … are high and permit dismissal only in extreme cases,” the U.S. attorney wrote in the legal filing.
Although the court “found prejudice necessitating a mistrial, the defendants’ proposed prejudice is not substantial because it is curable in a new trial,” Myhre argued.
The legal filling also details the vast amount of records surrounding the Bundy case, put in a database containing more than 30,000 documents, totaling more than 250,000 pages.
In addition to collecting documents, the government “devoted tremendous
investigative and case management resources to collecting, identifying, and organizing social media content and audio/video recordings,” the filing said.
The government drafted and executed more than 45 search warrants on various social media and email accounts, generating more than 500,000 pages of returns, 75 videos, and more than 82,000 emails.
The government’s disclosures to defense attorneys included more than 24,000 pages of printed material, 2,000 video recordings, and 1,600 audio recordings. “In all, the government provided more than 1.5 terabytes of information to the defendants, by far the largest review and disclosure operation in this [U.S. Attorney’s Office] history,” Myhre said.
But not all the documents in the government’s database were turned over to the defense because prosecutors believed some of those documents weren’t subject to release under court rulings, Myhre said.
Some of the released documents were redacted or released to the defense under a “protective order” issued by the judge because of threats to witnesses, victims and law enforcement officers involved in the Bundy case.
Many witnesses expressed reluctance to testify out of fear of what might happen to them in retaliation, the prosecutor said.
Even still, after the trial had begun, sealed information disclosed to defense attorneys and the defendants “quickly leaked into social media,” including an email written by Bureau of Land Management agent Larry “Clint” Wooten, Myhre wrote.
Wooten was removed from a supervisory role in the Bundy investigation early last year after he alleged his BLM bosses tried to silence his concerns another BLM supervisor, Dan Love, who led the agency's operation to impound Bundy's cattle.