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Prosecutors on Friday urged a federal judge to allow them to
retry Nevada cattleman Cliven Bundy, his two sons and a fourth man,
arguing that any failure to provide evidence to the defense in the last
trial was simply "inadvertent'' or because they reasonably believed the
law didn't require them to share the material.
"The Brady violations found by the court are regrettable and benefit
no one,'' Nevada's Acting U.S. Attorney Steven Myhre wrote in a 55-page
legal brief. "But because the government neither flagrantly violated nor
recklessly disregarded its obligations, the appropriate remedy for such
violations is a new trial.''
The prosecutors claim they couldn't simply turn over all the
material, citing "harassment and threats'' made to witnesses, victims
and officers in the case who would be in jeopardy if personal
information got out, especially on social media.
They also cited the massive volume of documents, videos and emails
from two federal agencies and Las Vegas and Nevada law enforcement
agencies that they needed to cull, and the constraints of the U.S.
attorney's "low-tech'' database.
The 1.5 terabytes of information shared with defense was "by far the
largest review and disclosure operation'' in the history of the Nevada's
U.S. Attorney's Office, Myhre wrote.
Prosecutors
argued that the six Brady violations found by the judge encompass "one
small portion of the discovery'' and that the defendants can proceed
with a new trial and "all the information they're entitled to."
The legal brief represents the prosecution team's first significant comments since U.S. District Judge Gloria M. Navarro declared a mistrial last week in
the case brought by the government against Bundy, sons Ammon and Ryan
Bundy and Ryan Payne in the April 2014 armed standoff with federal
officers.
Prosecutors are undertaking a substantial review of all their
evidence and will share any further reports it may discover, they noted.
The Brady law, named for the landmark 1963 U.S. Supreme Court case
Brady v. Maryland, requires prosecutors to turn over all evidence that
may prove favorable to defendants.
"The government takes its discovery obligations seriously,'' Myhre
wrote. "The government seeks justice on the merits of a case, not
through dodging discovery rules and technicalities, or by obscuring
violations if and when they may occur.''
Defense lawyers said the harm caused by the violations and the
prosecution's continued failure to accept responsibility demand a
dismissal of all the charges against the four men. They were indicted
last year on conspiracy and other allegations, accused of rallying
militia members and armed supporters to stop federal agents from
impounding Bundy cattle. Officers were acting on a court order filed
after Cliven Bundy failed to pay grazing fees and fines for two decades.
"The
government's irresponsible and, at times, false proffers to this court
as well as its dismissiveness toward the defense inspires no confidence
in the prospect of fairness," Brenda Weksler, an assistant federal
public defender representing Payne, wrote on behalf of all the
defendants. "Anything short of a dismissal is tantamount of condoning
the government's behavior in this case. ... Dismissal is the only way to
ensure such conduct will not happen again.''
The judge found the prosecutors' violations were "willful,'' and led
to due process violations. She said they waited too long to provide FBI
and other agency reports and maps on surveillance, including a camera
and snipers, outside the Bundy ranch, threat assessments that indicated
the Bundys weren't violent and nearly 500 pages of internal affairs
documents involving U.S. Bureau of Land Management special agent Dan
Love, who led the cattle roundup. He has since been fired from the
agency for unrelated misconduct.
Both sides are expected to return before Navarro on Jan. 8 for a
hearing to determine whether the government will be allowed to retry the
case.
Myhre wrote that the Nevada U.S. Attorney's Office began working in
October 2014 to collect investigative documents from the Bureau of Land
Management and FBI, as well as historical documents related to Cliven
Bundy's long-running grazing dispute. The combined database contained
more than 30,000 documents or 250,000 pages.
In addition to that database, there were 45 search warrants that
generated more than 500,000 pages of affidavits and evidence lists, more
than 82,000 emails and 75 videos, including bodycam and dashcam videos
from the Las Vegas Metropolitan Police Department and Nevada Highway
Patrol.
The prosecution team looked through all the information with witness protection in mind, their legal motion said.
"The prosecution team went 'low tech,' spending hundreds of hours
conducting word searches for documents, reviewing documents one at a
time for relevant information and tagging documents individually for
relevancy and future production," Myhre wrote.
Prosecutors also believed the court's restrictions barring
self-defense arguments during earlier standoff trials this year meant
they didn't have to share information about certain aspects of the law
enforcement response.
The prosecutors said, for instance, they didn't become aware until
Nov. 10 of a Tactical Operations Center log that referred to a
surveillance camera outside the Bundy home - it was found on a thumb
drive left in a federal vehicle -- and still don't consider it relevant
to the Bundys' defense. It contained four notations from observations on
April 5 and April 6, 2014, largely noting the type of vehicles arriving
and that a Bundy was seen outside on the phone.
"The government argued in good faith that the information was not
material, and this court concluded that it was. That may make the
government wrong, but being wrong does not equate to bad faith, nor does
it show a flagrant disregard of the government's discovery
obligations," Myhre wrote.
As
for documents referencing snipers or maps of officers' positions, some
of the information was contained in earlier reports that had been shared
on time, showing the prosecution's actions weren't done for "tactical
advantage," Myhre wrote.
A
footnote from the prosecutors' legal brief, regarding what they say
they shared in the first two trials about the existence of federal
snipers. The judge, in her ruling, was concerned that the government had
denied the snipers' presence near the Bundy Ranch in the first two
trials, and at the start of the third trial.
The prosecution also didn't think the threat assessments would be
helpful to the defense, the memo said. Some were done as early as 2012
and considered "stale" and irrelevant, he wrote.
The threat assessments have proven a source of significant arguments
between the prosecution and defense. A 2012 FBI Behavioral Analysis Unit
assessment concluded there was a "low to moderate risk of violence" by
Cliven Bundy at that time and that the Bureau of Land Management was
"trying to provoke a conflict." A separate FBI operations order
described Cliven Bundy "as not being violent based on past history, but
if backed into a corner could be" and that Ryan Bundy "could be
violent." A BLM law enforcement assessment said the Bundys "will
probably get in your face'' but not engage in a shootout. A Gold Butte
Risk report referenced media talking points for the BLM to stay ahead of
negative publicity that apparently were not used.
The prosecution also sought to explain its dismissive response to
Ryan Bundy's pretrial motion, which sought any information on
"mysterious devices" outside the Bundy ranch, as a "fantastical fishing
expedition."
The words referred to Ryan Bundy's request for the make and model of
every piece of equipment and his "speculat[ion]" that the camera was
being used to "paint" the Bundy home "for artillery or [aerial] target
acquisition," Myhre wrote. He added that his team never suggested "the Court's request'' for information about the camera was a "fantastical fishing expedition.''
Excerpt
of government's legal brief, explaining why prosecutors characterized
the defense's request for an Office of Inspector General report as an
"urban legend.'' They said the report was not identified as such, but
instead as an internal report by the Bureau of Land Management. That's
why they couldn't locate it until this month, they said.
In
the weeks leading up to the April 12, 2014, standoff, more than 100 law
enforcement officers were involved in providing security, prosecutors
said. They acknowledged they "inadvertently" didn't share federal
reports on Bureau of Land Management officers, dressed in tactical gear
and armed with AR-15 rifles, on observation posts near the Bundy ranch
before trial, but noted that some of the information was contained in
another Bureau of Land Management operation report shared in May. It
described as many as five officers on listening/observation posts around
the Bundy ranch.
They said it was "simply an oversight'' they didn't share a 2015
report on a BLM agent who was on watch in tactical gear east of the
Bundy ranch in early April 2014 with a rifle and using a "seismic
sensor,'' to alert him and another of cars traveling on Old Gold Butte
Road, or the report about another land agent on "roving assignment''
near the impound center during that time.
Myhre wrote that "it was not apparent'' that these reports were
helpful to the defense in challenging their federal conspiracy, assault
or other charges, which resulted from actions that occurred several
miles from the Bundy ranch.
The defense, however, said the prosecution's behavior "was instrinsically wrong and has defeated the ends of justice."
Defense
lawyers pointed out that the judge already found that the FBI knew of
the evidence that was withheld and that there were federal prosecutors
present during interviews of officers whose reports were not disclosed.
"The government's untimely disclosures came almost four years after
the government began its investigation, and almost two years after the
government secured its indictment. Based on the indictment, the
defendants lost almost two years of their lives in custody,'' Weksler
wrote.
The prosecution's failure to recognize what material needed to be
shared with the defense, she wrote, "affects cases beyond the one in
question and is emblematic of a much larger problem.''
The government shouldn't be allowed a "do-over'' with a different
jury, now that it's more familiar with the Bundys' and Payne's defense
theories and how the defense worked to eliminate potential jurors, she
wrote. Based on questions some jurors posed to witnesses during the
trial that was halted, Weksler wrote that it appeared the government's
case was "faltering.''
"The government cannot be fairly given another bite at the apple as a result of its own flagrant misconduct,'' Weksler wrote.
-- Maxine Bernstein mbernstein@oregonian.com
503-221-8212 @maxoregonian DOCUMENTS FILED FRIDAY: PROSECUTION -
--Prosecution's opposition to dismissal Prosecution's exhibits filed with motion opposing dismissal:
--Exhibit on Tactical Operations Center log
--Exhibit on maps
--Another exhibit on maps
--Exhibit on back-and-forth defense/prosecution emails regarding threat assessments
--Exhibit on email to Cliven Bundy's defense lawyer Bret Whipple
--Exhibit including partial transcript from Nov. 21 court hearing on snipers/threat assessments
--Exhibit on 'Mission 18- Bundy residence,' Gold Butte communications information
--Exhibit
on BLM letter explaining why no Office of Inspector General case number
for what became BLM investigation into 2009 complaint about agency not
taking action to protect desert tortoise
--Notice
of the Nevada U.S. attorney's chief appellate lawyer, assistant U.S.
attorney Elizabeth White, being added to the prosecution team DEFENSE
--Ryan Payne's defense motion for dismissal
--Ryan Bundy's motion for dismissal of indictment
Map
provided late to defense in Nevada trial that shows drop posts (DP)
where federal law enforcement officers were placed for 2014 cattle
impoundment.
Unsealed motions in NV Bundy case detail prosecution's violations
Updated ; Posted
13
Gallery: Mistrial declared in Cliven Bundy standoff case
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't 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 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 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:
-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 mbernstein@oregonian.com
503-221-8212 @maxoregonian
Rebuke of U.S. attorneys in Cliven Bundy case: 'Every prosecutor's nightmare'
Updated ; Posted
13
Gallery: Mistrial declared in Cliven Bundy standoff case
The
lead prosecutor in the Nevada standoff case against Cliven Bundy, two
of his sons and a fourth alleged ringleader told a jury in his opening
statement last month that the case centered on the need to respect the
rule of law.
Five weeks later, it was the prosecution team's abuse of the rule of
law that sunk the case, leading to a judge's declaration Wednesday of a
mistrial.
U.S.
District Judge Gloria M. Navarro methodically listed the prosecution's
six separate violations of the Brady law, which requires turning over
evidence potentially favorable to the defense. The judge further ruled
that each violation was willful.
If ever there was a time when federal prosecutors needed to make sure
they acted with complete integrity it was in the high-stakes Bundy
case, legal observers say. The defendants already held a deep suspicion
of the government and had successfully rallied followers to their cause.
Now, the question becomes whether prosecutors can pursue a new trial,
and the judge's finding of deliberate misconduct gives the Bundys a
good argument to seek an outright dismissal and walk away free men,
legal experts said.
In the meantime, the dissection has begun: How could prosecutors have
lost sight of due process, one of the basic tenets of the legal system.
"At the heart of this case is the question, Is the government an
entity you can trust? Certainly if you're the prosecution in this case,
you needed to do everything you can to show the government can be
trusted,'' said Kevin Sali, a Portland criminal defense lawyer.
The judge's rebuke of Nevada's Acting U.S. Attorney Steven Myhre, the
lead, and two seasoned veteran Assistant U.S. attorneys, Daniel Schiess
and Nadia Ahmed, was remarkable in and of itself.
"This
is every prosecutor's nightmare,'' said Kent Robinson, a retired
federal prosecutor who served six years as chief of the criminal
division in Oregon's U.S. Attorney's Office.
When a judge makes a finding of misconduct by a prosecutor, the U.S.
Department of Justice's Office of Professional Responsibility
investigates and determines if discipline is warranted, which can range
from a reprimand to a suspension.
That scrutiny is underway. Ian D. Prior, deputy director of public
affairs in the Justice Department, announced that U.S. Attorney General
Jeff Sessions "takes this issue very seriously."
Sessions "has personally directed that an expert in the department's
discovery obligations be deployed to examine the case and advise as to
next steps,'' Prior said.
The government also could pull the plug on the case, without a
judge's further ruling, as it has done in the past on other
prosecutions.
Cliven Bundy, sons Ammon and Ryan Bundy and Ryan Payne, a Montana
militiaman who came to help them, faced multiple charges, including
federal conspiracy to impede federal officers through intimidation,
threat or force, assault on federal officers and extortion. If
convicted, they could face more than six decades in prison, what would
essentially be a life term for the 71-year-old patriarch.
CASE WAS CHALLENGING FROM THE START
The complexity of the case presented a significant challenge for
prosecutors, say seasoned defense lawyers and current and former
prosecutors.
For one, the Nevada indictments didn't come until nearly a year and a
half after the 2014 armed standoff. Cliven Bundy, his two sons and
Payne were accused of rallying militia members and other supporters to
thwart the court-ordered impoundment of the family's cattle on federal
public land after years of Bundy's failure to renew a grazing permit or
pay resulting fees and fines. Federal officers, outnumbered, retreated.
With the passage of so much time, prosecutors had to track down
numerous witnesses and documents in a vast bureaucracy and jog foggy
memories.
Another complication was the number of agencies involved -- including
the U.S. Bureau of Land Management, the National Park Service and the
FBI - and reports that went back at least a decade.
Federal land agents and Park Service rangers aren't as familiar with
what they must turn over as evidence because they're not as accustomed
to federal prosecutions of such breadth, other prosecutors said. In the
judge's ruling, however, she specifically criticized the FBI, an agency
that routinely works on these types of cases, for failing to share
agents' basic reports.
"I
think it's an agency problem more than a prosecution problem,''
Robinson said. "I think sometimes agencies just don't understand what
they need to show to prosecutors.''
Regardless, as the judge made clear, the law requires prosecutors to
"learn of the material in the possession of other agencies as well.''
Prosecutors often rely on the lead case agents from the investigating
agencies for that information because it's impractical for any
individual prosecutor to wade through what could be millions of pages of
reports, other prosecutors say.
It didn't help that Dan Love, the Bureau of Land Management special
agent in charge of the Bundy cattle roundup, was subsequently
investigated for misconduct in an unrelated case and no longer works for
the agency.
Additionally, the Nevada prosecutors faced increased pressure after
they were largely unsuccessful in two other trials this year of more
minor players in the Bunkerville standoff, and their counterparts in
Portland failed to convince a jury last year to convict Ammon and Ryan
Bundy in the January 2016 armed takeover of the Malheur National
Wildlife Refuge in southeastern Oregon.
Some legal observers questioned whether that heightened strain in a such a high-profile case caused prosecutors to cut corners.
Yet
the 1963 landmark U.S. Supreme Court case Brady v. Maryland has long
set out their fundamental obligations to share any potentially favorable
evidence with the defense.
Other high-profile cases that have been tossed over similar Brady
violations - such as the botched 2008 corruption trial against former
Alaska U.S. Senator Ted Stevens - should have put every prosecutor on
notice of the seriousness of their obligations, legal observers say.
"They're adversaries looking to win a case. They're also public
officials required to help the other side,'' Sali said. "I recognize
that it's a challenge to do this, and the defense attorney does not have
the same burden.
"But there's been so many high-profile failures by prosecutors in
recent years that you'd think they'd get it and err on the side of
caution, and if there's any doubt they'd just turn the material over.''
PROSECUTORS DIDN'T TAKE BUNDYS SERIOUSLY
Ian Bartrum, a constitutional law professor at University of Nevada
Las Vegas, said he's struggled to understand what led to the
prosecutors' "tone deafness'' to their obligations.
He rejects a conspiracy theory floating around that prosecutors
intentionally threw the case because their bosses in Washington, D.C.,
in the Trump administration may not support it.
"To
me, the more likely scenario is they're not taking the Bundys
seriously, and there was this mindset 'we can kind of just show up to
win,''' he said.
The judge, for example, noted in her ruling how the prosecutors
dismissed Ryan Bundy's pretrial motion for information on "mysterious
devices'' outside his family ranch as "fantastical'' and a "fishing
expedition,'' and shrugged off another defense request for a suspected
federal investigative report into BLM agent Love, calling it "urban
legend.'' This month, the government turned over nearly 500 pages of
internal affairs documents on Love.
Perhaps the government wanted to keep "the Bundys' rambling
defenses'' restricted to what it viewed as relevant, "and giving them
more stuff to pore over and work with probably seemed like a bad idea,''
Bartrum said.
"It's either startling incompetence or striking arrogance,'' he said.
Dwight Holton, a former Oregon U.S. attorney, said he believes some
agents in the FBI still resist turning over information they deem too
sensitive or confidential. The FBI keeps a "remarkably close hold on the
counterterrorism side'' of investigations, said Holton, speaking
generally and not specifically about the Bundy case.
"I
think there's still an education process going on at the Department of
Justice as to what material the FBI produces and needs to be turned
over,'' Holton said. "The 'turn it all over' attitude sometimes bumps
squarely into the FBI ethos around maintaining control over security
matters, especially in counter-terrorism operations.''
Holton said prosecutors also sometimes are unable to anticipate the
defense theories. "It assumes we understand the defense. You don't
always know what's helpful to the defense,'' he said.
But that's exactly why prosecutors must be cautious and turn over whatever they have, Bartrum said.
"Prosecutors don't get to decide what's relevant or not relevant,'' he said.
Oregon's U.S. Attorney's Office took action after a federal judge in
2014 rebuked prosecutors over similar Brady violations in the quadruple
murder case of Joey Pedersen.
"Our office led training for federal and state law enforcement
agencies to make sure they understand what it means when we say give us
everything,'' Robinson said. SECURITIES CASE MAY PROVIDE ROAD MAP
A criminal case heard 11 years ago in the same Nevada federal
courthouse may provide some guidance on what's to follow in the Bundy
case.
Bret Whipple, Cliven Bundy's lawyer, and other defense lawyers point to United States v. Chapman.
The 2006 securities fraud case ended with a mistrial based on fewer
evidence violations by prosecutors than in the Bundy case and then was
dismissed at a follow-up hearing. The 9th U.S. Circuit Court of Appeals upheld the dismissal.
In her Bundy ruling this week, Navarro said she chose to declare that
each of the government's violations were deliberate, though that
finding wasn't necessary for a mistrial.
"It does help to clarify the next step,'' Navarro noted. She said she
will decide later if the mistrial will be with prejudice, meaning
prosecutors couldn't retry the case.
Whipple said the judge's findings provide a good argument for a
dismissal; Navarro said the evidence withheld was "material'' to the
defense case and that each of the prosecution's six "willful" violations
resulted in due process violations. The documents confirmed a live-feed
camera was aimed at the Bundy Ranch, and armed federal agents were
watching the family home before the standoff, which the government had
negated. About 3,300 pages of documents were turned over to the defense
too late, the judge said.
In the Chapman case, prosecutors failed to share 650 pages of reports
on prior criminal convictions, pleas and cooperating agreements of
government witnesses, including three who had already testified at
trial.
The
judge ordered a mistrial in the third week of testimony in the Chapman
case, mirroring Navarro's words, saying he "regrettably'' didn't see how
the trial could go forward. The judge ordered lawyers from both sides
to submit briefs within 20 days arguing for and against a dismissal,
held a hearing and then dismissed the indictment. In Chapman, the judge
found the prosecutors' Brady violations to be willful and in bad faith.
The appellate court affirmed the dismissal, noting it stood on grounds
of outrageous government conduct and due process violations.
Defense lawyers said the violations in the Bundy case are more
extensive, involving thousands of pages of documents deliberately
withheld.
"All we need to do is point out her findings that the evidence was
'material,' and the violations were 'willful,' and attach the Chapman
case. In my mind that seals the deal,'' Whipple said. "I'm confident
we'll get a mistrial with prejudice. One step at a time. We're getting
close.''
SEATTLE — Only three days before a 46-year-old man filed a lawsuit
accusing him of child rape and “molestation,” Seattle Mayor Ed Murray
was featured in a national interview story as one of the faces of the
Democratic Party’s resistance to President Trump.
said Murray was “positioning himself at the forefront of the pushback” to Trump.
His city had and he had teamed with Washington’s governor and
attorney general to oppose Trump’s temporary travel ban, resulting in a
ruling by a federal judge in Seattle to temporarily halt the president’s
executive order.
Murray, who is running for re-election this year, told Politico he
was “beginning to think we’re dealing with America’s first authoritarian
administration.”
But last Thursday, a local man filed a , claiming Murray raped and molested him when the man was a teenager.
with a thorough, multi-reporter examination of the charges,
including interviews with two other men with similar profiles who told
similar stories and provided matching intimate physical details of
Murray and the apartment he lived in at the time.
and he said he felt sad for the “troubled” individual making the claims.
“I have never backed down,” he said. “And I will not back down now.”
“Let me be clear: These allegations, dating back to a period of more than 30 years, are simply not true,” the mayor said.
The mayor’s personal spokesman Jeff Reading said: “These false
accusations are intended to damage a prominent elected official who has
been a defender of vulnerable populations for decades. It is not a
coincidence that this shakedown effort comes within weeks of the
campaign filing deadline. These unsubstantiated assertions, dating back
three decades, are categorically false. Mayor Murray has never engaged
in an inappropriate relationship with any minor. … Mayor Murray will
vigorously fight these allegations in court.”
However, for deciding to investigate and report the allegations,
noting it had interviewed two other accusers and sought “documentation
or witnesses to corroborate their accounts.”
The Times knew of two other accusers in March 2008, Jeff Simpson and
Lloyd Anderson, but chose not to report their claims at the time,
because, among other things, the attorney for Simpson withdrew a
potential lawsuit.
“Ultimately, we felt we did not have enough information to publish these very serious accusations,” the Times said.
But the paper “decided we needed to take another look when we learned
recently that a Kent man was preparing to sue now-Mayor Murray.”
“We found no connection between the new accuser, identified in the
lawsuit as D.H., and the other men. Our reporting revealed similarities
among the three accounts, including some graphic details. We felt
readers should know,” the Times said.
“We don’t take these decisions lightly, and make them only after
lengthy discussions. We know this is a disturbing story. But we cannot
shy away from important stories simply because they make us
uncomfortable.”
After Murray’s statement Friday, the lawyer for D.H., , arguing the
mayor’s representatives have never asked for his client’s identity, so
if Murray is being truthful “he should have no idea who my client is”
and would have no basis to “paint him as ‘troubled,‘” unless he knew
him. Epicenter of resistance
Murray was named in a Feb. 5 Washington Post article headlined ”
noting the mayor had vowed to protect illegal-alien residents, even
asking the city to rework budgets in anticipation of the loss of federal
funds.
“This city will not be bullied by this administration,” Murray .
Politico reported Murray’s path to City Hall in Seattle began as an
AIDS activist in the 1980s. Later, he managed a friend’s campaign for
state representative. Murray was appointed to that seat himself after
the friend died. He then won a seat in the state Senate before defeating
an incumbent in a 2013 mayoral primary.
Under Murray, Seattle led the nation in imposing a $15 minimum wage
and has initiated controversial, tax-hiking programs to combat
homelessness that have included tent cities and encampments deploying
run-down RVs.
Days before the lawsuit against him was filed, in favor of pursuing a
county sales tax increase to pay for services in the region.
Seattle and King County rank third — behind Los Angeles and New York
City — among 50 major cities and counties in the number of homeless
people, with nearly 11,000, according to a November 2016 federal
government report.
In his interview with Politico April 3, Murray discussed his Catholic
faith — he once studied to be a priest before changing direction — and
the divisions among Democrats who are trying to mount a resistance to
Trump.
“On the national level, at times, I feel like we are becoming like
the tea party on the far right, that we have purity tests,” he said.
“If
we are starting to have purity tests amongst ourselves, then we’re
never going to gain back those working-class and lower-income people
that we are building a progressive movement for.” ‘Healing process’
The three accusers interviewed by the Times said they knew Murray when they were growing up in Portland in the 1980s.
In his legal complaint, D.H. alleges Murray “raped and molested him”
over several years, beginning in 1986 when the man was a 15-year-old
high-school dropout and crack-cocaine addict.
“I have been dealing with this for over 30 years,” the man, now sober for a year, told the Times.
He said he was coming forward as part of a “healing process” after
years of “the shame, the embarrassment, the guilt, the humiliation that I
put myself through and that he put me through.”
The two other accusers, Simpson and Anderson, also described themselves as troubled teens in the 1980s when they knew Murray.
Simpson told the Times he spoke to a detective and a social worker in 1984 about his claim, but no charges were filed.
A decade ago, they both raised the allegations to media and
Washington state lawmakers. Simpson, in 2008, said he spoke on the phone
with the Rev. Ken Hutcherson, the late local pastor who was an
outspoken activist for traditional marriage.
Anderson and Simpson told the Times they would testify in court if needed.
Murray’s spokesman, Reading, addressed the previous claims.
“The two older accusations were promoted by extreme right-wing
anti-gay activists in the midst of the marriage equality campaign, and
were thoroughly investigated and dismissed by both law enforcement
authorities and the media,” he said.
The Times pointed out all three of Murray’s accusers have “substantial criminal records.”
Simpson said he understands why people didn’t believe him then.
“I get it. I understand, my past is less than stellar,” he said. “…
People did think I was nuts and nobody wanted to believe it. But I felt I
needed to tell the truth, finally tell the truth.”
D.H. told the Times he didn’t see how Murray could deny the claims.
The paper said attorneys want to question the mayor under oath within 90
days.
The accuser wants Murray held accountable for treating him “like I was just nothing, like I was worthless.”
His lawsuit said he “is disturbed that Mr. Murray maintains a
position of trust and authority, and believes that the public has a
right to full information when a trusted official exploits a child.” ‘Potential land mines’
The Seattle Time’s Nina Shapiro cited
Danni Askini of the Gender Justice League said it’s “too soon” to take sides but said she felt emotional about the allegations.
“The news has been unbelievably triggering for survivors of DV
(domestic violence), sexual assault and childhood sexual assault,” she
wrote in a Facebook post.
But she is also concerned, Shapiro said, about how “accusations like these can feed homophobic stereotypes.”
“I see so many potential land mines here,” Askini wrote.
Shapiro said that while the mayor and his spokesmen have accused the
men of having political motivations, “the allegations — though unproven
and still fresh — had an all-too-familiar ring.”
“It’s the pattern,” said Richard Sipe, a former priest who has
written and testified about sexual abuse in the Catholic church. “All
the elements are there.”
Sipe noted the alleged victims were vulnerable people, and Murray is
accused of developing a relationship with them by offering help.
In Catholic church abuse cases he has studied, Sipe told the
Times, priests often chose children who had lost a father, then drew
close and said, “I’ll be your father now.”
Mary Dispenza, Northwest leader of Survivors Network of Those Abused
by Priests, didn’t want to jump to conclusions, recalling Murray was a
leader in supporting homosexuals in the church.
But she told Shapiro the allegations stirred memories.
Dispenza said he was abused at age 7 but didn’t disclose it until she was 52.
“I know what holds us back,” she said, referring to shame.
members of the Seattle City Council were remaining silent about the
allegations. Council President Bruce Harrell said in a written statement
he and the council’s other members “have no intention of commenting on
matters of pending or potential litigation. We believe that it is
critically important that, together, we remain committed to the business
of governing.”
If Murray were to resign, Harrell would be called upon to serve as acting mayor.
“Our city cannot afford to be distracted,” Harrell said. “There is a
judicial process that will address the serious allegations that this
situation has presented, and we will respect that process and the rights
of all parties involved. All accusations of abuse require a thorough
investigation. It is in our human nature to immediately want answers,
but I ask we not cast aspersions to the parties involved before we have
all the facts through the legal process. I am confident that through
this process, truth and justice will prevail.”
FBI agent in court on charge of lying about rancher shooting
FBI agent accused of lying about firing shots during confrontation with LaVoy Finicum
U.S.
Attorney for the District of Oregon Billy J. Williams speaks during a
press conference Portland, Ore., Wednesday, June 28, 2017, after the
indictment of an FBI agent. (AP Photo/Don Ryan)
PORTLAND, Ore. — An FBI agent pleaded not guilty on Wednesday to
charges that he lied about shooting at a key figure in last year’s armed
occupation of a national wildlife refuge just before the man was killed
by Oregon police.
W. Joseph Astarita said nothing during a brief court hearing and was released on his own recognizance.
He was indicted on five felony charges after the inspector general of
the U.S. Justice Department began investigating last year possible FBI
misconduct and whether there was a cover-up.
Robert “LaVoy” Finicum, a spokesman for the group that took over the
remote bird sanctuary to oppose federal control of land in the western
United States, was fatally shot Jan. 26, 2016. Oregon State Police
opened fire after he got out of a vehicle at a police roadblock, held up
his hands and then reached toward a handgun that he kept in an inner
jacket pocket.
Investigators determined the troopers were justified in shooting
Finicum but also found members of an FBI hostage rescue team at the
scene failed to disclose that they fired two rounds that missed the
Arizona rancher.
A grand jury indicted Astarita on three counts of making false
statements to his FBI supervisors on the day of the shooting and the day
after it and on two counts of obstruction of justice for misleading the
Oregon State Police. A jury trial is set for Aug. 29.
Finicum’s widow, Jeanette Finicum, has said she plans to sue Oregon
State Police and the FBI, alleging the use of excessive force in her
husband’s death. Nobody answered a call to her number Wednesday, and her
lawyer, Brian Claypool, did not return a message seeking comment.
Dozens of people, including leader Ammon Bundy, occupied the remote
Malheur National Wildlife Refuge about 290 miles southeast of Portland,
from Jan. 2 to Feb. 11, 2016. They were allowed to come and go for
several weeks as authorities tried to avoid bloodshed seen in past
standoffs at Waco, Texas, and Ruby Ridge, Idaho.
But authorities moved in Jan. 26 when key standoff leaders left the
refuge to attend a community meeting, pulling over two vehicles and
arresting the occupiers inside.
Finicum, 54, was driving one of the vehicles. Video taken by one of
his passengers showed the occupants panicking after authorities stopped
the truck.
With his window rolled down, Finicum shouted at officers: “Shoot me, just shoot me! Put the bullet through me.”
Finicum then sped off. He was driving more than 70 mph when the truck came to a roadblock and plowed into a snowbank.
Authorities say the FBI agent fired two errant shots as Finicum left
the truck. As Finicum stood in the snow, authorities told him to lie on
the ground. Instead, he reached toward his jacket, leading state
troopers to fire three rounds, all of which hit him.
Most occupiers left the refuge after Finicum’s death, though four holdouts stayed an additional 16 days.
Federal prosecutors tried to convict occupation leaders Ammon and
Ryan Bundy and five others in a trial last fall but jurors acquitted
them of charges of conspiring to impede federal workers from their jobs.
Jurors convicted four men in a second trial. An additional 14 people pleaded guilty without going to trial.
The Bundys and others are now facing trial in Nevada on conspiracy charges in a 2014 armed standoff with federal agents.
Chelsea bomber tried to radicalize inmates, prosecutors say
Story highlights
Ahmad Khan Rahimi shared terrorist propaganda with other prisoners, prosecutors say
He was convicted in October in the 2016 bombing in New York's Chelsea neighborhood
(CNN)The
man convicted in the 2016 bombing in New York's Chelsea neighborhood
that injured 30 people has been trying to radicalize other inmates,
federal prosecutors say.
Ahmad Khan Rahimi also told a judge he is on a hunger strike.
Rahimi
provided inmates with copies of terrorist propaganda and jihadist
materials, including speeches by Osama Bin Laden and the late militant
cleric Anwar al-Awlaki, bomb making instructions, books on jihad and
issues of the al Qaeda-backed magazine Inspire, prosecutors said.
Rahimi
"has been attempting to radicalize fellow inmates in the Metropolitan
Correction Center by, among other things, distributing propaganda and
publications issued by terrorist organizations," according to a letter
from Acting US Attorney Joon H. Kim to US District Judge Richard Berman.
Rahimi let other inmates view the
items on his laptop and gave them electronic copies, Kim's letter said.
Discs of the materials were found in two inmates' possession.
Defense attorneys for Rahimi have yet to respond to the allegations.
Prosecutors
said Rahimi began distributing these materials in October if not
earlier. Rahimi was convicted October 16 on eight federal charges in
connection with the Chelsea bombing.
Among
the inmates Rahimi gave the materials to, prosecutors say, is Sajmir
Alimehmeti, who is scheduled to go on trial next month on
terrorism-related charges.
Alimehmeti
is represented by attorney Sabrina Shroff, who is also on Rahimi's
defense team. Kim wrote to Berman asking for a hearing to make sure
Rahimi "has knowingly waived the potential conflict of interest that
exists between [Rahimi] and his attorneys."
Hunger strike
Rahimi
also says he's on a hunger strike. In an undated handwritten letter to
Berman, Rahimi states that he began a hunger strike on December 8 out of
protest because he says his wife and children have not been able to
visit him since the end of his trial.
"I
am on a short time because my sentencing date is on January 18, 2018.
Because of this short time and the frustration I have decided to go on a
hunger strike," Rahimi wrote.
Berman
received the letter December 21 and has ordered attorneys for both the
government and defense to respond, according to court documents.
Rahimi
was arrested and charged after a pressure cooker bomb went off in New
York's Chelsea neighborhood on September 17, 2016. A second pressure
cooker bomb was found a few blocks away, on 27th Street, but didn't
detonate.
Earlier the same day, a bomb went off near the start of a Marine Corps charity run in Seaside Park, New Jersey.
After
a two-week trial and roughly four hours of jury deliberation, Rahimi
was convicted of charges including the use and attempted use of a weapon
of mass destruction, bombing a public place, destroying property by
means of fire or explosives, and using a destructive device in
furtherance of a crime of violence.
During
the trial, the prosecution presented evidence -- including DNA and
fingerprints -- linking Rahimi to the bombs that were placed in New
Jersey and New York.
Rahimi faces a mandatory sentence of life in prison, according to an earlier statement from Kim.
Rahimi
faces separate charges in other jurisdictions in connection with the
bomb that went off in Seaside Park, a backpack containing improvised
explosive devices found the following day at a transit station in
Elizabeth, New Jersey, and a shootout he had with police before being
taken into custody.
Homeland Security says chain migration let terrorism-related suspects into U.S.
A spokesman for the Department of
Homeland Security said Saturday that two recent terror suspects made
their way into the U.S. via chain migration.
(Reuters)
The Department of Homeland Security
said chain migration is the common element in two cases allegedly tied
to terrorism activities, according to a statement released Saturday.
In the statement on Twitter, Acting
Press Secretary Tyler Houlton said DHS “can confirm the suspect involved
in a terror attack in Harrisburg, Pennsylvania, and another suspect
arrested on terror-related money laundering charges were both
beneficiaries of extended family chain migration.”
BREAKING: My statement on Immigration Backgrounds of Recent Terror-Related Suspects: pic.twitter.com/I3JfZOfuBh
Chain migration
is when an immigrant gains legal entry into the U.S. via sponsorship by
a family member who’s already a legal resident or citizen. The Trump
administration launched a campaign against the immigration system, in
favor of a more merit-based structure, favoring education and job
potential as factors. WHITE HOUSE TO PUSH MERIT-BASED IMMIGRATION IN NEW CAMPAIGN
The memo referred to Ahmed Aminamin El-Mofty, 51, who
it said was a naturalized U.S. citizen admitted to the U.S. from Egypt
on a family-based visa. El-Mofty went on a shooting spree Friday in Harrisburg and was reportedly targeting police officers.
The gunman, carrying two rifles and a shotgun, fired at officers in multiple locations.
"He fired several shots at a Capitol police officer and
at a Pennsylvania state police trooper in marked vehicles," Dauphin
County District Attorney Ed Marsico said. The state trooper was injured
but is “doing well,” he said.
El-Mofty pursued the trooper to a residential
neighborhood and encountered law enforcement officers, who ultimately
killed him after he fired “many shots” at them.
The statement also mentioned Zoobia Shahnaz, who DHS
said was a naturalized U.S. citizen who entered from Pakistan, also on a
family-based visa. Shahnaz was indicted
on Dec. 14 after she allegedly laundered more than $85,000 through
Bitcoin and other cryptocurrencies overseas to the Islamic State. END CHAIN MIGRATION, AS TRUMP WANTS, AND SWITCH TO MERIT-BASED IMMIGRATION
Acquiring the money through fraudulently obtained
credit cards and a bank loan, Shahnaz laundered the funds to people in
Pakistan, China and Turkey and “planned to travel to Syria and join
ISIS,” federal officials said.
Shahnaz was charged in federal court with bank fraud,
conspiracy to commit money laundering and three counts of money
laundering, according to the U.S. Attorney’s Office.
In the DHS statement Saturday, Houlton said, “These
incidents highlight the Trump administration’s concerns with extended
chain migration.”
“Both chain migration and the diversity visa lottery
program have been exploited by terrorists to attack our country,”
Houlton said. “Not only are the programs less effective at driving
economic growth than merit-based immigration systems used by nearly all
other countries, the programs make it more difficult to keep dangerous
people out of the United States and to protect the safety of every
American.”
Child killed in police shootout identified, suspect found unarmed
SCHERTZ, Texas – A 6-year-old boy and a suspect are dead after deputies engaged in a shootout in Schertz with a known felon who was found unarmed.
A half mile pursuit on Dec. 21 led deputies
to the Pecan Grove mobile home park where they opened fire on a woman
who had several outstanding felony warrants.
Sheriff Javier Salazar said a young boy was
struck in the abdomen and killed by a stray bullet during the shootout.
The woman was allegedly on the porch of the boy’s home when he was hit.
The boy has been identified as Kameron Prescott by the Bexar County
Medical Examiner.
The incident began when police received a
call about a woman trying to steal a car. According to Salazar, the
unidentified woman was found hiding in a closet at an apartment complex.
A deputy told investigators the suspect indicated to him that she had a
weapon and was going to shoot him.
After allegedly showing the deputy a gun, the
woman ran towards a wooded area igniting a two hour pursuit. During the
case, deputies, witnesses and a helicopter all reported seeing the
woman with a gun.
At one point she crossed Cibola Creek and was
chased by K9 officers to the mobile home park. Witnesses told police
she was trying to get into trailers and threatening people.
"I was just sitting out back on my porch,
playing with my cats. My friend texted me and just said don't go
outside. I was like why and she was like there's a shooting going on by
your house,' said neighbor Alexis Juarez.
As officers approached the woman on the porch
of the boy’s home, the sheriff said she made them fear for their lives.
At one point the helicopter patrol told officers she was reaching for
her waistband. Several shots were fired by four deputies, hitting the
woman who fell down and died at the scene.
Salazar said a weapon was not found on the suspect’s body.
The young boy was taken to the University
Hospital where he died. Investigators said at this time they do not know
if the boy was hit by a deputy’s bullet.
IF SHE WAS IN A CLOSET IN AN APARTMENT POINTING A GUN AT DEPUTIES...WHY DIDNT THEY SHOOT HER THEN, BET SHE NEVER HAD A GUN BUT WAS HOLDING ON TO HER METH PIPE,,CHARGE OF MURDER SHOULD BE FILED ON COPS
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