The Corner

Law & the Courts

Government Misconduct Frees Cliven Bundy

Federal Protective Service officers gather outside the federal courthouse as jury selection begins for Nevada rancher Cliven Bundy, two of his sons and co-defendant Ryan Payne, in Las Vegas, Nevada, October 30, 2017. (Steve Marcus/Las Vegas Sun/Reuters)

Politically charged prosecutions — even ones that are thoroughly justified — often end badly for the justice system. So it appears with the federal prosecutions of Cliven Bundy and his sons. The government blew its case against Bundy’s sons by overcharging them, resulting in a jury acquittal in 2016. Today, the Ninth Circuit affirmed the dismissal of Bundy’s own federal indictment (as well as that of several of his co-defendants) on the grounds that the government had waited until the middle of trial to disclose information that would have helped Bundy’s case, in violation of Brady v. Maryland. The misconduct was so severe and prejudicial to the Bundy clan’s case that the court barred the government from bringing the same charges again. The opinion was written by Jay Bybee, a George W. Bush appointee, but joined by judges appointed by Bill Clinton and Barack Obama.

The Bundy indictment charged extortion, threats to federal officers, and a variety of related crimes due to the armed standoff around the Bundy ranch arising from a longstanding dispute over unpaid grazing fees claimed by the Bureau of Land Management. The trial court rejected the Bundy clan’s self-defense theory, but, as the court wrote, “A central pillar of the government’s case was the allegation that the defendants recruited armed followers by intentionally deceiving those followers into believing that the Bundys feared for their lives because government snipers surrounded their ranch,” a charge that was touted in the government’s opening statement to the jury.

The Bundys asked for video shot by a camera they said the FBI had trained on them; the government called it a “fantastical fishing expedition,” but the camera’s existence and its live feed to the BLM command center was confirmed four days into the trial. The resulting hearing disclosed as well federal patrols “armed with AR-15 rifles” around the compound. The trial court gave the prosecution the benefit of the doubt that withholding this information was a good-faith decision, but several days later, more FBI interviews (form 302s) were disclosed discussing agents in full tactical gear watching the compound and the insertion of agents the FBI itself described as “snipers.” This only came to light after the trial judge had excluded evidence based on the government’s repeated insistence that there were no snipers. The Ninth Circuit summarized why withholding this evidence was so harmful to the Bundys’ ability to present a defense:

The defendants claim that the Bundys feared they were surrounded by heavily armed snipers. Keeping the defense from gathering as much evidence as possible to show that there was a reasonable basis to fear that snipers surrounded the property was itself harmful. Moreover, the Felix 302 actually refers to the BLM agent in the overwatch position as a “sniper.” Indeed, the Felix 302 uses both “tactical over watch position” and “sniper” to refer to the same agent. This was tangible documentation showing that the government’s own officials understood agents in overwatch positions to be equivalent to “snipers.” Even if the defendants had some other evidence of agents taking “overwatch” positions around the Bundy property, the Felix 302 supported their theory in ways that [documents provided earlier] did not. The Felix 302, therefore, adds credibility to the Bundys’ claims that they feared the presence of “snipers” and it should have been disclosed prior to trial. In sum, like the evidence regarding the camera, these documents could have helped the defense show that the defendants genuinely feared the presence of snipers—contradicting the allegations that the defendants intentionally lied about being surrounded by snipers to inflame supporters.

In the Ninth Circuit’s view, it was “preposterous and reckless” for the government to withhold this evidence:

Of particular concern is the government’s handling of evidence related to the presence of snipers. This was a hot-button issue. The term is evocative, rhetorically charged, and would have been a dog whistle for summoning members of private militias in ways that screaming “surveillance cameras!” would not. The government said the Bundys’ claim of “snipers” was “false” and “deceitful,” yet the government’s own documents referred to its agents as “snipers.” The government disputed the relevance of this information, fixating on the question of whether the officers in the “overwatch” were technically “snipers.” The district court had to remind the government that these were questions for the jury.

The failure to produce evidence regarding “snipers” was particularly troubling for the district court because, during the Tier 3 trial of other co-defendants, the district court prohibited testimony regarding the presence of snipers, based on the government’s assurances that there were no snipers involved in the impound operation. The district court even removed a testifying defendant from the stand in that trial because the defendant kept stating that snipers were present. The district court was understandably exasperated when evidence came to light in this trial, showing that the government referred to its agents as “snipers.”

In short, the government had to know the import that any evidence regarding snipers, or agents who looked and functioned like snipers, would have in this case. Nevertheless, it withheld a slate of information bolstering the claim that the defendants could have had a reasonable basis for believing there were snipers in the area.

The court also found that the government improperly made “a conscious choice” to withhold a series of “threat assessments” that had downgraded earlier concerns about the threat posed by Bundy, which the defense could have used to challenge the necessity for a “militarized” response. The Ninth Circuit concluded that the trial judge had acted reasonably by dismissing the case rather than just ordering a new trial, given the “need to impose a sanction that will serve to deter future prosecutions from engaging in the same misconduct as occurred here”:

We note the government’s failure to acknowledge and confess any wrongdoing during the course of this case—especially as to material misrepresentations to the district court about the presence of snipers. Rather than accepting responsibility, the government blamed the defense for not requesting more specific information. Even in its motion for reconsideration, the government continued to maintain that it never had an obligation to turn these documents over and that any omission on the government’s part was the fault of the defendants for not doing a better job of showing why this information was relevant. Only on appeal has the government admitted that it should have turned these documents over.

The Bundys are no heroes; even the narrative of them as poster boys for genuinely legitimate problems with federal land management is complicated by the factual history of their own disputes with the BLM, and the same is true of efforts to paint them as innocent victims of an over-aggressive FBI. So it often is with individual criminal cases, many of which have facts that complicate their use in national political narratives. But the political drive to get the Bundys led the prosecution to some very sharp practices that ended up destroying the government’s case. That should stand as a lesson in political prosecutions of all stripes.

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