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It’s Finally OVER!
Nineth Circuit Court Of Appeals Uphold Bundy Dismissal
On Friday May 29th 2020 the Ninth Circuit Court of Appeals convened to hear oral arguments the U.S. Attorney’s appeal of the Dismissal of the key defendants of USA v. Cliven Bundy et, al. The prosecutors had some months earlier filed an appeal against Nevada District Court in dismissing the case against Cliven Bundy, Ryan C. Bundy, Ammon Bundy and Ryan Payne; the key defendants of the “Bundy 19” defendants who were swept up by the federal government for criminal prosecution from the protest in Bunkerville, Nevada in 2014. After spending some 700 days in federal holding and after two trials of five of the other defendants, the trial of the “Main Conspirators” only proceeded three weeks in front of the jury before supervising Judge Gloria Navarro recognized the prosecutions misconduct and dismissed the case with prejudice.
I came into this case much later than most in 2017 when I met Cliven Bundy in a federal holding facility in Pahrump, Nevada. Over the next 60 days I became friends with Cliven and was able to capture his story in his biography, Cliven Bundy American Terrorist Patriot. It’s been an interesting life-changing adventure as I have followed this case, spending each day in the criminal trial and researching to determine the actual happenings leading up to April 12, 2014, the protest which was later called a standoff by the media. In this context it was interesting to listen to and observe all these years later the evidence and how it has been framed by the prosecution, defense and the media. As a result, my review here is a bit more informed by thousands of hours of investigation and research.
To set the scene for this unusual hearing, the courts remained closed to the public due to the COVID-19 pandemic restrictions throughout the country, and any interested party were able to view the oral argument over the internet in a Skype-like computer setting. On the screen were the panel of 3 judges and the party addressing the court, either the prosecution or defendants’ counsel.
It began with Ms. Elizabeth White AUSA for the prosecution. As the appellant party, she would first present her argument and summarize the reason that the United States Government felt that the district court had erred in dismissing the case in January 2018. Ms. White is a very experienced attorney who specializes in these types of cases. Her argument was preceded by a very detailed brief that was previously submitted to the court. Her argument circled around the fact that there were only eight documents that the prosecution was unable to come up with in a timely fashion out of tens of thousands. And, that if they had come up with them in a timely fashion it would’ve had no real impact on the case. Lastly, that Judge Gloria Navarro went too far by dismissing the case, let alone dismissing it with prejudice. Meaning the prosecution would not be allowed to re-file the case and start all over. She felt that there were many other avenues to correct this error permitted to Judge Navarro.
AUSA White Begins:
“Thank you. May it please the court. Elizabeth White for the United States. I'm going to try to save about five minutes of my time for rebuttal and I will keep an eye on my own clock. Thank you. The Supreme court and this court have both made clear that a district court's authority to dismiss a criminal indictment is exceedingly limited as a violation of due process. A court can dismiss an indictment only when the government's misconduct is so grossly shocking and so outrageous as to violate the universal sense of justice. Dismissal is an exercise of this court. Supervisory authority is permitted, only were prosecutorial misconduct, constitutes misbehavior that causes substantial prejudice and where no lesser remedy is available. But the district court here exceeded its limited authority and abused its discretion. The court based its dismissal of this case and the timing of the government's disclosure of eight documents or sets of documents.”
This is the premise of the governments entire appeal. That eight and only eight little documents, these nit -picky documents, are the reason for the dismissal and letting these dangerous “terrorists” free. However, as I wrote back in 2019 when the appeal was first filed it’s what is in those documents that does matter. And, those were not all that Judge Navarro was concerned with, as she listed many more concerns regarding the prosecutions misconduct in her court. She choose just these eight to hang her hat on. Instead of discussing the contents of this evidence that was deliberately withheld from the defendants, AUSA White went on to explain that it was just a simple innocent error:
“We missed a few things. We overlooked a document here or we didn't appreciate the potential relevance of a document there.”
Let’s take a look at just three points of evidence that was mentioned in the hearing and we’ll examine why they matter.
The Tactical Operations Center (TOC) Report: This is requested information that bears witness to the entire operational activities. In most police of military operations, the TOC has six basic functions:
- Receive information.
- Distribute information.
- Analyze information.
- Submit recommendations to the commander.
- Integrate resources.
- Synchronize resources.
In other words, this would be the Rosetta Stone that would show the defendants of all the players, actions taken, and resources brought into play against the Bundy’s. In the TOC report it gave evidence of something only I wrote about in my book, which was the presence of the FBI Hostage Rescue Team (HRT) and additional military-style forces present leading up to and during the Bunkerville protest. Up until the receipt of the TOC report the prosecution denied that any other agencies were involved. In fact, they characterized the law enforcement presence as 25 rangers or so there to impound Cliven Bundy’s cattle, while scoffing at the Bundy claims that they were surrounded by military snipers and eavesdropping equipment, and afraid for their lives. Through the TOC report it was also discovered that the actual prosecution, the very men and women that stood in court to argue the case against the Bundy 19, were the same people that brought the indictment against all of the Bundy 19 and also at the scene playing a part in orchestrating the military escalation towards the Bundy’s. In other words, they were not only were they prosecutors, but witnesses. On these grounds alone the case should have been dismissed.
Without the knowledge of the of these players, the defense would not even know that there were some 45 witness that they could have called to testify and their 302 reports subpoenaed to search out exculpatory evidence that would exonerate each of these men. Ironically, AUSA White actually argued that the evidence was so voluminous was still coming in after the trial was dismissed. Most of those were the FBI 302’s all of which were required by law to submit 45 days prior to the trial.
The Presence of Government Snipers: During the trial, the prosecution flatty denied snipers were ever present on the Bundy Ranch. In fact, in the previous trials under a motion of in limine the defense were forbidden to even mention the word sniper or even the suggestion of government agents pointing guns. The panel of judges pressed a line of questions with Ms. White regarding the denial of government snipers on the scene throughout the trial, then only acquiescing to the admission of their presence. Somewhat defensively, she replied:
“…the judge in her order really does sort of seem to accept this idea that the government was playing some kind of semantic word game, with sniper, that, you know, we should have known that they were just talking about officers with guns and we should have accepted their characterization as those as snipers.”
But that is exactly what it was, a “word game.” The prosecution tried in earnest to say, they were “Over Watch,” “In Training,” “A man with a rifle and a spotter” mocking word games, trying to continue to play a ruse on the jury. Judge Navarro saw right through it.
The importance of the snipers besides the obvious constitutional ones, is that in part the Bundy’s defense was that they were under military siege and were terribly frightened, by what the government was doing to escalate the violence against them. Remember, Ammon Bundy reported that he witnessed red laser targeting dots on his children in the days before the protest. And, because of that fear they called for help from “We the People” through the internet and their neighbors, to help defend their life and property. It was for these same reasons, Cliven begged the Clark County Sherriff to intervene, which he ultimately did. This truth couldn’t stand under the government narrative of conspiracy against the Bundy’s. Claiming that “Cliven Bundy and his, his sons and others, uh, deliberately distributed misinformation about being surrounded” which as the evidence showed was completely true. The government had to present flat denial of the snipers’ existence to avoid the impeachment of their allegations.
Camera(s) and surveillance:
Ryan Bundy acting as his own attorney, had requested detail and recordings of the one video camera he personally saw on the hill Northwest of his father’s house. This video camera was placed there in the days leading up to the cattle impoundment which was surveying the house and the surrounding area. At first the prosecutors mocked its existence a “fanciful fishing expedition” and there was not documented evidence of the potential illegal wiretap. However, as the trial proceeded in front of the jury, the evidence and witness testimony made it clear of the presence of the camera, that the FBI had set it up, maintained it and its recordings. The wiretapping, video and listening devices were simply unconstitutional without a warrant. No wonder the prosecution tried to bury them.
These three areas of trial discovery is the ‘hat rack’ that Judge Navarro hung her hat on for the dismissal.
Where is the truth?
As a matter of law and truth it always comes down to the details, doesn’t it? As I take a macro look at all that has been done to Cliven Bundy by our government I am dismayed. There is so much abuse here in this minute focus by the 9th Circuit Court of Appeals, it seems a bit impotent. And, it boils down to the only thing wrong that the Court of Appeals examines are these three areas. I want to scream from the roof tops the massive injustice to Cliven, but Cliven has a more muted reflection:
“I kinda wish they’d rule against me cuz, I would like to have all the evidence presented. Let the public see what’s really going on.”
However, I am convinced the word would not get out. The media remains undeterred in their narrative of the events, evidence and defense arguments don’t seem to matter. To them Cliven Bundy is an armed domestic terrorist, that owes millions to the government, a militia leader that is plotting his next insurrection against the government. They have made their money, received their awards and advanced their careers with the lies they have told about Cliven Bundy. Astoundingly, there are several authors who have written books about Cliven Bundy and most have never even met the man! They have set their path and storyline and have gotten wealthy doing so. Why would they change now?
Cliven and Carol have returned to their life in the desert of southern Nevada. Cliven has slowly bult the farm back up and is in full production of his unique strain of melons. His cows remain on the range unmolested since they were released by the Clark County Sherriff’s in 2014. In a recent visit over the phone I asked how Cliven how he was doing and if he had any regrets.
“Mike, all I have ever wanted was to be left alone to grow melons and raise a few cows. To live the life I wanta live. You gotta remember, they came an harassed me, they tried to take away my property, my rights and my very life. And all I want is to be left alone to live the way I want to live. How me and my family has live for a hundred years.”
The Nightmare finally ends
Nearly three months later in August 2020, the Ninth Circuit Court upheld Judge Navarro’s decision to dismiss the case against Cliven Bundy. The prosecution had lost once and for all.
Ruling addressed each of the three areas:
Ruling on the Snipers:
"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," the Ninth Circuit panel said. "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."
"Espousing the belief that evidence undercutting the government's central theory of mens rea was somehow irrelevant and not Brady material was preposterous and reckless," the panel said.
"The prosecution has an affirmative obligation to learn of potentially favorable evidence and provide it to the defense. Rather than looking into the request and locating the documents before trial began, the government chose to fight rather than respond to the request. This was a deliberate choice," the panel said.
Regarding the TOC evidence specially:
"The government fell well short of its obligations to work toward fairly and faithfully dispensing justice rather than simply notching another win," the panel said.
The panel also responded specifically to camera recording:
"With or without a request from the defense, the government should have handed this information over — not fought its release," the panel said.
The panel also noted it didn't intend to "cast aspersions" on the prosecutors. Prosecutors are legally responsible for knowledge and documents possessed by other agencies involved in a case, for example the FBI.
Really? The Prosecutors AND Law Enforcement that deserved the blame.
When the court announce its decision, I called Cliven to express my joy of the good news. We laughed and talked about the days to come, we shared family stories and appreciated the friendship we gained. In a passing remark I noted that the civil court judgements still remain in effect.
“Cliven, you’re out of criminal jeopardy and I am so happy for you. But you have to know that the environmental lobby still are up in arms about your cattle still being on public land, with the civil judgement still unresolved what are you going to do if they try to impound your cattle again?”
There was a bit of a pause.
“Then, I’ll do whatever it takes.”
His 2017 best seller, Cliven Bundy American Patriot, reveals the truth of what is known as the “Bunkerville Stand Off.”
And, now his 2019 book Life Without Reservation, is charging up the best sellers list! For the first time in his long career he is working on his first fiction book Ghost Patriot to be release in 2021.
You may also contact Mike at Leadership Speakers Bureau to schedule him for speaking or leadership engagements.