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A Sad Day in The Bundy “Mis”-Trial
As a citizen of this great country, I have just experienced one of the saddest days in my life.
Let me explain…
I sat in the courtroom of day 15 of the Cliven Bundy trial (at this point that is six calendar weeks in the courtroom). Over the previous weeks, I’ve made the journey from my Northern Nevada home, staying weeks at a time in Las Vegas, to watch the wheels of justice turn … slowly … painfully slowly.
It was clear from the beginning motions and evidential testimony of Special Agent in Charge Daniel P. Love -- and from the additional officers that were involved in the round-up operations in April 2014 -- that there has been much more to the story than most were aware.
While I have come into this story later than most who are involved, I have had access to Cliven Bundy like no one else. I spent two months at the detention center in Pahrump, NV, carefully chronicling Cliven’s story as his biographer. Since my release, I have immersed not only my entire life; but, my editors, and research team in the Bundy drama.
Going into the trial, I quickly recognized that because of my background, I was more educated on the issues than most folks in the courtroom. As I listened to the opening statements, the prosecution’s witnesses, the cross examinations, evidentiary hearings, I didn’t hear much information that was new (at least, to me). Most of what I heard only confirmed all I had already written about in my book on Cliven’s story, Cliven Bundy American Patriot.
December 11th; however, was something different.
As we arrived in the courtroom this last Monday, I could see with stark disbelief that there were just a few spectators in the gallery – just four reporters and only a handful of Bundy supporters. The jury had been called and waited in the jury room; the defendants, their attorneys, and the prosecution were in position and ready for a new week of battle. Quietly, we waited for the judge to enter the courtroom and then the jury.
And we waited.
Nearly an hour we waited.
“All Rise,” the court clerk called out and Chief Judge Gloria Navarro entered.
As we retook our seats, Judge Navarro began; “I would like to get some clarifications on the mistrial motions. Though these matters are not ripe, I want and give the parties some idea of my concerns.” And, with that, she spent the next full hour listing each motion and 14 of her concerns. Of those she listed there were seven possible “Brady” violations.
The Brady Rule, named after the Court’s rulings in Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government's possession to the defense.
"Brady material," that is, the evidence the prosecutor is required to disclose under this rule, includes: evidence favorable to the accused, evidence that goes towards negating a defendant's guilt, evidence that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness.
While Brady violations have several remedies; only one of these – and the most drastic – is a mistrial. Typically, a Brady violation is discovered after a trial has concluded and is used to petition the court to rule for a mistrial and to set aside the conviction. In order to win a mistrial, the defense must prove that there is reasonable probability that the outcome of the trial would have been different in order for a mistrial to be granted.
In the Bundy case, Judge Navarro may be considering a mistrial just as the trial has begun to gain steam, months away from its conclusion with a jury verdict. Most judges would prefer that the jury make the final verdict, as is in our legal tradition. But, there is yet another reason for Brady violation ruling: the proof that if the evidence were made available, the case would have taken a different light. And it is with this aspect that Judge Navarro may be taking serious consideration.
As careful as Judge Navarro was in listing her concerns, she did not give too many specifics. In a previous (and rare) pre-trial order, Judge Navarro placed certain evidence under seal. Thus, by her own order, she cannot be overly specific. But, if you listen carefully and you understand the background as thoroughly as I do, you can extrapolate some of the issues at hand that might shed a “different light” on this trial.
Cliven Bundy has always taken the stance that the Federal Government has had no jurisdiction to take the action they did in impounding his cattle. Moreover, the government took the extraordinary action during the impound operation to surround his home, set up checkpoints, threaten his family, and physically abuse his family. He also told me that they had snipers surrounding his home. Ammon Bundy claimed to have seen the snipers’ red targeting lasers not only on him; but, dancing on the bodies of the Bundy children. And, much, much more.
Honestly, when I first heard of these things while incarcerated with Cliven and ‘The Bundy 19,’ (as he, his four boys, and the 14 other supporters who also had been arrested and detained with the 5 Bundy men before their trials) were called by the inmates in the detention center in Pahrump, I just figured Cliven was embellishing his story. To my surprise, after I was released and began the research for the book, there they were, in fact, snipers clearly visible in the videos of the various incidents related to the April 2014 cattle round up.
As it turns out, it was much worse than even Cliven knew.
All along, the prosecution has just scoffed, and dismissed, Cliven’s claims.
But, on Monday, we learned from Judge Navarro several things we didn’t know before:
SNIPERS: It turns out that there were indeed snipers. The Bundys have been saying this for years. The prosecution has denied it; but since, have acquiesced saying only that although there were some people lying down along the ridges, they were merely “Over-Watch” people – just guys with binoculars and radios. We learned; however, from Special Agent in Charge Dan Love (of all people), in his sworn testimony of October 25, 2017, that actually there were snipers. With guns. Now the prosecution is saying they were just “practicing” and there was nothing to it. My question is what were they “practicing” when they aimed their guns at unarmed American citizens? Does it stop being “practice” and become “implementation” only when they pull the trigger?
ORDERS TO CEASE OPERATIONS: It appears that de-escalation was not a personal option for Dan Love. Pete Santilli was trying to get Love to understand that the Bundy protest was beginning to escalate beyond the Bundys’ local family and friends. National and international media was taking an interest in the story and social media was beginning to blow up, with over one million views of the videos that had been posted of Davey’s arrest and the assaults on Margaret and Ammon. And, of course, the existence of the Government’s so-called, “First Amendment” areas created by the BLM to contain the protestors well away from the focus of the protest were becoming explosive issues, as well.
Additionally, Love’s Washington D.C. superiors were taking notice of the protest size and media attention being gained and, not being able to control it to their narrative, they decided to cease the operation. It seemed unpalatable that so many lawmakers were criticizing the BLM actions and, as the BLM director of media relations stated, they never could get ahead of the narrative that the media was carrying by saying “it was frustrating.” It’s also clear that this order was received by Love, as revealed in the October 25, 2017 (and following), testimony – again, under oath – of the BLM agents who ran the Communications Center and the Operations’ Agent Dispatch Desk therein. The agents in the Communication Center in the BLM compound were ordered to start packing up and shredding documents on April 10th. Note: This was two full days before the events of the April 12th “Standoff” (as the Government called it) that following Saturday. That also seems to be the same day the FBI and the contract cowboys left, leaving only the BLM Law Enforcement element and NPS Rangers under Dan Love’s command.
PROSECUTORIAL INVOLVEMENT: We also know, according to the testimony of Dan Love on October 25, 2017, Love had a conference call with the then U.S. Attorney Dan Bogden in Las Vegas. Together, they planned how they would bring Cliven to justice. If they could get Cliven to be the one to release the cattle – or “Pull the Pin” (which meant to remove the pin on the gate holding the cattle) as it was referred to – then they felt they could charge him with impeding a federal officer in his duties and then tie Cliven and his boys into a conspiracy in relationship to all the other charges of weapons and assault of the Bundy 19. What they didn’t anticipate is Cliven would never leave the stage area that day.
Now we also know that the now acting US Attorney Steve Myhre and his assistant prosecutor Nadia Ahmed, the actual prosecutors in the Bundy trials, were photographed at the Command Center compound during the round-up operations meeting with the Operation’s leadership. So, it seems, the prosecutors have become participants – or, at least, witnesses. They seem to have forgotten to mention that to the defense.
PROSECUTORIAL INVOLVEMENT II: It is also now known that acting US Attorney Steve Myhre was working with the Department of Interiors OIG office on a weekly basis to “aid” the OIG Inspectors’ investigation into the handling of the shredded evidence, Dan Love’s “lost” laptop, and his “lost” notebook. It was found that Mr. Myhre discouraged the investigators from interviewing anyone actually physically related to the act of shredding. On the stand, none – NOT ONE – of the responsible officers remember who did the actual shredding. They testified that they knew they hadn’t and they didn’t remember seeing anyone else do it; but, they knew they were ordered to do it. And, of course, the OIG investigators never interviewed any of them prior to their testimony. But, somehow, all that huge volume of evidence was shredded – as the photographs of the shred bags laid bare. So, it seems again – this prosecutor has become a participant – or, perhaps – the architect, or at least, a witness.
THE BUNDY THREAT: The defense has been asking for copies of any evaluations from the government regarding the threat, if any, the Bundys might pose. It wasn’t until November 2017 that the prosecution coughed them up. Why? Because, again, Dan Love mentioned them under oath. It turns out that there was not one; but, in fact, five such Threat Assessments, starting in 2011, that all showed that the Bundys were a low threat risk. The Government also paid a consultant – of sorts – $60,000 to evaluate the Bundys; no one knows why they were hired or where that report is, either. The only reason the defense knows about its existance is because they found the receipt in the discovery. Oops…
TECHNICAL SURVIELLANCE: Ryan Bundy remembered seeing a camera setup and monitoring the Bundy household during the weeks leading up to April 12, 2014. The prosecution flatly denied the existence of such a camera or its deployment or its coverage. They also claimed that the FBI was not involved in the roundup operations nor were they onsite. It turns out, yet again from Dan Love and another BLM officer, that the camera was there, maybe more than one of them, setup and maintained by the FBI. Moreover, the FBI had their own trailer within the compound and the live video feed from the camera(s) with parabolic-type (listening?) devices came into the compound. The defense teams have asked for the footage from those cameras and recordings from the listening devices, but the prosecution claims that no recordings were made and no one was watching them. Even Judge Navarro has had a hard time with this one – before it was impeached by yet another Government witness – the Chief of the Communications Center, herself, who testified that the FBI liaison ran the live feed and that the command element watched it regularly and especially as the ranks of the protestors began to swell.
WIRETAPPING: Also revealed through the testimony of Region 4 BLM Law Enforcement officer Robert Schilackin, who had come in from Colorado to help the Region 3 BLM Law Enforcement officer deliver to the Bundy family the BLM intent to enforce the refreshed court orders for removal of the Bundy’s cattle from the public lands (which lie under the Bundy’s grazing and water rights) and solicit from them what resistance to this BLM action the Bundys might mount. In his testimony, he admitted they had interviewed an employee of the Bundys’ and secretly recorded the conversation. When asked by the defense if he was aware that was a crime, he blew it off saying that it wasn’t a crime.
WIRETAPPING II: Officer Schilackin was similarly cavalier with his actions and perhaps, with Federal and state law, when he testified on cross examination that he had recorded his Region 3 partner’s telephone conversation with Ryan Bundy without revealing this fact at the beginning of the call to the parties. This thusly-“poisoned” recording was even played in court (first as snippets and then in its full 46 minutes) by both the Government and the defense, respectively. He added that such recordings were “not part of the plan” – but, such recordings are done so routinely that it was never given a thought.
In the session without the jury’s presence between these two wiretapping admissions, the Judge allowed their use; but in passing, made mention of possible criminal charges and that they would be dealt with later – not wanting this trial to get bogged down on a separate issue.
WIRETAPPING III: It's now clear, through revealed documents, the government has been listening in on attorney-client phone calls between the defendants and their counsel. The prosecutors want the public to believe that their content is ‘so mundane and innocuous’ that it has no bearing on trial, but that the recordings themselves have been reviewed by a special FBI team and marked as privileged. So, the recordings remain in the hands of the prosecution. But, if they are ‘so mundane and innocuous,’ why hide them?
SPECIAL FORCES: New revelations also included information that not only was the Clark County Sheriff’s Department Special Weapons and Tactics (SWAT) Team was deployed to the Toquah Wash on April 12, 2014; but, the FBI’s Hostage Rescue Team, The National Park Service Special Event Tactical Team (SETT), AND the Los Angeles SWAT team were all present on site and had been ready to deploy the entire week. Though apparently, they all departed when given the stand-down order on April 10th.
All along, Cliven Bundy has said that there were 200 armed, military-type government men and women surrounding his ranch. The prosecution said in their opening argument that there were only about twenty. We now know the official number is 197. The prosecutors reason excuse for not disclosing all of these other Special Forces Teams was that they were there for ‘training and practice’ and because they were never used. Hence, there was no need to disclose them to the defense teams.
DEPLOYMENT: Cliven Bundy has also said all along that he was surrounded for over a week. He said there were checkpoints and spying was done on him and his family. The prosecution denied such “crazy” notions. But, again, Judge Navarro’s concern is that the organizational chart that was created to explain the communication and reporting authority between the BLM, FBI, NPS, NV Highway Patrol, Las Vegas Metro, LA SWAT and all the other agencies deployed there is – of course – missing. Missing along with all the maps showing the agents deployment locations, the paperwork and handwritten materials – perhaps, all put though the shredder. Was this done all in an effort to cover-up the magnitude of what all was involved?
REPORTS: Another concern Judge Navarro has, is the revelation that some of the Government Criminal Reports, called 302’s, were written in November 2017 – NOT in 2014 as one would expect. And they were written only after being requested by the defense upon the testimony of Dan Love and the other BLM and OIG officers in October 2017. It seems that the reports may have been written to corroborate the narrative the prosecution has put forth and to dispute Love’s testimony.
HIT LIST: The most worrisome of all the concerns that Judge Navarro has on her decision plate is the revelation that there was an actual hit list maintained by the Government with Cliven Bundy’s name at its top. This list seems to be an actual shooting list that has only been revealed by a BLM agent who is now trying to cover his backside. This agent has become a whistle blower. When I asked Cliven about who it was, he wouldn’t answer me directly, only to say that this BLM agent is no longer employed by the government. I wonder who that might be...
As Cliven and I reviewed, “Well we got a couple of BM guys who have turned into whistle blowers, ya see. And all kind of things are coming out.”
“Okay, I need to ask, what this I am hearing about a kill, list? It’s all over social media,” I ask.
“Well yay, there has always been a kill list, for me. Remember the militia guys in front of the stage with me, they were there to protect my life. I was on the kill list for quite a long time. For two years I have had bodyguards. I have been on it for quite a few years.”
“In my own mind I don’t need a bodyguard. But, they were always been bodyguards around me ... fer two years I have had ‘em.”
Then, now you read about what came out last Monday, you find out, well he was right.
“They had a kill list and I was number one on the kill list,” (he uncomfortably chuckles).” “This thing is more serious than most people want to think about it.”
“So,” I asked – somewhat stunned, “did they have a list that was like priorities of who to shoot first?”
“No it’s just a book, where a guy is keepin a kill list. Where they mark off guys they already got rid of. I guess they had a big poster, up in there with my picture on it – the BLM office - with a big “X” thru it.”
I wonder if Dan Love’s “lost” computer and “lost” notebook will be “found” soon.
Of course, all of this stuff being hidden from them puts the defense at an extreme disadvantage. Not only has the prosecution not revealed these “Brady” documents; but, there are dozens of personnel that have not been subpoenaed, reports reviewed, or even the existence thereof known.
And this last Monday assistant US Attorney Daniel R. Schiess complained at length about how much work all of this ‘last-minute response’ to the defense requests has been to their office. But it has been requests for discovery material that had never provided them before and whose existence was only just admitted to in court by the Government witnesses’ testimony. “Just last night the defense had file a 28-page motion for a mistrial (one of six that I count). We need time to answer.” The entire day, prosecutors Meyer and Ahmid sat uncharacteristically quietly. Not wanting to dig themselves in deeper, I wonder?
I mentioned at the beginning that on my way home that afternoon, I was sad. It’s an “in my gut kind of sad.” I wondered why I wasn’t angry or surprised. I was sad. In the few days I have had to think about this situation, I realized that my government, in the country that I love so much, was actually acting illegitimately – criminally – with its people. I had heard about it, denied that it could possibly happen, and had even seen it before in my own trials with the government. But never so defiantly. I told my friend that night, “I am sad because we depend and respect the judicial system, we rely on it’s fairness, for it to be just. And, I want this fairness for every accused, even the most heinous of criminals, let alone for Cliven Bundy… A simple rancher standing up for OUR rights.
UPDATE: The Second Whistler Blower has been identified as Larry Whooten. You can see his complaint the Associate Deputy Attorney General Andrew Goldsmith HERE
About Michael Stickler
Mike is an author, radio host, ex-felon, and a highly sought after motivational speaker. His best-selling book, A Journey to Generosity, is widely acclaimed throughout the Christian community. He is the publisher of Generous Living Magazine and writes for the Christian Post, 'A Generous Life' column. MikeStickler.net