A federal judge Monday threw out criminal charges against Nevada cattleman Cliven Bundy, his two sons and a co-defendant in the 2014 Bunkerville standoff, citing “flagrant misconduct” by prosecutors and the FBI in not disclosing evidence to the defense before and during trial.

“The government’s conduct in this case was indeed outrageous,” U.S. District Judge Gloria M. Navarro ruled. “There has been flagrant misconduct, substantial prejudice and no lesser remedy is sufficient.”

The judge issued her ruling before a packed courtroom with nearly 100 spectators, as more than a dozen other spectators had to wait outside the courtroom doors. As Navarro dismissed the case, Cliven Bundy’s lawyer put his arm around his client. Supporters in the public gallery held hands, wiped tears from their eyes and hugged. One looked up and whispered, “Thank you Lord.”

The dismissal with prejudice, meaning a new trial can’t be pursued, marked an embarrassing nadir for the federal government, which now has failed to convict the Bundys in two major federal cases stemming from separate armed standoffs.

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The second stunning victory for the Bundys and their followers may serve to bolster their fight against federal control of public land, but it’s not clear how their movement has fared. The three have spent most of the last two years in jail. Ammon Bundy owes at least $180,000 in legal fees in the Oregon case, and he said most of his national clients in his vehicle fleet service business left out of fear.

After the judge’s ruling, the senior Bundy attempted to walk out of the courtroom in his blue jail garb and ankle shackles but was blocked by deputy U.S. marshals. He was released soon afterwards, wearing a cowboy hat, blazer and cowboy boots. He took hugs and handshakes from supporters. His sons, Ammon and Ryan Bundy, have been out of custody since November, when they were allowed to leave jail to stay in private homes under GPS monitoring.

“I’ve been a political prisoner for right at 700 days today,” Cliven Bundy said, his arm around his wife, Carol Bundy. “I come in this courtroom an innocent man and I’m going to leave as an innocent man. My defense is a 15-second defense. I raised my cattle only on Clark County, Nevada, land and I have no contract with the federal government. This court has no jurisdiction and authority over this matter. And I have put up with the court in America as a political prisoner for two years.”

Cliven Bundy turned his attention to state and local authorities, saying Nevada’s governor, the Clark County commissioners and the sheriff were “aiders and abettors” and “terrorists” for failing to protect his family’s rights and liberties. He said he plans to go home and have a “good steak,” continue to graze his cattle and scheduled a news conference Tuesday outside the Clark County sheriff’s office.

The judge found prosecutors engaged in a “deliberate attempt to mislead” and made several misrepresentations to both the defense and the court about evidence relating to a surveillance camera and snipers outside the Bundy ranch in early April 2014, as well as threat assessments made in the case.

“The court is troubled by the prosecution’s failure to look beyond the FBI file,” Navarro said.

She said she “seriously questions” that the FBI “inexplicably placed” but “perhaps hid” a tactical operations log that referred to the presence of snipers outside the Bundy residence on a “thumb drive inside a vehicle for three years,” when the government has had four years to prepare the case.

“The court has found that a universal sense of justice has been violated,” Navarro said.

The judge found it especially egregious that the prosecutors chose not to share documents that the defendants specially asked for in pretrial motions, and “grossly shocking” that the prosecutors claimed they weren’t aware the material would assist the defendants in their defense.

“The government was well aware of theories of self defense, provocation and intimidation,” Navarro said. “Here the prosecution has minimized the extent of prosecutorial misconduct.”

The judge issued her ruling in 30 minutes from the bench. Just before the hearing, Ryan Bundy led relatives and supporters in prayer in the courtroom corridor, even saying a prayer for the judge.

“Father in heaven … we thank you for the protection that was given to us over this duration of time and through this trouble,” he said, his head bowed as he held his cowboy hat over his chest. “We ask that you bless Judge Navarro and she will choose to side with thee and liberty. … Father in heaven, we need our father home. Father in heaven, we need freedom back in our land.”

After the judge’s decision, when asked for his reaction, Ryan Bundy laughed and said, “It’s about time. It’s about time.”

Ammon Bundy, holding black bound copies of the Bible and the Book of Mormon, called his wife and said, “I’m going to go home, take care of my family and go to work.” He also plans to celebrate his youngest child’s birthday. The boy turned 3 on Monday and Bundy missed the first two birthdays while he was in custody or at the Malheur refuge.

He promised to keep working for his cause. “I’m not done fighting by any means,” he said.

For Ryan Payne, who awaits sentencing after pleading guilty to federal conspiracy in the 2016 armed takeover of the refuge in southeastern Oregon, the judge’s ruling was “bittersweet,” said assistant federal public defender Brenda Weksler. Payne was ordered to report to the U.S. Marshal’s office to determine if he’ll be held while awaiting sentencing in Oregon.

“This prosecution has really been a tragedy for everyone involved,” said Ryan Norwood, Payne’s co-counsel, assistant federal public defender Ryan Norwood. “Ryan Bundy, Cliven and Ammon lost two years of their lives from this.”

Public land advocates fear the fumbling of the Nevada case, following the 2016 jury acquittals of the Bundy brothers and others in the armed takeover of the Malheur National Wildlife Refuge in Oregon, will buoy the Bundys’ claims of federal government overreach and embolden militias to engage in future armed standoffs with federal officers over management of public land.

“This is an outrage, a total miscarriage of justice,” said Patrick Donnelly, Nevada state director for the Center for Biological Diversity, outside the courthouse later Monday. “The prosecution mangled this case. It should have been a slam dunk.”

Donnelly said he thinks the dismissal will embolden the Bundys “fringe movement,” though he doesn’t think their actions have led to a huge rise in support.

“Bundy is an outlier. This whole movement is an outlier fringe movement,” Donnelly said. “But it only takes a handful.”

Jonathan Greenblatt, chief executive officer of the Anti-Defamation League, decried the government’s mistakes and predicted future armed standoffs as a result.

“This case represented the last opportunity for justice in this case of extremists who had organized in armed opposition to the government,” he said.

Cliven Bundy, 71, Ammon Bundy, 45, and Ryan Bundy, 42 and co-defendant Ryan Payne, 34, 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 in April 2014. Federal officers and rangers were acting on a court order filed after Cliven Bundy failed to pay grazing fees and fines for two decades. Outnumbered, the federal officers retreated and halted the cattle impoundment on April 12, 2014.

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 the location of a camera and snipers, outside the Bundy ranch; threat assessments that indicated the Bundys weren’t violent; and nearly 500 pages of U.S. Bureau of Land Management internal affairs documents that included paperwork indicating that cattle grazing hadn’t threatened the desert tortoise, considered an endangered species.

Late disclosures of evidence trickled out just before and during the start of the trial “by happenstance,” defense lawyers noted. One government witness under cross-examination by Ryan Bundy acknowledged watching live-feed video images from an FBI surveillance camera and another referenced a 2012 FBI threat assessment that determined the Bundys weren’t likely to be violent. In pretrial motions, Ryan Bundy requested evidence on any “mysterious devices” outside the Bundy ranch in early April 2014, and Payne’s lawyers sought all threat assessments in July 2017, but prosecutors didn’t turn over the information until ordered days before or during trial.

Defense lawyers argued that the government didn’t “seem to recognize” or “professed ignorance” on what constituted Brady material, required by the 1963 landmark U.S. Supreme Court ruling in Brady v. Maryland to be shared with the defense.

The defense lawyers urged dismissal, saying it was the only sufficient remedy for the government’s callous disregard of its constitutional obligations to share any potentially favorable evidence with the defense.

Weksler, who represents Payne, argued that prosecutors repeatedly failed to abide by deadlines for sharing discovery evidence, 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 didn’t exist, only to find out later that they were mistaken.

“The fact that the government sought to ask a jury to convict these defendants and then ask this Court to sentence them to prison for the rest of their lives without giving the defense the information recently disclosed should more than trouble this Court,” Weksler wrote in a recently unsealed motion to dismiss.

Prosecutors countered that any failure to provide evidence was “inadvertent” or because they reasonably believed the law didn’t require them to share the material. They sought a new trial, arguing that they “neither flagrantly violated nor recklessly disregarded” their evidence obligations, but believed the material they failed to share in a timely manner wasn’t relevant for the defendants’ defense.

Myhre, who until last week served as Nevada’s acting U.S. attorney but is back in his earlier role as first assistant U.S. attorney, wrote in a court brief that he and his colleagues believed the court’s restrictions barring self-defense arguments during earlier standoff trials this year meant his team didn’t have to share information about certain aspects of the law enforcement response.

Prosecutors and the lead FBI agents in the case quietly sat listening to the judge’s ruling Monday. They did not make any statements in court or afterwards.

The government may appeal the dismissal. The prosecution team in recent weeks added a new assistant U.S. attorney, Elizabeth White, the chief appellate lawyer in the Nevada U.S. attorney’s office. Attorney General Jeff Sessions also sent an evidence discovery expert to the federal prosecutors’ office in Las Vegas after the mistrial to review the case.

“We respect the Court’s ruling and will make a determination about the next appropriate steps,” said Nevada’s interim U.S. Attorney Dayle Elieson, in a released statement.

Co-defendants convicted during two prior Bunkerville standoff trials are likely to seek the dismissal of their cases through appeals, arguing that they went to trial without the evidence that came out piecemeal during the last trial.

The judge, however, ruled this month, that the defendants still awaiting trial — Melvin Bundy, Dave Bundy, Jason Woods and Joseph O’Shaughnessy could not join the motion to dismiss by Cliven Bundy and his sons because they failed to demonstrate how the prosecutions’ violations in this last trial harmed their rights, as deadlines for the governments’ sharing of evidence hasn’t expired yet for their cases. The judge also Monday ruled that the double jeopardy clause does not bar a new trial.

— Maxine Bernstein


(c)2018 The Oregonian (Portland, Ore.)

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