Posted on 08/06/2020 11:33:04 AM PDT by aimhigh
Summary
The panel affirmed the district court’s judgment dismissing with prejudice, due to violations of Brady v. Maryland, an indictment charging Cliven Bundy; two of his sons, Ryan and Ammon Bundy; and Ryan Payne with obstructing federal law enforcement officials carrying out lawful court orders. The indictment followed a well-publicized effort by the Bureau of Land Management to impound Cliven Bundy’s cattle for a twenty-year failure to pay federal grazing fees.
Cliven Bundy and hundreds of armed supporters from around the United States forced federal officials to abandon the impoundment plan. Days into the defendants’ trial, the government began disclosing information in its possession that, under Brady, was arguably useful to the defense and should have been produced to the defendants well before trial. As additional documents came forth, the district court held a series of hearings, eventually deciding that the trial could not go forward and that the indictment must be dismissed with prejudice.
Reviewing whether the district court properly dismissed the indictment under its supervisory powers, the panel considered the evidence cited by the district court to decide * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader whether substantial prejudice resulted from the Brady violations, whether flagrant misconduct occurred, and whether alternative remedies could have redressed the injury here.
Central to the government’s case were allegations that the defendants intentionally lied about being surrounded by snipers as a ploy to gather armed supporters. Had the defendants been able to proffer a basis for genuinely believing that government snipers surrounded the Bundy Ranch, they potentially could have negated the government’s scienter theory. Surveying all of the withheld evidence – including surveillance-camera evidence, FBI “302” investigative reports regarding snipers, Tactical Operations Center (TOC) log records, and threat assessments – the panel held that the record amply supports the district court’s conclusion that the defendants suffered substantial prejudice in not being able to prepare their case fully, refine their voir dire strategy, and make stronger opening statements.
Regarding the question of flagrant misconduct, the panel wrote that to the extent any government agencies or actors, through their own flagrant misconduct, failed to make known exculpatory information, the flagrant nature of such conduct will be imputed to the prosecution. The panel explained that flagrant misconduct need not be intentional; reckless disregard for the prosecution’s constitutional obligations is sufficient. Although it saw only negligence in the withholding of the TOC log records, the panel found no clear error in the district court’s conclusion that the withholding of the surveillance-camera evidence, the 302s, and the threat assessments crossed the threshold from negligence to recklessness.
The panel observed that the prosecution withheld facially exculpatory evidence that directly negated the government’s theory that the defendants lied about fearing snipers, and that the deliberate choices to withhold those documents were not cases of simple misjudgment. The panel wrote that although dismissal with prejudice requires a district court to find that “no lesser remedial action is available,” the panel understands by this phrase that a district court must conclude that no lesser remedy will fully address the damage caused by the government’s misconduct.
The panel concluded that the district court, which thoroughly considered the prejudicial effects, did not abuse its discretion in dismissing the indictment with prejudice. The panel wrote that lesser sanctions would have given the government an opportunity to strengthen its case at the defendants’ expense, and noted the related need to impose a sanction that will serve to deter future prosecutions from engaging in the same misconduct as occurred here.
Bttt.
5.56mm
The reason there is so much federally managed land in the west is that the states conceded un occupied, unused, land to the fed as a condition of statehood.
In my county in Idaho, the feds manage 95% of the land.
And the lands, range and forests are poorly managed.
The USFS and BLM should be eliminated and all fed lands turned over the the states to manage.
Most people have little or no contact with the federal government, except on April 15 and going to the post office.
Those of us who live in many western states have to live with and be regulated by a bunch of incompetent, underachievers who are so badly politicized they can’t wipe their butts without holding a meeting to discuss which hand to use.
There is no reason that the Federal Government charges anyone, horse, cow or Mike Obama, a fee to graze on PUBLIC LAND!!!!
The ranchers and Barak O should be paid for grass cutting services!
You have no idea what you are talking about...you work for the gov, so that is no surprise.
If the BLM idiots really wanted to arrest Bundy, they would have contacted the local sheriff, the highest law-enforcement entity in the county, and he would have served the warrant...but no, the stupid BLM had a freekin moron, Dan Love, who was a special forces wanna be, in charge and he tried to militarize the entire process. It is just fortunate someone wasn't killed...there was no reason for an armed confrontation.
Dan Love was finally kicked out of the BLM and is hopefully cleaning toilets somewhere...the only job to which he is suited.
Yes, making their speedy flight toward the closest BLM (not that one) office to lay a little piggy dinner down on the desks of the scoundrel, murderous feds.
There was a time from around 2000 to 2012 when I read Section 1983 COA and SCOTUS cases closely, and the more important cases going back 30+ years before that.
“There is no reason for the Federal Government to own all that land.”
An economic study from Utah in 2012 found that taking over land management would cost the state government a substantial sum: $275 million a year. The states don’t want it either. But these studies have established that there would be substantial administrative costs for states if they took over, not to mention the cost of protecting the land from people like Bundy who uses the land, makes his profit, but pays no fee like everyone else so the land will be protected and the water kept clean for use.
And the federal government transfers a lot of its leasing revenue back to states to compensate for the taxes the states might have collected if the land were in private hands. If they owned the land, the states would have to collect rents and administer permits themselves.
So it turns out that if the states owned it, the ranchers will just be angry at another level of government for basically the same reasons. And if you allow one rancher to freely graze on the land, everyone else will have to be allowed, and no revenue to protect the land and the people will be generated for cattle. And shortly people will start housing developments that will in time take over the grazing land. This is part of the squeezing problem for farmers and ranchers now...space to work. Look at what’s happened to almost all major airports over the years. I’m willing to bet that most of them started out in the open away from people. That got changed.
And, Bundy could have purchased land from the feds as they sell that land all the time. But why should he buy the cow when he gets the milk for free?
rwood
“...they would have contacted the local sheriff, the highest law-enforcement entity in the county...”
The local sheriff has no jurisdiction concerning crimes on federal land. And I haven’t worked for Uncle Sugar for 8 years when my field was closely related to this problem.
I suppose you missed this part of the article:
“Cliven Bundy and hundreds of armed supporters from around the United States forced federal officials to abandon the impoundment plan.”
They didn’t just come out of the woodwork, they were summoned and according to the article, they became the enforcement and the feds backed off rather than have that confrontation you mention. So who tried to militarize the process?
rwood
The BLM was established in 1946, the same year Clive Bundy was born. The Bundy family actually lives in Las Vegas. Clive’s father, David, purchased the land in 1949, and started paying the fees to graze from 1954 to 1993 when Clive didn’t renew his permit. Clive Bundy was not grazing on his ranch only, he was using federal land also. The initial process was for federal trespass.
rwood
Do you really believe large tracts of federally managed land can be purchased by individuals?
You have zero idea what you are talking about...again. I live in a county where 95% of the land is poorly managed either by the BLM or the USFS. My ranch borders on BLM property and I have a state lease on a section.
I know of dozens of instances where there are boundary disputes between BLM, FS and private property owners, often where there were survey errors from the early 1900’s and resolving these minor disputes often take years to complete.
Locally, a FS lease holder of property containing a state historic site has been trying to complete a land exchange with the FS...he is trying to obtain title to 3-acres in exchange for 11-acres of land bordering a wild and scenic river. He wants to use his own funds to restore the 3-acre historic site...this simple transaction has been going on for 22-years with possible resolution next year...maybe?
You really are clueless on how things works out here.
“Do you really believe large tracts of federally managed land can be purchased by individuals?
The below site will tell you how it’s done.
https://www.blm.gov/sites/blm.gov/files/FAQs%20about%20Federal%20Land%20Sales.pdf
“The feds have sold hundreds of thousands of acres to private owners over the last 25 years.”
https://www.nytimes.com/2016/01/06/upshot/why-the-government-owns-so-much-land-in-the-west.html
The problem is that the ranchers want the land use for free, and want to do whatever they wish on those lands. They do not own them, and do not want to pay the price to acquire them.
And it appears that when private owners purchase the land for grazing, their demands for money for leasing are a lot more to the ranchers than the feds to graze their cattle.
“You really are clueless on how things works out here.”
I’m not screaming foul at the government when people try to take land that doesn’t belong to them by force. Normally they arrest people for that. It’s called sedition.
rwood
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