A federal judge has dismissed the case against Nevada rancher Cliven Bundy and three other men. Their charges stemmed from a standoff with federal authorities back in 2014 over cattle grazing rights.
Defendants in the upcoming Bundy Ranch standoff trial say Nevada federal prosecutors need to be disqualified and removed from the cases they launched two years ago.
The defendants, including two of Nevada rancher Cliven Bundy’s sons, want a judge to bar the entire Nevada U.S. Attorney’s Office from prosecuting the case.
In a motion filed late Friday, four of the five remaining defendants say Nevada prosecutors have multiple conflicts of interest and should be viewed as potential witnesses if the case goes forward.
They say the entire prosecution team needs to be replaced because they could be called to testify in court about recently revealed documents raising questions about their conduct.
“The appearance of impropriety and the conflicts of of interest have already occurred in this case,” lawyers said in a heavily redacted motion. “Justice requires that, to avoid any other appearance of unfairness, the court disqualify the USAO of Nevada.”
The motion, like hundreds of documents in the Bundy standoff case, was filed partially under seal and cannot be viewed by the public in its entirety.
It comes just four days after a judge threw out cases against Bundy, two of his other sons and a militia member accused of plotting and leading an armed standoff against federal land agents in 2014.
U.S. District Court Judge Gloria Navarro found federal prosecutors recklessly and outrageously violated the men’s rights to a fair trial by withholding evidence that could have helped exonerate them. She dismissed the case against Bundy and others “with prejudice,” meaning they cannot be retried.
The Nevada U.S. Attorney’s Office did not respond to requests for comment Saturday.
Defendants David and Melvin Bundy, Joseph O’Shaughnessy and Jason Woods said the Nevada federal prosecutors have “demonstrated an inability or refusal to recognize” that they could be called as witnesses.
The four men, along with co-defendant Brian Cavalier, are scheduled to begin trial Feb. 26. They are the last of 17 defendants charged in the 2014 Bundy Ranch standoff, in which cattle ranchers and militia members are accused of using guns to prevent federal agents from seizing Bundy’s cattle on public land.
The defendants said they are not looking for a change of venue to have the trial moved to another state, but are asking that new attorneys be brought in from other jurisdictions.
“Assistant U.S. Attorney’s Steven Myhre, Daniel Schiess, Nadia Ahmed and Erin Creegan have been prosecuting the Bundy case for years,” defendants said in their motion. “They have made themselves material witnesses and must withdraw from the conflicting role.”
The defendants are calling for a hearing to determine who is qualified to prosecute the case and said any new prosecutors should be prepared to question their colleagues on the witness stand.
“Their colleagues from another district will be expected to examine them at trial and uphold their ethical obligations to the fullest degree, including investigating the truthfulness and consistency of their colleagues; statements made under oath,” the motion states.
Defense: Jury should see prosecutors testify
The defendants also want to ensure a jury is able to view live the testimony of the prosecutors in the Bundy case, as they would any other case agent or witness.
“It goes without saying that a witness to this case cannot serve as the member of the prosecution team,” the motion states.
The exact details of the alleged conflicts facing prosecutors appear to be blacked out of the 12-page motion. However, the defendants alluded to a report made public last month by a federal agent who alleged prosecutors engaged in a cover-up of information about misconduct during the standoff by members of the Bureau of Land Management.
A federal investigator alleged in a Nov. 27 memo to the assistant U.S. attorney general that prosecutors in the Bundy Ranch standoff trial covered up misconduct by law-enforcement agents who engaged in “likely policy, ethical and legal violations.”
Special Agent Larry Wooten, a lead investigator and case agent for the Department of Interior and the Bureau of Land Management, said he was brought in by the BLM to examine the armed standoff.
Many of Wooten’s complaints concerned misconduct by Dan Love, the BLM agent in charge of the cattle roundup, who was fired for misconduct in an unrelated case.
Wooten said he spent two years and 10 months examining the case. In his letter, he said BLM supervisors “made a mockery of our position of special trust and confidence,” ignoring the law and likely jeopardizing the trial against the Bundys and other defendants.
Wooten wrote that Myhre initially appeared to take his concerns seriously but later adopted a “don’t ask, don’t tell” attitude.
Calling prosecutors to stand is rare
The motion acknowledges that calling prosecutors as witness is uncommon, and courts “generally disfavor” it.
But the defense says courts recognize that sometimes there is a compelling need for prosecutors to testify about factual events at issue in a trial.
Defense lawyers argue in the motion that defendants have a constitutional right to a fair trial and an ability to confront witnesses.
They say U.S. Attorney’s Office rules “echo the mandate to avoid even the appearance of impropriety.”
Navarro castigated prosecutors on the Bundy case last week, saying “the universal sense of justice has been violated” by withholding evidence.
She said prosecutors have a sworn duty to ensure defendants receive a fair trial by bringing forward any evidence that could affect the outcome. Instead, she said, they showed “a reckless disregard for the constitutional obligation to seek and provide evidence.”
Ryan Bundy, outside the federal courthouse in Las Vegas, reacts to the judge’s declaration of a mistrial in the Bundy Ranch standoff case. Robert Anglen/azcentral
Navarro said ordering a new trial would not be sufficient to address violations by prosecutors and actually would give them an unfair advantage in the case against David and Melvin Bundy and others.
She cited several pieces of evidence that prosecutors failed to disclose that could have changed the outcome of the trial:
- Records about surveillance at the Bundy Ranch;
- Maps about government surveillance;
- Records about the presence of government snipers;
- FBI logs about activity at the ranch in the days leading up to standoff;
- Law-enforcement assessments dating to 2012 that found the Bundys posed no threat;
- And internal-affairs reports about misconduct by Bureau of Land Management agents.
Navarro detailed several instances where prosecutors denied evidence existed and mocked defense requests for information, claiming they were “fantastical,” “bright shiny objects” or “didn’t exist.”
Prosecutors charged defendants with making false claims about snipers and video surveillance to incite their supporters. But documents now show there were indeed government tactical teams and multiple video cameras positioned around the ranch.
Bundy standoff: A test of public land use
The Bundy Ranch standoff became one of the most high-profile land-use cases in modern Western history. It pitted cattle ranchers, anti-government protesters and militia members against the Bureau of Land Management.
For decades, the BLM ordered Cliven Bundy to remove his cattle from federal lands, and in 2014 the agency obtained a court order to seize his cattle as payment for more than $1 million in unpaid grazing fees.
The Bundys launched a social-media rallying cry. Hundreds of supporters, including members of several militia groups, converged on the Bundys’ ranch.
Environmentalists and civil-rights groups say the Bundys are not heroes but lawbreakers who for decades have grazed cattle on public land as if it were their own.
For many Americans, images of the four-day standoff in a dusty wash below Interstate 15 northeast of Las Vegas were shocking. Protesters, ranchers and militia members took armed positions around federal law-enforcement officers, some lying prone on freeway overpasses and sighting down long rifles.
Federal agents abandoned the roundup, saying they were outgunned and in fear for their lives.
The standoff was hailed as a victory by militia members. Ammon and Ryan Bundy later cited their success at Bundy Ranch in the run-up to another protest of BLM policies, the siege of an Oregon wildlife refuge in 2016. An Oregon federal jury acquitted Ammon and Ryan Bundy and five others in October 2016.
Criminal cases fall apart
Federal prosecutors in 2016 arrested 19 people for participating in the Nevada standoff. They were charged with 15 felonies, including conspiracy, obstruction of justice, extortion, using firearms in the commission of crimes, assault and threatening federal officers.
Two men pleaded guilty and trials for the remaining 17 defendants were broken into three tiers based on their alleged levels of culpability.
Four more defendants have since taken plea deals.
But making a solid case against Cliven Bundy and his supporters has eluded prosecutors. Two federal juries in Las Vegas have rejected conspiracy claims against six defendants in earlier trials.
A jury in April deadlocked on charges against four of the first six defendants. It convicted two men on weapons and obstruction charges but dismissed all of the conspiracy charges.
A retrial of the first four defendants ended in another mistrial. A jury in August acquitted two defendants outright and dismissed all but a handful of weapons charges against two others. They pleaded guilty to a misdemeanor charge, were sentenced to time served and released.
Within minutes of walking free from court last week, Bundy and his sons Ammon and Ryan vowed to continuing grazing their cattle on public land without paying fees.
Cliven Bundy said if land agents try to seize the cattle again, they will be met as they were before.
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