LAS VEGAS — A day after the trial of Cliven Bundy was delayed, a federal judge ordered prosecutors to turn over records about surveillance cameras and armed agents positioned around the Bundy home during the 2014 standoff.
U.S. District Court Judge Gloria Navarro said Wednesday the issues raise “sufficient evidence of materiality,” meaning the records could be used to challenge some or all of the charges against the defendants.
Navarro rejected a motion by Bundy’s attorney to dismiss the case outright for violating discovery rules that require the prosecution to turn over specific documents to the defense.
But she rejected the prosecution’s assertion that the records did not exist and made it clear they need to provide records, logs, notes and names of possible witnesses that the defense could call as witnesses during trial.
“Certainly, something is available that could be provided to the jury,” she said.
This is the latest misstep by the Nevada U.S. Attorney’s Office in its effort to get convictions against 17 defendants charged with conspiracy and weapons violations for taking up arms against federal agents during the standoff.
Nevada rancher Cliven Bundy, his sons Ryan and Ammon Bundy and militia member Ryan Payne are accused of leading an armed rebellion to prevent Bureau of Land Management agents from rounding up the family’s cattle from public lands.
They have been charged with 15 felonies, including conspiracy, obstruction of justice, extortion, using firearms in the commission of crimes, assault and threatening federal officers. If convicted, they could spend the rest of their lives in prison.
Navarro delayed the start of the trial Tuesday until Nov. 14 over questions about whether the government withheld information about surveillance videos.
The defendants dug in deeper Wednesday with allegations of prosecutorial misconduct. They said a new document provided by prosecutors overnight to minimize the video surveillance revealed new evidence that could be used to challenge the government’s claims.
The document, an FBI report about a single camera, indicated multiple cameras may have been in use around the Bundy Ranch in the days leading up to the standoff.
The report also indicated for the first time the FBI could have played an active role in the days leading up the standoff and that armed tactical teams might have taken up positions around the Bundy Ranch.
Payne’s lawyer, Brenda Weksler, said this was evidence that could refute charges in the criminal indictment that defendants made false claims in order to encourage armed militia members to converge on the Bundy Ranch.
Among the allegedly false claims cited by federal prosecutors were statements on social media by the Bundys that their house was “surrounded” by armed snipers and that agents had isolated the home and that the family was in fear for their lives.
Weksler said the report indicates the Bundys weren’t lying about being surrounded.
“Nobody has ever testified about surveilling the Bundy Ranch … We have nothing on the FBI in this case,” Weksler said. “This was disclosed yesterday … We should have known about this before now.”
The revelation about video surveillance surfaced at an evidentiary hearing Friday when a former National Park Service ranger testified she saw feeds from at least one camera. The witness said the FBI set up the cameras and that the feed played throughout the four-day standoff on a television inside a command-post trailer.
Acting Nevada U.S. Attorney Steven Myhre said the information should come as no surprise to defendants. He said it was well-known that armed federal agents were in the area and that cameras were set up on public land.
“This is a tactic to delay the progress of this case, “he said. “We are ready to try this case.”
Myhre said if the defendants wanted the information, they should have requested specific documents months ago. He said it wasn’t the responsibility of prosecutors to find documents for the defense.
Myhre opened Wednesday’s hearing confidently, assuring the court that there was one camera positioned on the Bundy Ranch and that it operated for a day before it was damaged, likely by a vehicle hitting and running over it.
After the camera was damaged, it was fixed and relocated to another position overlooking protesters’ rallying point, he said.
He said there were no reports generated from the cameras because government agents weren’t recording footage and nobody was taking notes about what they saw.
Myhre appeared less confident as the hearing went into its third hour amid an onslaught of questions from defense lawyers and the judge. At one point he told Navarro, “There’s got to be an ounce of common sense, now.”
Ryan Bundy, who is representing himself, said in court that he requested information about video surveillance of his home months ago and that federal prosecutors mocked his discovery motion as a “fantastical fishing expedition.”
The defense called one witness to testify about the video cameras on Wednesday.
Cliven Bundy’s nephew told the court that he saw at least three cameras operating on different days and in different locations around the Bundy Ranch. He also said a sense of fear permeated the ranch.
“When I was there, there were so many BLM agents around; they were on every hill,” Arthur Scott Sessions said. “Every road had a BLM agent on it, or a white truck.”
Sessions said he saw what he believed to be surveillance cameras pointing at the ranch and on hills overlooking areas where protesters gathered. He said he saw one camera on the ground, another on a pole and a third one on a tripod from hundreds of yards away.
“A few days before we got together to raise the flags, I seen an electronic device … five feet from the road and facing down the Bundy road,” he said. “Everyone was scared. I was definitely scared.”
More questions about evidence
Payne’s other lawyer, Ryan Norwood, raised additional evidentiary concerns in a separate motion to dismiss the case. He said government’s failure to produce discovery goes farther than just the surveillance recordings.
Norwood said the court sealed documents in the case, preventing him from discussing them in open court. But he said information has been raised that suggests a federal agent withheld information and is not a credible witness.
Norwood’s motion references Dan Love, the former Bureau of Land Management agent in charge of the cattle roundup, court records show. Love left the agency in September amid internal investigations that found he violated policies, tampered with evidence, intimidated employees into deleting emails about his conduct and used his position to gain benefits in unrelated cases.
Navarro told prosecutors to respond to Payne’s motion by Friday and has scheduled a hearing Monday to address that issue.
She also agreed to hold a custody hearing Thursday that could allow the defendants to be released from prison during the trial, perhaps to a halfway house. At the hearing, Navarro declined to release Cliven Bundy and Payne.
A platform for state’s rights
When jurors ultimately do gather for opening statements, they will be thrust into a deciding role in one of the most high-profile land-use cases in modern Western history. Their verdict could affect the federal government’s position in managing more than 600 million acres of public land.
For federal prosecutors, the case is about protesters who drew down on federal agents. They want jurors to focus on conspiracy and weapons charges.
Bundy, who does not recognize the federal government’s authority on public lands, has turned the case into a platform for state’s rights.
He has argued that the Bureau of Land Management has overstepped its role and that the agency’s imposition of fees, arbitrary regulations and policies is threatening his family’s way of life.
Bundy has maintained there was no conspiracy and that federal agents were the ones who ratcheted up tensions during the standoff. He has claimed supporters were staging a peaceful protest and exercising their constitutional rights to bear arms.
SEE ALSO: God, patriotism spurs Oregon standoff leader
Last year, the government charged 19 people for their roles in the standoff. Two men took plea deals. Trials for the remaining 17 defendants were broken into three tiers based on their alleged levels of culpability in the standoff.
Despite the different levels of culpability, all were charged with the same crimes. The Bundys, Payne and other defendants were denied bail and have remained incarcerated for more than 18 months while awaiting trial.
A jury in April deadlocked on charges against four of the first six defendants. It convicted Gregory Burleson of Arizona and Todd Engel of Idaho on weapons and obstruction charges but dismissed all of the conspiracy charges.
The government launched its retrial of the four defendants in July. But a second federal jury did not return any guilty verdicts after four days of deliberation.
Richard Lovelien of Oklahoma and Steven Stewart of Idaho were acquitted on all counts and walked out of court in August free after spending more than a year in prison.
Eric Parker and O. Scott Drexler were acquitted on most charges, but jurors deadlocked on a few weapons charge. Rather than face a third trial, both pleaded guilty last month to a misdemeanor charge of obstructing a court order.
They will not serve additional time in prison, getting credit for time served. Both retained their rights to own weapons as part of the plea deal.
Bundy Ranch trial: Carol Bundy speaks | 2:29
Carol Bundy, in an interview with The Republic, said her husband, sons and others are really being tried for making federal authorities look bad and forcing them to back down in the face of a citizen uprising.
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