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Appeals court upholds dismissal of Cliven Bundy case

Updated August 6, 2020 - 7:18 pm

A federal appeals court on Thursday upheld a decision to throw out felony conspiracy and weapons charges against Bunkerville rancher Cliven Bundy, two of his sons and another man.

Before U.S. District Judge Gloria Navarro’s January 2018 dismissal, which the government appealed, she found that the federal government improperly withheld evidence. Prosecutors had willfully withheld video surveillance, maps and FBI interview information in violation of due process required by the U.S. Constitution, the judge found.

A three-judge panel of the 9th U.S. Circuit Court of Appeals agreed.

“We can find no grounds for concluding that the district court abused its discretion in dismissing this indictment with prejudice,” Judge Jay Bybee wrote in the 54-page decision, pointing out that Navarro conducted several hearings about evidence violations. “Lesser sanctions — such as a continuance to allow the defendants to review discovery or declaring a mistrial and starting over—would have given the government an opportunity to strengthen its case at the defendants’ expense.”

Nevada U.S. Attorney Nicholas Trutanich focused on a footnote in the decision that directly addressed prosecutors.

“We respect the Ninth Circuit’s decision and appreciate its recognition that its decision today to affirm the 2018 trial court dismissal does not ‘cast aspersions on the professionalism of the members of the U.S. Attorney’s Office,’” Trutanich said in an email to the Las Vegas Review-Journal. “Rather, the trial team in the U.S. v. Bundy case team worked hard to do the right thing in a ‘difficult and trying case,’ and the Ninth Circuit opinion makes clear that it ‘in no way impl[ies] that the misjudgments made [in the case] rise to the level of professional misconduct.’”

‘Conscious choice’ to withhold documents

But the decision also scolded the government for not turning over FBI reports to the Bundys.

“Someone in the government made a conscious choice to withhold these documents,” wrote Bybee, a former professor at UNLV’s Boyd Law School. “It may not have been a malicious choice, but it also was not a matter of simple oversight. At best, the government failed to appreciate the relevance of the evidence. At worst, it sought to handicap the defendants by withholding evidence.”

Bundy has been fighting the government for more than 25 years over grazing rights for his cattle. He, his sons and Montana militia leader Ryan Payne were considered the leaders of what the government alleged was a massive conspiracy to assault law enforcement officers a few miles from the Bundy ranch.

In a phone interview Thursday, Bundy pointed out that two courts have ruled in his favor.

“This decision was definitely a blessing to us,” he said. “But as far as solving the real problem — this overreach of the federal government, this bureaucratic authority they’re trying to put over people — we never really have solved that. … The initial indictment was all lies from the beginning. None of them were true, and they still aren’t true.”

He also noted that the government spent millions of dollars trying to prosecute his family.

“That’s a lot of money to waste on a couple ranchers,” he said.

An armed standoff occurred after federal agents tried to execute a court order to round up Bundy’s cattle on federal land. The encounter ended without injury after Bureau of Land Management officers called off the roundup.

‘Justice has finally been done’

During arguments before the appeals court in May, Cliven Bundy’s attorney, Larry Klayman, a nationally known conservative lawyer, pointed to testimony in the trial that he said showed misconduct from the prosecutors and entrapment on the part of authorities against the Bundy family.

Klayman lauded Thursday’s decision.

“My client Cliven Bundy, having been forced to endure the emotional distress and physical harm of being arrested and denied bail, being thrown in solitary confinement for no valid reason, denied right of counsel and a speedy trial and then, after about two years of illegal incarceration, had to endure a sham and fraudulent trial, where exculpatory evidence was hidden, prosecutors lied to the presiding judge, and where a whistleblower came forward to disclose that there had been a ‘kill list’ by some agents of the Bureau of Land Management on the heads of the Bundys, is now relieved that this nightmare is over,” Klayman wrote in response to the decision. “As Cliven’s and the family’s lawyer I too am relieved that justice has finally been done.”

Attorney Dan Hill, who represented one of Cliven Bundy’s sons, Ammon, also responded to Thursday’s decision.

“Today’s opinion is the Republic in action,” Hill wrote in an email. “We have courts so that someone can tell the government when it’s done wrong. We had to dig and dig in hearing after hearing for the withheld evidence in this trial. Judge Navarro’s order dismissing the case was righteous, and the Ninth Circuit agreed.”

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.

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