Ammon Bundy leaves the Las Vegas federal courthouse on Dec. 20, 2017, after a mistrial was declared in the case against him. (AP Photo/John Locher)

In Blow to Government, Judge Declares Mistrial in Bundy Case

December 20, 2017
by Sarah Childress Senior Reporter

Three years ago, Cliven Bundy and his sons Ammon and Ryan led the largest armed uprising against the federal government in modern American history. The Nevada ranching family, determined to keep federal agents from seizing their cattle, rallied armed militia to their aid and forced the government to back down.

The Bundys and their supporters hailed it as a divinely influenced triumph against an overreaching federal government.

Today, the Bundys racked up another victory, when federal judge Gloria Navarro declared a mistrial in the government’s conspiracy case against them. Navarro ruled that the prosecution violated the defendants’ due process rights by failing to share six major pieces of evidence with the defense before the trial began. Known as Brady violations, the prosecution’s errors, she said, were “willful” — meaning the government either knew or should have known the defense should have access to the evidence — and “prejudicial.” And, while not necessarily exculpatory, Navarro said the evidence likely would have changed the way the defense attorneys presented their case, and “undermined the confidence of the outcome of the trial.”

The judge’s ruling is the latest blow to the government’s effort to hold the Bundys and their supporters accountable for the 2014 standoff in Bunkerville, Nevada, and a later occupation at a wildlife refuge in Oregon. In the Nevada case, Cliven, the Bundy patriarch, and his sons Ammon, Ryan, Melvin and David were charged with conspiracy and assault for facing off against agents from the federal Bureau of Land Management (BLM) and other agencies that could have sent them to prison for decades. Now, they may all walk free. And for the second time in as many years, a trial that was supposed to send a message to anti-government extremists ended up fueling their cause.

“Our government and the prosecutors are supposed to be seeking justice and the truth,” said Ryan Bundy outside of a federal courthouse in Las Vegas on Wednesday. “[T]hey have been putting forth untruths, lies. They are doing everything that the government is not supposed to do. Our government is supposed to protect rights — not take them, not destroy them.”

The judge will decide on Jan. 8 on whether her ruling should be made with or without prejudice — which will determine whether prosecutors can bring their case again. But outside the courthouse on Wednesday, Bret Whipple, Cliven Bundy’s attorney, told reporters he expected his clients would prevail.

“We believe also built in her statements was the fact that it was prejudicial, that it was malicious or that it was a consistent type of recurring issue,” said Whipple, adding,  “[T]his will be the end of the Bundy trial.”

Ammon Bundy, speaking calmly to reporters in a dark blazer and a straw cowboy hat, said the judge’s ruling was a vindication, and seemed unconcerned about a retrial. “I do not believe there is a jury in this country that will convict us,” he said.

On its face, Nevada prosecutors seemed to have a strong case. Before agents from the BLM came to impound their cattle for trespassing on federal land, Cliven Bundy had declared a “range war,” and he and his son Ryan vowed to do “whatever it takes” to keep their animals. Amid the standoff, photographs showed supporters training rifles on federal agents. With tensions rising, BLM officials decided to back down. Once it was over, some militia members themselves anticipated immediate arrests.

But it took nearly two years after the uprising for prosecutors to bring charges. By that time, Ammon and his brother Ryan had been arrested for staging an armed occupation of the Malheur National Wildlife Refuge with several supporters. Last year, the brothers and five other supporters were acquitted of all charges and transferred to Nevada, where they joined their father to stand trial for the Bunkerville uprising.

As the defense prepared for trial, attorneys said they began to uncover evidence prosecutors hadn’t provided that they felt would help their case. As more information began to come out, Dan Hill, Ammon Bundy’s attorney said: “It snowballed from there.” In her ruling, Navarro listed six instances where she found the prosecution knew or should have known about key evidence that could aid the defense, including a government surveillance camera outside the Bundy home; and five threat assessments from different agencies, including the FBI, indicating the Bundys were unlikely to engage in violence unless provoked. The judge also cited an internal affairs report from the Interior Department that questioned how the BLM handled its cattle dispute with the Bundys.  

Most strikingly, there was evidence indicating that, despite the government’s assertion that there were no snipers present, there were federal agents in tactical gear with AR-15 rifles at the scene — including FBI logs and a map marking observation points for agents posted in the area. 

“Almost every instance of Brady violations today had to do with that aspect of the case,” said Hill. “The government has always said the Bundys were lying about snipers … anything that disproves that, we were entitled to.” He added that it shows that “what the Bundys were saying was true.”

Richard Pocker, a former assistant U.S. attorney in Nevada who prosecuted anti-government extremists in the 1980s, said it can be difficult for prosecutors to ensure they’ve turned over all necessary evidence, especially in sprawling cases involving multiple agencies. But Pocker was struck by the strong language in the judge’s order.

“Navarro is not someone who issues extreme rulings,” he said. “For the court to use the word ‘willful,’ there’s obviously something she’s seen that leads her to believe that somebody knew this was out there and had to be disclosed.”

In court earlier this month, Navarro had hinted about her concerns with the case. The government had maintained that the defendants posed a threat to the community and should remain imprisoned. But after reviewing new evidence under seal, Navarro agreed to release Ammon, Ryan, Cliven and Ryan Payne, another militiaman, to home detention. Shortly after that, she relaxed the terms further, confining them to an evening curfew. Cliven declined to be released, saying he would remain behind bars until the case was resolved.

Trisha Young, a spokesperson for the U.S. attorney’s office, declined to comment on the case.

The ruling also threatens to unravel the convictions the government has already secured against two other Bunkerville defendants — Greg Burleson and Todd Engel. Both were convicted earlier this year and could bring appeals. There is also one more set of defendants awaiting trial, including David and Melvin Bundy. They have joined the current defendants’ motion to dismiss and could go free if the judge throws out the case, attorneys say.

Former federal officials involved in the Bunkerville incident said they worried about the fallout. “What kind of message does this send?” asked Steve Ellis, formerly the deputy director of operations at the BLM. “If you don’t like a decision by the Interior Department, you get an armed gang and get your way? That is very troubling to me.”

The Bundys’ cattle, meanwhile, are still grazing unchecked on federal lands. The BLM so far has made no move to gather them up again.

The Bundys themselves remain unbowed. Asked earlier this week about whether he might stage another confrontation, Ammon Bundy said: “I hope that is not necessary.”

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