UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Transcription

1 Case :-cr-000-gmn-pal Document Filed // Page of DANIEL G. BOGDEN United States Attorney District of Nevada STEVEN W. MYHRE NICHOLAS D. DICKINSON Assistant United States Attorneys NADIA J. AHMED ERIN M. CREEGAN Special Assistant United States Attorneys 0 Las Vegas Blvd. South, Suite 00 Las Vegas, Nevada (0) - steven.myhre@usdoj.gov Attorneys for the United States. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA UNITED STATES OF AMERICA, 0 v. Plaintiff, CLIVEN D. BUNDY, RYAN C. BUNDY, AMMON E. BUNDY, RYAN W. PAYNE, PETER T. SANTILLI, MEL D. BUNDY, DAVE H. BUNDY, BRIAN D. CAVALIER, ERIC J. PARKER, O. SCOTT DREXLER, RICKY R. LOVELIEN, STEVEN A. STEWART, TODD C. ENGEL, GREGORY P. BURLESON, JOSEPH D. O SHAUGHNESSY, MICAH L. McGUIRE, and JASON D. WOODS, Defendants. :-CR-000-GMN-PAL GOVERNMENT S MOTION TO SUPPLEMENT ITS RESPONSES TO DEFENDANTS MOTIONS TO SEVER AND ITS MOTION TO SEVER DEFENDANTS INTO THREE TIERS FOR TRIAL

2 Case :-cr-000-gmn-pal Document Filed // Page of 0 The United States, by and through the undersigned, pursuant to Federal Rule Criminal Procedure and the inherent authority of the Court, and for good cause demonstrated herein, respectfully seeks leave to file this Supplement to its Responses in Opposition to Defendants Motions to Sever and further to file this Motion to Sever the properly joined defendants into three () separate tiers for trial, each tier grouped according to the defendants roles as charged in the Indictment, with each tier to be tried seriatim in the following order: Tier Leaders and Organizers: Defendants Cliven Bundy, Ryan Bundy, Ammon Bundy, Peter Santilli, and Ryan Payne. Tier Mid-level Leaders and Organizers and Follower-Gunmen: Defendants Dave Bundy, Mel Bundy, Joseph O Shaughnessy, Brian Cavalier, Jason Woods and Micah McGuire. Tier Follower-Gunmen: Defendants Ricky Lovelien, Todd Engel, Gregory Burleson, Eric Parker, O. Scott Drexler, and Steven Stewart. For the reasons set forth in its supporting Memorandum below, the government submits that separating the defendants by their roles into three identifiable tiers promotes the fair, just, and efficient trial of the defendants as a whole, conserves scarce judicial resources, and is the least impactful to the victims and witnesses in this case.

3 Case :-cr-000-gmn-pal Document Filed // Page of 0 MEMORANDUM IN SUPPORT OF MOTION TO SEVER A. Background. Procedural Posture of Present Motion and Status of the Case On March, 0, a Grand Jury seated in the District of Nevada returned the Superseding Indictment in this case, charging the named defendants with felony offenses arising out of the mass armed assault on federal officers that occurred at or near Bunkerville, Nevada, on April, 0. ECF No. (hereinafter Indictment ). Because the offenses charged in the Indictment are connected or constitute parts of a common scheme or plan, the defendants were properly joined in a single Indictment under Federal Rule of Criminal Procedure (b). See id. ( The indictment or information may charge or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. ). All of the defendants were arrested on warrants issuing from the Indictment (or preceding charging documents) and all were subsequently detained pending trial, following fully adjudicated detention hearings. At the time of the return of the Indictment, of the defendants Ammon and Ryan Bundy, Ryan Payne, Peter Santilli, Brian Cavalier, and Blaine Cooper (hereinafter common defendants ) were unavailable for trial, each being held in custody in the District of Oregon on federal felony charges arising from the occupation of the Malheur National Wildlife Refuge. Case No. -cr-000-ab

4 Case :-cr-000-gmn-pal Document Filed // Page of 0 (District of Oregon) ( Oregon case or Oregon charges ). During the pendency of the Oregon case, the government sought writs of habeas corpus ad prosequendum from this Court, seeking to transfer the common defendants from Oregon to the District of Nevada for the limited purposes of this Court assigning them counsel, conducting their arraignments and taking their pleas, and entering a case scheduling order for all defendants, to advance the case diligently toward trial. On April, 0, and following the transfer of the common defendants pursuant to the writs, United States Magistrate Judge Peggy Leen (hereinafter Magistrate Judge ) held a case scheduling conference with all defendants. While almost all of the defendants, through counsel, had previously agreed (during a pre-conference meet and confer session) to a February 0 trial date, most objected to the February trial date at the Magistrate Judge s conference and invoked their speedy trial rights for a trial as soon as possible, although none offered an alternative to the proposed February 0 trial date. Further, representing that they did not accept the government s showing that the case was complex (notwithstanding the massive volume of the discovery, the pendency of the Oregon case, and number of defendants joined in the Nevada case), the defendants sought to review discovery before agreeing to a scheduling order. Following the conference, the common defendants were returned to the District of Oregon for trial on those charges. On April, 0, the Magistrate Judge entered a Case Management Order (ECF No. ) ( CMO ) as to all defendants in the Nevada case, setting a trial date

5 Case :-cr-000-gmn-pal Document Filed // Page of 0 of February, 0, establishing milestones for government disclosures, establishing dates for the filing and briefing of pretrial motions (including motions for severance), and, among other things, excluding all time from the date of the defendants arraignment to trial for purposes of the Speedy Trial Act. Following the entry of the CMO, the government initiated production of voluminous discovery and the case has been proceeding diligently toward trial ever since as evidenced, in part, by the more than 0 filings to date on the docket. From the initiation of discovery to the present, only two of the defendants (DeLemus and Cooper) have resolved their cases by pleas of guilty. And, given the positions taken in the pretrial motions and other pleadings of the remaining defendants, it is unlikely that any more cases will resolve short of trial. Further, all of the common defendants have now resolved their charges in Oregon, the last two common defendants Ryan and Ammon Bundy only recently being released from District of Oregon on October, 0, and held thereafter on detainers for this Indictment. The government understands that these last two defendants, who remain in custody, will be transported to the District of Nevada on or before the middle of November 0.. Remaining Defendants Positions on Severance Pursuant to the deadlines in the CMO and in May 0, all remaining defendants, with the exception of Cavalier, have filed (or joined in the filing of) motions to sever from their co-defendants, all claiming prejudicial joinder under Rule (a): Santilli (ECF No. and an Amended Motion to Sever ECF No. );

6 Case :-cr-000-gmn-pal Document Filed // Page of 0 Drexler (ECF No. ); Payne (ECF No. 0); McGuire (ECF No. ); Mel Bundy (ECF No. ); Dave Bundy (ECF No. ); O Shaughnessy (ECF No. as a joinder to Payne); Cliven Bundy (ECF No. ); Woods (ECF No. 0); Ryan Bundy and Ammon Bundy (joint motion) (ECF No. ); Parker (ECF No. ); Burleson (ECF No. ); Stewart (ECF No. 0); Lovelien (ECF No. ); Engel (ECF No. as a joinder to Lovelien). In sum, all of the moving defendants seek varying forms of severance from their co-defendants. Most of these defendants seek individual trials: Cliven Bundy, Payne, Santilli, Mel Bundy, O Shaughnessy, Stewart, Burleson, Woods, McGuire, and Drexler. Still others seek joint trials with some, but not all, of their co-defendants: Lovelien and Engel seek to be tried together with Drexler, Stewart, Burleson, McGuire, and Woods; Parker seeks trial with Drexler and Stewart; Ammon, Ryan and Dave Bundy seek to be tried together along with Mel Bundy. None, however, seeks a joint trial with all co-defendants. The government filed oppositions to each of the defendants severance motions, demonstrating that the nature of the offense conduct made this case a paradigm for joinder with no demonstrable prejudice. But while the government did object to the defendants proposals for individual severances and trials, it surely did not advocate for a single, joint trial of all defendants. Nor did it propose an alternative to a single -defendant trial, choosing not to take a position at the time of its filings because it was unclear whether the common defendants would be

7 Case :-cr-000-gmn-pal Document Filed // Page of 0 available for the February 0 trial setting and/or whether some or none of the cases would resolve short of trial. Now, knowing that all remaining defendants will be available for trial well in advance of the February 0 trial setting and that there is little likelihood of any further pretrial guilty pleas, the government seeks leave to submit this Supplemental Response in Opposition to defendants Motions for Severance and to file this Motion for Severance, seeking the alignment of the defendants into the proposed three-tier groupings. B. Discussion. Legal Framework for Severance. Properly joined defendants may be subsequently severed pursuant to a motion by either party, or pursuant to a district court s sua sponte determination that severance is warranted under Rule of the Federal Rules of Criminal Procedure, under the Court s own inherent powers, or under a combination of the two. See, e.g., United States v. Taylor-Prigge, 0 F.d, (th Cir. 0) (discussing severance under Rule (a); Ninth Circuit reviews for abuse of discretion a district court s decision whether or not to sever properly joined defendants based on manifest prejudice). Indeed, this Court has correctly observed that [i]t is not uncommon for large criminal cases to be severed into smaller, more manageable groups. This practice of severance is becoming even more widespread with the increase in number and size of [indictments involving]... numerous defendants and allegations of multiple conspiracies and continuing criminal

8 Case :-cr-000-gmn-pal Document Filed // Page of 0 enterprises. United States v. Mancuso, 0 F.R.D., 0 (D. Nev. 0) (emphasis added) (Reed, J.). As noted above, severance is justified where the continuation of the initial, appropriate joinder would: ) cause manifest prejudice under Rule (a); ) irrespective of prejudice, interfere with the district court s inherent authority to manage its docket; or ) raise both concerns. Mancuso, 0 F.R.D. at 0 (emphasis added); see also Fed. R. Crim. P. (a) ( If the joinder of offenses or defendants in an indictment... appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants trials, or provide any other relief that justice requires. ); United States v. Van Cauwenberghe, F.d, (th Cir. ) (under first severance justification, trial judge may order severance if it appears that a defendant may be significantly prejudiced by a joint trial); United States v. Vastola, 0 F. Supp., 0- (D.N.J. ) (under third justification, court, in ruling on defendants motion under Rule, cites case manageability as basis to sever RICO from non-rico defendants).. Orderly Administration of a District Court s Own Docket: The Need for Severance in the Case. As demonstrated in the government s Responses in Opposition to defendants severance motions, no material prejudice attached to the joinder of the defendants here because the charged offenses all arise from a common nucleus of operative fact, and because there is no serious risk of prejudicial spillover of otherwise admissible evidence. However, it is the second Mancuso justification viz., severance as a

9 Case :-cr-000-gmn-pal Document Filed // Page of 0 means to allow a district court to control its docket that commands particular attention in this case. Put simply, a single, -defendant jury trial which none of the moving defendants has requested will unreasonably increase the time it takes to try all defendants and will result in a greater risk for delay, confusion and difficulty in maintaining an orderly and efficient proceeding. By the government s reckoning, a -defendant trial would, conservatively and under the best circumstances, likely take between and months to complete, requiring the government to call between 0 and witnesses. The cross-examination of each of these witnesses by separate defense counsel alone will unreasonably extend the length of the trial, to say nothing of the delays likely to result from scheduling difficulties and conflicts attendant to so large a number of defendants and their counsel. Many courts have... relied on [their own] inherent power to manage [their] case load[s], and have severed out of a concern for the efficient administration of justice and judicial economy. Mancuso, 0 F.R.D. at 0 (citing United States v. Gallo, F. Supp., - (E.D.N.Y. ) (severance of -count indictment naming defendants based on case management considerations), aff d, F.d (d Cir. ), cert. denied, U.S. ()). Thus, the principle of a federal court using its inherent powers to fashion efficient, smaller trials from otherwise unwieldy mass joint trials is well-ingrained in common sense and federal precedent: There is a policy in favor of joint trials, and a general rule that defendants jointly indicted ordinarily should be jointly tried.

10 Case :-cr-000-gmn-pal Document Filed // Page of 0 United States v. Polizzi, 0 F.d, (th Cir. ).... However, [t]hat shibboleth should not unreflectively be taken for granted in the complex, multi-defendant case. Gallo, F. Supp. at. Although there is much to be said in favor of joint trials in certain cases, a single trial in a case of this size is fraught with problems. It imposes enormous burdens upon the defendants, defense counsel, prosecutors, jurors, the court, and the judge. Because dozens of people are required in court each day, the absence of any one person may bring the entire trial to a screeching halt. Scheduling conflicts are legion; setting the case for trial involves reconciling the individual calendars of the prosecutors and each defense attorney with the court docket.... The longer the case lingers, the more pronounced these conflicts become. A lengthy trial of multiple defendants works a unique hardship on each party involved. The jurors are taken from their daily endeavors and prohibited from engaging in the pursuits of their daily lives. They are required to sit stoically and silently for hours every day, day after day. Id. The defendants often are required to endure months of pretrial incarceration before their case is finally adjudicated. They themselves are required to sit through month after month of trial. Often significant amounts of time consuming evidence are presented which are unrelated to a particular defendant. Cases of this magnitude so monopolize the time of defense attorneys, in preparation and trial, that they are unable to continue serving other clients. One client often becomes their only client. The Court also is forced to expend an enormous amount of time managing a single case, to the detriment of other cases. When one court room is occupied for months on end, other litigants must queue up for the remaining court rooms. This strains an already overloaded docket, and unconscionably delays all other cases. Further, the personal strain on the judge is significant. As the Gallo decision notes[:] The grinding tension of such a long, complex case, particularly where the judge is making rulings which are continuously on the borderline of probative force and prejudice, is debilitating. The worry about frequent adjournments necessitated by the unavoidable problems of jurors, or more defendants, or more counsel for the defendants, and any

11 Case :-cr-000-gmn-pal Document Filed // Page of 0 prosecutorial persons and witnesses and other personnel, all of whom must be present at all times, creates added tensions. Id. at. Mancuso, 0 F.R.D. at 0- (emphasis added) (internal footnotes omitted); see also United States v. Kennedy, F. Supp., (D. Colo.), aff d sub nom. United States v. Byron, F.d (th Cir. ) ( Many courts have identified severance of defendants as a means to assist with the management of complex multi-defendant cases.... ) (citing, among other cases, United States v. Casemento, F.d, - (d Cir.), cert. denied, U.S. (0); Mancuso, and United States v. Andrews, F. Supp., 0- (N.D. Ill. 0)). On the opposite end of the spectrum, conducting separate, individual trials will also unreasonably increase the total time required to try all the defendants. Under such a scenario, the government will be required to present the same witnesses and offer the same evidence potentially times. The government estimates that separate individual trials would take a minimum of three to four weeks each (and, potentially, months to complete all trials), requiring the government to call from 0 to witnesses to present its case in chief at each of the trials. More importantly, separate trials will unreasonably subject victims to being re-victimized time and again, as they are forced to tell and re-tell the violence and threats of death and bodily injury they faced at the hands of the defendants on April.

12 Case :-cr-000-gmn-pal Document Filed // Page of Accordingly, the government submits its three-tiered severance plan in an attempt to strike a reasonable middle ground between these two otherwise unreasonable alternatives. And, as shown above, the Court s inherent power to do so is unquestioned.. The Proposed Trial Tiers Grouping the defendants into the three tiers identified above conforms conceptually to their roles in the conspiracy and aligns with the evidence the government anticipates offering at trial. Thus, severing the defendants into factually-connected groups will allow the government to streamline the overall trial process and avoid duplication of at least some of the proof. For example, as the Indictment makes clear, the defendants in Tier (leaders/organizers) were involved in most or all of the critical events leading to the April assault: the March blocking of convoy; the April threats against (and interference with) the Utah auction barn; the April, and calls to arms; the April ambush of convoy; the April threats against (and interference with) the Utah auction barn; the April threat against the Impoundment SAC; and the April assault. The same is not true of the Tier defendants (the followergunmen), whose involvement in the conspiracy is restricted more to their actions 0 While the inherent power rationale does not, like the Rule rationale, require an additional showing of prejudice to warrant severance, the government could, if necessary, demonstrate prejudice as well. See, e.g., Kennedy, F. Supp. at (crediting government s claim that, in a [proposed] joint trial of all defendants, the jury could become so overwhelmed that they would vote to acquit rather than to sift through and thoughtfully consider the evidence pertaining to each defendant. ).

13 Case :-cr-000-gmn-pal Document Filed // Page of 0 during the assault on April, or the Group defendants (the mid-level leaders and organizers), whose leadership roles are defined by their actions on the ground during the April assault, and less by their pre-assault activities. Thus, at a trial of the Tier defendants, the government is likely to offer more evidence of the details of the broader conspiracy and the defendants leadership roles therein. And, while evidence of the broader conspiracy is equally admissible against the Tier and defendants, such evidence would most likely be offered in summary, rather than detailed, form simply to provide context for the evidence of the assaultive conduct on April. Likewise, the government is likely to offer more evidence regarding the details of individual movements of Tier and defendants (through the wash and over the bridges) during the assault to demonstrate their concert of action and intent. A trial of the Tier defendants, on the other hand, will focus less on the individual movements of the gunmen and on-the-ground leaders, and more on the mass movements of the Followers against the BLM position. As these brief examples point out, therefore, many efficiencies will be gained through tiered trial presentation in the proposed groupings. See, e.g., Mancuso, 0 F.R.D. at - (noting that [t]he assumption that joint trials are more efficient than multiple trials is supported [only] when the indictment charges crimes which may be proved against all the defendants by the same evidence and which result[] from the same or a similar series of acts. ) (emphasis added) (quoting Gallo, F. Supp. at ) (internal quotation omitted).

14 Case :-cr-000-gmn-pal Document Filed // Page of 0 Furthermore, the government proposes that the cases be tried seriatim in the proposed order of tiers, with intervals of four to six weeks between each trial. This would allow for witness travel and scheduling and case preparation as the government re-tools for each trial. The order of trials is significant because, as the Indictment shows, while all of the defendants face serious felony charges, those in Tier have the most involvement in the broader conspiracy and, hence, greater culpability and responsibility for the charged actions on April. To invert the order would produce the anomalous and less fair result of trying less culpable actors before the more culpable ones. Finally, the government anticipates that most (if not all) of the defendants whom the government does not seek to try in February 0 will interpose Speedy Trial objections (both statutory and constitutional). Conversely, it anticipates that some of the defendants who are not in Tiers or may demand that they be tried following other defendants, suddenly complaining that they are not ready for trial in February 0, after all. The government will respond to these expected arguments at length in its Reply. For now, however, suffice it to say that the defendants should not be allowed to game the order of the proposed trials using the Speedy Trial Act, or through seeking a continuance to accommodate late-in-the-game trial preparation. Speedy trial rights do not, alone, control a multi-defendant severance inquiry, and the Speedy Trial Act itself permits the district court to exclude time on its own motion where the case is so usual or so complex, due to the number of defendants.

15 Case :-cr-000-gmn-pal Document Filed // Page of U.S.C. (h)()(b)(ii) (emphasis added); see also Casemento, F.d at (after stating that a compelling justification for a joint trial should be required for any trial involving more than defendants and in which the government s case was expected to take months or longer, the Second Circuit adds that, to assess severance, the judge should weigh the interests of [] the prosecution, [] the defendants, [] the jurors, [] the court, and [] the public. ) (emphasis added). Moreover, the defendants, through counsel, have had discovery available since early May 0 more than enough time to prepare for trial. 0

16 Case :-cr-000-gmn-pal Document Filed // Page of 0 C. Conclusion Wherefore, for all the foregoing reasons, the government respectfully requests that the Court grant the government s Motion to Sever and reset the trial schedule for trial to commence as follows: Ryan Payne. February, 0 Defendants Cliven Bundy, Ryan Bundy, Ammon Bundy, Peter Santilli, and May 0 Defendants Dave Bundy, Mel Bundy, Joseph O Shaughnessy, Brian Cavalier, Jason Woods and Micah McGuire. August 0 Defendants Ricky Lovelien, Todd Engel, Gregory Burleson, Eric Parker, O. Scott Drexler, and Steven Stewart. DATED this th day of November, 0. Respectfully submitted, DANIEL G. BOGDEN United States Attorney //s// STEVEN W. MYHRE PETER S. LEVITT NICHOLAS D. DICKINSON Assistant United States Attorneys NADIA J. AHMED ERIN M. CREEGAN Special Assistant United States Attorneys Attorneys for the United States

17 Case :-cr-000-gmn-pal Document Filed // Page of CERTIFICATE OF SERVICE I certify that I am an employee of the United States Attorney s Office. A copy of the foregoing GOVERNMENT S MOTION FOR SEVERANCE was served upon counsel of record, via Electronic Case Filing (ECF). DATED this th day of November, 0. /s/ Steven W. Myhre STEVEN W. MYHRE Assistant United State Attorney 0