Case 2:16-cr GMN-PAL Document 3057 Filed 12/27/17 Page 1 of 15

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1 Case :-cr-000-gmn-pal Document 0 Filed // Page of RENE L. VALLADARES Federal Public Defender Nevada State Bar No. BRENDA WEKSLER State Bar No. Assistant Federal Public Defender RYAN NORWOOD Assistant Federal Public Defender E. Bonneville, Ste. 0 Las Vegas, Nevada (0) -/Phone (0) -/Fax Brenda_Weksler@fd.org Attorneys for Ryan W. Payne UNITED STATES DISTRICT COURT DISTRICT OF NEVADA UNITED STATES OF AMERICA, Plaintiff, v. RYAN W. PAYNE Defendants. Certification: This Motion is timely filed. Case No. :-cr-000-gmn-pal- DEFENDANT RYAN PAYNE S SEALED MOTION TO DISMISS BASED ON DISCOVERY PROVIDED ON NOVEMBER, 0 (Expedited Treatment Requested ) Defendant Ryan Payne, through his counsel of record, Assistant Federal Public Defenders Brenda Weksler and Ryan Norwood, moves this Court to dismiss the instant case based on discovery that was provided on November, 0. A Memorandum of Points and Authorities is attached. DATED this th day of December, 0. 0 RENE L. VALLADARES Federal Public Defender /s/ Brenda Weksler BRENDA WEKSLER Assistant Federal Public Defender /s/ Ryan Norwood RYAN NORWOOD Assistant Federal Public Defender The defense requests that the Court set an expedited briefing schedule on this matter.

2 Case :-cr-000-gmn-pal Document 0 Filed // Page of MEMORANDUM OF POINTS OF AUTHORITIES Since the time that Toni Suminski and Mary Hinson testified that a surveillance camera, and confirmed that Ryan C. Bundy s request in ECF was not a fantastical fishing expedition, as portrayed by the government in ECF 0, the defense has been continuously pressing for the government to disclose more information. The government has resisted each request, stating it did not see how this could be material to the defense. In complete astonishment, the defense had to cite to the Indictment to point out that Payne was being accused of recruiting others to travel to the Bundy Ranch by way of making false representations which included the Bundy Ranch being surrounded by BLM snipers and the Bundys being isolated. See ECF,. It appeared evident that having a surveillance camera would tend to support the proposition that the allegation in the Indictment was not false. In turn, based on information that has trickled in as a result of this Court s orders during the last two weeks, it has become apparent that there, evidence which is point blank exculpatory with regards to the allegation charged in of the Indictment. The significance of a surveillance camera in this larger context becomes even more significant. Other evidence provided this last Friday also directly contradicts overt acts 0 alleging defendants falsely disseminated information with regards relation to Dave Bundy s arrest. See ECF,. in This witness testified on October, 0 at an evidentiary hearing. This witness testified on November, 0 at an evidentiary hearing.

3 Case :-cr-000-gmn-pal Document 0 Filed // Page of The information provided during the last two weeks documents multiple instances of the government failing to disclose material under FRCP (a)()(e), Brady and Giglio, as detailed below. The suggestion that the government is just now getting a more clear picture of what the theory of defense is in this case, as represented on November, 0 (when requesting a one week continuance to produce discovery ordered by this Court), is simply beyond the pale. The information turned over during the last two weeks either () directly contradicts factual allegations in the Indictment or () strengthens the defense theory that defendants in Trials and have been trying to advance and the government has constantly tried to preclude. Namely that the defendants came to Bunkerville not to mount an assault against the government but to protest the treatment of the federal government toward the Bundy family, as evidenced by, among other things, the arrest of Dave Bundy in the presence of snipers. This Court has mentioned it is concerned with the government s late productions of discovery and that it is keeping a list of what is being disclosed. The defense has prepared this as an aid to that undertaking. It is expected more discovery will be produced throughout trial. I. DISCOVERY RECEIVED TUESDAY NOVEMBER, 0. FBI 0 regarding FBI and surveillance camera on April, 0 (Exhibit A ) This report indicates FBI 0 The defense received this document in relation to the testimony of Toni Suminiski and Mary Hinson, who both stated the FBI set up a surveillance camera Pictures of the surveillance camera were also received on this date. All exhibits referenced in this pleading are filed under seal in ECF No., pursuant to the Protective Order (ECF No. 0).

4 Case :-cr-000-gmn-pal Document 0 Filed // Page of This is the first time the defense learned of this and explained the materiality of this information vis a vis the allegations in the Indictment. The government explained the reason it was not able to produce this document sooner was because it was not in the investigative file, that it was in the administrative file, and that is all it had in relation to the surveillance camera and that no other notes existed (November, 0 hearing). As explained below, more information regarding this surveillance camera has, since then, been disclosed.. Supplemental FBI 0 (March 0, 0) regarding Delmolino acting as an LPOP east of the Bundy Ranch the nights of April th and th, 0 with AR- rifle (Exhibit B) This report states BLM Agent Delmolino held See Exhibit B p.. It is not clear why the government would not turn over supplements to all reports previously disclosed, as it usually does with any supplements that correct or add to the previously disclosed reports. The failure to disclose until recently the supplementary report in question is particularly problematic as it involves a subject matter that is of enormous significance to the defense. The government correctly points out that there is information in the 0 BLM Threat Assessment Report (Exhibit E) and the 0 BLM Operation Plan (Exhibit F), both of which were previously disclosed, from which the defense could have learned that The government is also correct when it states that these reports explain that Yet, the defense cannot 0 Delmolino had previously prepared a report on April, 0, (previously turned over to the defense) stating that See Exhibit C. subsequently pr to the defense) regarding the events of April, 0. See Exhibit D. It is this l s FBI 0 turned over in the last two weeks that makes clear the fact that Delmolino was acting It is important for the Court to understand that there are several LPOP locations at play in this impoundment operation. One is located on the high mesa overlooking the ICP, which this Court is familiar with by having seen videos in the previous trials. Other LPOPs were set up in relation to the cattle gather, and shifted locations depending on where the gather was taking place. One example of such an LPOP would be the one set up at the time Dave Bundy was arrested, where the videos and pictu watch, with which this Court is also familiar.

5 Case :-cr-000-gmn-pal Document 0 Filed // Page of call witnesses based on the 0 BLM Threat Assessment Report or the 0 BLM Operation Plan, as these do not denote which individuals would be in charge of carrying out specific tasks, nor can the defense ascertain whether these plans were in fact effectuated and put into practice. In this same vein, it is important to note that the government s position was that the defense had this information (Delmolino in fact acting as an ) all along based on the disclosure of the 0 BLM Operation Plan (which provides no such specifics) although it did not have to disclose it (November, 0 hearing). Likewise, the government is also correct in pointing out that they previously turned over a report concerning being assigned on April, 0, as an (Exhibit G). The government s insinuation cannot possibly be that this one sentence among close to,000 pages of discovery and hundreds and hundreds of hours of video-taped material is sufficient notice to the defense that the specifications in the 0 BLM Threat Assessment Report and the 0 BLM Operation Plan ( ) were in fact put into practice and that the When the defense made a statement about the government s failure to timely produce the 0 BLM Threat Assessment Report and the 0 BLM Operation Plan to defendants in Trial (as the disclosure date for these reports for Payne was May, 0 and Trial deliberations commenced on April, 0), the government indignantly pointed out that such representation was incorrect (November, 0 hearing). The defense apologized and explained it assumed all defendants received this discovery at the same time, as had been the practice, and that Payne received it on that date. Upon further verification, it appears the government did not turn over the reports to defendants in Trial until May, 0. See Exhibit H. It bears reminding that this Court sentenced one of these defendants in the Trial group to years and another one is pending sentencing. It appears neither was privy to these two reports (not to mention the rest of the discovery produced over the last weeks). II. DISCOVERY RECEIVED SATURDAY NOVEMBER, 0. // 0 prepared by FBI SA Gavin (Exhibit I) SA prepared a report explaining all the steps she took to uncover whether there were 0 any surveillance recordings or notes of surveillance. She explained that

6 Case :-cr-000-gmn-pal Document 0 Filed // Page of disclosed on November, 0. See Exhibit I, p. -. She also stated that she spoke to numerous individuals who may have had any knowledge related to the camera. Id. In that same report, SA explains that on November, 0, one of the TOC operators, Id., located the TOC log, which is a log that documents activities related to SWAT operations. Id. p.. SA explains that this log is Id. Upon reviewing the TOC log, SA noted two entries that were related to snipers and contacted SA. Id. He advised that the entry was 0 Id. This 0 was produced after this Court ordered the government to investigate the issue involving the surveillance camera after the government provided conflicting information regarding the number of days the camera was set up, whether this camera was in fact specifically set up to surveil the Bundy house, and whether there were notes associated with this surveillance. At the outset, it is important to note that the extensive investigation SA undertook prior to producing her FBI 0 (Exhibit I) did not settle the matters in question, as more and more information regarding this camera has been disclosed since (as discussed below) the preparation of her report. In addition, there appear to be several different files at play that go beyond the investigative file and the police cooperation file which brings into question which files the government has been limiting its disclosure obligations to. While SA represented that this TOC log was prepared for and that it was in the TOC file, (Id.) which appears to be an additional file from the ones previously mentioned, the government explained that the TOC log was laying around on a desk somewhere or was in some file cabinet but certainly not in the file where you would expect to file these things (November hearing). This makes evident that the safekeeping SA report mentions a TOC file (Exhibit I, p. ). In addition, reports have been submitted this weekend that seem to come from a file associated with the Nevada Joint Terrorism Task Force. See Exhibits K and L.

7 Case :-cr-000-gmn-pal Document 0 Filed // Page of procedures of the FBI regarding documentation instrumental to the ability to mount a defense is less than stellar. As this Court has learned, It is not clear how () this is an administrative matter or () what procedure the FBI is undertaking to ensure all relevant information is properly safeguarded and turned over to the government and the defense. It is clear that it is it by mere happenstance the defense was able to get this TOC log.. Redacted Tactical Operations Center Activities Log (Exhibit J) Log reveals snipers inserted on //. See Exhibit J items and. III. DISCOVERY RECEIVED FRIDAY NOVEMBER, 0. //0 FBI Nevada Joint Terrorism Task Force Report (Exhibit K) This is a report memorializing a meeting for the 0 BLM impoundment operation. 0 See Exhibit K p.. The defense is now learning there may have been a report prepared by the OIG calling into question the fact Irrespective of whether a report was prepared, the fact that key figures involved in the planning of this operation were aware of OIG s perception of the BLM is fertile ground for cross-examination: for example, it suggests that the methods the BLM was willing to employ (which the defense had always described as over-militarized and excessive) were not necessarily related to this alleged concern of Cliven s threatening conduct but perhaps designed to give the appearance to others that no protest would get in the way of the success of this operation. was present during that meeting. Id. p.. This is information that the defense was not able to utilize when questioning Ms. Rugwell. Other materials were received on this date but are not relevant for purposes of the instant motion.

8 Case :-cr-000-gmn-pal Document 0 Filed // Page of. //0 FBI Nevada Joint Terrorism Task Force Report (Exhibit L) This report memorializes the March, 0 meeting between key individuals in BLM, NPS and FBI for the 0 BLM impoundment operation. In that meeting, See Exhibit L p.. This is one of the latest in a series of late productions on the matter of the surveillance camera. The individual linked to this request is key to the defense theory of the case.. Unredacted Tactical Operation Center Activities Log (Exhibit M) The unredacted TOC log reveals TOC Log also reveals See Exhibit M, entry. In response, and (who. Id. This 0 As previously discussed, the indictment specifically charges overt acts alleging Payne and others made false statements regarding the presence of snipers. ECF. But that is not all. Another charged overt act in furtherance of the conspiracy alleges that the defendants falsely stated BLM employed snipers and used excessive force against Dave Bundy during the arrest on April, 0. ECF. Aside from the NPS SETT over watch officers, the pictures of which went viral and with which this Court is familiar, this is pretty alarming evidence See Exhibit M, entry. See Exhibit I p..

9 Case :-cr-000-gmn-pal Document 0 Filed // Page of. //0 Southern Nevada Counterterrorism Center Threat Assessment (Exhibit N) This report reveals that LVMP detectives Under a section entitled Key Findings, the report states that: (a) Exhibit N, p.. (b) (c) Id. p.. The defense has already stated that the government previously disclosed Id. p.. See. This report is critical to the defense. The government s theory throughout Trials and has been that the need to mount such a militarized presence at Gold Butte was as a result of the danger that Cliven Bundy and his family posed. Based on the government s opening statements and the testimony of Mary Jo Rugwell it appears the government will do the same during this trial. The conclusion of this report seems to contradicts that notion. The findings by these detectives is also grounds for cross examination of certain witnesses, one of which has already testified Mary Jo Rugwell. This report states that: (a). //0 FBI Behavioral Analysis Unit Threat Assessment (Exhibit O) 0 (b) See Exhibit O p.. (c) Id. p..

10 Case :-cr-000-gmn-pal Document 0 Filed // Page of This plan is consistent with Bundy s history of seeking non-violent, legal means to respond to the situation, which should be considered a mitigator. Id. p. -. (d) Id. p.. As explained above, the 0 BLM Threat Assessment cites to two reports for its preparation, the 0 Southern Nevada Counterterrorrism Threat Assessment and this one. What is worse about the failure to disclose this particular report is that the defense specifically requested the government provide FBI threat assessments (ECF, ). In addition to clear Brady/Giglio violations, this also violates FRCP (a)()(f). The defense was not able to cross examine Ms. Rugwell on this report, with which she testified she was familiar. This is another example of the inability to make use of information due to its late disclosure.. Gold Butte Cattle Impound Risk Assessment (Exhibit P) Part of the planning for the impound operation involved the development of a See Exhibit P, p.. 0 that: It is important to the defense to be able to cross-examine The government alleges that Payne and others made false statements about what was taking place at Gold Butte. Statements that were echoed by mainstream media, such as national Fox s Megan Kelly show and the Sean Hannity show. First, it does not appear the statements were false. But, to the extent the government will continue to argue these were false statements,. // Law Enforcement Operations Order (Exhibit Q) This Order, prepared days prior to the commencement of the 0 impoundment, states (a) (b) See Exhibit Q, p... Id., p.. If this report was not in the investigative file, the police cooperation file, or the TOC file, which file did this come from? What other files exist that may contain Brady/Giglio information?

11 Case :-cr-000-gmn-pal Document 0 Filed // Page of IV. ARGUMENT Dismissal of an indictment with prejudice is appropriate under two theories: () outrageous 0 government conduct that violates a defendant s due process rights, United States v. Chapman, F.d, (th Cir. 00), or () if the government s conduct does not rise to the level of a due process violation, a court may dismiss under its supervisory power to implement a remedy for a violation of recognized statutory or constitutional right; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and to deter future illegal conduct. Id. (quoting United States v. Simpson, F.d, 0 (th Cir. )). The defense is spending an enormous amount of time reviewing new discovery and seeing how it fits into its theory of defense, and how it needs to adjust moving forward. Payne has requested court involvement for deadlines precisely so that it would not find itself in the situation it finds itself in now. ECF,. What is more, this Court provided a deadline for Rule (a) and non-jencks/giglio material: on August, 0 this Court stated that such materials would be due 0 days before trial. Applying the math most favorable to the government, this information would have been due no later than October, 0. As things currently stand, the defense was not able to incorporate key information revealed by this new information into its opening statements. While this varies for each defendant, as far as Payne is concerned, Payne already explained during his opening he came to Bunkerville because he believed the Bundys were in danger. Had we known on Wednesday November, 0 what he knows now, Payne could have made clear to the jury that It is again critical to note how the piece-meal disclosure

12 Case :-cr-000-gmn-pal Document 0 Filed // Page of of information affects the defense. On November, 0, the government turned over the redacted TOC log (Exhibit J ) and SA FBI 0 (Exhibit I) The problem surrounding these late disclosures has carried over to the defense s ability to properly and fully cross-examine the only witness the government has called so far. The defense was not able to cross-examine Ms. Rugwell on her knowledge of the particulars underlying the 0 FBI BAU Threat Assessment Report (Exhibit O). While she provided favorable testimony by stating that Cliven Bundy was not a threat according to the report, the particulars of that report would have provided additional rebuttal to the government s suggestion that Cliven Bundy was a threat based on his statements that he would do whatever it takes. Likewise, the defense could have asked questions regarding the findings by the 0 Southern Nevada Counterterrorism Center Threat Assessment, such as the 0 the OIG findings (Exhibit N). Lastly, the defense could have cross-examined her on her knowledge of (Exhibit K).

13 Case :-cr-000-gmn-pal Document 0 Filed // Page of 0 There is a well-established regimen at this juncture of Brady/Giglio violations that simply cannot continue to be justified. And this is prone to go on: the government still has to turn over discovery ordered by this Court (to include all of the information relating to Dan Love, which was the basis for its request for a continuance while making clear it needed to take a second look through to determine what it may need to turn over) and explain how it is that it is in possession of recorded conversations between a defense attorney and one of the co-defendants in this case (ECF ). To add insult to injury, the government s pattern has been to ridicule and disparage the defense at every turn during litigation in the last 0 months. Just focusing on the topics raised in this motion, the government referred to the request for information on the surveillance camera a fantastical fishing expedition (ECF 0), stated the request for the FBI threat reports added to an already long list of frivolous and vexatious pleadings, to which Payne ha[d] contributed mightily and was a rehash of other failed motions now poorly dress-up to look like something new (ECF ), and also stated the defense was seeking to create delay and confusion and deplete this Court s resources through a series of baseless, internally inconsistent motions with respect to the request for discovery deadlines (ECF ). As to Dan Love, the government has emphatically (and incorrectly) represented there was no impeaching information in the attachments to OIG # ( While Payne speculates that the undisclosed supporting documents must contain evidence of bias of potential government witnesses, he makes no showing to that effect. ECF ) and the lengths to which it went to prevent the defense from obtaining information in this regard has been well documented in prior filings. As to the issue of recorded phone calls between attorneys and clients, the government s response is the epitome of the government s presumptuous attitude toward any request surrounding this case it is less clear how the government s

14 Case :-cr-000-gmn-pal Document 0 Filed // Page of representation that it does not possess such recordings here fails to give finality to the issue. The conduct exhibited by the government both by its failure to meet its Brady/Giglio obligations and the manner in which it has dismissed the defense, constitutes outrageous conduct well within Chapman territory. The defense has been prejudiced in several ways and has not been able to conduct further investigation based on the new discovery. This case must be dismissed. DATED this th day of December, 0. Respectfully submitted, RENE L. VALLADARES Federal Public Defender 0 /s/ Brenda Weksler BRENDA WEKSLER Assistant Federal Public Defender Attorney for Ryan Payne /s/ Ryan Norwood RYAN NORWOOD Assistant Federal Public Defender Attorney for Ryan Payne

15 Case :-cr-000-gmn-pal Document 0 Filed // Page of CERTIFICATE OF ELECTRONIC SERVICE The undersigned hereby certifies that she is an employee of the Federal Public Defender for the District of Nevada and is a person of such age and discretion as to be competent to serve papers. That on December, 0, she served an electronic copy of the above and foregoing DEFENDANT RYAN PAYNE S SEALED MOTION TO DISMISS BASED ON DISCOVERY PROVIDED ON NOVEMBER, 0 (Expedited Treatment Requested) by electronic service ( ) to the persons named below: STEVEN W. MYHRE Acting United States Attorney ERIN M. CREEGAN Assistant United States Attorney NADIA JANJUA AHMEN Assistant United States Attorney DAN SCHIESS Assistant United States Attorney 0 Las Vegas Blvd. South Suite 0 Las Vegas, NV /s/ Lauren Conklin Employee of the Federal Public Defender 0