United States v. Cliven Bundy ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10287
Plaintiff-Appellant,
D.C. No.
v. 2:16-cr-00046-
GMN-PAL-1
CLIVEN D. BUNDY, AKA Cliven
Bundy; RYAN C. BUNDY; AMMON E.
BUNDY; RYAN W. PAYNE, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted May 29, 2020
Las Vegas, Nevada
Filed August 6, 2020
Before: William A. Fletcher, Jay S. Bybee,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Bybee
2 UNITED STATES V. BUNDY
SUMMARY*
Criminal Law
The panel affirmed the district court’s judgment
dismissing with prejudice, due to violations of Brady v.
Maryland, an indictment charging Cliven Bundy; two of his
sons, Ryan and Ammon Bundy; and Ryan Payne with
obstructing federal law enforcement officials carrying out
lawful court orders.
The indictment followed a well-publicized effort by the
Bureau of Land Management to impound Cliven Bundy’s
cattle for a twenty-year failure to pay federal grazing fees.
Cliven Bundy and hundreds of armed supporters from around
the United States forced federal officials to abandon the
impoundment plan.
Days into the defendants’ trial, the government began
disclosing information in its possession that, under Brady,
was arguably useful to the defense and should have been
produced to the defendants well before trial. As additional
documents came forth, the district court held a series of
hearings, eventually deciding that the trial could not go
forward and that the indictment must be dismissed with
prejudice.
Reviewing whether the district court properly dismissed
the indictment under its supervisory powers, the panel
considered the evidence cited by the district court to decide
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BUNDY 3
whether substantial prejudice resulted from the Brady
violations, whether flagrant misconduct occurred, and
whether alternative remedies could have redressed the injury
here.
Central to the government’s case were allegations that the
defendants intentionally lied about being surrounded by
snipers as a ploy to gather armed supporters. Had the
defendants been able to proffer a basis for genuinely
believing that government snipers surrounded the Bundy
Ranch, they potentially could have negated the government’s
scienter theory. Surveying all of the withheld evidence –
including surveillance-camera evidence, FBI “302”
investigative reports regarding snipers, Tactical Operations
Center (TOC) log records, and threat assessments – the panel
held that the record amply supports the district court’s
conclusion that the defendants suffered substantial prejudice
in not being able to prepare their case fully, refine their voir
dire strategy, and make stronger opening statements.
Regarding the question of flagrant misconduct, the panel
wrote that to the extent any government agencies or actors,
through their own flagrant misconduct, failed to make known
exculpatory information, the flagrant nature of such conduct
will be imputed to the prosecution. The panel explained that
flagrant misconduct need not be intentional; reckless
disregard for the prosecution’s constitutional obligations is
sufficient. Although it saw only negligence in the
withholding of the TOC log records, the panel found no clear
error in the district court’s conclusion that the withholding of
the surveillance-camera evidence, the 302s, and the threat
assessments crossed the threshold from negligence to
recklessness. The panel observed that the prosecution
withheld facially exculpatory evidence that directly negated
4 UNITED STATES V. BUNDY
the government’s theory that the defendants lied about fearing
snipers, and that the deliberate choices to withhold those
documents were not cases of simple misjudgment.
The panel wrote that although dismissal with prejudice
requires a district court to find that “no lesser remedial action
is available,” the panel understands by this phrase that a
district court must conclude that no lesser remedy will fully
address the damage caused by the government’s misconduct.
The panel concluded that the district court, which thoroughly
considered the prejudicial effects, did not abuse its discretion
in dismissing the indictment with prejudice. The panel wrote
that lesser sanctions would have given the government an
opportunity to strengthen its case at the defendants’ expense,
and noted the related need to impose a sanction that will serve
to deter future prosecutions from engaging in the same
misconduct as occurred here.
COUNSEL
Elizabeth O. White (argued), Appellate Chief; Nicholas A.
Trutanich, Attorney General; Office of the Attorney General,
Reno, Nevada; for Plaintiff-Appellant.
Larry E. Klayman (argued), Washington, D.C., for
Defendant-Appellee Cliven D. Bundy.
Amy B. Cleary (argued), Cristen C. Thayer, and Ellesse
Henderson, Assistant Federal Public Defenders; Rene L.
Valladares, Federal Public Defender; Office of the Federal
Public Defender, Las Vegas, Nevada; for Defendant-Appellee
Ryan W. Payne.
UNITED STATES V. BUNDY 5
Daniel Hill, Hill Firm, Las Vegas, Nevada, for Defendant-
Appellee Ammon E. Bundy.
Alyssa D. Bell, Cohen Williams LLP, Los Angeles,
California, for Defendant-Appellee Ryan C. Bundy.
OPINION
BYBEE, Circuit Judge:
Cliven Bundy, two of his sons, Ryan and Ammon Bundy,
and sixteen other persons were charged with obstructing
federal law enforcement officials carrying out lawful court
orders. The indictments followed a well-publicized effort by
the Bureau of Land Management (BLM) to impound Cliven
Bundy’s cattle for a twenty-year failure to pay federal grazing
fees. Bundy and hundreds of armed supporters from around
the United States forced federal officials to abandon the
impoundment plan. Fortunately, no one was injured in the
confrontation.
Days into the Bundys’ trial, the government began
disclosing information in its possession that, under Brady v.
Maryland, 373 U.S. 83 (1963), was arguably useful to the
defense and should have been produced to the defendants
well before trial. As additional documents came forth, the
district court held a series of hearings, eventually deciding
that the trial could not go forward and that the indictments
must be dismissed with prejudice. Under Brady, “[t]he
prosecution is trusted to turn over evidence to the defense
because its interest ‘is not that it shall win a case, but that
justice shall be done.’” Amado v. Gonzalez, 758 F.3d 1119,
1133–34 (9th Cir. 2014) (quoting Strickler v. Greene,
6 UNITED STATES V. BUNDY
527 U.S. 263, 281 (1999)). A district court is imbued with
discretion in the supervision of proceedings before it and may
dismiss an action when, in its judgment, “the defendant
suffers substantial prejudice and where no lesser remedial
action is available.” United States v. Chapman, 524 F.3d
1073, 1087 (9th Cir. 2008) (citations and quotation marks
omitted). Finding no abuse of discretion, we affirm the
judgment of the district court.
I. BACKGROUND
A. Factual History
This case stems from an infamous standoff between
Cliven Bundy, his sons,1 and groups of dedicated followers
and BLM. Bundy lives on 160 acres of land near
Bunkerville, Nevada, about eighty miles northeast of Las
Vegas, near the Arizona border. It is rugged, Mojave-dry
country, bounded by the Gold Butte National Monument and
the Lake Mead National Recreation Area, and watered by the
Virgin River—which, by any standards, is more a creek than
a river. For decades, Bundy and his family have grazed their
cattle on the more than half a million acres of surrounding
federal land. Since the early 1990s, Bundy has refused to
obtain permits and pay fees and fines for grazing his cattle on
the federal lands surrounding his property. Several court
orders previously found that Bundy’s cattle were trespassing
on federal land and ordered Bundy to remove his cattle or risk
having them impounded. See United States v. Bundy,
1
Two of Cliven Bundy’s sons, Ammon and Ryan, are defendants in
this proceeding. Others figure in the facts. For convenience we will refer
to Cliven Bundy as “Bundy” and his sons by their full names, e.g.,
“Ammon Bundy” and “Ryan Bundy.”
UNITED STATES V. BUNDY 7
No. 2:12-cv-0804, 2013 WL 3463610, at *1–3 (D. Nev.
July 9, 2013) (authorizing the government to “seize and
remove to impound any of Bundy’s cattle for any future
trespasses”); see also United States v. Bundy, 178 F.3d 1301(9th Cir. 1999) (unpublished table decision). Bundy ignored
those orders, claiming that he had “vested grazing rights” and
that the State of Nevada, not the United States, was the
rightful owner of the lands.
In early 2014, BLM began putting into place a large-scale
operation to impound Bundy’s cattle. The plan called for
contractors from Utah to round up cattle that were trespassing
on federal land. The cattle would then be sold at auction.
BLM notified Bundy of its intentions in mid-March of 2014.
Bundy did not respond to the notices, but in interviews with
local papers stated that he was “ready to do battle with the
BLM,” that he would muster family, friends, and supporters,
and “do whatever we have to after that.”
BLM made extensive preparations for “Operation Gold
Butte Impound.” Coordinating with agents from the National
Park Service and Federal Bureau of Investigation, BLM
anticipated resistance from Bundy and his supporters. It
planned to escort the contractors in and out of the area each
day. BLM established a Listening Post/Observation Post
(LP/OP) “strategically placed at elevated positions around the
Bundy residence each evening” where agents were outfitted
with binoculars, spotting scopes, night-vision goggles, and
thermal-imaging devices. The LP/OP personnel were to have
“agency-issued rifles with them at all times.” BLM also
established a Tactical Operations Center (TOC), Forward
Operating Base (FOB), a media site, and a “free speech area.”
8 UNITED STATES V. BUNDY
On-site operations began the first week of April. On
April 6, 2014, another of Bundy’s sons, Dave Bundy, blocked
a BLM convoy on a state route and was arrested. The Bundys
responded by inviting private militia groups such as
Operation Mutual Aid, 3 Percenters Club, Freedom and
Fighters, and Oath Keepers to come to their defense. The
Bundys claimed that the government was taking their cattle
and holding one of the Bundys prisoner, and had snipers in
position surrounding the Bundy compound. Among those
who responded was defendant Ryan Payne, who was a
founder of Operation Mutual Aid. Hundreds of Bundy
supporters, many heavily armed, poured into the area.
On April 9, 2014, Ammon Bundy led a mob to block a
BLM convoy and was tased by officers. Payne used the
incident to contact additional militia groups and solicit their
help. By April 11, BLM had seized approximately
400 animals. FBI agents informed BLM that the gathering
militia posed a significant threat to federal officials and
private contractors, and advised BLM to cease the operation.
The next day, Bundy and his supporters, then estimated to be
more than 200 people, assembled to reclaim Bundy’s cattle.
Clark County Sheriff Doug Gillespie intervened with Bundy
and told the group that BLM had called off the impoundment.
Bundy made additional demands, and when they were not
met, told the crowd that it was time to “get those cattle.” The
crowd then moved to the entrance of the impoundment site,
located in a dry-wash bed under an Interstate 15 bridge.
Armed supporters took up threatening and tactically
advantageous positions, pointing guns at BLM officers.
Additional supporters arrived, some on horseback, swelling
Bundy’s ranks to more than 400 people. The Bundys
demanded that the officers leave. Heavily outnumbered and
interested in avoiding bloodshed, federal officials evacuated
UNITED STATES V. BUNDY 9
the impoundment site and left the cattle for the Bundys to
reclaim.
B. Procedural History
1. The Indictment
In March 2016, a federal grand jury indicted nineteen
defendants, including Bundy, his sons Ammon and Ryan, and
Ryan Payne (collectively, “the defendants”), for a slate of
federal crimes stemming from the standoff, including
impeding federal officers, threatening federal law
enforcement, and extortion, along with conspiracy to commit
these crimes. The district court divided the defendants into
three groups, according to their degree of involvement.
Cliven Bundy, Ryan Bundy, Ammon Bundy, Ryan Payne,
and another militia leader, Peter Santilli, were placed in Tier
1. The district began with a trial for the Tier 3 defendants, to
be followed by Tier 1 and Tier 2.2
A central pillar of the government’s case was the
allegation that the defendants recruited armed followers by
intentionally deceiving those followers into believing that the
Bundys feared for their lives because government snipers
surrounded their ranch. According to the indictment, once
the large group of supporters had amassed, the defendants
were then able to use their followers to thwart the impound
operation. Specifically, ¶ 58 of the indictment alleged that
2
The Tier 3 trial commenced on February 6, 2017 and resulted in
conviction of two defendants; the jury hung as to the remaining
defendants. On retrial, the jury acquitted two defendants on all charges
and two defendants on some charges; the jury hung for a second time on
the remaining charges.
10 UNITED STATES V. BUNDY
the defendants “used deceit and deception to recruit gunmen
and other Followers,” flooding the internet with “false,
deceitful, and deceptive images” for the “unlawful purpose of
interfering with impoundment operations, obstructing the
execution of federal court Orders and using force and
violence against federal law enforcement officials.”
Paragraph 84 further stated that the defendants had created
“false, deceitful and deceptive statements to the effect that the
BLM supposedly: employed snipers against Bundy family
members . . . .” As for Ryan Payne, ¶ 88 alleged that on
April 7, 2014, he had posted messages to followers “stating
falsely, among other things, that the Bundy Ranch was
surrounded by BLM snipers, that the Bundy family was
isolated, and that the BLM wanted BUNDY dead.”
Regarding Bundy, ¶ 92 of the indictment recounted how, on
April 8, 2014, he had broadcast a statement saying, “they
have my house surrounded . . . the federal government is
stealing my property . . . [the BLM] are armed with assault
rifles . . . they have snipers.” The indictment contended that
this statement was deceitful and made with “the purpose of
recruiting gunmen and other Followers” to come to the
Bundy Ranch and obstruct the impoundment.
2. The Motion-in-Limine Order
In preparation for trial, the defendants requested any
potentially exculpatory evidence under Brady v. Maryland,
373 U.S. 83 (1963), including evidence that could negate the
government’s scienter theory. Notably, to combat the
government’s allegation that the defendants had lied about
fearing being surrounded by snipers, the defendants sought
materials showing the presence of armed officers in tactical
gear taking positions around the Bundy Ranch. The defense
UNITED STATES V. BUNDY 11
also wanted evidence to support their claim that the
impoundment operation was over-militarized.
In October of 2017, shortly before trial began, the
government obtained a favorable ruling on a motion in
limine, which limited the defense’s ability to introduce
evidence regarding the affirmative defense of self-defense
against government actors. The district court concluded that
the affirmative defense was not available to the defendants
because they knew the “official status” of the federal officers
and there was no evidence that the officers used excessive
force. However, the district court left open the possibility
that the defendants could present evidence supporting the
affirmative defense with “an offer of proof outside the
presence of the jury that the defense should apply.” In the
same order, the court denied the government’s request to
preclude evidence regarding the defendants’ state of mind.
The government cited this order to justify several of its
decisions to withhold evidence.
3. Opening Statements
Trial commenced on October 30, 2017. The
government’s opening statements emphasized the theory that
the Bundys and their co-conspirators intentionally spread
misinformation about being surrounded by snipers to inflame
supporters. The government recounted that following Dave
Bundy’s arrest on April 6, the Bundys posted messages and
photos on social media:
And the messaging that was put out by the
Bundys, by the Bundys and their supporters,
was that this was BLM being a large Army
that was coming to attack them, was coming
12 UNITED STATES V. BUNDY
to interfere with them, was coming to abuse
them. And you will hear how the messaging
transformed from stealing cattle to now
they’ve got snipers aimed at us. Now they’ve
got our house surrounded. Now we can’t
move. We’ve got to shelter in place. We
can’t do anything because the BLM has got us
surrounded.
And that was false . . . .
The government made clear that the Bundys’ purported lies
about feeling surrounded by menacing snipers was key to
their recruiting followers such as Ryan Payne and Peter
Santilli to come to Nevada, obstruct the impound operation,
and “protect against tyranny.”
4. Hearings Regarding Withheld Evidence
As trial got underway, it became apparent that important
evidence had been withheld by the government. Over the
course of the following weeks, the district court held several
hearings regarding this evidence as it trickled out during trial.
a. November 7 and 8 Hearings. On November 6 and 7,
2017, just a week into the trial, the defendants filed
successive motions to dismiss for discovery misconduct.
They faulted the government for failing to provide evidence
regarding (1) video surveillance of the Bundy property and
(2) the presence of FBI and BLM tactical units armed with
AR-15 rifles. In August 2017, the defense had requested
information related to a camera placed near the Bundy Ranch.
The request was supported by an affidavit from Ryan Bundy,
who averred that he had seen a camera device on a tripod
UNITED STATES V. BUNDY 13
with a telephoto lens and a “visible laser.” He said the tripod
was on a hill northeast of and overlooking the Bundy house.
The government, however, had opposed this request, referring
to it and other requests as a “fantastical fishing expedition.”
Yet on November 3, the fourth day of trial, the defense
learned that the FBI had in fact set up a camera on a hill
northeast of the Bundy home. The camera had a live feed to
BLM’s command center.
The district court held a hearing on November 7 regarding
the camera evidence. The court held another hearing the next
day regarding newly released evidence showing the presence
of heavily armed patrols near the Bundy property. The
defendants emphasized that this new evidence was material
because it undercut the government’s ability to prove that
they had intentionally lied to supporters about fearing
government snipers. Specifically, the defendants argued that
the presence of surveillance equipment and law-enforcement
officers armed with AR-15 rifles contributed to the
defendants’ fear that they were surrounded.
The district court agreed with the defendants that the
requested surveillance-camera evidence was material.
However, it also concluded that the government had not acted
in bad faith by withholding information about the camera
because the court had previously thought that the information
related to surveillance cameras was irrelevant and there was
“no apparent or readily apparent materiality.” As for the late
evidence regarding heavily armed officers, the district court
agreed that the information was material because it was
“relevant to developing a possible defense to the allegation
that false statements were provided about the existence of
snipers and being isolated and surrounded.” The district court
14 UNITED STATES V. BUNDY
ordered the government to turn over any additional evidence
related to the surveillance camera or snipers.
b. November 13 Hearing. During the first week of
November, the government disclosed additional evidence
regarding the surveillance camera and officers armed with
assault rifles in full tactical gear. Two disclosures came in
the form of FBI investigative reports known as “302s.” The
first was a 302 regarding Kevin Egbert (the Egbert 302). This
302 recorded the placement of the camera and attempts to
repair it after it was damaged. The second was a 302
describing the activities of Special Agent Edward Delmolino
(the Delmolino 302). This 302 described how Agent
Delmolino was dressed in BLM tactical gear and took an
overwatch position near the Bundy Ranch. A thumbdrive
with a log of activities at the Tactical Operations Center,
referred to as the “TOC Log,” was produced on
November 11, 2017. This log served as the FBI’s record for
SWAT operations during the impound operation. The Log
referenced the insertion of “snipers” and recounted
descriptions of the live feed from the surveillance camera.
The defense renewed its motions to dismiss and the
district court held another hearing on November 13, 2017.
The government represented that the prosecutors from the
U.S. Attorney’s Office had “been as diligent as we possibly
can.” The district court agreed that “everyone’s doing the
best they can faced with the information that we have, which
is more interesting than in the usual case” and found that
“there’s no Brady violation . . . , much less a pattern of any
Brady violations.” But the court then stated that the
government would need “to do more than it’s already done.”
The defense, meanwhile, again emphasized the crucial nature
of this evidence to countering the government’s theory that
UNITED STATES V. BUNDY 15
the defendants had purposefully “spread[] false information
about the presence of militarized government operation
surrounding” the Bundy home.
As for the motions to dismiss, the district court said that
the defendants’ arguments were “premature” because “only
24 pages [of new discovery] ha[d] been provided.” But the
court noted that if “more information . . . is provided and . . .
creates prejudice, then the Court would certainly entertain”
further motions. The court also expressed its dismay with the
government that important evidence was being produced so
late and, in particular, that the government had made
“representations . . . that things did not exist but ultimately
were found to exist.” Thus, while the district court believed
that the prejudice to the defense was not at that point
sufficient to keep the case from proceeding, it explained that
prejudice would have to be reassessed “to see whether this
has put the defense . . . in an untenable position.” The court
warned that it might have to consider a remedy, including
continuance or mistrial, with or without prejudice. “[T]here’s
a lot of information that’s coming to light very late. And, so,
it’s troubling to the Court.” The government, however,
continued to maintain that a lot of the new information
produced was not material.
c. November 29 Hearing. As trial continued, testimony
exposed even more withheld documents. During the pretrial
discovery phase, the defense had requested “all the threat
assessments prepared in this case.” The government provided
one threat assessment prepared in 2014. In its opening
statement, the government had referred to a BLM decision to
impound Bundy’s cattle in 2012. The government
represented that BLM decided not to confront Bundy
“because of the concern for violence.” During testimony,
16 UNITED STATES V. BUNDY
however, a prosecution witness mentioned a 2012 threat
assessment, and recounted how the assessment concluded that
Bundy posed no threat of harm. It then came to light that
other threat assessments had been withheld—several of which
had been prepared for a possible impoundment action in
2012. These assessments rated Bundy as having a low-to-
moderate risk of violence. The government also produced
new evidence regarding surveillance of Bundy’s home and
the presence of armed officers. The new evidence was two
Nevada Joint Terrorism Task Force reports. One report noted
the presence of SWAT personnel and the presence of the
camera with supporting technicians. It also detailed events
leading to the FBI’s placement of the camera.
The district court held another hearing about this new
evidence on November 29, 2017. The court again expressed
frustration with the “dribs and drabs” of new discovery being
released. The court recognized that “the [U.S. Attorney’s
Office] has been diligent,” but faulted “other government
agencies; not in the U.S. Attorney’s Office.” But the
prosecution conceded that it had had the threat assessments
in its possession all along. The government explained that it
did not hand the assessments over because it considered them
neither exculpatory nor responsive to the defense’s request
for threat assessments “in this case.”
The government also explained why it had been late in
turning over several FBI investigative reports regarding
tactical-operations teams once it became evident that the
presence of “snipers” would be an integral part of the
defense’s strategy. And it insisted that the officers present at
the site were not actually snipers. The district court,
however, found this explanation “very troubling,” because the
court had excluded testimony at the earlier trial of the Tier 3
UNITED STATES V. BUNDY 17
co-defendants regarding the presence of snipers based on the
government’s representation that there were no snipers at the
site. Yet, in the middle of Bundy’s trial, the government was
producing documents that referred to its own agents as
“snipers.”
d. December 11 Hearing. On December 11, 2017, the
district court held a final hearing on the defendants’ motions
to dismiss. The court reviewed the evidence that had been
produced after the start of the trial. It noted that there were
different deadlines for the government to produce evidence to
the defense, depending on whether its obligations arose under
Brady, Giglio, Jencks, or Federal Rule of Criminal Procedure
16(a)(1)(E). In general, however, the court found that the
evidence should have been produced no later than October 1,
2017, thirty days before the start of trial.
Beginning with the surveillance-camera evidence, the
district court was “concerned that there seems to [have been]
some coyness on behalf of the government” in turning over
that evidence. However, the court explained that, at that time,
it appeared the information was timely provided.
But the district court then stated that it was inclined to
find that much of the information regarding the presence of
snipers was untimely. Even though the FBI promptly turned
over several 302s prepared after the discovery deadline, the
district court explained that the information contained in the
302s was nevertheless untimely. The TOC Log “was in
existence long before [November 2017].” The court also
expressed dissatisfaction with the government’s explanation
that it had not provided this information earlier because the
government was unaware that this information would be
central to the defense’s theory of the case.
18 UNITED STATES V. BUNDY
The district court then went through the materiality of the
late threat assessments. The court explained that the March
2011 assessment information contradicted other evidence and
“could be useful for impeachment purposes.” It further found
that the government’s production of the threat assessments
was likely untimely. Thus, the district court agreed to take
the motions to dismiss under submission.
5. The District Court Declares a Mistrial
On December 20, 2017, the district court concluded that
the trial could not proceed. It began by emphasizing that
Brady requires the prosecution “to learn of material
exculpatory and impeachment evidence in the possession of
other agencies.” Where there is doubt about the usefulness of
evidence to the defense, the government should “resolve such
doubts in favor of full disclosure.” The court reviewed each
piece of evidence—evidence regarding the surveillance
camera, snipers, and threat assessments—contained in newly
provided FBI 302s, the TOC Log, the prior threat
assessments, and other documents. The court found that the
government had failed to timely disclose most of the evidence
at issue, and that the failure was “willful” on the
government’s part and prejudiced the defense.
As for possible remedies, the district court found that
recalling witnesses or granting a continuance to allow the
defendants time to review the new evidence would be
insufficient. The parties had already impaneled a jury and
made opening statements. The court believed that the
withheld evidence had deprived the defendants of the
opportunity to better tailor their voir-dire strategy and make
stronger opening statements. Thus, the court concluded that
mistrial was necessary. The court stopped short of dismissing
UNITED STATES V. BUNDY 19
the case, instead asking for briefing on whether “mistrial
should be with or without prejudice.”
6. The Decision to Dismiss the Indictment with
Prejudice
On January 8, 2018, after permitting written briefing, the
district court concluded that the Brady violations were so
egregious and prejudicial that the indictment needed to be
dismissed with prejudice. It found “that retrying the case
would only advantage the government by allowing [it] to
strengthen [its] witnesses’ testimony based on the knowledge
gained from the information provided by the defense and
revealed thus far.” The court also highlighted “the
prosecution’s failure to look beyond the FBI file that was
provided” for additional relevant information constituted a
“reckless disregard for its [constitutional] obligations to learn
and seek out favorable evidence.” The court characterized
the government’s “representations about whether individuals
were technically ‘snipers’ or not ‘snipers’ [as] disingenuous”
given that the FBI’s own documents referred to government
“snipers’ in the operation. It concluded that the FBI’s failure
to produce these documents was “flagrant prosecutorial
misconduct in this case even if the documents themselves
were not intentionally withheld [by the U.S. Attorney’s
Office] from the defense.” Thus, it decided that no lesser
sanction was available because the government’s “conduct
has caused the integrity of a future trial and any resulting
conviction to be even more questionable.” Retrial “would
only advantage the government.” The court dismissed the
indictment with prejudice as a remedy for a due process
violation and under its supervisory powers.
20 UNITED STATES V. BUNDY
The government moved for reconsideration. First, the
government argued that the court had mistakenly found the
evidence “material” because there was no legally cognizable
way for the defendants to assert the affirmative defenses of
provocation or self-defense against a law officer. The
government pointed to the district court’s grant of its motion
in limine, which determined that evidence related to the
affirmative defenses was irrelevant.
The district court was unmoved. It highlighted how the
motion-in-limine order had specifically left open the
possibility that the defendants could raise an affirmative
defense if they could make an offer of proof to support a
theory of provocation or self-defense. The court said that its
order “placed the Government on notice that evidence that
could bolster a theory of self-defense might become relevant
at trial.” Hence, the court stated that its order did not excuse
the government from turning over evidence helpful to the
defense. The court again chastised the government for
claiming ignorance that the defendants would need evidence
about the cameras or snipers because a central part of the
government’s case was that the defendants knowingly spread
false statements that snipers were surrounding the Bundy
Ranch.
Second, the government asserted that the court had failed
to consider less drastic remedies. In response, the court
pointed to its discussion in the record that lesser sanctions
could not cure the prejudice. And it said that any lack of
consideration for a specific remedy was the fault of the
government, because it failed to raise possible alternative
sanctions. Thus, the district court denied the government’s
motion for reconsideration. The government now appeals.
UNITED STATES V. BUNDY 21
II. STANDARD OF REVIEW
We review the district court’s dismissal of an indictment
under its supervisory powers for an abuse of discretion.
Chapman, 524 F.3d at 1086. Any legal issues predicating the
district court’s dismissal receive de novo review. United
States v. Velarde-Gavarrete, 975 F.2d 672, 674 (9th Cir.
1992). However, the “district court’s findings of fact are
reviewed for clear error.” Id.III. DISCUSSION
The question presented in this case is whether the
government’s actions were sufficiently egregious to merit
dismissal with prejudice. A district court may dismiss an
indictment for government misconduct for one of two
reasons, each with its own standard: either because it finds a
serious due-process violation or because it concludes that
dismissal is warranted under its supervisory powers. United
States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993).
Dismissal for a due-process violation requires the
government’s conduct to “be so grossly shocking and
outrageous as to violate the universal sense of justice.” Id.“The [due process argument] is usually raised in situations
where law enforcement conduct involves extreme physical or
mental brutality or where the crime is ‘manufactured by the
government from whole cloth.’” United States v. Green,
962 F.2d 938, 942 (9th Cir. 1992) (citation omitted).
A district court may dismiss an indictment under its
inherent supervisory powers “(1) to implement a remedy for
the violation of a recognized statutory or constitutional right;
(2) to preserve judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before a jury; and
22 UNITED STATES V. BUNDY
(3) to deter future illegal conduct.” United States v.
Struckman, 611 F.3d 560, 574 (9th Cir. 2010) (quoting United
States v. Hasting, 461 U.S. 499, 505 (1983) (internal citations
and quotation marks omitted)). The court’s exercise of its
supervisory powers protects the integrity of the federal courts
and prevents the courts from “making . . . . themselves
accomplices in willful disobedience of law.” McNabb v.
United States, 318 U.S. 332, 345 (1943). A district court can
dismiss an indictment under its supervisory powers even if
“the conduct does not rise to the level of a due process
violation.” United States v. Barrera-Moreno, 951 F.2d 1089,
1091 (9th Cir. 1991). Because it is unnecessary to decide if
both standards are met here, we will only review whether the
district court properly dismissed the indictment under its
supervisory powers. See Chapman, 524 F.3d at 1084 n.5
(“Because the district court did not abuse its discretion in
dismissing the indictment under its supervisory powers, we
need not consider whether the dismissal was also justified by
the government’s violation of Defendants’ due process
rights.”).
When considering an exercise of its supervisory powers,
a district court has various options. The court may limit the
witnesses or testimony offered by the government, or it may
sanction the attorneys. See Hasting, 461 U.S. at 506 & n.5.
The court may dismiss the case without prejudice, which
requires dismissing the jury and forces the government to
begin anew. The most drastic remedy is dismissal with
prejudice, because this prevents the government from retrying
the defendants at all. See Chapman, 524 F.3d at 1085(explaining that improper dismissal of “an indictment with
prejudice encroaches on the prosecutor’s charging authority”
(internal quotation marks omitted)); United States v. Isgro,
974 F.2d 1091, 1097 (9th Cir. 1992) (“Dismissal of an
UNITED STATES V. BUNDY 23
indictment with prejudice necessarily implicates separation-
of-powers principles. . . . Such dismissal exercised under the
guise of ‘supervisory power’ is impermissible absent ‘a clear
basis in fact and law for doing so.’”). Under its supervisory
powers, a district court may dismiss an indictment with
prejudice for prosecutorial misconduct only if there is
“(1) flagrant misbehavior and (2) substantial prejudice.”
Kearns, 5 F.3d at 1253. Further, the district court must
“approach[ the remedy] with some caution and a with a view
toward balancing the interests involved,” Hasting, 461 U.S.
at 506–07 (citations and quotation marks omitted), and have
concluded that there is “no lesser remedial action” available
to it. Chapman, 524 F.3d at 1087 (citations omitted).
The district court concluded that dismissal with prejudice
was appropriate because the government withheld key
evidence favorable to the defense until after trial was
underway—in clear violation of its duties under Brady—and
dismissing without prejudice would allow the government to
cure its mistakes, to the detriment of the defendants. It is, of
course, beyond dispute that under Brady a defendant is
entitled to evidence “both favorable to the accused and
‘material either to guilt or to punishment.’” United States v.
Bagley, 473 U.S. 667, 674 (1985) (quoting Brady, 373 U.S.
at 87). “Brady evidence” can be favorable “either because it
is exculpatory or impeaching.” Milke v. Ryan, 711 F.3d 998,
1012 (9th Cir. 2013). For a Brady violation to occur, “the
government must have willfully or inadvertently failed to
produce the evidence” and “the suppression must have
prejudiced the defendant.” Id. But simply showing a Brady
violation—withholding of evidence that caused prejudice—is
not a sufficient basis to dismiss an indictment. Only where
the government withheld Brady material through “flagrant
misconduct,” causing “substantial prejudice” to the accused,
24 UNITED STATES V. BUNDY
will justify the court’s exercise of its supervisory powers to
dismiss the case with prejudice. Kearns, 5 F.3d at 1253.
Determining whether these prerequisites for dismissal
were satisfied here requires us to review the evidence in
question and the circumstances of its withholding. We begin
with a review of the evidence to decide whether substantial
prejudice resulted, keeping in mind that not everything that
the government turned over to the defense after the trial
began was important to the defense. Nor did the district court
rely on all the evidence produced. Accordingly, our review
is confined to evidence cited by the district court. We then
turn to whether flagrant misconduct occurred. Finally, we
examine whether alternative remedies could have redressed
the injury here.
A. Whether the Withheld Evidence Substantially Prejudiced
the Defense
Central to the government’s case against the defendants
were the allegations in ¶¶ 58, 84, 88 and 92 of the indictment
that the defendants intentionally lied about being surrounded
by snipers as a ploy to gather armed supporters. The
indictment alleged that the Bundy defendants used “false,
deceitful, and deceptive” images to recruit supports to
Bunkerville to interfere with BLM’s impoundment operation.
The government’s opening statement reinforced this,
promising the jury that it would “hear how the messaging
transformed from stealing cattle to now there’s government
snipers around us” and “BLM has got us surrounded” and that
these statements were “false.” Had the defendants been able
to proffer a basis for genuinely believing that government
snipers surrounded the Bundy Ranch, they potentially could
have negated the government’s scienter theory. Thus, the
UNITED STATES V. BUNDY 25
defendants contend that the withheld evidence was crucial to
defending their case.
1. The Surveillance-Camera Evidence
Prior to trial, Ryan Bundy had submitted an affidavit in
which he claimed to have seen a device with a telephoto lens
on a tripod overlooking Bundy’s house. The government
opposed the request for information about this device as a
“fantastic fishing expedition.” On the fourth day of trial,
witness testimony confirmed that the government had indeed
set up a camera overlooking Bundy’s property, and that the
camera had a live feed to the BLM’s command center. The
defendants assert that this camera contributed to their feeling
of being surrounded and, hence, helped rebut the
government’s position that the defendants deceitfully claimed
that they feared for their lives because of government snipers.
Two specific pieces of evidence about the camera were
withheld. Both of these documents were prepared in 2014,
and both confirm the existence of the surveillance camera set
up to monitor the Bundy Ranch. The first document is the
Egbert 302 prepared in April 2014. The Egbert 302 recounts
that on April 6, 2014, Egbert went to investigate issues with
the camera after its live feed had been lost. The government
produced the Egbert 302 a week into trial, apparently in
response to a defense request for any video recordings from
the surveillance camera. Upon reviewing the 302 at the
November 8 hearing, the district court agreed with the
defense that evidence related to the camera was material. The
court ordered the government to turn over any evidence
related to the camera. Following this order, the government
provided a second document, the “Law Enforcement
Operations Order,” on November 17, 2017. That document
26 UNITED STATES V. BUNDY
was prepared in March 2014, in advance of the impound
operation. The document records that an Internet camera was
to be set up “with a view of the Bundy residence.”
The district court concluded that the documents were
Brady material because the camera’s “location” and
“proximity to the home” showed that “its intended purpose
was to surveil the Bundy home,” which “potentially rebuts
the allegations of defendants’ deceit” in stating that they felt
surrounded by snipers. The court found that the disclosure
was untimely and the failure to disclose was prejudicial. The
court also concluded that the government had been
misleading in its earlier representations that the camera was
not meant to surveil the Bundy home. Given that the Law
Enforcement Operations Order specifically stated that the
camera was to be placed “with [a] view of Bundy residence,”
the district court agreed with the defendants that “this
information potentially rebuts the allegations of the
defendants’ deceit . . . about being surrounded, about the
BLM pointing guns at them, and using snipers.”
The government assails the district court’s conclusion by
arguing that a lone surveillance camera is unremarkable and
proves nothing. As such, it claims that the withholding of
these two pieces of evidence created no appreciable prejudice
to the defense. But the government misses the point. This
evidence undermined the government’s theory that the
defendants intentionally lied about fearing government
snipers surrounding the property. The government could
have argued the significance of the evidence to the jury, but
it is hard to see how the government could argue that the
evidence was irrelevant, much less a “fantastic fishing
expedition.”
UNITED STATES V. BUNDY 27
Whether a jury would ultimately find the evidence
convincing and lead to an acquittal is not the measuring rod
here. Because no verdict was rendered, the usual
“retrospective test, evaluating the strength of the evidence
after trial has concluded” is not applicable here. United
States v. Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013). “[T]he
retrospective definition of materiality is appropriate only in
the context of appellate review”; thus, “trial prosecutors must
disclose favorable information without attempting to predict
whether its disclosure might affect the outcome of the trial.”
Id. n.3; see United States v. Safavian, 233 F.R.D. 12, 16
(D.D.C. 2005) (“[T]he government must always produce any
potentially exculpatory or otherwise favorable evidence
without regard to how the withholding of such evidence
might be viewed . . . as affecting the outcome of the trial.
The question before trial is not whether the government
thinks that disclosure of the information or evidence . . .
might change the outcome of the trial going forward, but
whether the evidence is favorable and therefore must be
disclosed.”). Since the new evidence emerged mid-trial,
neither the district court (in the first instance) nor we (as a
reviewing court) can measure prejudice against all the
evidence produced during the trial. Rather, the district court
had to assess the relative value of the Egbert 302 and the Law
Enforcement Operations Order on the basis of the indictment,
the pretrial proceedings, the opening statements, and the
evidence introduced up to that point.
In that light, there can be no question but that this was
Brady material and that it should have been disclosed to the
defense well in advance of the start of trial. This evidence
was obviously favorable to the defense—it could have helped
show that the defendants had a basis for feeling that their
property was surrounded by snipers surveilling the home.
28 UNITED STATES V. BUNDY
The government also argues that even if it should have
disclosed the fact of the camera, the defendants could not
have suffered prejudice because they knew about the camera.
While the defendants may have known about the camera’s
existence—that is confirmed in Ryan Bundy’s affidavit—they
had no specific information about the camera. They did not
know what kind of equipment the government was using, its
sophistication, and its purpose. And it was not until the
documents were released that it became evident that the
camera was deliberately placed so it would have a view of the
Bundy home—contradicting the government’s representation
that it was only placed “to cover the roads” near the Bundy
Ranch. Thus, the district court’s finding that the defense was
prejudiced because it would have developed a stronger case
if this evidence had been timely provided is not clearly
erroneous.
2. FBI 302s Regarding Snipers
Several FBI 302s showing that heavily armed officers
were present around the Bundy property were produced after
the start of the trial. Two merit attention here.3
The first was the Delmolino 302, drafted in March 2015,
and describing the activities of Agent Delmolino. The
Delmolino 302 recounts that Agent Delmolino held a position
“east of the Bundy Ranch” and at the time “was dressed in
3
A third 302 was also withheld. This 302 was drafted in April 2014,
following an interview with Curtis Racker, a field staff agent. Racker had
been assigned a listening and observation post near the Bundy Ranch on
April 4, 2014. The Racker 302 was provided on December 15, 2017. The
parties hardly discuss this 302 in their briefing. Thus, we will not pass on
this 302.
UNITED STATES V. BUNDY 29
BLM tactical clothing and carried a BLM AR-15 rifle.” This
302 was not provided to the defense until November 2017,
after trial began. The government claims that withholding the
Delmolino 302 was inadvertent.4 In the district court, the
government represented that it considered the 302 relevant
only after the court determined that information regarding
surveillance devices was relevant. Delmolino used a “seismic
sensor,” which the government believed the defendants could
argue was a surveillance device.
The district court concluded that the Delmolino 302 was
helpful Brady material, the withholding of which caused
prejudice. Given that the Delmolino 302 shows that Agent
Delmolino was positioned, armed, and wearing tactical gear
near the Bundy property, it weakened the government’s
position that the defendants had no basis for fearing that they
were surrounded by government snipers and, hence,
deliberately spread misinformation to recruit armed
followers. And before the Delmolino 302’s release, the
defense would have had no information about Agent
Delmolino being positioned near the Bundy Ranch. Thus, we
conclude that district court did not clearly err in finding
prejudice related to this 302.
The second 302 improperly withheld from the defense
recounted the observations of a National Park Service
official, Ernesto Felix (the Felix 302). This 302 was drafted
in January 2015, but was not produced until December 5,
2017—well after trial began. According to the government,
4
The government had previously provided 302s regarding other
responsibilities of Agent Delmolino during the impound operation.
However, these documents do not recount Agent Delmolino’s being
posted near the Bundy Ranch in tactical gear.
30 UNITED STATES V. BUNDY
the Felix 302 was found only after Payne had made a mid-
trial discovery request for information about specific agents.
The 302 describes Felix’s recollection of the arrest of Dave
Bundy on April 6, 2014. It states that Felix “observed a BLM
Agent on the high ground in a ‘tactical over watch position,’
southwest of where Dave’s arrest occurred.” The date of
Dave Bundy’s arrest is significant, because it was only after
his arrest that the Bundys sent out a call for help, claiming
that there were government snipers surrounding them.
The district court concluded that the Felix 302 was Brady
material, the withholding of which prejudiced the defense.
The government assails the prejudice finding by saying that
the Felix 302 contains duplicative information. It claims that
the defendants already possessed an email that referred to
agents who took an “overwatch” position during Dave
Bundy’s arrest. But the government’s argument misses why
these documents were useful. The defendants claim that the
Bundys feared they were surrounded by heavily armed
snipers. Keeping the defense from gathering as much
evidence as possible to show that there was a reasonable basis
to fear that snipers surrounded the property was itself
harmful.
Moreover, the Felix 302 actually refers to the BLM agent
in the overwatch position as a “sniper.” Indeed, the Felix 302
uses both “tactical over watch position” and “sniper” to refer
to the same agent. This was tangible documentation showing
that the government’s own officials understood agents in
overwatch positions to be equivalent to “snipers.” Even if the
defendants had some other evidence of agents taking
“overwatch” positions around the Bundy property, the Felix
302 supported their theory in ways that the provided emails
did not. The Felix 302, therefore, adds credibility to the
UNITED STATES V. BUNDY 31
Bundys’ claims that they feared the presence of “snipers” and
it should have been disclosed prior to trial.
In sum, like the evidence regarding the camera, these
documents could have helped the defense show that the
defendants genuinely feared the presence of snipers—
contradicting the allegations that the defendants intentionally
lied about being surrounded by snipers to inflame supporters.
Given the importance of these documents, the district court
did not clearly err in finding that their withholding constituted
a Brady violation that prejudiced the defendants.
3. The TOC Log
Another piece of exculpatory evidence speaking to both
the presence of snipers and the surveillance camera is the
TOC Log. The log records the operations and actions of
members of the SWAT team at the FOB. In one entry, the
log records: “Snipers inserted.” The log also records
observations from the camera’s live feed.
The government did not produce the log until
November 17, 2017—well after trial was underway. The
government had taken the position that there were no
“snipers,” and that agents in the “overwatch” position were
simply “law enforcement officers.” Indeed, in the Tier 3 trial
conducted some nine months earlier, the government had
represented that no “snipers” were involved in the operation.
Based on this representation, the district court had entered an
order precluding testimony referencing snipers. The court
even removed a testifying defendant from the stand because
he made several references to snipers. Given the value of the
TOC Log and its black-and-white reference to “snipers,” the
district court concluded that it constituted Brady evidence and
32 UNITED STATES V. BUNDY
that its withholding prejudiced the defense. There can be no
question that the withholding of a government document
recording “snipers inserted” caused prejudice.
4. The Threat Assessments
The defendants also contend that several withheld threat
assessments were exculpatory and that their absence caused
prejudice. The government had timely provided one threat
assessment, prepared in 2014 in anticipation of the March-
April 2014 impoundment. That assessment concluded there
was a moderate risk of violence from Bundy if the impound
operation were undertaken. But the government withheld
four additional threat assessments, all prepared in 2011 or
2012, some of which concluded that Bundy posed a lesser
risk of violence. The defendants had asked for all threat
assessments “in this case.” That phrase was ambiguous, and
the government might reasonably have believed that it
complied with defendants’ request when it provided the threat
assessment prepared for this action. But, at the very least, the
prior assessments became relevant when the government told
the jury in its opening statement that BLM had weighed
whether to impound Bundy’s cattle in 2012 and decided not
to proceed “because of concern for the violence” and when a
witness testified on November 16, 2017 that there had been
earlier threat assessments.
The first withheld threat assessment was a March 2011
FBI threat assessment of Bundy, created in anticipation of an
impound operation. The assessment concluded that Bundy
represented a “low to moderate risk of significant or
imminent violence.” The assessment noted, inter alia, how
Bundy had no criminal record, was attached to his family, and
UNITED STATES V. BUNDY 33
appeared to prefer using non-violent means of channeling his
frustration, such as litigation and media appearances.
The second assessment was generated a year later by the
Southern Nevada Counterterrorism Center. This assessment
concluded that “[t]he likelihood of violence from Cliven
Bundy is minimal.” It specifically highlighted his age and
lack of a criminal history as indicators that he was unlikely to
act violently.
The third assessment was a Department of the Interior
(DOI) assessment of Bundy and members of his family. It
also concluded that there was moderate threat of violence.
The DOI assessment compiled accounts from individuals who
had interacted with Bundy or his family in the past, several of
whom said that he was unlikely to act violently.
Finally, the DOI conducted another assessment in
anticipation of enforcement operations. This assessment
concluded that the risk of violence was “moderate.” It
recommended that BLM develop a media strategy with
“talking points” to keep ahead of negative publicity as a
means of mitigating the potential risk of backlash. The
district court specifically highlighted how BLM’s failure to
implement this recommended public-relations plan favored
the defense because the government was not actively
correcting disinformation from the Bundys.
These withheld threat assessments had significant
exculpatory and impeachment value. The 2011 and 2012
threat assessments would have countered the government’s
opening statement. Beyond that, the earlier assessments were
at least contrary to, though not necessarily inconsistent with,
the 2014 assessment. The withheld threat assessments also
34 UNITED STATES V. BUNDY
undermined the need for an aggressive, militarized impound
operation because they suggest alternative ways of defusing
emotions surrounding actions taken against the Bundys.
The government asserts that the withholding of the threat
assessments was not prejudicial because the March 2014
assessment contained essentially the same information as the
withheld assessments. It also points to testimony by
government witnesses regarding how Bundy was viewed as
a minimal threat. But it is apparent the documents
themselves have value that testimony alone does not
necessarily carry. The assessments are reasoned, written
evaluations of the danger posed by the Bundys. They were
more than the bottom-line assessments offered by witness
testimony. Further, even if some similar information had
been produced earlier, the repeated description of Bundy as
a low-to-moderate threat in several assessments is itself
important to the defense and could have at least been readily
deployed as impeachment evidence to any testimony
regarding why a militarized impound was necessary. The
withheld threat assessments also contain information that the
March 2014 assessment does not include—a notable example
being the DOI assessment’s summary of encounters with
Bundy. Thus, the district court did not clearly err in
concluding that the defendants suffered prejudice by not
receiving these documents.5
5
The district court also concluded that several withheld maps
constituted Brady material, were willfully withheld, and created prejudice.
But the maps’ withholding does not appear to have had prejudicial impact.
The government had previously disclosed several maps showing the same
information.
The defense also asserts that the government wrongfully withheld an
internal whistle-blower memorandum regarding possible bias by BLM
UNITED STATES V. BUNDY 35
* * *
Surveying all of the withheld evidence, we agree with the
district court that the defendants suffered not only prejudice,
but substantial prejudice. The district court concluded that
the defendants specifically suffered prejudice in not being
able to prepare their case fully, refine their voir dire strategy,
and make stronger opening statements. The record amply
supports this conclusion.
B. Whether the Government Engaged in Flagrant
Misconduct
In this section, we first review the standard for judging
“flagrant misconduct” and then consider the circumstances
under which the government withheld Brady material in this
case.
1. Flagrant Misconduct
Substantial prejudice alone does not entitle defendants to
have their indictments dismissed with prejudice. Nor is it
sufficient that the government committed multiple Brady
violations. To warrant dismissal of an indictment with
prejudice, the government must have engaged in flagrant
misconduct in withholding the evidence. Kearns, 5 F.3d
at 1253.
Agent Dan Love, who oversaw the impoundment. The memorandum
appears helpful to the defense. However, because the district court did not
make any determinations regarding this memorandum, we will not address
it.
36 UNITED STATES V. BUNDY
The government candidly admitted at oral argument that
“in light of the district court’s findings of materiality, what is
clear is that we fell short.” But it forcefully contends that it
was not guilty of flagrant misbehavior because it did not
willfully withhold exculpatory evidence from the defense.
The government points out that many of the documents at
issue were in the hands of other federal agencies, such as the
FBI, and not the prosecution team. For that reason, the
government decries the possibility of turning the flagrant-
misconduct requirement into a strict-liability standard where
any Brady violation caused by the actions of another
government agency can lead to dismissal of an indictment.
Indeed, the district court itself believed that the
nondisclosures were the fault of “other government agencies;
not in the U.S. Attorney’s Office.” We are sensitive to the
government’s concern and agree that dismissal of an
indictment is not an appropriate remedy for an ordinary
Brady violation. See id. But both the factual record and the
law belie the government’s concerns here.
As a matter of law, the prosecution is “deemed to have
knowledge of and access to anything in the possession,
custody or control of any federal agency participating in the
same investigation of the defendant.” United States v. Bryan,
868 F.2d 1032, 1036 (9th Cir. 1989). The government’s
attempts to absolve itself of wrongdoing for other agencies’
failures therefore fall flat. To the extent that any government
agencies or actors, through their own flagrant misconduct,
failed to make known exculpatory information, the flagrant
nature of such conduct will be imputed to the prosecution—
just as the agencies’ or actors’ Brady violations are imputed
to the prosecution. See Youngblood v. West Virginia, 547
U.S. 867, 869–70 (2006) (per curiam) (holding that a Brady
violation occurs “when the government fails to turn over even
UNITED STATES V. BUNDY 37
evidence that is ‘known only to police investigators and not
to the prosecutor’”); United States v. Cano, 934 F.3d 1002,
1023 (9th Cir. 2019) (explaining that prosecutors are
responsible for turning over “information known to other
agents of the government” of which the prosecutor did “not
know but could have learned” (citation omitted)), petition for
rehearing en banc docketed, No. 17-50151 (9th Cir. Jan. 2,
2020).
Further, the government is wrong to suggest that flagrant
misconduct must be intentional or malicious. Although
flagrant misconduct cannot be an “accidental or merely
negligent” failure to disclose, the misconduct need not be
intentional. Chapman, 524 F.3d at 1085. “[R]eckless
disregard for the prosecution’s constitutional obligations” is
sufficient to give rise to flagrant misconduct. Id.
2. The Withholding of Brady Material
a. The Surveillance Camera. The district court
permissibly found that withholding of information about the
surveillance camera was willful rather than merely
inadvertent. Recall that Ryan Bundy requested information
regarding the camera in August of 2017. The government
opposed the request, saying that Ryan Bundy was engaging
in “little more than a fantastical fishing expedition for
evidence justifying attacking law enforcement.” The district
court initially denied the request because the request did not
comply with the local rules and failed to include supporting
arguments for why the evidence requested was discoverable.
But the district court later noted that the government had
acted with “some coyness” in turning over evidence.
38 UNITED STATES V. BUNDY
The government made no effort to locate the documents
regarding the camera and turn them over before the discovery
deadline in October 2017. The prosecution has an affirmative
obligation to learn of potentially favorable evidence and
provide it to the defense. See Kyles v. Whitley, 514 U.S. 419,
437 (1995) (explaining that a “prosecutor has a duty to learn
of any favorable evidence known to the others acting on the
government’s behalf in the case”); Cano, 934 F.3d at 1023
(stating that prosecutors are responsible for “information held
by subordinates such as investigating police officers and [the
duty to inquire] sometimes extends to information held by
other executive branch agencies” (citations omitted)). Rather
than looking into the request and locating the documents
before trial began, the government chose to fight rather than
respond to the request. This was a deliberate choice and the
district court did not err in concluding otherwise.
In an effort to absolve itself of responsibility, the
government points out that the district court originally ruled
that Ryan Bundy’s requests for information regarding
surveillance cameras were inadequately supported and
appeared to request immaterial evidence. But the district
court’s order cannot innoculate the government here. Ryan
Bundy requested specific information about the surveillance
camera, namely its make, model, and characteristics; the
district court failed to see why that information was material.
Contrary to the government’s insinuation, however, the
district court never suggested that information regarding the
existence and purpose of the camera was immaterial. And
once the district court was presented with all of the
information about the camera—particularly that it was set up
UNITED STATES V. BUNDY 39
with a view of the Bundy home,6 the district court had no
difficulty determining that the evidence was material and
should have been provided to the defense under Brady. Over
the course of the hearings, the district court found the
information “favorable to the accused and potentially
exculpatory,” and criticized the government for withholding
it on the “implausible claim” that no one viewed anything
reported from the camera.
The fact remains that the government, at least the FBI,
had this information in its possession. The district court,
when it made its initial ruling, did not. A court does not have
the same degree of familiarity or access to the evidence that
a prosecutor has. Hence, it is prosecutors, not courts, that are
“presumed to recognize [the] significance” of evidence.
United States v. Agurs, 427 U.S. 97, 110 (1976). In short,
prosecutors cannot hide behind a court’s discovery order to
suppress exculpatory evidence. We therefore decline to offer
blanket protection against findings of flagrant misconduct
simply because the court initially failed to see why a certain
aspect of evidence was material when the defense failed to
show materiality. Granting such protection could well
6
At one point in the discussion of the camera, the government stated
that the camera “was placed on high ground above the Bundy residence,”
but added, “I don’t want to leave the Court with the impression that it was
fixed on the Bundy residence.” However, the Law Enforcement
Operations Order—the master plan for the impoundment—called for
“Surveillance Systems,” and specified that it would be an “Internet camera
with [a] view of [the] Bundy residence.”
40 UNITED STATES V. BUNDY
encourage prosecutors to seek favorable discovery rulings to
use later as weapons against Brady claims.7
The materiality of evidence regarding a surveillance
camera pointed at a home to a case where the family claimed
that they felt surrounded by government snipers should have
been self-evident. Ryan Bundy had stated that he thought the
device had a “visible laser.” There is no evidence that it did.
The government’s evidence would have confirmed the
existence of a device but dispelled speculation about use of a
laser. Providing the information would have clarified the
situation for both sides, allowing each to muster the best facts
in support of its argument. Whether the withholding of the
document was the fault of the FBI or the prosecution team,
someone decided to withhold it. With or without a request
from the defense, the government should have handed this
information over—not fought its release. See Strickler,
527 U.S. at 280 (“[T]he duty to disclose [favorable] evidence
is applicable even though there has been no request by the
accused . . . .”).
b. Evidence of Snipers. Of particular concern is the
government’s handling of evidence related to the presence of
snipers. This was a hot-button issue. The term is evocative,
rhetorically charged, and would have been a dog whistle for
7
We also note that the materiality of evidence under Brady is an
objective inquiry. See United States v. Jordan, 316 F.3d 1215, 1252 (11th
Cir. 2003); Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); see also Fed.
R. Crim. P. 16(a)(1)(E)(i). Once the district court had a full view of the
evidence here, it properly concluded that the documents related to the
camera were material—a conclusion that the government should have
reached on its own. As such, a district court’s failure to appreciate the
importance of exculpatory evidence does not relieve the prosecution of its
obligation to turn over material evidence.
UNITED STATES V. BUNDY 41
summoning members of private militias in ways that
screaming “surveillance cameras!” would not. The
government said the Bundys’ claim of “snipers” was “false”
and “deceitful,” yet the government’s own documents
referred to its agents as “snipers.” The government disputed
the relevance of this information, fixating on the question of
whether the officers in the “overwatch” were technically
“snipers.” The district court had to remind the government
that these were questions for the jury.
The failure to produce evidence regarding “snipers” was
particularly troubling for the district court because, during the
Tier 3 trial of other co-defendants, the district court
prohibited testimony regarding the presence of snipers, based
on the government’s assurances that there were no snipers
involved in the impound operation. The district court even
removed a testifying defendant from the stand in that trial
because the defendant kept stating that snipers were present.
The district court was understandably exasperated when
evidence came to light in this trial, showing that the
government referred to its agents as “snipers.”
In short, the government had to know the import that any
evidence regarding snipers, or agents who looked and
functioned like snipers, would have in this case.
Nevertheless, it withheld a slate of information bolstering the
claim that the defendants could have had a reasonable basis
for believing there were snipers in the area. The government
claims that it relied on the district court’s motion-in-limine
order in believing that much of the evidence at issue here was
irrelevant. Even assuming that the government could have
understood the district court’s motion-in-limine order to
preclude the usefulness of evidence supporting an affirmative
claim of self defense, the evidence was still quite obviously
42 UNITED STATES V. BUNDY
Brady material.8 Specifically, the evidence speaking to the
presence of snipers undermined the government’s scienter
theory—that the defendants recruited armed supporters by
lying to them about snipers surrounding the Bundy Ranch.
The defendants were entitled to any evidence that could
contradict this theory, irrespective of whether they could or
would muster an affirmative defense. Espousing the belief
that evidence undercutting the government’s central theory of
mens rea was somehow irrelevant and not Brady material was
preposterous and reckless.
As for the Delmolino and Felix 302s, the government
once again points out that this information was in the hands
of the FBI. The district court concluded, irrespective of the
agency responsible, that the government’s withholding the
Delmolino 302 was willful. It noted how the prosecution
team had direct knowledge that Agent Delmolino had been
stationed near the Bundy home in tactical gear. While the
Delmolino 302 itself was in the hands of the FBI, the district
court specifically noted that members of the trial team from
8
The motion-in-limine order left open the possibility that the
defendants could make an offer of proof regarding self-defense. Thus, far
from closing the door on information helpful to an affirmative defense, the
order highlighted that the evidence could have been useful, and hence
should have been handed over. As the district court pointed out, this
language should have “placed the Government on notice that evidence that
could bolster a theory of self-defense might become relevant at trial.”
Indeed, by not providing evidence about the affirmative defense, the
government basically foreclosed opportunities for the defendants to make
an offer of proof. Furthermore, Brady evidence does not necessarily have
to be admissible. See United States v. Price, 566 F.3d 900, 911–12 (9th
Cir. 2009). Even assuming that the evidence here had no value in
challenging the government’s theory of mens rea, it still would have had
impeachment value and potentially could have led to other evidence
supporting a self-defense claim.
UNITED STATES V. BUNDY 43
the U.S. Attorney’s Office were present at the interview with
Agent Delmolino in March 2015. Yet, the information about
Agent Delmolino’s posting near the Bundy Ranch was not
revealed until the Delmolino 302 was released in November
of 2017, after trial began. Likewise, members of the
prosecution team were present for the interview of Felix in
2015. Hence, the prosecution team was not entirely ignorant
of the information provided by Delmolino and Felix in the
302s—even if it turns out that the blame for not turning over
these 302s lies with the FBI.
Because the prosecution team had direct knowledge of
some of this information, its claim that the court imposed
“strict liability” for the FBI’s failure to hand over the 302s
falls flat. Regardless, the argument is of no moment because
the FBI’s decisions not to provide the information are
imputed to the prosecution. See Youngblood, 547 U.S.
at 869–70; Bryan, 868 F.2d at 1036. And the government has
not explained how simple inadvertence or oversight within
the FBI kept the agency from producing these documents.
c. The Threat Assessments. Likewise, with the threat
assessments, the government failed to turn over beneficial
information speaking to Bundy’s potential for violence.
These documents could have helped bolster the defense’s
claim that the government had engaged in an overmilitarized
impound operation that the Bundys claim fueled their fears of
being surrounded by snipers. But irrespective of the theory
defendants were to put forward, these documents should have
been released. They, at the very least, provided impeachment
evidence because some of their findings contrasted with the
2014 threat assessment used as the basis for planning the
impound operation, and they undermined the prosecution’s
opening statement.
44 UNITED STATES V. BUNDY
Moreover, these documents were in the prosecution’s
possession all along. Notably absent from the government’s
brief is any discussion of how or why these documents were
overlooked. All the government says is that it relied on the
district court’s motion-in-limine order, believing that the
information in the threat assessments was not relevant.
However, the independent impeachment value of these
documents should have been obvious, given that certain
documents contained information about Bundy presenting a
minimal threat. And to the extent that the prosecution
doubted “the usefulness of evidence,” the government
“should resolve such doubts in favor of full disclosure.”
United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir.
1984).
Someone in the government made a conscious choice to
withhold these documents. 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 directly relevant to mens rea. In either
circumstance, the government fell well short of its obligations
to work toward fairly and faithfully dispensing justice rather
than simply notching another win. See Chapman, 524 F.3d
at 1088 (affirming dismissal of an indictment with prejudice
because the prosecutor did not abide by his “‘sworn duty . . .
to assure that the defendant has a fair and impartial trial,’ and
his ‘interest in a particular case is not necessarily to win, but
to do justice’” (alteration in original) (quoting N. Mariana
Islands v. Bowie, 236 F.3d 1083, 1089 (9th Cir. 2001))).
Thus, the district court had grounds for concluding that the
government’s failure to produce this evidence rose to the
level of reckless disregard and, hence, flagrant misconduct.
UNITED STATES V. BUNDY 45
d. The TOC Log. The TOC Log presents a different
circumstance. The district court found that the failure to turn
it over was willful on the government’s part. We conclude
that the district court clearly erred here.
Unlike the 302s, which were created as part of an ongoing
investigation and prosecution, the TOC Log was simply
forgotten about following the impound operation. According
to the government, because the “FBI never activated its
SWAT teams” during the impound operation, the TOC Log
“was never added to the investigative file or to FBI’s ‘police
assist’ file, but instead remained on a thumb drive in the TOC
trailer.” Specifically, the log’s thumb drive was left hanging
“in the TOC truck next to the computer on a designated
hook” and not placed in an investigation file or database. It
was located only after an FBI agent tried to gather any
remaining evidence related to the camera following the
November 8 hearing.
The district court concluded that the failure to turn over
the TOC Log was willful suppression. Although we agree
that failing to turn over the TOC Log was a Brady violation,
we do not agree that the failure to produce the TOC Log
amounted to a flagrant misconduct. We have been careful to
note that negligence or inadvertence cannot form the basis for
flagrant misconduct. Chapman, 524 F.3d at 1085; Kearns,
5 F.3d at 1255.
We cannot see how the failure to turn over the TOC Log
resulted from anything other than negligence. The Log was
left in the TOC vehicle pursuant to protocol. Given the
unique circumstances of how the Bundy impound operation
and subsequent investigation played out, the TOC Log was
not added to the FBI’s investigation file. Only after
46 UNITED STATES V. BUNDY
significant efforts, directed to locating other evidence, was it
located. Thus, even though the TOC Log’s withholding was
a significant Brady violation, we see no ground for
concluding that its absence was the result of reckless
disregard.
* * *
Although we see only negligence in the withholding of
the TOC Log, we can find no clear error in the district court’s
conclusion that the withholding of the camera evidence, the
Delmolino and Felix 302s, and the threat assessments crossed
the threshold from negligence to recklessness. The
prosecution withheld facially exculpatory evidence that
directly negated the government’s theory that the defendants
lied about fearing snipers. The deliberate choices to withhold
these documents were not cases of simple misjudgment,
especially given that doubt about the helpfulness of evidence
should be resolved in favor of disclosure. Van Brandy,
726 F.2d at 552.
In the end, the clearly erroneous standard recognizes that
the district court is closest to the case, the parties, and the
record. The district court was quite familiar with the case. It
had supervised the case from its inception. The court had
already conducted a trial and retrial for the Tier 3 defendants.
It is not surprising that the district court registered its
frustration with the government’s intransigence in turning
over discovery. At the November 13 hearing, it expressed
dismay “with these late disclosures and representations made
by the government that things did not exist but ultimately
were found to exist.” At the November 29 hearing, it
commented on the “dribs and drabs” being released weeks
after the trial began, and well after the date scheduled for
UNITED STATES V. BUNDY 47
production of the material. The district court was best
positioned to decide whether the government acted with
flagrant misbehavior that prejudiced the defendants.9 Given
the evidence that the government acted with at least reckless
disregard for the Brady value of some evidence that
prejudiced the defense’s ability to marshal their case, we
conclude that the district court’s findings of substantial
prejudice and flagrant misconduct in relevant part were not
clear error.
C. Whether Dismissal of the Indictment with Prejudice Was
Justified
A district court may dismiss an indictment as “an
appropriate sanction for a constitutional violation only where
less drastic alternatives are not available.” Kearns, 5 F.3d
at 1254. As we previously discussed, even when a district
court finds substantial Brady violations, prejudice to the
defendants, and flagrant government misconduct, a district
court has a range of options before it. Dismissal with
prejudice is, short of disciplining attorneys personally, “the
most severe sanction possible” for a court to order, because
it ends the government’s case. Isgro, 974 F.2d at 1097.
Despite the severity of that sanction, the fact remains that
9
Although we affirm the district court’s finding of flagrant
misconduct for the purposes of dismissing an indictment, we do not intend
to cast aspersion on the professionalism of the members of the U.S.
Attorney’s Office here. This was obviously a difficult and trying case for
everyone involved and, while we find a serious constitutional violation
based on choices made by the government, we in no way imply that the
misjudgments made here rise to the level of professional misconduct.
Indeed, much of the “blame” from the constitutional violations here falls
on the prosecution only because actions and knowledge related to
evidence by other government agencies are imputed to the prosecution.
48 UNITED STATES V. BUNDY
“[t]he district court is in the best position to evaluate the
strength of the prosecution’s case and to gauge the prejudicial
effect of a retrial.” Chapman, 524 F.3d at 1087. It is for this
reason that we review the district court’s choice of remedy
“for abuse of discretion, a standard of review that is ‘limited
and deferential.’” Herb Reed Enters., LLC v. Fla. Entm’t
Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013). Although
we have said that dismissal with prejudice requires a district
court to find that “no lesser remedial action is available,”
Chapman, 524 F.3d at 1087 (citation omitted), we recognize
that, in theory, a lesser remedy will always be available. We
understand by this phrase that a district court must conclude
that no lesser remedy will fully address the damage caused by
the government’s misconduct. We do not have to find that
dismissal with prejudice is the only remedy the district court
could have chosen, because to conclude so would mean that
it would have been an abuse of discretion for the district court
to have made any other decision.
What the phrase “no lesser remedial action is available”
means is that any lesser sanction will put the defense at a
greater disadvantage than it would have faced had the
government produced the Brady material in the first
place—thereby perpetuating the harm from a violation of a
federal constitutional right. See Struckman, 611 F.3d
at 577–78. In Chapman, we explained that in that case, “the
mistrial remedy would advantage the government, probably
allowing it to salvage what the district court viewed as a
poorly conducted prosecution.” Chapman, 524 F.3d at 1087.
We concluded that the government should not be permitted
“a chance to try out its case, identify any problem areas, and
then correct those problems in a retrial.” Id. (citation and
alterations omitted); see United States v. Shafer, 987 F.2d
1054, 1059 (4th Cir. 1993) (“[The government’s] self-
UNITED STATES V. BUNDY 49
inflicted injury cannot be used to afford the government a
second chance to prosecute so that it may argue a recast
theory of the case better supported by the evidence.”).
Notwithstanding the government’s earnest efforts, we can
find no grounds for concluding that the district court abused
its discretion in dismissing this indictment with prejudice.
The government claims that the district court’s findings are
unsupported, arguing that the court gave only cursory
consideration to the actual prejudice suffered by the
defendants as a result of the government’s Brady violations.
The record, however, satisfies us that the district court
thoroughly considered the prejudicial effects.
The district court held several hearings on the various
Brady violations, complete with rounds of briefing and oral
arguments. Several times, the district court highlighted its
concerns to the government. The district court also gave the
government ample opportunity to brief and argue whether the
prejudice suffered was substantial. The district court recited
the proper legal standards and made the appropriate findings.
The district court specifically concluded that retrial here
was inappropriate. It found that retrying the case “would
only advantage the government by allowing them to
strengthen their witnesses’ testimony based on the knowledge
gained from the information provided by the defense and
revealed thus far.” The district court explained that the
government could “perfect its opening statements based on
the revealed defense strategy in its opening and . . . conduct
more strategic voir dire at the retrial.”
The district court did not abuse its discretion in
concluding as much. Lesser sanctions—such as a
50 UNITED STATES V. BUNDY
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. Other remedies such as recalling
witnesses or granting a continuance would not cure the
prejudice already suffered by the defense in the form of lost
voir-dire and opening-statement opportunities. Moreover,
once the government turned over the Brady material, it may
have realized it might be difficult to pursue the case it had
promised in the indictment and the opening statement: that
the defendants had lied about the snipers and being
surrounded. Accordingly, not only would the Brady
documents affect the defendants’ strategy, it might well have
altered the prosecution’s strategy. Having “tr[ied] out its
case” and “identif[ied] . . . problem area[s],” the government
could have “correct[ed] those problems in a retrial.”
Chapman, 524 F.3d at 1087 (fourth alteration in original).
The government responds that even if dismissal were
warranted, the district court could have struck the portions of
the indictment alleging that the defendants intentionally lied
about feeling surrounded by snipers, and not dismissed the
entire indictment with prejudice. The paragraphs in question,
however, are not counts, but factual allegations supporting the
government’s charges. It is unclear to us whether striking
these sections would have served the remedial purposes of the
court’s exercise of its supervisory power. These do not
appear to be elements of the crimes alleged, but were a theory
of the government’s case, as elaborated in its opening
statement. The government’s case, therefore, would have
been significantly altered without these allegations, but
perhaps not weakened. And that would have meant that the
government would get a second shot at preparing its case,
“allowing [the government] to salvage” the case. Chapman,
UNITED STATES V. BUNDY 51
524 F.3d at 1087. The district court did not abuse its
discretion in failing to choose partial dismissal as a remedy.
There is also the related need to impose a sanction that
will serve to deter future prosecutions from engaging in the
same misconduct as occurred here. We note the
government’s failure to acknowledge and confess any
wrongdoing during the course of this case—especially as to
material misrepresentations to the district court about the
presence of snipers. Rather than accepting responsibility, the
government blamed the defense for not requesting more
specific information. Even in its motion for reconsideration,
the government continued to maintain that it never had an
obligation to turn these documents over and that any omission
on the government’s part was the fault of the defendants for
not doing a better job of showing why this information was
relevant. Only on appeal has the government admitted that it
should have turned these documents over.
In Chapman, we specifically highlighted the prosecutor’s
“unwillingness to take responsibility for his conduct,” finding
that this supported the district court’s decision to dismiss an
indictment with prejudice. 524 F.3d at 1088; see also id.(“We are similarly troubled, both by the AUSA’s actions at
trial and by the government’s lack of contrition on appeal.”).
Likewise, “attempt[s] to minimize the extent of the
prosecutorial misconduct, completely disregarding the
AUSA’s repeated misrepresentations to the court and the
failure to obtain and prepare many of the critical documents
until after the trial was underway” are themselves added
grounds for dismissing an indictment with prejudice. Id.Given the government’s efforts to minimize the defendants’
discovery requests and its misrepresentations to the district
court in such a high-profile case, the district court
52 UNITED STATES V. BUNDY
understandably sought a remedy that would reinforce the
seriousness of the violations here.
Finally, we note that other courts have recognized the
great prejudice suffered when a defendant is denied access to
evidence challenging the government’s central theory of the
case until mid-trial. In United States v. Shafer, for example,
the government lost evidence that significantly undermined
the testimony of key witnesses. 987 F.2d at 1056. The
defendant moved to dismiss the case with prejudice. Id. The
district court, however, only declared a mistrial and declined
to dismiss with prejudice, giving the government another
chance to prosecute the case. Id. The Fourth Circuit
concluded that the district court abused its discretion in
giving the government the opportunity to retry the case. Id.
at 1058. The court reiterated the seriousness of federal
felonies and how the government had ample time to prepare
the case. Id. at 1059. It then concluded that “[t]he proper
course of action was for the district court to dismiss the case
with prejudice.” Id. It closed by saying that there is no
“manifest necessity” to try a case tainted by “the mid-trial
‘discovery’ of substantial exculpatory evidence contradicting
the government’s theory of the case.” Id. Here, the district
court concluded that the government should not benefit from
its misconduct. And there can be no denying that the
government would enjoy the benefit of having done a “dry
run” of this case. Because the district court could find no
other way to avoid giving the government this benefit, it did
not abuse its discretion in dismissing the indictment.
We do not need to go so far as to affirm that each of us
would also have dismissed the case with prejudice. It is the
nature of discretion and a consequence of the vicissitudes of
UNITED STATES V. BUNDY 53
life that district courts have leeway to fashion an appropriate
remedy. As Justice Frankfurter explained for the Court:
The civilized conduct of criminal trials cannot
be confined within mechanical rules. It
necessarily demands the authority of limited
direction entrusted to the judge presiding in
federal trials, including a well-established
range of judicial discretion, subject to
appropriate review on appeal . . . . Such a
system as ours must, within the limits here
indicated, rely on the learning, good sense,
fairness and courage of federal trial judges.
Nardone v. United States, 308 U.S. 338, 342 (1939). It is
sufficient for us to conclude that the district court did not
abuse the discretion entrusted to it, that dismissal with
prejudice was within the range of appropriate remedies in this
case.
IV. CONCLUSION
The district court can dismiss an indictment under its
supervisory powers “(1) to implement a remedy for the
violation of a recognized statutory or constitutional right;
(2) to preserve judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before a jury; and
(3) to deter future illegal conduct.” Struckman, 611 F.3d
at 574 (internal quotation marks omitted). These
prerequisites are met here.
54 UNITED STATES V. BUNDY
The judgment is AFFIRMED.10
10
Ryan Payne’s motion to unseal Volume IX of the government’s
excerpts of record is denied. The government’s motion to maintain under
seal Volumes 18 to 22 of the excerpts of record submitted by Ryan Payne
and Ammon Bundy is granted but the request to strike those same
volumes is denied. The government’s motion to maintain under seal
Volume 23 of the excerpts of record submitted by Ryan Payne and
Ammon Bundy is denied and the request to strike that same volume is
denied.