Judge Gloria Navarro declared a mistrial Wednesday morning in the Bundy trial in Las Vegas, Nevada, as a result of her concerns about Brady violations by the prosecution. Judge Navarro described the violations as “willful” failure to turn six key pieces of evidence over to the defense that would be helpful to their case.
The withheld evidence includes verification of several things the defense has argued contributed to the actions of the defendants during the 2014 armed standoff between the Bundys, their supporters, and Bureau of Land Management and law enforcement officers. The prosecution has repeatedly denied these things occurred.
One example was documentation of the presence of snipers near the Bundy ranch in the days leading up to the standoff. The Bundys repeatedly claimed that snipers were there, and this was one reason people, including militia members, came to Bunkerville to support them. Many claim that when they heard about the snipers, they feared violent action against the Bundys by law enforcement, and came to protect them.
The Bundys themselves have argued that they felt threatened because of the snipers and the aggressive posture of the authorities. They have said the Bureau of Land Management provoked them and their supporters into the armed standoff that occurred April 12, 2014 in Nevada. However, according to the judge, the prosecution has insisted there were no snipers present in previous trials.
Judge Navarro cited an “FBI log with entries that said ‘snipers were inserted’ and on standby outside the Bundy home. Three entries in the log mentioned snipers present, Navarro noted. Prosecutors claimed they were unaware of the log at first because it was kept on a thumb drive in a tactical vehicle.”
“The government is still responsible for information from the investigating agency. The FBI chose not to disclose it,” Navarro said.
Another example, an FBI report about a security camera, trained on the Bundy family home in Bunkerville, that was put up and monitored by the FBI. “The government falsely represented the camera that was on the Bundy house was incidental, not purposeful,” the judge said.
Also included were threat assessments of the Bundys that stated they weren’t considered violent, and documents from the Bureau of Land Management that show the Bundy’s trespassing cattle had caused no harm to the endangered desert tortoises.
As a result of these developments, “a mistrial in this case is the most suitable and only remedy available,” Judge Navarro said. A new trial may be held in February, but in the meantime, Judge Navarro will decide if it is a mistrial with or without prejudice. If she rules it is with prejudice, there won’t be another trial for the current charges against Cliven, Ryan, and Ammon Bundy and Ryan Payne.
In what seems a sudden and surprising reversal of her prior denial of release for the Bundys and Ryan Payne as their trial proceeds in Nevada, Judge Gloria Navarro has granted release from prison for Cliven and Ammon Bundy, and Ryan Payne. She had previously reversed her decision to deny Ryan Bundy release, allowing him to move to a halfway house on November 13, 2017.
This decision to release the defendants came after a sealed hearing, details of which are still not publicly available.
Ammon Bundy walked out of the courthouse early Thursday with his family to be greeted by a crowd of supporters and the press.
Cliven Bundy has refused the conditions of release, opting to remain in prison. His attorney, Brett Whipple, stated, “to be released, he would have to agree to conditions. In his opinion, he’s not willing to take a deal with the government when he hasn’t done anything wrong to begin with…. He’s very principled and he doesn’t want to violate those principals and I respect that.”
Ryan Payne was also granted release, pending approval from Judge Anna Brown in Oregon federal court. Payne still faces sentencing in Oregon for his role in the 2016 Malheur Wildlife refuge occupation. A hearing is scheduled for 3:00pm today (Friday) in the Portland federal courthouse.
The trial in Nevada is expected to resume December 11, 2017.
Update, 12/2/2017: Ryan Payne was released Friday, 12/1/2017. It looks as though there will be a release hearing for Dave and Mel Bundy, Joseph O’Shaughnessy, and Jason Woods on Monday. Here are the conditions for release.
Rumors are flying today that Cliven, Ammon, Mel, and Dave Bundy, and Ryan Payne, will be released from custody today as their trial continues in Las Vegas. Supporters of the Bundys have made Facebook posts such as this one and this one that appear to confirm the rumors. This information comes after the court room spent the morning in a sealed hearing.
Fox 5 Las Vegas confirmed that Judge Navarro would release the defendants in a tweet this afternoon.
Update 1:36pm: this [that article appears to have been removed] article from Las Vegas Now confirms the Bundys are to be released for the duration of the trial. It does not mention Ryan Payne.
12/1/2017: The above Las Vegas Now article appears to have been removed and that link no longer works. Here is an Oregon Live article from 11/29/2017 with more details.
The long-rumored and quietly discussed Longbow Productions came out of the shadows this week with the release of the Frontline documentary American Patriot which showed some clips of footage filmed by the Longbow team. Longbow Productions was a fake documentary film crew, created by the FBI to gather evidence against the people involved in the 2014 confrontation between the Bureau of Land Management (BLM) and supporters of rancher, Cliven Bundy.
Longbow Productions was the creation of the Las Vegas FBI office after the Bunkerville standoff in 2014. It was led by an undercover agent who went by the name of Charles Johnson, and who has since been arrested in an unrelated case where he posed as an “investigative consultant for a journalist.” A fake website was set up and the crew obtained professional recording equipment, and then approached the Bundy family and supporters requesting interviews.
A motion to exclude Longbow evidence from Cliven Bundy’s trial, filed in February 2017, states, “the FBI created a fake film production company designed to trick defendants into making boastful, false, and potentially incriminating statements that could be used against Defendants.” It also claims that the FBI “delayed filing of any criminal accusations in this case in order to launch a wide-reaching deceptive undercover operation known as ‘Longbow Productions.'”
The film crew traveled to five states, possibly more, and interviewed at least 20 different people in an effort to gather evidence. According to the Intercept article America Reloaded (named for the working title of Longbow’s supposed documentary) by Ryan Devereaux and Trevor Aaronson, there were over 100 hours of video and audio recordings from the Longbow team.
That article goes on to call into question the usefulness of such an undercover operation, pointing out that the majority of what was said in the Longbow interviews was already well-documented in many ways, by many different sources. The article states, “despite a clear risk that considerable resources would be expended to gather publically available information, incurring a guaranteed backlash from legitimate members of the news media along the way, Johnson and the FBI pressed on.”
Rick Rowley, Frontline producer of American Patriot, also questioned the operation in an interview with Dave Miller on OPB’s Think Out Loud. Rowley states, “it seems like it must be part of the case because it’s an embarrassing thing that you wouldn’t want to reveal unless you needed the evidence from it, but to my ears, it’s difficult for me to see what the logic is behind it.” He describes the questions asked in the Longbow interviews as leading, and that they “seem to be about trying to build a conspiracy.”
The effectiveness of evidence gathered using this undercover film crew is also worth questioning. In a February 7, 2017 Guardian article by Sam Levin, Ammon Bundy’s lawyer, Daniel Hill, is quoted as saying, “when the jury finds out this tactic they used, none of them will think it’s okay. It shows the lows the government was willing to go to.” Indeed, after Longbow evidence was presented in the first trial of defendants in the Bunkerville case, it’s been reported that jurors did in fact think that it was not okay. According to the Intercept article, Eric Parker’s attorney, Jess Marchese, “said a number of jurors he spoke to were turned off by the government’s presentation of the Longbow evidence.”
The Longbow operation undoubtedly had a high price tag as well. Cliven Bundy’s motion to exclude the Longbow evidence states, “the FBI’s Longbow operation spent taxpayer money extravagantly and with wild abandon.” It goes on to describe how the agents conducted many interviews in expensive hotels, plied some interviewees with alcohol, and paid for the interviews. Charles Johnson even offered to buy the rights to the Bundy’s story, and his assistant, known as Anna, offered to buy tickets to the Wrangler National Finals Rodeo to entice the Bundy’s to Las Vegas for interviews, according to the Intercept article.
What is perhaps most disturbing about the entire undercover operation, is the effect it has on journalism and news gathering. From Levin’s February 2017 Guardian article, “‘if you think every reporter you meet could be an agent of law enforcement, it really has an immediate impact on any journalist coming to try and cover that story,’ said Gregg Leslie, the legal defense director of the Reporters Committee for Freedom of the Press.”
Daniel Hill, Ammon Bundy’s lawyer, is quoted in this Frontline article by the producers of American Patriot as saying “they impersonated journalists so they could interrogate people the FBI fully intended on charging with serious crimes, without any lawyers present. We should not have to fear that our government is infiltrating America’s sacred press and media institutions in order to try to gain prosecutorial advantages against its own people.”
In 2015 the Associated Press (AP) along with the Reporters Committee for the Freedom of the Press sued the Department of Justice. The lawsuit was the result of unanswered Freedom of Information requests made by the organizations seeking information about a 2007 sting operation in which an undercover FBI agent posed as an AP reporter.
“We cannot overstate how damaging it is for federal agents to pose as journalists,” Katie Townsend, the litigation director for the Reporters Committee for Freedom of the Press, said in a statement. “This practice undermines the credibility of the independent news media, and should not be tolerated.”
And of course, there is Rick Rowley’s perspective, from his Think Out Loud interview about the Longbow operation. “For people that are reporting on other stories, it puts their lives in danger. If criminal organizations in the world know that the FBI is willing to pose as journalists in order to try to infiltrate groups then it puts us all in danger.”
The use of a fake documentary film crew is just one more thing to question about the way the FBI handled this entire investigation, from Bunkerville to Malheur.
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Yesterday, June 22, 2016, the Federal Bureau of Investigation arrested William Keebler in Nephi, Utah, after he allegedly attempted to detonate a fake bomb they had provided him with. Keebler was present in Bunkerville, Nevada in 2014, at the Bundy ranch and apparently at the stand off between Bundy supporters and the BLM on April 12, 2014. He is described as the leader of a citizen militia group, the Patriots Defense Force.
The felony complaint document states that Keebler was an associate of Lavoy Finicum, the Arizona rancher killed by law enforcement at a roadblock in Oregon during the occupation of the Malheur National Wildlife Refuge earlier this year.
According to the felony complaint, the FBI had had undercover officers inside the Patriots Defense Force, acting as members and participating in various training exercises with the militia group, for several months. The felony complaint describes several meetings over that time period in which Keebler discussed “going on the offensive” and “gathering intelligence on potential targets.” One such meeting is described as follows:
On March 19, 2016, Keebler organized and led an FTX [field training exercise] for the PDF militia group. Keebler described the direction the PDF was going to focus on. Keebler said the government had been allowed to harass people, but the repercussions were going to start. Keebler had previously said the BLM was overreaching their authority to implement grazing restrictions on ranchers. Keebler had opined the land belonged to “the people” and could be used responsibly at the American people’s discretion. Keebler said the PDF was going to target BLM facilities in the “middle of nowhere.” Keebler stated the PDF was going to sneak in and severely damage vehicles or buildings. Keebler requested a PDF member/UCE [FBI undercover employees] who has explosive materials expertise, to build an explosive device that could disable a BLM vehicle or damage a building. Keebler made it clear he didn’t plan on blowing people up for now, but he wanted his group to be prepared to escalate things, and take people out if necessary.
On May 14, 2016, Keebler announced to the group that they would target a BLM facility at Mount Trumbull, Arizona and requested two bombs be built by the UCE, one to place at the facility to be remotely detonated, and the other for use in case they were stopped by law enforcement on the way to or from the BLM facility.
According to the felony complaint, Keebler had previously scouted the Mount Trumbull facility in October, 2015, with Lavoy Finicum, accompanied by an FBI undercover employee who took pictures of the facility.
On June 21, 2016, one of these devices was “placed against the door of one of the BLM cabins in Mount Trumbull [Arizona]. After the device was placed against the door, Keebler was handed a remote detonation device. Keebler then pushed the detonator button multiple times in order to remotely detonate the inert explosive.” Keebler was arrested the following morning after he had returned to Utah.
This calls several things into question for me. First of all, who placed the bomb next to the door of the BLM cabin? Who handed the detonator to Keebler? Was it entirely Keebler’s idea and decision to bomb a BLM facility? It wouldn’t be the first time the FBI has stopped a crime that they helped to plan.
One example that most of my fellow Oregonians probably remember is the case of Mohamed Osman Mohamud who was arrested in Portland, Oregon, in 2010 for attempting to detonate a fake car bomb at a Christmas tree lighting ceremony. The FBI had provided him the bomb after encouraging the plot.
In a September 18, 2011 Los Angeles Times Op ed, Petra Bartosiewicz writes:
The government’s marquee post-9/11 terrorism investigations, including cases such as the Miami Seven, the Ft. Dix Six and last year’s Portland Christmas Tree Bomber, have not involved real attacks but, rather, have been sting operations involving plots invented by law enforcement. New York University’s Center on Law and Security, which tracks federal terrorism prosecutions, reports that since 2009, the FBI has escalated its use of stings in which a confidential informant or undercover officer approaches a suspect and “assists him in the planning of an attempted terror crime.”
The defendants in these plots, most of them male Muslim immigrants with no history of terrorism or violence, have become unwitting actors in a disturbing theatrical performance: The FBI scripts the plot and provides the weapons, along with money, cars and any other logistical support needed to carry out the “attack.”
She goes on to discuss the argument that only the “true bad guys will take the bait” in such sting operations by stating, “terrorism stings go much further than presenting a likely bad guy with a passing criminal opportunity. The operations last for months and sometimes years, with suspects offered all manner of enticements to participate in a plot they probably would never have come up with on their own.”
I suppose that we should all feel so much safer as the FBI is so effective at stopping their own plots. Even though they were unable to stop Omar Mateen from killing 49 people in Orlando, Florida in spite of the fact that the gun dealership where Mateen requested a thousand rounds of ammunition and body armor reported concern about him to the FBI weeks before the shooting. And this after Mateen had previously been on the terrorist watch list and under intense investigation in 2013-2014.
Even though they seem unable to stop armed wildlife refuge “take overs” in spite of their success, as demonstrated in this case with Keebler, at infiltrating groups associated with those who did occupy the Malheur refuge. Clearly all the surveillance and infiltrating works wonders.
UPDATE, June 29th, 2016: According to this Salt Lake Tribune article published today, “Lavoy Finicum did not accompany Keebler when he scouted the BLM cabins in October 2015, as was alleged in the charging documents.” The article also states that Keebler’s federal defender said in court:
“…undercover agents proposed the explosive types, drove Keebler to the location, placed the bomb, handed Keebler a remote trigger and told him to press the button three times.”