According to court documents filed yesterday in the US Court of Appeals for the ninth circuit, federal prosecutors have been authorized to appeal the dismissal of charges in the Nevada Bundy case. The charges against Cliven, Ryan and Ammon Bundy and Ryan Payne were dismissed with prejudice by Judge Gloria Navarro on January 8, 2018 due to Brady violations by the prosecutors.
The document filed yesterday is a request by the prosecution for a 14-day delay in filing its opening brief for an appeal. The document states “undersigned counsel advises the Court and the defendants that the review process is complete and the Solicitor General has authorized the government’s appeal.”
Prosecutors filed a motion requesting the Court reconsider its orders to dismiss the charges on February 8, 2018. The district court denied that motion on July 3, 2018 and the US Attorney’s office reported that decision to the appellate section of the Department of Justice’s criminal division. The US Solicitor General then began the process of deciding whether to appeal the decision, according to court documents.
Cliven Bundy’s lawyer, Larry Klayman, has filed motions opposing the extension of time. He writes, “…any continuing appeal would have no factual or legal bases to succeed and thus be wholly frivolous and is intended only to continue to harass, vindictively inflict more severe emotional distress upon and financially ruin…” Cliven Bundy and his co-defendants.
The prosecution states in its request for delay that it will file its opening brief on or before February 6, 2019.
President Trump has granted full pardons for Dwight and Steven Hammond, Oregon ranchers imprisoned for arson on federal land.
The Hammonds pleaded guilty in 2012 to two counts of arson on federal land which, according to mandatory minimum sentencing guidelines, should have resulted in five year prison sentences. The judge in the case however, decided that a five year sentence would “result in a sentence which is grossly disproportionate to the severity of the offenses here,” and instead sentenced Dwight Hammond to three months in prison and Steven Hammond to one year and one day.
The federal government appealed the sentences. The Ninth Circuit of Appeals remanded the case back to the Oregon US District Court where the original sentence was overturned and the Hammonds were ordered to return to prison to serve the remainder of a five-year sentence.
The Hammonds’ story gained national attention after Ammon and Ryan Bundy and supporters occupied the Malheur National Wildlife Refuge in Harney County, Oregon The armed occupation began after a support rally for the Hammonds took place in Burns, Oregon.
The Bundys initially claimed they came to Harney County to protest the Hammonds’ return to federal prison and in fact they had urged Dwight and Steven Hammond not to turn themselves in. The Hammonds did not support the occupation however, and willingly returned to prison in January 2016.
Oregon Representative Greg Walden (R) recently asked President Trump to pardon the Hammonds.
Judge Gloria Navarro dismissed the case against Cliven, Ryan, and Ammon Bundy and Ryan Payne with prejudice this morning. The judge cited the Brady violations by the prosecution that led to the trial ending in a mistrial in December as one reason for the dismissal. This means the defendants cannot be retried for the charges they were indicted for.
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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None of the funds made available by this Act may be used to make a Presidential declaration by public proclamation of a national monument under chapter 3203 of title 54, United States Code in the counties of Mohave and Coconino in the State of Arizona, in the counties of Modoc and Siskiyou in the State of California, in the counties of Chaffee, Moffat, and Park in the State of Colorado, in the counties of Lincoln, Clark, and Nye in the State of Nevada, in the county of Otero in the State of New Mexico, in the counties of Jackson, Josephine and, Malheur in the State of Oregon, or in the counties of Wayne, Garfield, and Kane in the State of Utah.
House Democrats attempted to remove the amendment from H.R. 2822 but were unsuccessful by a vote of 202-225.
On his website, Rep. Greg Walden (R-Or) states, “The President shouldn’t be able to lock up thousands of acres of federal land to all productive uses with just the stroke of his pen and no say from the people who are most affected. Some have identified the Owyhee Desert as a target for a national monument designation, and I have heard strong local opposition to such an action.”
According to this July 15, 2016 Argus Observer article, H.R. 2822 also includes a provision for “$480 million for payments in lieu of taxes, which provides money for county governments to offset losses in property taxes on federal land. It will also delay “for at least one year further action on greater sage grouse and eliminates a proposed increase on grazing fees on federal land.”
That article goes on to say that the bill may face filibuster in the Senate, and President Obama has threatened to veto it if it passes the Senate in its current form.
You can read why I feel the Owyhee Canyonlands should not be declared a National Monument here.