Federal prosecutors to appeal dismissal of charges in Nevada Bundy case

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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.

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Defense files motion requesting the exclusion of expert reports and testimony in Astarita case

Katie Aguilera

Lawyers for FBI agent W. Joseph Astarita have filed a motion to exclude the expert reports and testimony of several witnesses for the prosecution in Astarita’s case.  Astarita is accused of firing two shots at Robert ‘LaVoy’ Finicum on January 26, 2016 and subsequently lying about it.   The two shots did not hit Finicum, but one struck the roof of Finicum’s truck.

The shooting occurred at a road block set up to stop and arrest leaders of the occupation of the Malheur National Wildlife Refuge as they traveled along Highway 395 to John Day, Oregon.  Finicum was shot and killed by Oregon State Police (OSP) officers at the road block after exiting his vehicle and appearing to reach for his pocket.  An investigation of the shooting concluded there were two shots fired during the stop that were unaccounted for.

The prosecution’s case against Astarita relies in large part on the 3D reconstructions and diagrams created by several expert witnesses that concluded only Astarita was in position to fire the two shots that are unaccounted for.

In the defense motion, filed April 4, 2018, it is argued, “because the government has no photographic, video, ballistic, or eyewitness proof that Special Agent Astarita fired his weapon, this assumption [of his firing the two shots] rests entirely on the proposed testimony of the so-called experts.”

The reason no such video exists is because the FBI Hostage Rescue Team requested the OSP officers not wear body cameras during the road block.  OSP officers normally wear body cameras when deployed.  Additionally, the shell casings from the two shots, as well as casings from some of the shots fired by OSP officers, were missing from the scene.

The defense goes on to question the accuracy of the experts’ conclusions, the expertise of the witnesses, and the methods used in their investigations.  It states, “the Court cannot allow experts to present conclusions on such important issues in a criminal trial without ample assurances of reliability.  The government and its purported experts have failed to provide such assurances here…”

Astarita has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.  A hearing to determine what experts’ testimony will be allowed in the trial is scheduled for May 21, 2018.

FBI requested no body cameras the night Robert ‘Lavoy’ Finicum was shot and killed

Katie Aguilera

On January 26, 2016, Oregon State Police SWAT and the FBI Hostage Rescue Team (HRT) deployed together for the planned arrest of leaders of the occupation of the Malheur National Wildlife Refuge.  The plan called for an initial traffic stop on Oregon highway 395, with a road block farther down the highway in case either of the two vehicles the leaders were traveling in did not comply at the initial stop.

The driver of the vehicle Ammon Bundy was riding in complied at the initial stop and all occupants were taken into custody.  Robert Lavoy Finicum, who was driving the other vehicle, initially stopped, then, after Ryan Payne got out of the truck, took off towards the road block.  When he reached the road block, Finicum crashed his truck into the snow bank to avoid it.  After he exited his vehicle, Finicum was shot three times by OSP officers.

There have long been rumors that police and FBI involved in the shooting death of Finicum were ordered to turn off dash and body cameras.  It has now been confirmed that these rumors have some basis in fact.

In the investigation into the shooting death of Finicum, investigators determined that there were two shots fired that were unaccounted for.  FBI HRT operator W. Joseph Astarita has since been charged with lying about firing his rifle twice at Finicum at the road block.  Astarita has requested the charges be dismissed.

According to court documents filed February 2, 2018 by the prosecution in response to W. Joseph Astarita’s motion to dismiss the charges against him, Oregon State Police (OSP) officers, at the request of the FBI, did not wear body cameras on January 26, 2016 during the attempt to arrest occupation leaders.

A footnote in the 32-page response states:

“OSP SWAT troopers are ordinarily required to wear body cameras while deployed.  However, they did not wear the cameras while deployed with HRT–at HRT’s request.”

After the two shots that were unaccounted for were discovered, and it was also discovered that shell casings from those two shots as well as some of the shots fired by OSP officers were missing, a new investigation of the FBI HRT operators involved was opened.  The FBI operators were interviewed for a second time by OSP detectives, as described by the prosecution’s response to Astarita’s dismissal motion.

According to the document, “on February 6, 2016, two OSP detectives re-interviewed defendant, [Astarita], B.M., [Astarita’s immediate supervisor] and the HRT operative who was nearly struck by Finicum’s truck at the roadblock.  By then, the detectives knew that there were unaccounted-for shots and missing shell casings.  The HRT operators knew it as well. The HRT operators set conditions for the interview.  They were only willing to be interviewed if:  1) they were interviewed as a group, not individually; 2) the interview was not recorded; and 3) their lawyer could be present by speakerphone.  In addition, they would not answer any questions previously asked without being able to reference statements from prior interviews.” (Emphasis mine).

The response also argues that though Astarita has claimed he didn’t speak at this second interview, the OSP detectives have stated that he did.  The document states, “he spoke less than others who were present, and considerably less than he did during the first interview.  He did nothing to correct statements made on his behalf…These sorts of factual disagreements can only be resolved at trial, not in a pretrial motion to dismiss.”

It is inexplicable that the FBI would request that no body cameras be used during the arrest attempt, and it is also odd that OSP agreed to the request.  This only serves to raise suspicion as to the intentions of the officers involved.  The reasons behind this decision need to be made clear.

That a member of any law enforcement agency would lie about, and actively work to cover up, shots fired during an arrest attempt harms the credibility of, and trust in, all law enforcement.  Although it comes as no surprise that the FBI would attempt to cover up the shooting as they have a track record of such activity, when something like this happens, they must be held accountable.

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Family of Robert “Lavoy” Finicum files wrongful death lawsuit

Katie Aguilera

Two years after Robert “Lavoy” Finicum was shot and killed by Oregon State Police officers on Highway 395 in Harney County on January 26, 2016, the Finicum family has filed a wrongful death lawsuit against a slew of defendants.  These include the United States, FBI, BLM, Oregon State Police, Harney County, a number of officials from those agencies, the Center for Biological Diversity, and 100 ‘John Does,’ among others.

The lawsuit was filed Friday, January 26, 2018 by lawyers Lisa Ludwig and J. Morgan Philpot in US District court in Pendleton, Oregon.

The 48-page complaint states, “the murder of LaVoy was plainly unlawful under rights guaranteed by the United States Constitution and also…unlawful under other laws of the United States and the laws of the State of Oregon.  It was the result of a brutally deliberate course of action willfully set in place and caused by a small selection of county, state, and federal officials who are named as defendants in this lawsuit.  These defendants were mentally predisposed and committed to using excessive lethal force, to solve a political dispute.”

It goes on to describe the events that led to the shooting of Finicum on January 26, 2016, beginning with the Bunkerville, Nevada standoff in April, 2014.  It claims that Finicum was intentionally targeted because of his association with Cliven Bundy and family, his membership in the Church of Latter-day Saints, and his “political views and statements regarding land rights and federal government overreach—specifically, his consistent political activism and statements that were critical of the BLM.”

The complaint claims that law enforcement and the BLM deliberately mischaracterized Finicum as being a threat to law enforcement and government employees by willfully participating in the “spreading of false and maliciously inaccurate information.”  It goes on to state the BLM and FBI kept an active file on Finicum, and that “Defendant Love [Former BLM employee, Daniel P. Love] and other John Doe defendants fabricated information, edited, omitted, or reported misleading information from this file, and added misleading information to this file, for the purpose of intentionally creating the false impression that LaVoy Finicum was associated with militia and presented a risk of violence to law enforcement…”

This misinformation, according to the lawsuit, “contributed directly to the subsequent shooting death of LaVoy Finicum.”

Also in the complaint are details about the January 2, 2016 occupation of the Malheur National Wildlife Refuge in Harney County, Oregon by Finicum and others.  It states a meeting took place on January 2, 2016, between Ammon Bundy and others, discussing Bundy’s plan to move the protest to the Refuge in an attempt at “adverse possession.”  According to the complaint, this meeting was openly attended by a Harney County deputy sheriff.

The complaint alleges that the defendants worked to control the narrative in order to keep the adverse possession claim out of public discourse.  It states, “these defendants ignored legal advice and counsel that suggested that the appropriate course of action would be legal notice and possible trespass charge—by local law enforcement and local civil court actions.  These same defendants also ignored advice from local legal authorities, that no law had been broken by the attempted adverse possession.”

“Instead, Defendants…willfully decided to fight a public political battle, and demanded that the FBI, BLM, and DOJ take the lead and bring the occupation to a close by force.”

It goes on to point out that there were never any eviction notices or complaints of trespass during the occupation of the Refuge.  Also, that as of January 26, 2016, “there was no criminal complaint, no probable cause affidavit, no federal indictments, or any other formal proceeding to inform—let alone argue—that LaVoy Finicum or any other occupier was being accused of breaking the law.”  This includes the time of the initial January 26, 2016 traffic stop and subsequent roadblock, where Finicum was shot and killed.

The lawsuit claims that Oregon State Police and FBI agents executed a “deadman’s roadblock” in violation of police procedure and the Constitution on January 26, 2016.  It states, “the roadblock had been strategically placed so as to prevent it from being visible until impact was a near certainty for any vehicle traveling at posted speeds.”

The complaint also discusses the actions of FBI agent W. Joseph Astarita during the roadblock, who is currently facing charges for his alleged attempt to cover up the fact that he allegedly fired his weapon twice after Finicum crashed into the snowbank to avoid the roadblock.  It claims that one of these shots resulted in the wounding of Ryan Bundy, who still has a piece of metal in his shoulder that may or may not be a bullet or bullet fragment.

The shooting of Lavoy Finicum was ruled as justified by Oregon officials.  The officers involved stated that Finicum was reaching into his jacket pocket which they say they later found held a loaded pistol.  Video of the shooting shows Finicum exit his truck with his arms up, however, as he moves away from the truck he drops his arms twice, and before he is shot three times, he appears to reach for his side.

Early in the occupation of the Refuge, in an interview, Finicum had said, “I’m not going to end up in prison.  I would rather die than be caged.  And I’ve lived a good life.”

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Judge dismisses case with prejudice in Las Vegas

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.

Ammon Bundy released from prison, Cliven Bundy refuses release, and Ryan Payne granted release pending approval from Oregon judge

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.