Sunday, August 09, 2020

Case o' The Week: Ninth Unmoved by Government's Sniping - Bundy and Dismissal of an Indictment for Flagrant Brady Violations

Bundy's discovery demand for evidence of covert video surveillance, and of federal snipers surrounding his ranch, was a “fantastical fishing expedition,” scoffed the AUSA.

Mr. Cliven Bundy

(After which the government produced the evidence of covert video surveillance, and federal snipers surrounding the Bundy's ranch).

 United States v. Bundy, 2020 WL 4517572 (9th Cir. Aug. 6, 2020), decision available here.

 Players: Decision by Judge Bybee, joined by Judges W. Fletcher and Watford. Big wins for AFPDS Amy Cleary, Cristen C. Thayer, and Ellesse Henderson, D. Nevada FPD.

Facts: “This case stems from an infamous standoff between Cliven Bundy, his sons, and groups of dedicated followers and [the Bureau of Land Management.”] Id. at *1. After years of warnings about illegal grazing on federal lands, agents seized roughly 400 head of Bundy’s cattle. Id. at *3. Bundy called for support on social media and to militia groups, expressing fear of federal “snipers” that surrounded their home. Id. Hundreds of supporters responded. When Bundy’s ranks swelled to more than 400, the feds stood down and the cattle were recovered. Id.

  Bundy and others were charged with, among other things, falsely deceiving their armed followers into believing that the Bundys feared for their lives because government snipers surrounded their ranch. Id. at *4. As the case was tried, discovery produced in “dribs and drabs” revealed that government snipers had in fact in fact surrounded the ranch. Id. at *4-*5.

  After a series of hearings on these late Brady disclosures, the Honorable District Judge Gloria Navarro ultimately declared a mistrial and dismissed the indictment with prejudice. Id. at *7. The government appealed.

 Issue(s): “The question presented in this case is whether the government’s actions were sufficiently egregious to merit dismissal with prejudice.” Id. at *8.  

 Held: “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. . . These prerequisites are met here.” Id. at *21 (quotations and citation omitted).

  “Finding no abuse of discretion, we affirm the judgment of the district court.” Id. at *1.  

 Of Note: The procedural posture is important in this valuable Brady decision. There was no verdict, so the Ninth did not employ the traditional (lousy) retrospective analysis and ask whether the evidence would have affected the jury’s verdict. Id. at *10. Instead, the Ninth looked at the case up to the point of the dismissal.

  Bundy inadvertently illustrates the fatal flaw of our current Brady law: had this case been reviewed retrospectively, post (guilty) verdict, these egregious violations would have probably not cost the government the case. See blog entry here  (discussing Sudikoff and the structural problems with current discovery review).    

 How to Use: Dodging responsibility for its Brady errors earned the government these severe sanctions. See id. at *20. As Judge Bybee chides, “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.” Id. *20. That recalcitrance supported the need for this dramatic sanction – that will “serve to deter future prosecutions from engaging in the same misconduct as occurred here.” Id. 

  Wave Bundy about when your AUSA minimizes Brady violations in your case: the opinion makes clear that the less responsibility taken by the government, the more potent the discovery sanctions must be.                                              

For Further Reading: With the Obagi Brady / Giglio decision just weeks ago, followed by this Bundy bombshell, it is clear that the “epidemic of Brady violations” in the Ninth has still not yet abated.

   For a thoughtful piece discussing this ongoing problem (and the Bundy case specifically), see Henry Glass, Cliven Bundy case: How big a problem is prosecutorial misconduct, Christian Science Monitor, available here




Image of Cliven Bundy from


Steven Kalar, Federal Public Defender N.D. Cal. Website at





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