Case 2:16-cr-00046-GMN-PAL Document 627 Filed 08/08/16 Page 1 of 9

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DANIEL G. BOGDEN
United States Attorney
District of Nevada
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
Assistant United States Attorneys
NADIA J. AHMED
ERIN M. CREEGAN
Special Assistant United States Attorneys
501 Las Vegas Blvd. South, Suite 1100
Las Vegas, Nevada 89101
(702) 388-6336
steven.myhre@usdoj.gov
nicholas.dickinson@usdoj.gov
nadia.ahmed@usdoj.gov
erin.creegan@usdoj.gov
Attorneys for the United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
v.
RYAN W. PAYNE,
Defendant.

2:16-CR-00046-GMN-PAL
GOVERNMENTS RESPONSE IN
OPPOSITION TO DEFENDANT
RYAN PAYNES OBJECTIONS TO
THE REPORT OF FINDINGS AND
RECOMMENDATION TO MOTION
TO DISMISS
(ECF No. 612)

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CERTIFICATION: This Response is timely filed.

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The United States, by and through the undersigned, respectfully submits

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its Response in Opposition to Defendant Ryan Paynes (Paynes) Objections to

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the Report of Findings and Recommendation To Motion to Dismiss (ECF No. 612)

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(hereinafter Objections). As part of its Response, the government adopts and

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Case 2:16-cr-00046-GMN-PAL Document 627 Filed 08/08/16 Page 2 of 9

incorporates in full its Corrected Response to Paynes Motion to Dismiss (ECF No.

414) (Opening Response).

The Court should overrule Paynes Objections, adopt the Report of Findings

and Recommendation entered by United States Magistrate Judge Leen (ECF No.

589) (hereinafter the F&R) and enter an Order denying Paynes Motion to

Dismiss, for the following reasons: (a) the F&R is correct in fact and law; (b) Payne

has not, and cannot, assert any violation of the Speedy Trial Act (STA) 1 and,

therefore, he cannot overcome the strong presumption of constitutionality that

attaches when a trial complies with its requirements; and (c) Payne cannot

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demonstrate prejudice he offers only speculation.

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BACKGROUND

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The procedural posture of the case is accurately summarized in the F&R

and further expanded upon in the governments Opening Response.

In brief

summary:

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January 27, 2016:

Payne arrested and detained in Oregon in

connection with armed occupation of Malheur
National Wildlife Refuge (MNWR) in January
2016.

February 3, 2016:

Indictment returned and filed in District of

Oregon, charging Payne in connection with
MNWR occupation. District of Oregon, Case No.
3:16-cr-00051-BR (hereinafter the Oregon case),
ECF No. 58.

February 17, 2016:

Indictment returned and filed in District of

Nevada, charging Payne and 4 (four) others in

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Title 18, United States Code, Sections 3161 to 3174.

Case 2:16-cr-00046-GMN-PAL Document 627 Filed 08/08/16 Page 3 of 9

connection with the April 12, 2014, assault and

extortion in Bunkerville, Nevada. District of
Nevada, Case No. 2:16-cr-00046-GMN-PAL
(hereinafter the Nevada Case) ECF No. 5.

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March 2, 2016:

Superseding Indictment (ECF No. 27) returned

and filed in Nevada, adding 14 other defendants
in connection with the April 12, 2014, assault and
extortion in Bunkerville, Nevada.

March 22, 2016:

U.S. District Court in Oregon orders Payne to be

transferred temporarily from Oregon to Nevada
for arraignment on Nevada charges. (Oregon
Case, ECF No. 334)

April 12, 2016:

Payne transferred to District of Nevada for

arraignment pursuant to Court Order.

April 15, 2016:

Payne arraigned on the Superseding Indictment

and enters plea of Not Guilty to all charges.
Ordered detained on Nevada charges.
Nevada Case, ECF No. 249

April 22, 2016:

Pretrial Conference conducted in Nevada case

with Payne and all co-defendants regarding
discovery and setting trial date. ECF No. 327
(Minute Entry)

April 25, 2016:

Payne returned to Oregon where he is detained

pending trial on Oregon charges. (Oregon Case,
ECF No. 334).

April 26, 2014:

Court enters Case Management Order, setting

trial date for February 6, 2017, and excluding
time between arraignment and trial, under the
STA, 18 U.S.C. 3161(h)(7)(A) and other
provisions. (Nevada Case, ECF No. 321).

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July 19, 2016:

Payne enters guilty plea in Oregon Case pursuant

to plea agreement. (Oregon Case ECF No. 906)

July 20, 2016:

District Court in Oregon Orders Paynes release

to the custody of USMS for transport to District of
Nevada to resolve Nevada case. (Oregon Case,
ECF No. 916)

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ARGUMENT

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In its Opening Response (ECF No. 414), the government demonstrated that
the Motion to Dismiss should be denied for the following reasons:

Paynes trial date of February 6, 2017, is presumed to meet the Sixth

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Amendments speedy trial requirements because: (a) the date

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complies with the requirement of the STA, all time between Paynes

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arraignment and the trial date having been excluded without

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objection ((United States v. Baker, 63 F.2d 1478, 1497 (9th Cir. 1995)

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(A trial which complies with the [Speedy Trial] Act raises a strong

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presumption of compliance with the Constitution); ECF No. 321 at 7-

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12; F&R, ECF No. 589 at 11); and (b) the trial is set to occur in less

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than one year from the date of Paynes initial indictment (Barker v.

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Wingo, 407 U.S. 514, 527 (1972) (holding that trials that occur in less

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than one year from the date of indictment are presumed to meet the

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Sixth Amendments speedy trial requirements).

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There is no authority for Paynes claim that the government violates

the Sixth Amendment right to speedy trial by the simple act of

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indicting Payne in different districts, for different crimes, committed

at different times. In fact, his claim defies common sense.

Paynes claim that he faces a so-called Hobsons choice is, in fact, a

false dilemma. If Payne seeks to go to trial at an earlier date, or

seeks more time to adequately prepare for trial, he may file a motion

is either jurisdiction showing cause for a different trial date without

doing any violence to the Sixth Amendment.

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The F&R recommended denial of the Motion to Dismiss because trial has
been set within a year of the initial indictment and the time between Paynes
arraignment and the trial date has been excluded under the STA with no objection
from any of the defendants. ECF No. 589 at 11. The F&R further noted that the
Ninth Circuit Court of Appeals declined to consider Paynes interlocutory appeal
from the transfer Order in the Oregon case. Id.

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None of Paynes objections to the F&R has merit; he simply disagrees with

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it and raises nothing new. His claim that the prosecutions in Oregon and Nevada

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forced him to waive, or give up, his right to a speedy trial (Obj. at 4) is premised

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on the false assumption that his right to a speedy trial has been violated in the

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first instance. No such violation has occurred. As demonstrated in the F&R, the

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February 6, 2017, trial date is presumed to be constitutional by virtue of the fact

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that it occurs within a year of initial indictment and there is no violation of the

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STA.

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Payne fails to overcome this presumption. He failed to object to the trial

setting or the exclusions of time Magistrate Judge Leen painstakingly set out in

her Case Management Order (ECF No. 321).

violation of the STA in his Objections.

Nor does he demonstrate any

Moreover, he fails to cite any authority for his stunning claim that the Sixth

Amendment is violated when the government seeks to indict a criminal defendant

based on sufficient evidence of violations of federal law. Here, Payne was indicted

by grand juries in two different federal jurisdictions, for different violations,

occurring at different times, based on different acts. None of the cases cited by

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Payne remotely addresses these facts or otherwise holds that the Sixth
Amendment bars the returning of an indictment under any circumstances let
alone these circumstances.

Indeed, the few cases he cites (Obj. at 4-6) are

completely inapposite and cannot possibly be read to restrict the governments

charging decisions or to otherwise abrogate its duties and responsibilities to the
community and the safety of the public.
Conveniently, Payne attempts to gloss over the presumptions of

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constitutionality in this case and, instead, urges the Court to leap immediately to

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the Barker v. Wingo factors. While the Court should refuse the invitation to do so

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(since Payne has shown no violation of the STA), even these factors are unhelpful

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because, at base, Payne cannot show prejudice; he offers only speculation.

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While Payne speculates that witness memories may fade or witnesses may

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not be available to him (Obj. at 7), he does not identify any witness who will be

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unavailable to him in February 2017. Nor does he explain how a February 2017

trial date will otherwise impede the memory of any witness available to him now

or how or why he cannot take measures now to preserve the witnesss

recollections.

Similarly, Payne fails to show any prejudice based on his claim that his

access to discovery is limited. Paynes Objections devote considerable space to

complaining that he cannot be ready for trial by February 2017, citing the volume

of discovery and claiming that his access to it is limited by his incarceration in

Oregon. Obj. at 8-10. But this is August 2016, not February 2017. Payne cannot,

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and does not, know that he will not be prepared for trial by February 2017 and,
even if he is not, the remedy is to move for a continuance (as is done routinely),
not to dismiss the Indictment. Paynes dire prediction about his future readiness
for trial is no substitute for the tangible prejudice that he must show under
Barker v. Wingo.
The same is true with regard to Paynes claims of due process violations and

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ineffective assistance of counsel. The trial has yet to occur. It is impossible for

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Payne to show that he was not rendered effective assistance of counsel at trial or

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that his right to procedural due process has been denied when the trial has yet to

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occur.

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Lastly on this point, Payne has pleaded guilty in the Oregon case and has

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been ordered transferred to Nevada to resolve his case here. Oregon Case, ECF

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No. 916.

This change is circumstances is likely to resolve some of Paynes

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complaints about access to discovery and serves as one example of changing

circumstances that make it impossible for Payne to predict the future or otherwise

show prejudice. See also, Opening Response at 13-14 (demonstrating that Sixth

Amendment right to effective assistance of counsel does not require constant in-

person contact between defendant and lawyer).

WHEREFORE, for all the foregoing reasons, the government respectfully

requests that the Court deny Paynes Objections, adopt the F&R, and enter an

Order denying Paynes Motion to Dismiss.

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DATED this 8th day of August, 2016.

Respectfully,
DANIEL G. BOGDEN
United States Attorney
//s//
______________________________
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
Assistant United States Attorneys
NADIA J. AHMED
ERIN M. CREEGAN
Special Assistant United States Attorneys
Attorneys for the United States

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Case 2:16-cr-00046-GMN-PAL Document 627 Filed 08/08/16 Page 9 of 9

CERTIFICATE OF SERVICE

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I certify that a copy of the foregoing GOVERNMENTS RESPONSE IN

OPPOSITION TO DEFENDANT RYAN PAYNES OBJECTIONS TO THE

REPORT OF FINDINGS AND RECOMMENDATIONS TO THE MOTION

TO DISMISS was served upon counsel of record, via Electronic Case Filing

(ECF).

DATED this 8th day of August, 2016.

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/s/ Steven W. Myhre

______________________________
STEVEN W. MYHRE
Assistant United State Attorney

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