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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
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Plaintiff,
v.
MEL D. BUNDY,
2:16-CR-00046-GMN-PAL
GOVERNMENTS
RESPONSE
IN
OPPOSITION TO DEFENDANTS
MOTION TO REOPEN DETENTION
HEARING (ECF No. 633)
Defendant.
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Reopen his Detention Hearing, pursuant to 18 U.S.C. 3142(f) (ECF No. 633)
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(hereinafter Motion or Motion to Reopen). For the reasons set forth below, the
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Motion should be denied. Bundy fails to present new and material information,
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defendants, including his father, Cliven Bundy, and three of his brothers, Ryan,
Ammon and Dave Bundy, with serious crimes of violence, including brandishing
assault rifles at federal law enforcement officers and using force and violence to
extort them. The Court is well-familiar with the nature of the charges in this case
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and the government will not recount them here in detail except to note that if
convicted of all counts in the Superseding Indictment, Bundy faces a potential
period of imprisonment in excess of 80 years, the charges springing from a
massive armed assault on law enforcement officers as they were executing a courtordered impoundment, court orders that Bundy well knew were in effect but
chose, instead, to ignore.
On March 3, 2016, Bundy was arrested in Arizona pursuant to an arrest
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warrant issued from the Superseding Indictment. On March 21, 2016, and
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Peggy Leen (hereinafter the Magistrate Judge or the Court) found that the
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presumption of detention applied under Title 18, United States Code, Section 3142
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The defendant is charged with multiple offenses for which the law
creates a rebuttable presumption that he should be detained. . . . . [The
defendant] participated in the events on April 9 in which a convoy of
civilian contractors was stopped and surrounded by a group of angry
individuals. The defendant participated in, and according to the
governments proffer, was a coordinator of tactical decisions on the
date the approach was made on the wash towards the federal officials.
Fortunately for everyone, a bloodbath was avoided. . . . There is
another reasonable inference . . . that when the defendant placed his
wife and children in the area it was to further increase the danger to
law enforcement, who would be reluctant to fire upon a crowd with
both armed and unarmed individuals.
The defendants public
statements indicate that he does not respect or believe that the federal
courts have any jurisdiction over him, and his more recent statements
after joining the protestors and those who took over another federal
facility in Oregon by the use of armed force indicate that the defendant
understood that blood may be spilled in his fight against the federal
government.
ECF No. 197, p. 2.
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Order (ECF No. 321) and urging that the detention hearing be re-opened.
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According to him, this information supposedly shows: that Bundy was not present
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when his co-defendant brother (Ammon) rammed a BLM truck with an ATV on
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April 9, 2014 (Mot. 9-12); that he did not recruit gunmen (id 12-16); that he did
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not admit to providing logistical support to militia (id, 16-17); that the reason
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Bundy rode his horse and led others on horseback to the BLM Impoundment site
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was to safely escort cattle the BLM was planning to release (id, 17-19); that Cliven
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Bundys first cousin and his wife are willing to act as third-party custodians (id,
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19); and that Ryan Payne cannot be believed when he states that he coordinated
tactical movements with Bundy on April 12. Id., 19-23.
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detention because it fails to rebut the presumption in this case or undermine the
LEGAL STANDARD
not known to the movant at the time of the first hearing, is discovered, and the
new information has a material bearing on the issue of detention. See 18 U.S.C.
3142(f)(2). Courts strictly interpret this provision. United States v. Turino, No.
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Bundy has been charged by a federal grand jury with being a co-conspirator
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in a massive armed assault on, and violent extortion of, federal law enforcement
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Superseding Indictment sets out Bundys role in the conspiracy and details the
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The 63-page
At the initial detention hearing, the Court correctly found that the
presumption of detention applies under Title 18, United States Code, Section
arguments and proffers of counsel, the Court found that the presumption had not
continued detention.
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Among other things, Bundy now claims that he was not all that involved in
the conspiracy; that he had a lesser role during the April 9 ambush of the BLM
convoy; and that he was in the wash on horseback because he thought Sheriff
Gillespie supposedly said that BLM was going to release the cattle. He bases
these claims on some videos, FD-302s and other information he received from the
government in the course of discovery. None of this is information that he did not
already know, and could not advance, at the initial detention hearing.
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Bundy was present for the initial detention hearing and he knew the
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charges against him, having been recently arraigned. There is no reason Bundy
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could not then proffer to the Court about the extent of his involvement, or the lack
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and tactical movements with Ryan Payne. He certainly knew his reasons for
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traveling on horseback to the BLM impoundment site on April 12, 2014, and he
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did not need to review a video recording of Sheriff Gillespie in order to advise the
Court of what Bundy believed he heard. Indeed, he addressed and disputed the
governments proffer as to each of these points at the original hearing. See ECF
No. 295, pp. 31 (April 9 event), 26-27 (on recruiting gunmen), 28 (coordinating
with Payne and providing logistics); 28 (Bundy went to wash on horseback, took
wife and thought it was going to be a peaceful protest). Thus, the information
Bundy offers in his Motion was either already known to him or readily attainable
by him at the time of the initial detention hearing and, thus, cannot now qualify
as new.
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The fact that he did not have discovery at the time of the initial
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proceedings not mini-trials, which is why courts rightfully limit the re-opening
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of the hearings strictly to new and material information. As the Court is well-
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aware, the investigation of this case has adduced hundreds of hours of audio and
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through volumes of discovery to determine Bundys claims. The Bail Reform Act
requires no such undertaking; any more than it requires the government to either
Indictment
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containing
charges
against
him,
detailing
Bundys
supporting detention, the charges against Mel Bundy include serious crimes of
violence, including four counts relating to the brandishing of firearms in relation
to a crime of violence. ECF No. 27 (Superseding Indictment); ECF No. 197, p. 2.
Bundy may disagree with the presumption that he should be detained as a
danger, but that does not mean he has rebutted it.
The Court correctly found that Bundy failed to overcome the presumption
that he should be detained as danger to the community.
Id.
The Court
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additionally considered the factors delineated in the Bail Reform Act in assessing
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over him or the public lands from where the instant charges arise. The Court also
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recognized that Bundy made numerous statements to the effect that he does not
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respect or believe the federal courts have any jurisdiction over him. Id. The
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Court also specifically noted that in relation to his participation in the armed
takeover of the Malheur National Wildlife Refuge just a few months ago, that he
believed blood may be spilled in his fight against the federal government. Id.
Even if the arguments in the Motion had any merit, which they do not, they
fail to address the fact that Bundy does not recognize federal courts or court
authority and thus do nothing to undermine the Courts finding that Bundy poses
a danger to the community and should be detained pending trial. See United
Cal. May 29, 2015) (denying defendants motion to reopen detention, noting that
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the court had considered all of the factors delineated in the Bail Reform Act and
even if the information defendant provided qualified as new, the courts analysis
did not change considering the courts other findings establishing the defendants
risk of flight). 1
There being nothing new and material, the Court should decline Bundys
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at *2, n.1 (D. NV Oct. 1, 2012) (finding that magistrate judge properly concluded
the defendant had failed to present material evidence not known at the time of the
detention that would warrant reopening the hearing and noting that the
defendant conceded in his reply brief that the magistrate judges decision was
correct because no new evidence was presented); United States v. Dillon, 938 F.2d
1412, 1145 (1st Cir. 1991) (affirming district courts denial of motion to reopen
affidavits from family, friends, and employers; this was available to the appellant
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at the time of the [original hearing]); United States v. Hare, 873 F.2d 796, 799
(5th Cir 1989) (affirming refusal to reopen detention hearing because testimony
of [defendants] family and friends in not new evidence).
In the event the Court re-opens the hearing, the government seeks to
advance all the evidence and arguments proffered in its opening memorandum
and at the initial hearing, which it incorporates herein in full. ECF Nos. 128, 129,
295. To the extent the Court takes additional evidence at a re-opened hearing, the
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government reserves the right to present and proffer additional evidence and
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Respectfully,
DANIEL G. BOGDEN
United States Attorney
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//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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CERTIFICATE OF SERVICE
633) was served upon counsel of record, via Electronic Case Filing (ECF).
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//s//
______________________________
STEVEN W. MYHRE
Assistant United State Attorney
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