Case 2:16-cr-00046-GMN-PAL Document 2628 Filed 10/06/17 Page 1 of 10
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J. MORGAN PHILPOT Admitted to Practice Pro Hac Vice JM Philpot Law, PLLC 1063 E. Alpine Dr. Alpine, Utah 84004 Tel: 801-891-4499 jmorganphilpot@gmail.com Attorney for Defendant Ammon E. Bundy
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UNITED STATES DISTRICT COURT
8 DISTRICT OF NEVADA 9 10
UNITED STATES OF AMERICA, Plaintiff,
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CASE NO.: 2:16-cr-00046-GMN-PAL DEFENDANT AMMON E. BUNDY’S JOINDER & SUPPLEMENTAL MOTION & MEMORANDUM TO DEFENDANT RYAN W. PAYNE’S MOTION TO CONTINUE [DOCKET #2598]
vs. AMMON E. BUNDY, et al., Defendants.
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Certification: This Joinder and Supplemental Motion and Memorandum is timely filed. The Defendant, Ammon Bundy, by and through his attorneys, J. Morgan Philpot and Daniel Hill, hereby joins in part Defendant Ryan Payne’s Motion to Continue Trial and submits this supplemental memorandum of points and authorities.
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DATED this 6th day of October 2017.
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By: /s/ J. Morgan Philpot J. Morgan Philpot
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/s/ Daniel Hill Daniel Hill
Case 2:16-cr-00046-GMN-PAL Document 2628 Filed 10/06/17 Page 2 of 10
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JOINDER (IN PART) AND MOTION
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Defendant in this matter is faced with an untenable and unfair predicament; either go to trial in a highly charged and prejudicial time, as explained in Mr. Payne’s Motion to Continue and his subsequent first and second Addendum, or agree to continue the trial and remain in involuntary
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detention where he has been held against his will for almost 22 months. The solution is to move this trial to Reno as expeditiously as possible. Defendant Ammon
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8 Bundy therefore joins in part to Mr. Payne’s request and asks that the trial currently set for October 9 10, 2017 be moved to the Reno courthouse. 10 11 12
If the Court does not move this trial to Reno then the Defendant moves the Court to continue the trial out to another date, no less than 90 days from October 10, 2017, when the parties have been able to assess the impact of the tragedy referenced in Mr. Payne’s motion. Also, the
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following protective measures should be put in place by the Court to insure abatement of prejudice;
15 1) the Court should redraw the jury pool through a poll of the whole state based proportionally on 16 population and include a questionnaire to all potential jurors specifically designed to assess the 17 extent of prejudice that exists, and 2) the Court should allow the parties to participate in an 18 expanded voir dire of the future jurors that is constructed to help the parties and the Court 19
determine how prejudicial recent events may be upon this trial and to also determine if a change of
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venue is needed. Mr. Bundy cannot agree with Mr. Payne in his first Addendum to Motion to Continue Trial
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23 [Docket 2612] filed on October 3, 2017 wherein certain parties have jointly asked for a date of 24 October 30, 2017 to begin jury selection. Docket 2612 at p. 3. This arbitrarily selected date of 25 25 days gives no assurance, nor does it put in place any necessary protective measures to insure that 26 27
the deep concerns regarding prejudice will have abated sufficiently. //
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Case 2:16-cr-00046-GMN-PAL Document 2628 Filed 10/06/17 Page 3 of 10
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SUPPLEMENTAL MEMORANDUM OF POINTS & AUTHORITIES
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A. A fair trial cannot begin in Las Vegas on October 10
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Mr. Bundy fully incorporates herein by reference Mr. Payne’s Memorandum of Points and
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Authorities from his October 2, 2017 Motion to Continue Trial and where relevant his first and
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Second Addendum. Mr. Payne has aptly stated that “[w]hen reviewing a district court’s order on a motion for
8 continuance, the Ninth Circuit looks at four factors: “1) [the defendant’s] diligence in preparing his 9 defense prior to the trial date; 2) whether the continuance would have satisfied his needs; 3) the 10 inconvenience a continuance would have caused the court and the government; and 4) “the extent 11
to which [the defendant] might have suffered harm as a result of the district court's denial.” United
12 States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir. 2000) (internal quotation marks 13 14
omitted). “None of the first three factors is ordinarily dispositive.” United States v. Rivera-
15 Guerrero, 426 F.3d 1130, 1139 (9th Cir. 2005). The Ninth Circuit “ha[s] consistently found that a 16 district court has abused its discretion when the denial of a continuance . . . has compromised [a 17 defendant’s] right to a fair trial.” Zamora-Hernandez, 222 F.3d at 1054. In weighing the four 18 factors listed above, therefore, the Ninth Circuit “pay[s] particular attention to whether the 19 20 21 22
defendant’s right to . . . a fair proceeding ha[s] been violated.” United States v. Donaghe, 924 F.2d 940, 943 (9th Cir. 1991).” Docket 2598 at p. 5. While actual prejudice manifests itself in jury selection presumed prejudice can be created
23 from intense pretrial publicity and exists where “pretrial publicity is so pervasive and prejudicial 24 that we cannot expect to find an unbiased jury pool in the community.” House v. Hatch, 527 F.3d 25 1010, 1023 (10th Cir. 2008), quoting Goss v. Nelson, 439 F.3d 621, 628 (10th Cir.2006) and citing 26 27
to Sheppard v. Maxwell, 384 U.S. 333, 362–63, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (“[W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge
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1 should continue the case until the threat abates, or transfer it to another county not so permeated 2 with publicity.”) 3 4
It is in this regard that Mr. Bundy wishes to supplement the Motion to Continue as it relates to the fourth factor; harm, prejudice and particularly the ability of the Defendants to obtain a fair
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proceeding. All parties to this matter appear to be willing to acknowledge that the recent events in
7 Las Vegas, Nevada will have a prejudicial effect on this trial. At the time of Mr. Payne’s filing it 8 was uncertain as to whether that prejudicial effect and any prejudicial news would touch directly on 9 this trial, its defendants and/or the circumstances and people directly related to it. 10 11 12
Since Mr. Payne filed his Motion to Continue multiple news articles have appeared creating an association between the two events. For example: The Daily Mail1 reported that the Las Vegas gunman was a “regular visitor” to the store of the “bodyguard to Nevada cattle rancher Cliven
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Bundy, and was involved in the infamous 2014 Bunkerville ranch standoff.”2 NBC News wrote that, “Sunday's massacre in Las Vegas — the worst mass shooting in
16 modern U.S. history — shone a light on Nevada's close partisan divide that has for years made it a 17 national flashpoint in the battle over gun rights.” “Residents are allowed to carry guns openly 18 throughout the state, a provision that attracted scrutiny when self-styled militia groups gathered in 19 20 21
2014 to support rancher Cliven Bundy's standoff with authorities.”3 The Guardian, US edition, reported that “Mesquite…. …is close to Bunkerville, where
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Oremus, Will. “The World’s Most Popular Online Newspaper,” http://www.slate.com/articles/business/moneybox/2012/02/daily_mail_new_york_times_how_the_british_tabloid_beca me_the_world_s_most_popular_online_newspaper_.html, Feb. 2012. Wheeler, Brian. “How the Daily Mail stormed the US, http://www.bbc.com/news/magazine-16746785, Jan. 2012. 1
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EXCLUSIVE: The missing gun: Stephen Paddock bought a high-powered Ruger rifle, //www.dailymail.co.uk/news/article-4949534/Stephen-Paddock-bought-mystery-rifle-going-Vegas.html 3
Sarlin, Benjy. “Las Vegas Shooting: Politics and Guns Go Hand in Hand in Nevada,”
27 https://www.nbcnews.com/storyline/las-vegas-shooting/politics-guns-go-hand-hand-nevada-n806851, Oct. 2017. 28
(footnote continued on next page)
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1 Cliven Bundy, the Nevada cattle rancher, courted an armed confrontation with federal authorities 2 over grazing rights three years ago.” 4 3 4
Additionally, large news media outlets have attempted to contact friends and family members of the Bundy family attempting to create an association between the two events that does
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not exist. At least one member of the Bundy family has been contacted by the New York Times and
7 a close supporter was contacted by a reporter from the Washington Post who asked, “I wonder if 8 you ever had any contact during the Las Vegas trials with Stephen Paddock? He is the shooter from 9 Sunday. I’m asking because I’m curious if he was upset about the long imprisonment and treatment 10 of the Bundy family?” 11
Also, filings aimed at protecting the Defendants from an association between the two events
12 are being picked up by news media outlets thus presenting the Defendants with a Catch 22 scenario 13 14 15
exacerbating the very thing that the Defendants are trying to prevent.5 Mr. Payne correctly postulated that “[W]here there is a reasonable likelihood that
16 prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the 17 threat abates, or transfer it to another county not so permeated with publicity.” Sheppard v. 18 Maxwell, 384 U.S. 333, 363 (1966); see also Zamora-Hernandez, 222 F.3d at 1054 (explaining 19 20
Ninth Circuit “ha[s] consistently found that a district court has abused its discretion when the denial of a continuance . . . has compromised [a defendant’s] right to a fair trial”). Docket 2598 at p. 7.
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There is no longer a “reasonable likelihood” as to prejudicial news but there is an actual
23 realization of prejudicial news that will prevent a fair trial where news media outlets are 24 25 26
Lewis, Paul. “Nevada town where Vegas suspect lived catered to gamblers and gun lovers,” https://www.theguardian.com/us-news/2017/oct/02/mesquite-nevada-las-vegas-shooting-suspect, Oct. 2017. 4
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Nevada Public Radio. “Bundy Co-Defendant Asking for Delay After Sunday’s Shooting,”
27 https://knpr.org/headline/2017-10/bundy-co-defendant-asking-delay-after-sundays-shooting, Oct. 2017. Bernstein, Maxine. “Mass shooting in Las Vegas will prejudice jurors in upcoming Bundy trial, defendant argues,”
28 http://www.oregonlive.com/portland/index.ssf/2017/10/mass_shooting_in_las_vegas_wil.html, Oct. 2017 5
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1 irresponsibly attempting to create an association between the recent horrific events in Las Vegas 2 and the protest event at issue in this case. 3 4
Also, because the full details of the recent event in Las Vegas and its subsequent and very highly publicized investigation are still coming out in an almost hourly news update fashion the
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effects of this event are at this time indiscernible. Until the extensive media coverage and the
7 political polarization of this event has settled, the investigation plays out and until more is known 8 about whether or not there are any connections between victims, witnesses, friends and family; a 9 longer time is needed to determine the extent of prejudice and the safeguards needed in this trial for 10 its abatement. 11
For these reasons, and those other reasons expressed in Mr. Payne’s Second Addendum to
12 Motion to Continue Trial filed on October 5, 2017 [Docket 2626] Defendant believes that a fair 13 14
trial cannot be had in Las Vegas now or any time soon.
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B. The trial should be moved to the Reno courthouse
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Mr. Payne has already noted the necessity of moving this trial to Reno along with the
17 applicability of the Local Rules in this regard. Given the extreme nature of recent events and 18 particularly the unfair and prejudicial attempts by news media to tie recent events to this trial, due 19
process requires that this Court take strong measures. Sheppard v. Maxwell, 384 U.S. 333, 362, 86
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S. Ct. 1507, 1522, 16 L. Ed. 2d 600 (1966), (noting the increasing prevalence of unfair and prejudicial news comment on pending trials and stating “Due process requires that the accused
23 receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern 24 communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the 25 trial courts must take strong measures to ensure that the balance is never weighed against the 26 27
accused.�) Additionally, the actuality of prejudicial news that has been widely disseminated by
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1 multiple news outlets immediately prior to this trial combined with other concerns of prejudice 2 heretofore raised in this case [Docket 750] this Court should transfer this trial to Reno where the 3 4
jury pool will not be so permeated with prejudicial publicity. Transfer to another county is a remedy acknowledged as obligatory by the United States Supreme Court where there is a
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reasonable likelihood that prejudicial news prior to trial will prevent a fair trial. Id, at 363, stating
7 “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, 8 the judge should continue the case until the threat abates, or transfer it to another county not so 9 permeated with publicity.” In the alternative this Court should consider a change of venue. 10 11
C. If the Court chooses to continue rather than relocate the trial then the Court should set the trial out no sooner than 90 days and redraw the jury pool and put in place protective measures
12 Without prejudice to Mr. Bundy seeking further relief in the following regard; if the Court 13 14
does not see fit to expeditiously move this matter to Reno and instead continues the trial for a later
15 date in Las Vegas then the Court should set a date no sooner than 90 days from October 10, 2017 16 and order the Jury Administrator to issue summonses to prospective jurors residing throughout the 17 entire District of Nevada and include a questionnaire designed to determine if a change of venue is 18 needed in this matter. Additionally, the Court should insure that the parties are granted additional 19
time and extensive latitude in voir dire to determine prejudicial effect and whether a change of
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venue, rather than just the change of location heretofore argued, is needed. If the Court does not change the location of the trial to Reno, the defendants are not
23 currently asking the Court for a change of venue. Rather, the defendants are seeking to mitigate 24 against the need for a venue change by ensuring a jury may be empaneled that may “lay aside 25 [their] impression or opinion and render a verdict based on the evidence presented in court.” Hayes 26 27
v. Ayers, 632 F.3d 500, 511 (9th Cir. 2011) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). “[T]he American concept of the jury trial contemplates a jury drawn from a fair cross
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1 section of the community” as “an essential component of the Sixth Amendment right to a jury 2 trial.” Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975). The jury must be drawn from “the State 3 4
and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” U.S. Const. amend. VI.
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Hardly a day passes that a media story is not published about the recent events; the story
7 and investigation continues to play out daily in local and national press. Additionally, as 8 mentioned, the media is also starting to issue news stories regarding recent events and some aspects 9 of this case and persons related thereto. This case alone has received substantial pretrial publicity 10 and is politically charged. 11
As of the date of this filing, the defendants are unable to provide the Court with the data
12 needed to assess the full impact of recent events as they may relate to a fair trial in this location, at 13 14
this time and in this matter; such as a media analysis of the publicity surrounding the case and/or a
15 community attitude survey of jury-eligible residents. Most Defendants would also need time to 16 seek funding for the gathering and production of this data. 17
While it is unknown, of course, whether the defendants will be able to receive a fair trial
18 anywhere in the District, issuing summonses to prospective jurors equally from the entire state will 19
at least eliminate the deep effect and extensive publicity from the immediate vicinage of Las
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Vegas, Clark County, Nevada. Opening the prospective jury pool to those outside of the Clark County will increase the chances of seating a fair and impartial jury in light of recent events. The defendants have alerted the Court as to the prospect of a future change of venue
24 motion. If seating a fair and impartial jury becomes an impossibility based upon the jury pool 25 harboring partiality or hostility towards the defendants that cannot be set aside, summoning jurors 26 27
from the entire District will greatly inform questions and motions dealing with venue. In other words, defendants and the Court will be in a better and more informed position to know whether
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1 seeking a venue change is a viable option. 2 3 4
Finally, where widespread media impact exists in the community, careful identification of prospective jurors including a screening questionnaire and follow-up voir dire are helpful in abating prejudice. Skilling v. United States, 561 U.S. 358, 385, 130 S. Ct. 2896, 2917, 177 L. Ed. 2d 619
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(2010).
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CONCLUSION
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Mr. Bundy asks that the trial currently set for October 10, 2017 be moved to the Reno
9 courthouse as expeditiously as possible. 10 11
If the Court chooses not move this trial to Reno then the Defendant asks the Court to continue the trial out to another date, no less than 90 days from October 10, 2017 and to put in
12 place protective measures to insure the abatement of the perceived prejudice including; 1) the Court 13 14
should redraw the jury pool through a poll of the whole state based proportionally on population
15 and include a questionnaire to all potential jurors specifically designed to assess the extent of 16 prejudice that exists, and 2) the Court should allow the parties to participate in an expanded voir 17 dire of that jurors that is constructed to help the parties and the Court determine how prejudicial 18 recent events may be upon this trial and to also determine if a change of venue is needed. 19 20
DATED this 6th day of October 2017. Respectfully submitted,
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By: /s/ J. Morgan Philpot J. Morgan Philpot
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/s/ Daniel Hill Daniel Hill
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CERTIFICATE OF SERVICE The undersigned hereby certifies that on October 6, 2017, he served an electronic copy of the foregoing by electronic service (ECF) to all parties including the persons named below: STEVEN W. MYHRE Acting United States Attorney ERIN M. CREEGAN Assistant United States Attorney NADIA JANJUA AHMEN Assistant United States Attorney NICHOLAS DICKINSON Assistant United States Attorney 501 Las Vegas Blvd. South Suite 1100 Las Vegas, NV 89101
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By /s/ J. Morgan Philpot J. Morgan Philpot
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