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Bundy Trial – The Prosecution Opens It’s Case

The judge made the very unusual ruling that no more objections would be made by either side in front of the jury, the attorneys must take objections to a side-bar.

Bundy Trial - The Prosecution Opens It's Case
Protesters outside Federal Courthouse, Las Vegas (Redoubt News)

Bundy Trial – The Prosecution Opens It’s Case

by Terry Noonkester

     The Bundy trial continues into its next phase in Las Vegas, Nevada. Cliven Bundy, with sons Ryan and Ammon, and their co-defendant Ryan Payne, face felony charges that could result in over 100 years in prison for each.  

    Directly after opening statements, the prosecution “opened” its case against the Bundy’s and Payne.  The prosecution will be in charge of much of the narrative in the next month or two until they “rest” their case.  They will be calling the witnesses who are most favorable to the governments theory; usually government employees of the BLM, FBI and other law enforcement agencies.  The defendants will be allowed to cross-examine the governments witnesses.  The Bundy’s and Payne will have their turn to “open” their case after the government has “rested” theirs.

The morning of November 14th, federal prosecutor Myhre, asked for a continuance based on the governments request that they have more time to review some discovery involving FBI emails. It was Myhre’s responsibility to find and disclose these emails from the government over a year ago when the trial had been in the discovery stage. The defense countered with an offer of a mistrial.  The continuance was denied.

     Prosecutors called their first witness, Mary Jo Rugwell, who was the BLM’s district manager for Southern Nevada from April 2008 through August 2012.  She told of Cliven Bundy’s “continuous trespass” and how he refused to get a new 10-year permit in 1993 for his Bunkerville Allotment of 154,000 acres. The BLM had changed the permit rules, cutting the Bundy herd from 152 to 89 head of cattle, when it was determined that the desert tortoise was a threatened species.

     Rugwell went on to say Cliven Bundy ignored repeated notices until the government filed a lawsuit in 1998.   BLM obtained the first court order for Bundy to remove his cattle.  Bundy claimed the federal government lacked jurisdiction.  In December of 2011, Rugwell made the call to impound Bundy’s cattle. The agency hired a contractor to fly over the area, resulting in a head count of about 900 head of cattle.  She claimed cattle were a danger to recreational areas, and damaging vegetation and cultural resources. 

     On November 16th, Rugwell continued her testimony and was cross examined by the defense attorneys.  Attorneys Whipple and Philpot asked witness Rugwell about the Threat Assessment Report the FBI had made on the Bundy family.  The family had been categorized as “not a threat”.  This exchange ended in a side-bar with Judge Navarro ruling the information was a security risk.  She ordered the Threat Assessment be delivered to her Monday, November 20th.  

      After a contentious cross-examination, The judge made the very unusual ruling that no more objections would be made by either side in front of the jury, the attorneys must take objections to a side-bar.  Another very rare procedure that was started in the second Bundy trial in Las Vegas was having the jurors write down questions that the judge then asks the witness.  Judge Navarro is having the jurors in this trial do the same.  About 6 jurors asked questions after witness Rugwell had been cross-examined.  

     Some of the notable questions from the jury were; (1) Where is Dave Bundy now?  Witness Rugwell answered that she did not know.  (2). Did the Bundy cattle cause any damage before Bundy declined payment of his 1993 permit?  Witness Rugwell answered “No”. (3) Were any desert tortoise on the Bundy Ranch harmed after Mr Bundy quit paying fees.  Witness Rugwell said “Yes”

     The second witness called by the prosecution was Terry Petrie, an attorney for the Department of Justice and legal counsel for BLM.  Prosecutor Daniel Scheiss had Petrie read a deposition given by Cliven Bundy.  The prosecution was asked by the defense to quit putting their own emphasis on Cliven Bundy’s words.  During cross-examination, the prosecution made multiple objections, making it questionable if the decision of Judge Navarro to ban objections was going to work.

     Ryan Bundy’s cross examination of witness Petrie was to refresh the witness’s memory of that attorney’s oath to uphold the Constitution.  Ryan Bundy spent about an hour and a half going through the constitution with what was described as great interest from the court gallery and jury.  The Constitutional lesson ended with Attorney Petrie complimenting Ryan Bundy on his knowledge.

Behind The Scenes

     There were multiple motions made by the attorneys on the morning of November 21st.  Prosecutor Steven Myhre wants to exclude all testimony about the Bundy’s water rights and the Threat Assessment Report by a motion to “Exclude Irrelevant Evidence”.  He states that if Bundy is permitted to introduce evidence of water rights, the government would need to “introduce case law regarding res judicata and water rights”.  Cliven Bundy has an expert on water rights to be called as a witness.  Myhre claims that testimony should not be permitted, nor should the Court allow any other evidence of water rights, fencing laws and open range laws.  

     The “res judicata” Myhre refers to means that ‘the case has been adjudicated by a competent court and may not be pursued further by the same parties’.  But the defendants have not been before a court until now to prove that they had the right to protect the Bundy water pipes from theft by federal officers.  They need to be able to prove that their water rights are legitimate to prove that the pipes on public lands were theirs and a part of their water right.  BLM and federal courts lack the jurisdiction to take away water rights provided by the State of Nevada. 

     The BLM was transporting the water pipes from Cliven’s water system, proving the federal officers went beyond the impound orders for cattle.  Ammon Bundy and other protesters caught the federal officers in that unlawful act, but in an ironic twist, were themselves charged with the felony of “impeding a federal officer.”

     The basis of BLM’s legal authority was passed by Congress as The Taylor Grazing Act of 1934 and then updated by the Federal Land Policy and Management Act of 1976.

     The Taylor Grazing Act of 1934 states “… nothing in this Act shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereafter initiated or acquired and maintained in accordance with such law.”  

     The Bundy’s forefathers had grazing rights dating back to the late 1800’s.  The “Federal Land Policy and Management Act of 1976 (FLPMA), Title VII Sec. 701 (a) states  “…Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this Act.” 

     Cliven Bundy has stated that he had a grazing right long before the FLPMA of 1976, and long before the BLM even existed.  The FLPMA guarantees that passage of that bill will not terminate an existing right.  A grazing right is an ownership right whereas the 10 year permit the BLM is now offering ranchers is not a property right, but only a temporary privilege that allows the BLM to change the rules. The prosecutions motion to exclude all testimony about the Bundy’s water rights and grazing rights as being irrelevant is self-serving for the prosecution.  These Acts of Congress and the proof of water right ownership goes right to the heart of some of the felony charges against the defendants.  Without testimony on the water rights, the defendants are being denied a proper defense.

     Many of the motions requested by the attorneys are not made in front of the jury.  The defense team is still filing motions to compel additional evidence from the prosecution, much of it having to do with the FBI’s involvement with the protest.  Such a request for a “Brady disclosure” refers to the Supreme Court’s holding of the Brady case that requires the prosecution to disclose material exculpatory evidence to the defense. Exculpatory evidence is “material” if “there is a reasonable probability that a conviction or sentence would have been different had these materials been disclosed”.  The defense team has discovered evidence proving that certain allegations in the Bundy’s and Payne indictments were false.

    Because the prosecution has withheld exculpatory evidence, it is thought they have made a “Brady Violation” according to the Brady v. Maryland style misconduct by government prosecutors.  There have been several motions from the defense lawyers for a mistrial and dismissal of this case because of those violations.

Nadia Ahmed, one of the three prosecutors in this case, was on the Bundy ranch in April 2014. She was then working with the Department of Justice and with witness Terry Petrie.  The defense has filed motions in regards to her involvement stating this could show an intent of entrapment.

A motion to dismiss filed November 8th states that the government collected privileged attorney-client phone calls from an incarcerated defendant and then denied possessing such privileged materials. This came to light on September 11, 2017, when the government disclosed hundreds of phone calls, including calls made from jail by co-defendant Blaine Cooper and the attorney representing him.  Attorneys for the defense stated that “These calls address matters relating to the instant case, including preparation, criminal allegations, and strategy.”  

Ryan Payne filed a motion in October 2016 alleging the Pahrump detention center was recording his phone calls. The Court denied the motion based on the government’s insistence that it had no recordings of conversations between Payne and his counsel, or between Payne’s co-defendants and their counsel.  This has now been proven to be false when recordings of Blaine Cooper’s phone calls with his council were discovered.

     Ammon’s defense team is the only defense team in the current trial that needs financial support. Whipple, Weksler, Norwood, Fletcher, and Hill are all being paid by the government.  Ammon Bundy’s attorneys; Morgan Philpot and Rick Koerber are relying 100% on donated funds.  They have an informational website at that includes videos and written information on the case, plus a place to donate. The web site sends email updates of their progress to supporters that register.

     This article, first printed by The Roseburg Beacon from Roseburg, Oregon and first on the internet by from Idaho, is offered to all other media under the Creative Commons License, when proper credit is given to Terry Noonkester, The Roseburg Beacon and Redoubt News.  

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2 Comments on Bundy Trial – The Prosecution Opens It’s Case

  1. judges and federal government that goes against the US Constitution! the federal government is going against the Constitution owning and controlling lands, and destroying cattle of ranchers, who are really the criminals?

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