Plea Agreements, Convictions and Prosecutorial Misconduct
by Terry Noonkester
Prosecutorial misconduct has affected the USA v Cliven Bundy trials in Las Vegas in regards to pretrial detention, convictions, plea agreements, and sentencing. Just within the first few weeks of the Tier I group trial, there is evidence that the prosecution has used false information to keep the defendants incarcerated. Other evidence proves the Bundy’s and militia leaders did not make false statements to incite the protest, possibly eliminating at least one of the criminal charges. Due to the serious affect of the mishandling of evidence by the prosecution, the defense attorney’s continued to make motions for a mistrial and dismissal of the case.
The prosecutions misrepresentation’s and withholding of evidence may have started by influencing the grand jury to indict on a total of sixteen charges. Misrepresentation at the grand jury level could possibly void the basis of even plea agreements accepted by some Bundy Ranch Protest defendants. If a criminal charge is proven to be based on false government claims, can the government continue to enforce that charge in a plea agreement? According to contract law, an agreement based on false information is not binding nor enforceable.
There has also been extreme pressure applied to the defendants to accept plea agreements. Historically, prosecutors across the country gained leverage when bargaining with defendants after the passage of the Bail Reform Acts of 1964 and 1984. These acts allowed federal judges to deny bail to defendants when they were indicted for noncapital cases.
The USA v Bundy case was defined by the court as a ‘complex case’ giving the prosecution up to five years to complete the trials and still conform with the speedy trial requirements. Pre-trial detention of such great duration fosters desperation in the defendants, causing many to buckle under the pressure when a plea bargain is offered.
Plea bargains account for about 97% of convictions in federal courts. Defendants decide to take a plea agreement because prosecutors “stack” charges to build a terrible potential sentence. Innocent people are intimidated into pleading guilty rather than face the “trial penalty”. The Supreme Court made stacking charges easy for the prosecution since the court ruled that the government may separate an incident into two or more crimes if each charge contains an element that the other does not. This concept cripples the Double Jeopardy Clause in the 5th Amendment; “No person shall be subject for the same offense to be twice put in jeopardy of life or limb.”
Also, the use of conspiracy charges make each individual responsible for a co-conspirators actions and criminal charges. The conspiracy charge is the reason the prosecution can levy weapon charges against defendants who did not carry a weapon. When an individual is committing a crime with a gun, it is called a 924c violation. Only applicable in federal cases, a Section 924(c) requires a series of mandatory minimum terms of imprisonment upon conviction. If the firearm is brandished or discharged, or if there is a repeat offense, the punishment is more severe. Twenty-five-year mandatory minimum terms for multiple offenses must be served consecutively and may exceed 100 years.
When the federal government uses these laws in combination, they can create an overwhelming power play against defendants. Therefore, many defendants that consider themselves innocent will take a plea agreement. They do not want to risk having a jury trial that may result in decades in prison. After being in a prison facility for months or even years waiting for trial, they are desperate to be free.
The Bundy Ranch Protest defendants were all charged with assault with a deadly weapon on a federal law enforcement officer, threatening a federal law enforcement officer, obstruction of justice, extortion of federal officers, and use and brandishing of a firearm in relation to a crime of violence, conspiracy, and aiding and abetting. If any charges are not acquitted by a full twelve jurors, the judge may declare a mistrial and then retry the case, taking many more months or even years.
Of the 19 men arrested for the Bundy Ranch Protest, the ones that accepted a plea agreement were Blaine Cooper, Jerry Delumus, Pete Santilli, Eric Parker, Scott Drexler, and Micah McGuire.
Blaine Cooper pled guilty on August, 25, 2016. He wasn’t physically present for the standoff, but was charged with making false statements to incite others to participate in the protest. Blaine Cooper also plead guilty to assault on a federal officer.
Blaine Cooper stated; “I am going to do whatever I can to pull my plea agreement here in the State of Nevada,…I’ve clearly been railroaded,” Cooper continued. “I am disgusted and disturbed that my attorney would allow this to happen to his client, and this is why the federal government has such a high conviction rate because they plea people out for crimes they didn’t commit and put them in fear, as the prosecution has put me in fear.”
Gerald “Jerry” DeLemus was also not present until after the Bundy Ranch Protest was over. He also accepted a plea agreement on August 25, 2016. Delumus was sentenced to 87 months in federal prison on two charges; conspiracy to commit an offense against the United States and interstate travel in aid of extortion. After sentencing, Jerry Delumus has been moved to the federal prison at Fort Devens in Ayer, Massachusetts.
On December 5th, 2017, Delumus stated; “Family members and friends of those that were in Bunkerville were followed, had their phones tapped and their social media accounts monitored. Informants or agents were even imbedded as ‘friends’ on Facebook or in other groups that were in any way associated with Cliven Bundy… Some with life threatening diseases were threatened with incarceration at the same time their friends or family that were now being held without bail were offered ‘plea agreements’. This was done so as to pressure innocent people to plead guilty to charges they knew were false. This sounds more like China or North Korea than America.”
Peter Santilli pled guilty to a felony count of conspiracy for obstruction of justice. That charge is based on his blocking a BLM truck on April 9, 2014 near the Bundy Ranch in Nevada. Santilli’s recommended sentence is “time served” and 3 years of supervised release plus 15 points that could result in a higher sentence. He signed the agreement the morning after the October 1st, 2017 Massacre in Las Vegas. He must return to Las Vegas for sentencing in 2018.
Peter Santilli had repeatedly refused plea agreements in the Portland, Oregon case, stating that he wanted his day in court. The prosecution in Portland dismissed all charges against him from the Malheur Refuge Protest just a week before that trial began. The government then transported him to Nevada to face charges for the Bundy Ranch Protest.
Eric Parker and Scott Drexler would have been tried three times if they didn’t take a plea bargain. Eric Parker and Scott Drexler each pled guilty in late October, 2017 to a single count of obstruction of a court order. A Sentencing hearing is scheduled for February, 2018.
A hearing for Micah McGuire was held the morning of November 14th, 2017. McGuire was in the last group of Bundy Ranch protesters who’s trial date cannot even be determined until the present group has been tried, and any mistrials from charges not fully acquitted or convicted are legally finalized (possibly through more trials). Micah McGuire plead guilty to two felonies; conspiracy and impeding an officer. He has been released prior to sentencing, which will be February 16th, 2018. He has served 20 months of a sentence that could go as high as six years.
Shortly after watching McGuire’s hearing and just before the start of his own trial, Ryan Bundy said; “Your honor, I think it is ludicrous that defendants who have pled guilty through a plea deal are rewarded with freedom from pretrial detention, but if defendants maintain their innocence, they are punished with prison prior to any conviction. It is upside down. We are not presumed innocent, if we have to spend time in prison without any conviction.”
The new evidence discovered and dialogue allowed in the opening statements in the third Las Vegas trial could have made a big difference in the outcome of the first two trials. The fact that Judge Navarro is at least listening to the defense attorney’s complaints about prosecutorial misconduct is a great improvement to how she had previously denied so many complaints in the first two trials. These discussions are primarily held in “sealed hearings”, so the jury knows nothing about the struggle the current legal team is having when trying to enter evidence regarding the misconduct of the BLM and FBI.
Greg Burleson was convicted of 8 of 10 charges; assaulting federal officers, threatening federal officers, extortion, using a firearm in crimes of violence, and related offenses. He was sentenced on July 26, 2017 to 68 years in prison and transferred to Allenwood Penitentiary, White Deer, Pennsylvania.
Todd Engel of Idaho has been found guilty on 2 charges; obstruction of justice and interstate travel to aid in extortion. He is still detained and waiting for sentencing.
As the third trial proceeds, more is revealed about government overreach and prosecutorial misconduct. Greg Burleson’s and Todd Engel’s convictions must be questioned in light of all the evidence withheld in their trial. Plea deals need to be reevaluated to make sure that these men haven’t pled guilty to a criminal charge that will later found to be fabricated by the government.
The author and member of Ammon Bundy’s defense team, Roger Roots, describes the condition of the federal criminal justice system aptly in his book “The Conviction Factory, The Collapse of America’s Criminal Courts”. Ammon Bundy’s attorney, Morgan Philpot, and his team are relying on donations at AmmonBundyDefense.com .
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I have been in Court and never heard Ryan Bundy refer to the judge as your honor. Mostly he refers to her as madam.
Thanks for the correction.
Everyday people take plea deals because of government overreach witness tampering being held in jail without being proven guilty at the expense of taxpayers I think the courts should be held accountable and responsible so if I sit in jail for two years before I go to court they pay my housing expenses on the outside for my family and loss of wages when proven innocent.