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Bunkerville standoff: First trial commences

Cattle and Beef Industry News
Feb 10, 2017

—Both sides request details be suppressed from the trial

Cliven Bundy speaking at a forum hosted by the American Academy for Constitutional Education (AAFCE) at the Burke Basic School in Mesa, AZ, July 2014. Used under CC BY-SA 2.0
Photo by Gage Skidmore.

It was almost three years ago that Cliven Bundy, four of his sons, and hundreds of armed citizens squared off with armed Bureau of Land Management (BLM) agents with a court order to round up Bundy cattle near Bunkerville, NV. Each side allegedly had guns trained at the other, though no shots were fired. Nineteen citizens were eventually arrested, and the government charged them all with conspiracy, assault, weapons charges, and others.

Last Tuesday, Feb. 7, jurors were appointed and the first trial began for six of those defendants. Judge Gloria Navarro for the U.S. District Court for Nevada scheduled opening statements for Thursday, Feb. 9. The trial is expected to take up to 10 weeks.

The six on trial now are considered by the court to be “the least culpable” defendants. They are Richard Lovelien, Todd Engel, Gregory Burleson, Eric Parker, O. Scott Drexler, and Steven Stewart.

Eleven others, including Bundy and his sons, are due to stand trial later this year. Of the 19 defendants, 17 have pleaded not guilty, while two—Gerald DeLemus and Blaine Cooper—previously pleaded guilty to conspiracy charges.

According to a Department of Justice (DOJ) press release from August 2016, DeLemus faces up to five years in prison on a count of “conspiracy to commit an offense against the United States,” up to 20 years in prison on a count of “interstate travel in aid of extortion,” and fines of up to $250,000 on each count. Cooper faces up to five years in prison on the same conspiracy count, up to 20 years in prison on a count of assault on a federal officer, and fines of up to $250,000 on each count.

“Federal law enforcement officers must be able to engage in their official duties, including executing federal court orders, without fear of assault or losing their lives,” said U.S. Attorney Daniel Bogden for the District of Nevada in the press release. “Persons who impede and interfere with the official duties of these law enforcement officers will be prosecuted to the full extent of the law.”

Long history, recent events

The 2014 incident was not the first time BLM met with resistance from Bundys. Since 1993, Bundy had refused to pay grazing fees to the federal government. He stated he did not recognize BLM’s jurisdiction over the Gold Butte area where he runs his cattle, arguing the federal government lacks the constitutional authority to own the land.

BLM has reportedly made numerous attempts since 1993 to get the trespass cattle off the territory.

The agency brandished court orders, injunctions, letters of notice, fines, and planned (and cancelled) gathers. One gather planned in 2012 was cancelled due to Bundy statements the government characterized as “threatening.” He is said to have written multiple letters stating he would do “whatever it takes” to protect his grazing rights. The BLM called off the gather to prevent violence, the agency said at the time.

A look at DeLemus’ plea agreement may shed light on how the 2014 incident came to pass. According to the August, 2016, DOJ press release, the plea agreement said:

“DeLemus’ plea agreement states that he learned of Cliven Bundy [presumably the armed BLM forces gathering his cattle] and placed a telephone call…to Cliven Bundy … During that call, DeLemus understood Bundy to tell him that federal officers had guns and that Bundy needed ‘bodies.’ DeLemus agreed to assist Bundy. Shortly thereafter, DeLemus gathered multiple firearms and gunmen, and they traveled from New Hampshire to Nevada. DeLemus arrived in Bunkerville …after the cattle had been forcibly obtained by Bundy and his conspirators. For weeks thereafter, DeLemus provided personal security for Bundy and other conspirators, organized and led other gunmen in conducting patrols and manning security checkpoints, called for others to travel to Bunkerville, and displayed firearms and made public statements to show and threaten force. DeLemus admitted that when he traveled to Nevada, he joined a conspiracy to display force and aggression in order to influence, impede or interfere with the duties of federal law enforcement officers.”

As for the 17 defendants pleading “not guilty,” they have been indicted with 16 felony charges, as reported in WLJ.

Charges included conspiracy to commit an offense against the U.S.; assault on a federal law enforcement officer; use and carry of a firearm in relation to a crime of violence; and others.

On Feb. 2 of this year, Judge Navarro dropped one of the weapons charges against all defendants—the charge of “conspiracy to impede and injure a federal officer.”

However, three similar weapons charges remain, as do 12 other felony charges related to conspiracy and assault. Should the defendants be found guilty on any or all of these charges, they could face prison sentences ranging from 25 years to life.

Which facts matter?

WLJ accessed court filings from the past year to ascertain some of the central issues the judge and jury will be considering. Both sides asked for information to be withheld from the trial.

Several defendants asked for recorded interviews that happened after the standoff to be withheld, based on their belief that the interviewers were federal agents posing as a documentary film crew under the name “Longbow Productions.”

“The FBI created a fake film production company designed to trick defendants into making boastful, false and potentially incriminating statements that could be used against Defendants,” stated a Feb. 2 motion filed by Cliven Bundy’s attorney.

However, Judge Navarro Monday denied the request to withhold the interviews.

The prosecution also asked the judge to prevent certain information from being presented to the jury. A Jan. 24 motion asked that the following topics be prohibited in the trial:

• “References to the occupation of the Malheur National Wildlife Refuge, the subsequent trial…or the result in that trial.” (Editor’s note: as reported in November 2016, a jury had acquitted the leaders of the 41-day occupation in eastern Oregon, including Ammon Bundy, Ryan Bundy, Ryan Payne, and others now being prosecuted in Nevada. They had occupied the refuge as a matter of protest of federal ownership of western rangelands).

• “References to supposed mistreatment of cattle during the impoundment operation or agency, or officer, misconduct in this or other impoundment operations or investigations.”

• “Arguments … that the federal government … or its agencies are improperly and excessively armed, use military tactics, act outside their authority or have engaged in the use of excessive force in other venues or at other times.

• “Hearsay statements or opinions regarding the BLM, the impoundment operation, or the events of April 12, including opinions and statements of elected or appointed government officials (such as Nevada Gov. Sandoval, U.S. Sens. Orrin Hatch, Harry Reid, U.S. Rep.-Elect Ruben Kikuen, Nevada Assemblywoman Michelle Fiore).”

• “Legal arguments or opinions that the federal government does not, or should not, own public lands, that the federal government does not, or should not own the Gold Butte Range, or that Gold Butte Range has now been designated a National Monument by the president of the United States.”

• “Legal arguments or opinions that law enforcement officers within the Department of Interior are not constitutional, that ‘natural law’ or other authority permits the use of force against law enforcement officers in defense of property or individual rights, or that the U.S. District Court for the District of Nevada is illegitimate.”

Arguments over inclusion

In explanation of the above list, the DOJ motion noted that, “While it is within the defendants’ rights to test the government’s evidence in a trial, and to present any and all legally supported defenses that they may have, the government has reason to believe that the defendants will seek to divert the jury’s attention to matters collateral to this case in the hope that it can place the federal government, and more specifically the [BLM] and its officers, on trial, in the hope of engendering confusion, sympathy, or other considerations may distract the jury from the evidence.”

Bret Whipple, Cliven Bundy’s attorney, filed a responding brief arguing that, by attempting to exclude the above information, the government was “seek[ing] to prevent the defendants from introducing evidence of their innocence.”

He argued, for example, that disallowing any arguments about federal land ownership or the new national monument that now encompasses Bundy’s historic range, the government was attempting to bar relevant evidence on the historic background of the dispute between the Bundy Ranch and the BLM. He said the government’s request would also bar Cliven Bundy from discussing the reason for his actions in this case, including his belief that the Bundy Ranch owns grazing rights, improvements, and easements on the allotment that cannot be denied by BLM.

Whipple’s brief additionally argued that references to the Malheur occupation and the actions of some of the involved defendants— including Ammon and Ryan Bundy and Ryan Payne— would give the jury a better understanding of defendants’ “good faith and innocent states of mind” in the earlier Bunkerville standoff.

He also wrote the defendants would be hamstrung by the government’s request to leave out discussions of the government’s armaments and alleged use of force during the 2014 standoff.

Regarding the DOJ’s request to exclude details of alleged cattle mistreatment by BLM agents during the attempted impound, Whipple claims this was a primary motivation for Bundy’s actions in the standoff.

“Thus the government’s motion to ban discussion of the mistreatment of cattle is an effort to deprive defendants of the right to put on a defense,” wrote Whipple. — Theodora Johnson, WLJ Correspondent

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