Case 2:16-cr-00046-GMN-PAL Document 657 Filed 08/31/16 Page 1 of 11

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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

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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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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CERTIFICATION: This Response is timely filed pursuant to LR (CR) 12-1.

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The United States, by and through the undersigned, respectfully submits

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its Response in Opposition to Defendant Mel Bundys (Bundys) Motion to

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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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as he must, to merit the re-opening of the detention hearing. Instead, he invites a

mini-trial of the governments case.

BACKGROUND

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On March 2, 2016, a federal grand jury seated in the District of Nevada

returned a Superseding Criminal Indictment, charging Mel Bundy and 18 other

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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following a fully adjudicated detention hearing, United States Magistrate Judge

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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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(e)(3)(B) and issued an Order of Detention, stating as follows:

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The defendant is ordered detained as a danger to the community as

that term is defined by the Bail Reform Act for the following reasons:

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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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On August 15, 2016, Bundy filed his Motion, referencing discovery

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information he received from the government pursuant to the Case Management

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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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Bundy knew this information at the time of his detention hearing;

therefore, it is not new.

Moreover, none of this information is material to

detention because it fails to rebut the presumption in this case or undermine the

findings of the Court. The Motion should be denied.

LEGAL STANDARD

A detention hearing may be reopened at any time before trial if information,

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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2:09cr132JADGWF, 2014 WL 5261292, at *1 (D. NV Oct. 15, 2014) (if

evidence was available at the original hearing, no rehearing is granted); United
States v. Flores, 856 F.Supp. 1400, 1405 (E.D. Cal. 1995) (There are very few
proceedings in federal practice which encourage a party to be less than diligent in
bringing forth all material evidence the first time a hearing is held . . . A rule that
would not discourage a party for failing to acquire readily available evidence for
presentation the first time is a rule that encourages piecemeal presentations.
Judicial efficiency is not served by such a practice.) (citations omitted).
ARGUMENT

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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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officers while the officers were executing their lawful duties.

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Superseding Indictment sets out Bundys role in the conspiracy and details the

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The 63-page

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unfolding of the plan to extort and assault the officers.

At the initial detention hearing, the Court correctly found that the

presumption of detention applies under Title 18, United States Code, Section

3142(e)(3)(B), Bundy having been charged with a four counts of brandishing a

firearm in relation to crimes of violence in violation of Title 18, United States

Code, Section 924(c).

arguments and proffers of counsel, the Court found that the presumption had not

been rebutted as to danger to the community and properly ordered Bundys

continued detention.

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After considering the Superseding Indictment, the

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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thereof, in the April 9 ambush, in recruiting gunmen, and in coordinating logistics

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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

detention hearing in no way prevented him from proffering this information.

Moreover, none of this is information it is merely argument. All that
Bundy offers in support of his Motion is self-serving inferences drawn from
discovery he cherry-picked from a massive volume of information disclosed by the
government pursuant to the Case Management Order. At the threshold, discovery
information is not evidence nor does it represent the governments theory or proof
of the case.

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More to the point, however, detention hearings are supposed to be summary

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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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video recordings, hundreds of witness interviews, hundreds of thousands of pages

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of social media/Facebook postings and communications, and thousands of pages

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worth of investigative reports.

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

prove its case or explain the discovery at a detention hearing.

decline Bundys invitation to do so here.

Bundy wrongfully invites this Court to cull

The Court should

But even if this information could be deemed new, it is not material to

the issue of detention.

A federal grand jury returned a 63-page Superseding

Indictment

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involvement in the conspiracy.

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containing

charges

against

him,

detailing

Bundys

As the Court noted in its findings of fact

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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the danger he presented to the community, including the community of federal

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law enforcement officers who he contends have no jurisdiction or authority

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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

States v. Martin, 2015 WL 3464937, No. 13cr00466JSW2 (KAW), at *4 (N.D.

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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invitation to transform the detention hearing into a mini-trial of the governments

Bundy also asserts that his co-defendant fathers first cousin and spouse
could serve as third party custodians if he was released. ECF No. 633, p. 19. At
his original detention hearing, Mel Bundys step-mother, Carol Bundy, was
considered as a potential third party custodian by the Pretrial Services office and
a report was provided to the Court. The presence of additional potential third
party custodians does not qualify as new information material to the danger Mel
Bundy poses to others and the community and thus does not merit reopening the
hearing. See United States v. Bowens, 2007 WL 2220501, No. CR075442
PHXROS (ECV), at * (D. Ariz. July 31, 2007) (rejecting defendants proffer of his
mother as potential third party custodian as new and material information
warranting reopening the detention hearing, noting that if the magistrate judge
had believed that release to some third-party was a strong option, no doubt, [the
court] would have inquired and [d]efendant would have identified another
responsible family member to act as a possible third-party custodian at the time).
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case. See United States v. Masters, No. 2:12cr00145MMD, 2012 WL 4612665,

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

detention hearing where the proffered new evidence consisted of 18 character

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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argument in support of detention.

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WHEREFORE, for all the foregoing reasons, the government respectfully

requests that the Court deny the Motion without hearing.
DATED this 31st day of August, 2016.

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

I certify that I am an employee of the United States Attorneys Office. A

copy of the foregoing GOVERNMENTS RESPONSE IN OPPOSITION TO

DEFENDANTS MOTION TO REOPEN DETENTION HEARING (ECF No.

633) was served upon counsel of record, via Electronic Case Filing (ECF).

DATED this 31st day of August, 2016.

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//s//
______________________________
STEVEN W. MYHRE
Assistant United State Attorney

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