Professional Documents
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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
WILLIAM CARRICO
Nevada State Bar No. 003042
Assistant Federal Public Defender
BRENDA WEKSLER
Nevada State Bar No. 8124
Assistant Federal Public Defender
RYAN NORWOOD
Assistant Federal Public Defender
411 E. Bonneville Avenue, Suite 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Ryan_Norwood@fd.org
Attorneys for Ryan W. Payne
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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Plaintiff,
vs.
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RYAN W. PAYNE,
Defendant.
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COMES NOW defendant Ryan W. Payne, through his counsel, WILLIAM CARRICO,
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RYAN NORWOOD, and BRENDA WEKSLER, Assistant Federal Public Defenders, moves
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this Court for an Order Striking Surplusage from the Superseding Indictment in the event the
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Court intends to provide the jury with a copy of the superseding indictment. In that event, Mr.
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Payne asks the Court to strike portions of the superseding indictment under Rule 7(d) of the
Federal Rules of Criminal Procedure and all other applicable constitutional, case, and statutory
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RENE VALLADARES
Federal Public Defender
By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender
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Whether a court decides to provide the jury with a copy of the underlying indictment in
a criminal case is generally within the discretion of the trial judge. Souza v. United States, 304
F.2d 274, 280 (9th Cir. 1962). Here, for the reasons explained below, providing a copy of the
superseding indictment to the jury would unduly prejudice Mr. Payne. It is therefore requested
the Court not provide the jury with a copy of the superseding indictment. If, however, the Court
does provide the jury with a copy of the superseding indictment, and without waiving his
objection to the Court doing so, Mr. Payne alternatively requests the Court strike irrelevant,
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I.
SUMMARY;
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II.
THE DEFENDANTS;
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III.
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IV.
V.
VI.
VII.
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Heading VII begins on page 12 of the superseding indictment and is followed by four
subsections:
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2.
April 12: The Conspirators Assaulted and Extorted Law Enforcement Officers;
and
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APPLICABLE LAW
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Whether a court decides to provide the jury with a copy of the underlying indictment in
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a criminal case is generally within the discretion of the trial judge. United States v. Murray,
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492 F.2d 178, 193-94 (9th Cir. 1973); Souza 304 F.2d at 280. Here, for the reasons explained
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below, providing a copy of the superseding indictment to the jury would unduly prejudice Mr.
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Payne. It is therefore requested the Court not provide the jury with a copy of the superseding
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indictment.
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Moreover, Rule 7(d) of the Federal Rules of Criminal Procedure provides that, [u]pon
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a defendants motion, the court may strike surplusage from the indictment or information. A
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part of the indictment unnecessary to and independent of the allegations of the offense proved
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may normally be treated as a useless averment that may be ignored. United States v. Ayala,
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289 F.3d 16, 22 (1st Cir. 2002) (quoting United States v. Miller, 471 U.S. 130, 136 (1985)). In
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other words, surplusage in an indictment need not be proved. Id. (internal citation and
The Advisory Committee Notes to Rule 7(d) explain this rule provides a means to
protect the defendant against immaterial or irrelevant allegations in the indictment that may be
prejudicial. Fed. R. Crim. P. 7 (1944 Notes); see also United States v. Laurienti, 611 F.3d 530,
546-47 (9th Cir. 2010) (The purpose of a motion to strike under Fed. R. Crim. P. 7(d) is to
protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor
material to the charges.) (internal quotation marks and citation omitted). As explained by
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ANALYSIS
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The government appears to have drafted the superseding indictment for a purpose
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broader than merely giving notice to the defendants of the charged offenses elements. The
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first 37 pages of the superseding indictment include a prejudicial narrative that contains
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immaterial and irrelevant allegations that the Court should strike from it.
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The second sentence of the superseding indictment alleges all the defendants planned,
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organized, led and/or participated as gunmen in the assault underlying this case. ECF No. 27,
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p. 3, lns. 7-10. The term gunmen is used to refer to all of the defendants. Id. at p. 14, lns.
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23-24 (the defendants referred to herein as gunmen). The indictment also refers to the
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individuals the government alleges joined the defendants in the charged conspiracy as both
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gunmen and Followers. ECF No. 27, p. 2 (alleging Bundy and other leaders and organizers
of the conspiracy recruited gunmen and other Followers); see also id. at p. 29, lns. 8-9.
Notably, the indictment uses the term gunmen 73 times in the narrative and the term
Followers 79 times. Additionally, the indictment alternately refers to gunmen and Followers
to be snipers and as persons having taken sniper positions against officials. See e.g., id. at
The government will have every opportunity to demonstrate its case to the jury and
attempt to prove the superseding indictments allegations. The government may not, however,
attempt to improperly prejudice the jury with the inflammatory terms set forth in the
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unnamed others whom the government believes joined the defendants in some fashion. The
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governments decision to select its own codenames to refer to the various individuals involved
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in this case is laden with prejudicial innuendo, will lead to confusion. The governments use
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of codenames is also immaterial and irrelevant to the actual evidence the government must
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Rule 7(d) has been invoked to strike aliases from indictments where the alias was not
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relevant to the issue of the defendants identification. United States v. Ramirez, 710 F.2d 535,
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545 (9th Cir. 1983) (citation omitted). The use of Rule 7(d) to strike the prejudicial terms
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contained in this superseding indictment has even more force here. The terms gunmen,
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Followers, and snipers are not aliases. They are the codenames the government chose to use to
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Moreover, the governments codenames are not facts. The codenames are identifiers
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the government chose when drafting the superseding indictment to pejoratively refer to the
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defendants and others involved in the case. Each such codename serves no other purpose than
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to prejudice the jury against the defendants. For these reasons, Mr. Payne requests the Court
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not provide the jury with a copy of the superseding indictment or, alternatively, strike all
2. Headings I, IV, and V contain allegations that Defendant Cliven Bundy violated
civil court orders from 1993 to February of 2014; however, the superseding
indictment alleges criminal conduct as having occurred from March 2014 to
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Cliven Bundy had trespassed on public lands for over 20 years. ECF No. 127, 2-3. The
indictment allege Bundy violated several civil court orders from 1993 through 2013. ECF No.
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27, pp. 8-9. The governments inclusion of alleged prior civil law violations is immaterial,
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irrelevant, and prejudicial to Mr. Payne. Whether Bundy violated any civil laws between 1993
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and 2013 is irrelevant and immaterial to the criminal charges alleged in this case. The charges
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in this case do not require the government to prove as an element Bundys alleged violation of
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civil court courts from 1993 and 2013. Moreover, it would be unduly prejudicial to allow the
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government to attempt to bolster the criminal indictment in this case with allegations that Bundy
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had committed civil law violations for the past 20 years. For these reasons, Mr. Payne requests
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the Court not provide the jury with a copy of the superseding indictment or, alternatively, strike
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the superseding indictment are styled in a manner suggesting the summarized allegations are
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accepted facts. The summarized allegations read as what could be a truncated version of the
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governments opening statement of facts and does so without providing any reference to the
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specific crimes charged. The Summary differs greatly from the allegations set forth in the
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subparts entitled Object and Nature of the Conspiracy (paragraphs 55 and 56), the Manner
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and Means of the Conspiracy (paragraphs 57 to 76), and the Overt Acts in Furtherance of the
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Conspiracy (paragraphs 78 to 22), as these subparts could be argued to be an attempt to tie the
allegations to the elements of the conspiracy crimes charged. The Summary does nothing
other than to serve as a pseudo-opening statement for the government in a way that fails to
provide the jury with any context for that summary. And if the Summary is truly summary,
its contents are duplicitous, and the effect of which further prejudices Mr. Payne by allowing
the government to repeat the allegations twiceonce in the summary without tying those
allegations to specific crimes charged, and once again within the superseding indictment.
For these reasons, Mr. Payne requests the Court not provide the jury with a copy of the
superseding indictment or, alternatively, strike the Summary from the superseding indictment
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as surplusage.
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The government drafted the superseding indictment by using textual headings that do
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more than merely aid in the reading of the superseding indictment. The government instead
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used the following headings as inflammatory signposts, each of which contains legal
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conclusions that the government must support at trial through evidentiary proof:
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IV.
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VII.
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(D)(2) April 12: The Conspirators Assaulted and Extorted Law Enforcement
Officers.
These headings and subparts themselves are in no way relevant, material, or necessary
to the elements the government must prove at trial. The allegations to which each refers is
contained in the text below each one. The governments summary of the allegations in the
headings and subparts only serves to prejudice Mr. Payne much like the Summary because
they are styled in a manner suggesting the allegations contained therein are accepted facts. The
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headings are also duplicative of the allegations contained in the text below each one. For these
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reasons, Mr. Payne requests the Court not provide the jury with a copy of the superseding
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indictment or, alternatively, strike the headings listed above from the superseding indictment
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as surplusage.
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E. CONCLUSION
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The government drafted the superseding indictment in way that has left it inundated
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with color and background that has no justifiable purpose before the jury other than to
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prejudice Mr. Payne. Given the vast portions of the superseding indictment that must be struck
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to protect Mr. Payne from the prejudice that would ensue from exposing the jury to the
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superseding indictments surplusage, he requests that the Court not provide the jury with a copy
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of the superseding indictment or read the indictment aloud to the jury and, instead, inform the
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However, if the Court intends to distribute the superseding indictment, Mr. Payne
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alternatively requestsand without waiving his objection to providing the indictment to the
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juryrequests the Court strike the following surplusage from the superseding indictment:
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2. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
48; and
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Respectfully Submitted,
RENE VALLADARES
Federal Public Defender
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The undersigned hereby certifies that she is an employee of the Federal Public Defender
for the District of Nevada and is a person of such age and discretion as to be competent to
serve papers.
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That on October 3, 2016, she served an electronic copy of the above and foregoing
DEFENDANT RYAN PAYNES MOTION TO STRIKE SURPLUSAGE FROM
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