Bundy Prosecutor Fights Efforts to Postpone Trial

(CN) — A government lawyer in the case against wildlife refugee occupiers told a Ninth Circuit panel that criminal defendants could benefit from facing multiple federal cases at the same time.

Five defendants — Ryan and Ammon Bundy, Ryan Payne, Bryan Cavalier and Blaine Cooper — are challenging the fairness of facing simultaneous charges in Oregon over the occupation of the Malheur National Wildlife Refuge, and in Nevada over the 2014 standoff between the government and self-styled "patriots" who sought to prevent the seizure of cows from Cliven Bundy's Bunkerville ranch.

The government indicted 26 defendants in the Oregon case and 19 in the Nevada case. There are seven defendants indicted in both cases, but only five joined the appeal.

Both cases have been declared complex because of the number of defendants, the seriousness of the charges and the enormous volume of evidence collected by the government.

Rich Federico, attorney for Ryan Payne, told a panel for the Ninth Circuit on Wednesday that the government's decision to indict defendants in two complex cases that are being prosecuted simultaneously infringes on their due process rights and their rights to effective counsel.

He asked Judges Mary M. Schroeder, A. Wallace Tashima and John B. Owens to postpone one of the cases so the defendants can focus on preparing for a single case at a time.

"The government brought these charging decisions to force this parallel track," Federico said at the hearing at the James R. Browning Courthouse in San Francisco. "What we're asking here is not to not be tried. It's to not be tried in two cases at the same time."

The Oregon trial is scheduled to begin Sept. 7 and could stretch into 2017. In Nevada, pre-trial motions are due in early October, and the trial is scheduled to begin in February.

Federico said that schedule made it impossible for his client to properly prepare for both cases.

"You're essentially forcing defendants to make decisions about whether to exercise their constitutional rights in one district or the other," Federico said. "For every day and minute the client is spending with his counsel in Nevada, that detracts from my ability to consult with a client who is going to trial in September. So while Mr. Payne is sitting in Portland in a courtroom for a trial that may last months, he's at the same time supposed to be consulting with his counsel about the case in Nevada."

However, U.S. Attorney Charles F. Gorder told the court that there was a bright side to being indicted in two cases in two different states at the same time.

"Rather than being prejudiced, the common defendants in this case were benefitted," Gorder said. "They now have attorneys in both districts who can talk to each other. They can collaborate on their strategies. They can look for witnesses that are helpful in both cases."

"Under your theory, it would be even better if they were being prosecuted in three districts at the same time," Tashima pointed out.

"More indictments is usually not what a defendant wants to hear," Owens told Gorder.

"What's the limiting principle here?" Federico asked. "If two cases simultaneously is not too many, how many is? Is it six?"

Tashima said Federico's solution was not without danger of harm to the defendants. He recalled a case where a simultaneous prosecution was delayed for several years in order to avoid the problems Federico described.

"And boom, you get denial of speedy trial," Tashima said.

Currently pending in Nevada is a motion to dismiss. Gorder said that wouldn't interfere with the schedule for the Oregon trial because the U.S. Attorney's office in Nevada had assured Oregon prosecutors that the motion could be filed without a hearing.

"We have committed that the Oregon trial is going to happen first," Gorder said.

Tashima was not convinced.

"Suppose the defendants insist on a hearing, and on being present?" the judge asked.

"I think it would be more likely that it would happen after our trial," Gorder replied.

"No. You mean nothing will happen in Nevada until after September?" Tashima pressed.

"I'm not going to say nothing will happen," Gorder said. "But to the extent that they need the defendants for any particular hearing, they can wait until after our trial."

Federico pointed out that the court determines its schedule, not the government.

"So if the court wants to hear oral argument on a really weighty motion to dismiss, then you have a situation where the government has argued, well, Mr. Payne can just waive his right to be present," he said. "But he shouldn't have to waive his right and choose which rights to effectuate."

Gorder said the issue would be better raised on appeal after both trials have concluded.

"We have an able district judge in Oregon, I don't know the judge in Nevada, but I assume she is too," Gorder said. "And they ought to be allowed to manage their calendars and this court will be able to review it if and when there is a conviction."

Follow @@karinapdx

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit