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Stacking the Deck: Government Refuses to Strike Prejudicial Material from Bundy Case

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Published on: January 16, 2017

Will instead instruct jury that “indictment is not evidence”…

On 03 October 2016 the Federal Public Defenders Office filed a motion (ECF No. 718) on behalf of Ryan Payne requesting that large portions of the superseding indictment be stricken, or alternatively, that the indictment not be shown to the jury. Multiple defendants filed motions to joinder.

Payne asserts that using terms “followers”, “gunmen”, and “snipers” were tantamount to prejudicial language that could sway the opinion or objectivity of jurors. Further, Payne objected to the exhaustive inclusion of Cliven Bundy’s two-decade legal battle with the Bureau of Land Management, citing compelling reason for why that portion of the indictment is immaterial to the case against him. Finally, Payne claims that multiple section headings in the indictment promulgate criminal accusations as established fact. In addition to the content found in the indictment, Payne’s representation argued that the prejudicial language, if read to the jury by a judge, would reinforce the allegations as truth.

In the end, Payne requested the removal of 23 paragraphs, 4 headings, 3 subsections, and all references to “gunmen/gunman”, “follower(s)”, and “sniper(s)”.

The Government argued that the language was both appropriate and relevant…

In response to Payne’s motion (ECF No. 928) the Government argued that not only was the language appropriate, but that the supporting facts of Bundy’s legal issues with the BLM were pertinent to establishing the context for the allegations. From Magistrate Judge Peggy A. Leen’s order:

Citing United States v. Urso, 369 F. Supp. 2d 254, 270 (E.D.N.Y. 2005), the government argues that a motion to strike under Rule 7(d) is not appropriate if evidence of the allegations in the indictment is admissible regardless of how prejudicial the language is.

During oral arguments on 09 December 2016, the Court specifically asked the Government if it planned to have the presiding judge read the indictment during trial. US Attorney Nadia Ahmed responded that the Government would not.

Ruling: Strike 3 Items…

Leen ordered the removal of just 3 items out of the dozens requested. She insists that merely instructing a jury that an indictment contains no evidence is sufficient to prevent the tainting of objectivity. From her ruling:

[…] the jury will be instructed that an indictment is not evidence, and jurors are presumed to follow the court’s instructions.

The following items will be stricken from what the jury sees:

  • The word “Lie” from the heading of Paragraph VII;
  • The words “Used Deceit and Deception to Recruit Followers” from the heading of VII(D)(1); and
  • The words “and ill-gotten gains” shall be stricken from paragraph 146.

Leen [1249] Response to Payne Motion [718] to Strike by Anthony Dephue on Scribd

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