Bundy opening statements delayed after motion for surveillance video to be presented as evidence
The jury has been selected and while trial was scheduled to begin today for the “tier 1” Bundy standoff defendants, opening statements have been delayed until next Tuesday. Cliven Bundy, his sons Ammon Bundy and Ryan Bundy and Ryan Payne, a Montana army veteran and Bundy supporter are accused of a number of felonies including conspiracy, assault of a federal officer, extortion, interference with interstate commerce by extortion, and more, for their successful efforts to stop the Bureau of Land Management’s cattle gathering attempts in April of 2014.
Opening statements will now begin next week, said Montana lawyer Roger Roots, who works for Cliven Bundy’s attorney Bret Whipple.
Whipple and Ryan Payne will both present motions tomorrow (Nov. 8), said Roots.
“Whipple filed a motion last night about revelations that came out in the evidentiary hearing,” said Roots. He explained that Ryan Bundy, who represents himself, asked questions during the evidentiary hearing, the first week of November, that revealed that government surveillance footage exists, but has not been submitted as evidence. The undercover surveillance cameras recorded the activities at the Bundy home during the protest. Whipple’s motion calls for the video to be presented as evidence.
Ryan Payne, who is represented by a public defender, will file a motion tomorrow that attempts to “dig into whether or not Dan Love’s unethical actions have poisoned other BLM officials and affected individuals and other things that might pertain to this trial,” said Roots.
Dan Love, the BLM agent who led the cattle gathering operation on the Bundy Ranch in April of 2014, has since lost his employment with the federal agency because of unethical activities, according to reports by the US Office of the Inspector General. Love reportedly used unethical conduct a number of times. The OIG report said Love improperly intervened in the April 2015 hiring process for a BLM special agent position after he learned that a friend did not make the initial list of candidates to be interviewed, ordered e-mails deleted and ‘scrubbed’ and used his influence to obtain sold out tickets.
Roots confirmed that District Court Judge Gloria Navarro, who oversaw the other two Bundy standoff participant trials this year – against defendants Eric Parker, O. Scott Drexler, Steven Stewart, Ricky Lovelien, Greg Burleson and Todd Engel, will preside over this case as well. Just as in the last two trials, Navarro has requested, and been granted, a motion in limine that prevents the defendants from talking about their First Amendment and Second Amendment rights.
The defense is not allowed to say the word “constitution” or talk about the BLM’s actions that caused individuals to protest.
“They are not allowed to speak about BLM killing cattle, they are not allowed to speak about self defense in front of the jury until the judge has a hearing outside the jury’s presence about whether or not they can make that argument,” explained Roots. He said the judge does not believe that “self defense” should be mentioned in the courtroom because she believes that the protesters were advancing, military style, on federal officials during the Bundy standoff, rather than defending themselves and the Bundy family.
After Cliven Bundy refused to pay his BLM grazing lease for years, and allegedly racked up around $1 million in grazing fees, trespass fees and late fees, the BLM hired cowboys in April of 2014 to gather Bundy cattle with the intent to sell the cattle. Fed up with what they consider government mismanagement of federal land and government overreach, around 200 protesters from across the country traveled to Bunkerville, Nevada to protest the government taking of the Bundy family’s cattle. On April 12, the BLM retreated and left the Bundy ranch and cattle, although some cattle had been killed in the process and others died later as the result of the gather that occurred during calving season.
Two of the “tier 3” defendants –Todd Engel of Idaho and Gregory Burleson of Arizona were found guilty of at least one felony but have not yet been sentenced. Two other “tier 3” defendants, Steven Stewart of Idaho and Ricky Lovelien of Montana were acquitted of all charges, while the other two, Eric Parker and O. Scott Drexler, both of Idaho, pled guilty to a misdemeanor and were released from prison. The “tier 3 defendants” are considered “mid –level” participants in the April 12 standoff between the Bureau of Land Management and the Bundy family, militia and protesters.
Tier 2 defendants still await trial: Dave Bundy, Mel Bundy, Joseph O’Shaughnessy, Brian Cavalier, Jason Woods, and Micah McGuire.
Bundy Trial: LIVE Updates
Standing trial is Cliven Bundy, 71, his sons, Ammon and Ryan Bundy, who also led last year’s Oregon occupation, and a fourth defendant, Ryan Payne, a Montana resident linked by prosecutors to a militia group called Operation Mutual Aid.A would-be fifth trial defendant, internet blogger and radio host Peter Santilli, pleaded guilty on Oct. 6 to conspiracy and faces a possible six-year prison term.
Trial for Cliven and Ammon Bundy, Ryan Payne and others to begin Nov. 7
Jurors selection is complete and the trial for Cliven Bundy, his son Ammon Bundy, Ryan Payne and others is set to begin Nov. 7. The men are charged with conspiracy, assaulting a federal officer, extortion and more for the leading a group of protesters or “militia” to stop the federal government from taking Bundy’s cattle. Bundy hasn’t paid his grazing fees to the BLM for years and allegedly owes over $1 million to the BLM which includes trespassing and late fees.
The men have been awaiting trial in prison for over 18 months with no bond.
Bundy standoff participants take plea deal
Two Idaho men involved in the Bundy “standoff” near Bunkerville, Nev., April 12, 2014, have agreed to a plea deal that assures them that they will serve no more prison time. The two pled guilty to obstructing a court order, a misdemeanor.
According to Eric Parker’s wife Andrea Olson Parker, he and O. Scott Drexler face one to 5 years of probation, but they will not be sentenced for any further prison time. U.S. District Court Judge Gloria Navarro will sentence the two men in February.
After two trials that resulted in hung juries, the men were released from prison on recognizance and were awaiting a third trial for their armed participation in the Bundy family’s standoff which mushroomed into a protest to oppose the overreach of the federal government. The two men, along with others had been imprisoned for about a year and a half on more than a dozen charges including extortion, conspiracy, assault on a federal officer, interferance with interstate commerce by extortion, and other charges. The men were in Nevada for about 24 hours. No shots were fired throughout the protest. They were not allowed to testify on their own behalf and the judge prevented anyone on the defense team from talking about the First or Second Amendment.
Several who took part in the standoff, including Cliven Bundy and his son Ammon Bundy still await trial for conspiracy, extortion, assault with a firearm, and more and have been imprisoned without bond for more than 20 months.
Wyoming attorney Karen Budd-Falen may be next BLM leader
While the White House has yet to confirm, it appears that Wyoming attorney Karen Budd-Falen will be the next leader of the Bureau of Land Management.
Budd-Falen, who with her husband, Frank Falen, owns a Cheyenne-based law firm, is University of Wyoming educated and a fifth-generation rancher originally from Big Piney, Wyo. Budd-Falen has worked extensively for private property owners, agricultural operations and local governments. Among her most well-known clients is the Bundy family who made headlines after a 2015 standoff between federal agents and supporters of rancher Cliven Bundy.
Most recently, Budd-Falen was appointed to the Trump administration’s transition team though her experience with the Interior Department dates back to the Reagan Administration in which she served as a Special Assistant to the Assistant Secretary for Land and Minerals Management. She has presented testimony before the U.S. House of Representatives, Subcommittee on Forest Health; the U.S. House of Representatives Committee on Resources; the U.S. House of Representatives Committee on Resources relating to the National Environmental Policy Act; the U.S. House of Representatives Full Committee on Natural Resources; and the Committee on Oversight and Government Reform. She has also testified before committees of the Wyoming Legislature.
Budd-Falen has railed against the BLM in cases of private property rights but Trent Loos, a Nebraska rancher, host of radio show Rural Route, and a member of the Trump administration’s Agriculture Advisory Committee, touts her value in the BLM’s top job.
“In both the Hammond and the Bundy situations there was a large population in the rural and ranching communities that was unhappy with Karen Budd-Falen that she did not get more hands on involved with either of those situations,” Loos said. “Most of that is because her family has been dealing with public lands for so long, that was an approach they didn’t take.”
Her father-in-law, John Falen was the longtime president of the Public Lands Council and she and her husband have both been involved in numerous high-stakes cases in which the BLM has been taken to task.
“That’s the story of Budd-Falen,” Loos said. “She always thinks that the litigation and holding the government accountable to the laws that are currently in place is or has been her approach.”
Loos maintains this approach is what separated Budd-Falen from the situations at both Bunkerville, Nev., and Oregon’s Malheur Wildlife Refuge though it is not the approach Loos said he ever supported.
However, it is that unyielding alliance to the Constitution that Loos said makes Budd-Falen an excellent choice.
“Never in any way, shape, or form did she back down from a fight with the BLM if she thought there was a legal way to hold them accountable,” Loos said.
UPHOLDING THE CONSTITUTION
In a 2007 interview with the Aspen Times, she said that she “believes in ranchers and farmers and what they do … I don’t love the law. To me, the law is the way I’m helping the people I love.” Loos agrees that best summarizes Budd-Falen.
“There’s no doubt why people who oppose multiple use and following the law as it’s written would be opposed to Karen Budd-Falen,” Loos said. “She believes in the Constitution the way it was written that guarantees multiple use. Not just rancher use but multiple use.”
Loos admits over the past few years, there have been times he hasn’t agreed with her but he maintains that she is the perfect fit for the position with the BLM.
“It’s important to point out that she was railing on the BLM when (the Obama Administration was) against multiple use,” he said. “That’s why she was raising a stink. We’ve had administrations moving away from multiple use not maintaining it. That’s why she went after the BLM so many times.”
Loos cites what he calls a misnomer with the public thinking that ranchers wish to make public lands private.
“No rancher wants to own the lands they’re permitted to graze,” he said. “They just want the government to follow the law that was set forth to be followed by multiple use.”
Budd-Falen did not reply to requests for comment.
Idaho lawmakers want charges dropped aginst Idaho men in Bundy standoff
Republican Idaho representative Dorothy Moon and more than one-third of the other legislators in her state sent a letter to U.S. Attorney General Jeff Sessions, encouraging him to drop the charges against two Idaho men charged in association with the April 2014 Bundy standoff, to establish a fair bail for one, and to give one a time served sentence.
Eric Parker and O. Scott Drexler, both from Idaho, were tried twice in U.S. District Court under Judge Gloria Navarro. Both trials resulted in a hung jury, and the men were both acquitted of most charges in the second trial.
The men were acquitted of conspiracy and extortion charges and more, but one juror held out on the charges of assault on a federal officer for both men and threatening a federal officer for Parker, along with associated charges due to the men being armed.
With an 11-1 vote in favor of acquittal, Moon and many of her fellow state legislators believe the men are indeed not guilty by way of no guilty charges.
“As far as I’m concerned, they have been found not guilty,” said the former school teacher, who grew up in Missouri.
Ammon Bundy, Idaho resident and son of Cliven Bundy, who owns the ranch where the standoff took place, should be given a reasonable bail and turned loose until his trial begins, the letter said. In addition, the legislators asked that Todd Engel, the only Idahoan to be found guilty of any charges thus far, be sentenced only to time served, which has amounted to more than 18 months in federal prison as he waited for his trial and now awaits sentencing.
Engel was found guilty of obstruction and traveling across state lines in aid of extortion, and he faces up to 30 years in prison.
Moon penned a letter on Aug. 27 and within two days garnered signatures from 33 other legislators.
“I wanted to get the letter done by the 29th because the post office is 45 minutes from my house, and I wanted (President Donald) Trump and Sessions to get it within a couple of days,” she said.
GETTING A MAJORITY
Since then, more legislators signed on, and Moon said they are just two legislators shy of getting a majority of the state lawmakers to sign the letter.
“U.S. Attorneys have been unsuccessful in obtaining guilty verdicts not once, but twice, establishing criteria for dismissal of charges against them according to our standards of justice. Further exploitation of these citizens would be an affront to justice and notice to the public of prosecutorial harassment,” said the group in the letter.
“We believe that the decision by the current U.S. Attorney of Nevada to prosecute these men a third time represents disrespect for the rule of law and the jury system. A third trial would show blatant disregard for tax funds collected from hard-working, law-abiding citizens who are represented by these juries whom have been found the innocent of 34 of the 40 charges and hung by the very slimmest margins in those where the jury stood deadlocked. The decisions of 10-2 to acquit in the first trial and 11-1 to acquit in the second trial highlights the narrow margin by which the prosecution hopes to continue their attack.”
Moon’s heard Nevada, Arizona and Montana state lawmakers are considering their own letters, urging Sessions to drop charges against citizens of their states or to give them reasonable bail.
Ninety seven percent of Custer County, Idaho, where Moon lives, is under federal management, she said. “It’s a huge county. It’s bigger than most eastern states. We don’t even have a stoplight,” Moon said. “It’s very rural and everyone’s livelihoods have been under attack for decades. People are sick of it. I think that’s why the Bundy issue was so well followed and so many people showed up.”
Moon said she ran for office for the first time last year. “Boise County (in her district) had a huge fire, it wiped out half of the county. Logging had been held up for eight years and when timber sales were finally approved, guess what, it caught on fire.”
Moon said she got involved in politics to “fight the so-called environmentalists. They aren’t really environmentalists. Nobody who cared about the environment would want to put all of these pollutants in the air, or kill all of these animals and plants and ruin these watersheds.”
The continued attempts to try the same men for the same charges is overkill, according to Moon.
“This prosecution sends a chilling message to the public who are concerned about federal overreach in their daily lives that is inharmonious to well-established constitutional guarantees,” said the signers of the letter.
Moon said if the federal prosecutors don’t drop the case as she and her cohorts suggested, she will travel to Las Vegas to watch at least part of the third trial for Drexler and Parker. She also is considering a trip to Washington, D.C., to talk with Sessions or his staff.
“It’s a full-court press. I think there are other western states and think tanks considering joining in,” Moon said.
Parker, Drexler, Ammon Bundy and several others involved in the Bundy standoff is scheduled to begin Oct. 16 in Las Vegas. ❖
Setting the stage with county land use plans
While communities within or near federal lands often feel helpless about how the land is managed, they don’t have to. They have the right to be included in the planning and execution of the management of that land, particularly as it affects their neighborhood and neighbors.
One rancher who has worked in his community to create a land use plan is Tom DePuydt from Saco, Mont. Thanks to some residents who banded together, Phillips County now has a comprehensive land use plan in place.
“Our county has close to 50 percent federal land, so of course what the federal government does with public lands has a lot of economic impact,” DePuydt said.
Originally, a group formed called the Montana Community Preservation Alliance in 2010 to deal with the BLM’s “Treasured Landscapes” paper. The group invited then BLM Director Bob Abbey to Malta, Mont., to discuss it. Later, the group merged with the newly formed Phillips County Farm Bureau.
“It’s important to have a community effort to work with the federal government,” DePuydt said. “To make this plan, a few people went to our county commissioners who then designated a committee. This included people from all walks of life — farmers, ranchers, a veterinarian, the gas company. In the end, that group made a resource plan. I believe a lot of counties have plans, but this wasn’t a growth plan, it was a resource plan.”
The Phillips County group took a lot of time and effort in making their local land use plan. They included history and information about their culture including the history of mining and history of livestock with plenty of data and information on their conservation efforts.
The Phillips County Farm Bureau President, who also serves on the board of directors for the Montana Farm Bureau, said that by federal statute under the Federal Land Management and Policy Act of 1976 (FLMPA), federal agencies must coordinate with the local plans. “Agencies need to sit down and resolve the differences between federal and local plans. The BLM Land Use Plans talk about cooperating entities. That includes things like the county governments, conservation districts and so forth. What it’s not, however, is coordinating. Coordinating means that by law, those federal agencies must work within the local land use plan. This is where education comes in. You need to get your county commissioners on board so they have an understanding of this process.”
DePuydt said that many times the federal regulations will cover up the fact that the agency personnel is required by law to meet with the counties and come to an agreement. “People aren’t familiar with the coordination process that forces the government agencies to reconcile the differences between the federal and local plans.”
Although agencies are required to have a comment period, DePudyt said that is not enough. “Local governments and citizens can comment, however, it’s critical to force these federal agencies into meeting, literally, at the table. That meeting is public record and will be recorded. Questions can be asked and agency personnel must give answers. It’s important that if there is a problem that surfaces, ask them to resolve it. This coordination process puts the federal agencies equal with the local government. Local governments are not subordinate, but equal. It won’t put our plan over their plan, but it forces them to resolve their differences at a table, not through comments.”
Putting together a comprehensive land use plan and then a meeting with the federal agency personnel, takes time and effort to find a variety of people. “Our local officials are overworked as it is, and now we are putting this extra burden on them. It’s good to inform county commissioners about the land use plan even before they run for office.”
He recommends, if possible, putting a little extra money in the county budget to develop a plan and have money to train commissioners. Phillips County Farm Bureau/Montana Community Preservation Alliance received a Montana Farm Bureau Foundation grant to sponsor a coordination workshop and invited county commissioners and conservation district personnel from the region.
The rancher suggests striking as soon as you hear of an upcoming “scoping meeting,” which comes before the public comment period. “The land use plan of the federal government is reviewed every 10 years. However, they like to add or change things. If there is a change in the federal plan — say they want to identify a wilderness area — before the comment period, they have a scoping meeting. That’s when the county government needs to get involved and start resolving those differences. The feds feet should be held to the fire to resolve those differences.”
“In our county, we have a lot of land use issues such as the Upper Missouri River National Monument. There are wilderness study areas where they want to add more wilderness characteristics — it’s important to have a land use plan in place and ensure the federal plan is consistent with the local plan. Keep in mind that your commissioners may say they are already a cooperating agency with the BLM and Forest Service, but that doesn’t have any teeth.”
He said it’s difficult to get the ball rolling, and someone has to dedicate more time to the process of educating the commissioners on the federal government’s responsibility under the FLPMA.
Mark Tubbs serves as chair of the South Dakota Stockgrowers Public Lands Committee. The Edgemont,S.D., rancher says it’s very important to be involved in the entire process of working with agencies overseeing public lands. “Attend grazing association meetings and speak with Forest Service employees to understand the priorities of the agency. It’s good to periodically monitor the Forest Service and Bureau of Land Management websites to keep informed. Be active in any commenting period from the beginning of any federal agency planning.”
It’s essential to be at the table, he said. “Meet with the BLM and/or the Forest Service regularly to discuss priorities,” Tubbs said. “However, when the agency is unresponsive to the concerns of the allotment holder, copy your correspondence to your members of Congress. Often, congressional representatives can meet with the agencies and get results.”
Tubbs said the new administration has had a positive impact on those federal agencies forming a working relationship with allotment holders. “Keep in mind, however, that many land management plans are pre-existing and have an expiration date. For instance, there is an administrative policy that was written about the grasslands in the Dakotas, Nebraska and Wyoming in 2000 and needs to be re-written. It included putting prairie dogs on the Endangered Species List, and now it’s very difficult to get that language out of there. The plan has technically expired, so it’s time to provide new research and statistics.”
He said that often a decision has already been made before the comment period is even requested. “Still, don’t give up. Attending scoping meetings and participating in the comment period can be somewhat effective, but it’s essential to include your county commissioners and federal representatives in the process. When you get your county commissioners involved at the state level, they have standing in federal court,” he said, “When they wrote the National Grasslands Plan in 2000, they had the idea to make the ground look ‘pre-European.’ Well, we’re here, and we have to make sure that we are written into the next plan.”
Being actively involved in forming a county plan as well as being a part of the national plans, is essential according to Randy Parker, vice president of national governmental affairs for Utah Farm Bureau. “There is so much going on with federal agencies that farmers and ranchers don’t have the capability of keeping up with what’s coming down the pike. It creates uncertainty. Our counties (in Utah) have land use plans which force the agencies to honor what those local plans are and who those local people are. It’s very important to have those plans in place and force those agencies to work with the local county officials.”
Parker said that, regretfully, submitted comments may be ignored. “When the BLM Planning 2.0, was initiated, the Utah Farm Bureau, our members and many other concerned organizations and people submitted comments that BLM 2.0 was way beyond what the BLM should have the authority to do. The feds ignored us, and we had to put in a Congressional Review Act to remove it. We are now going through the same process with Waters of the U.S. We hope at least now with a new administration we have a window of opportunity to influence what these agencies do.”
Parker said two forest plans in Utah are currently slated for revision. “They have been in place since 1986. In the 80s, we didn’t have as many dynamics pulling the strings of these agencies. Multiple use, including grazing, was front and center,” Parker said. “Today you have the non-use advocates, non-grazing sportsmen, recreationists and more wildlife. The dynamics have changed but ranchers don’t seem to dial into it. The truth is that in the 1980s, they really didn’t have to. They historically trusted the Forest Service since it’s an agency within the U.S. Department of Agriculture. Now the reality is the Forest Service could be worse for the future of grazing than the BLM is. The question today is: How do we convince ranchers they need to be a part of the process and participate in an aggressive way?”
During the Obama Administration, Parker wrote comments on BLM 2.0, WOTUS and “every forest plan that came up, and I don’t believe anything we put on the table at that time was incorporated into those plans. Was it an act in futility? To some degree, but you can’t stop. Currently we have a good opportunity to change the dynamics. Maybe now we can submit the information and it will be heard.”
Bundy standoff participants released, some acquitted, others partly acquitted
All four of the men on retrial for their roles in the Bundy Ranch “standoff” on April 12, 2014, were released on Aug. 22.
Two of the men, Ricky Lovelien and Steven Stewart, were acquitted of all 10 charges, while two of the men were acquitted of some charges and the jury was hung on some charges.
According to Redoubt News, the jury was instructed that they could return partial verdicts.
Also according to Redoubt: “Scott Drexler was found not guilty on eight of 10 charges. The two charges that were deadlocked were Count 5: Assault on a Federal Officer and Count 6: Use and Carry of a Firearm (with Count 5)
“Eric Parker was found not guilty on six of 10 charges. The deadlocked charges for Parker were Counts 5 and 6, as with Drexler, Count 8: Threatening a Federal officer and Count 9: Use and Carry of a Firearm (with Count 8).”
According to video testimony by Andrea Olson Parker, wife of Eric Parker, all four men were released on Aug. 22. Earlier in the day, it Andrea said they believed Eric and Scott would be released to a halfway house but it later appeared that those two, along with Lovelien and Stewart were released into the public after more than 18 months in prison.
The men were originally tried in April but the jury was hung and unable to find any of them guilty or not guilty. The second trial began in July with the same judge, U.S. District Court Judge Gloria Navarro. In a Motion in Limine, the judge required that the defendants not discuss the First or Second Amendment in the courtroom. The defense was only allowed to call one witness and could not even mention the constitution or the BLM’s actions that inspired them to travel to the standoff.
Jury deliberating Bundy protester retrial
The four men on trial for their role in the Bundy standoff, Eric Parker, Steven Stewart, Scott Drexel and Ricky Lovelien now await the jury’s decision.
The defense — consisting of those four men — were essentially only allowed one witness while the prosecution – the federal government — called witnesses for three weeks.
Eric Parker took the stand on Aug. 10 but was called down in the midst of his testimony. He responded to his attorney’s question about where he was looking while lying on a bridge during the April 12, 2014, “standoff” on the Bundy ranch. “Up and to the right,” was his response to the question, said his wife Andrea Olson Parker.
“He couldn’t tell about the snipers he saw,” Olson Parker said. She said that the defense was prevented, by the judge, from talking about the BLM being armed and pointing weapons, from talking about police abusing individuals, essentially from talking about anything except what happened in a 2-hour window on April 12, 2014.
A supporter of the defense, B.J. Soper, on Monday, Aug. 14 was asked to leave the courtroom after watching quietly until the first break. According to his video testimony online he was eventually told that he was ordered to leave by the U.S. marshall but that he did not have to be given a reason why he was asked to leave.
Scott Drexler took the witness stand on Monday and was the only witness allowed to fully testify for the defense. Several witnesses “proffered” the week before, which means their testimony before the judge was recorded but offered to the jury. The defense said the purpose of the proffering was to have the testimony on record for possible appeal later.
On Aug. 15, when they were expected to give closing arguments, and after the prosecution had done so, the defense stated that they would make no closing arguments.
On a video report afterward, Olson Parker explained that she believed this was done in an effort to call attention to the fact that the defense had been unable to provide tesmtimony or evidence in full.
U.S. District Court Judge Navarro had issued a Motion in Limine prior to the start of the trial, ordering no mention of the First or Second Amendment in the defense, as well as no mention of what they percieved as abuse or brutality by federal officers leading up to the Bundy standoff.
The men on trial are considered “mid-level” players in the standoff, as they all were armed, although none fired a weapon. The more active members of the standoff including Cliven Bundy and several of his sons will be tried 30 days following the conclusion of this trial with the same judge.
Bundy family supporters being retried on conspiracy and other acts against federal government
A Nevada judge declared that neither the first amendment nor the second amendment will be mentioned in her courtroom during her current trial.
After an April mistrial, four individuals who were involved in the April 12, 2014, Bundy Ranch “standoff” between Bureau of Land Management employees and the Bundy family and first amendment supporters are being retried on conspiracy and other acts against the federal government.
Because the jury could not come to an agreement on the charges against Eric Parker, Steven Stewart, Scott Drexel and Ricky Lovelien, in the April 2017 trial, the U.S. District Judge Gloria Navarro declared a mistrial and is now holding the second trial for these same men.
The first three men mentioned are friends from Idaho, while Lovelien is a Montanan, said Andrea Olson-Parker, wife of Eric Parker. The four are considered “mid-level” participants who bore arms — in the Bundy standoff. The more active members of the event have yet to be tried.
A father of two, Eric Parker spent about 24 hours in the Bunkerville, Nev., area April 2014, after seeing images online of what he percieved as officers overstepping their duties — police officers throwing a woman to the ground and apparently tossing one of the Bundys to the ground for taking a picture. Parker’s interest was not so much in the livestock and grazing aspects of the situation as in what he viewed as a government bullying situation wherein federal officers had tried to restrict protesters to a “First Amendment zone” and were pointing firearms at unarmed protesters — some women and children.
The rest of the defendants, including Cliven Bundy and several of his sons, will be tried 30 days following the closing of this case, according to the judge.
Six were on trial in April 2017, including the four mentioned above, along with Greg Burleson and Todd Engel. Burleson was found guilty and was later sentenced to 68 years in prison. Todd Engel was also found guilty but has not yet been sentenced. The jury was split on the remaining four. According to Olson-Parker, the jury found 8-4 for acquittal for Parker in April, 7-5 for acquittal for Drexler and 10-2 for acquittal for Lovelin and Stewart.
For both the April, 2017, trial, and now the current retrial, Judge Navarro issued statements that freedom of assembly, speech, press, the right to bear arms, and self defense on the part of the protesters would not be allowed to be talked about during the trial. The defense also could not mention what it perceived as brutality on the part of BLM officers leading up to the April 2014 standoff.
In a “Motion in Limine, issued July 9, 2017, sought and granted by herself Judge Navarro said the government ‘seeks to preclude’ any information or argument that the defendants broadly characterize as ‘state of mind’ evidence which … amounts to no more than irrelevant personal opinions and beliefs about the BLM, BLM agents and agent conduct.’”
Navarro said in the motion that she specifically does not want the following items mentioned during trial: officer encounters with civilians during the April arrest of Dave Bundy, April 9, officer encounters including video recordings with Ammon Bundy or Margaret Houston (video of federal officers tossing Houston to the ground were widely circulated on the internet), testimony regarding the level of force displayed or used by law enforcement officers during the impoundment operations, references to the opinion/public statement of Gov. Brian Sandoval of April 8 or opinions registered by other politicians about BLM impoundment operations, references to First Amendment Zones, references to Cliven Bundy’s grazing, water, or legacy rights on the public lands, references to infringements on First and Second Amendment Rights and references to the punishment the defendants may face if convicted of the offenses.
Navarro goes on in her motion: “The Government argues that because Defendants were unable to establish a theory of self-defense in Trial 1, any related argument or evidence in support of such a theory is irrelevant and should be excluded as it would ‘only serve to advance [jury] nullification arguments.’”
“… Defendants’ state of mind regarding their beliefs or why they were present in Bunkerville, Nev., on April 12, 2014, is not relevant to the charged offenses or the allowed mere presence defense.”
According to USlegal.com, “Jury nullification occurs when a jury returns a verdict of ‘not guilty’ despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.”
In her effort to avoid jury nullification — or a “not guilty” verdict by the jury, Judge Navarro has severely limited what the defense can say during the trial.
Roger Roots, a Montana attorney who has been watching the retrial, said that the judge explained that the First Amendment would “confuse the jury,” and that the Second Amendment doesn’t apply because federal gun laws have never been struck down as unconstitutional.
“If you take that logically to its conclusion, the Second Amendment would never be able to be used as a defense in any trial,” he said. “The government has been able to pretty much make any accusation and use all evidence it wants and explore any theory. The defense has been stopped from really explaining the circumstance.”
“Basically these defendants came to Nevada after watching news reports of the BLM abusing people, and they aren’t allowed to use evidence of the BLM abusing people — that is their very motive in coming to Nevada but they can’t show it to the jury,” he said.
“He (Eric Parker) can’t say why he went, he can’t say what he saw when he got there,” Olson-Parker said.
Roots went on to explain that the prosecution and judge has called any information from the defense side, other than what happened during a two-hour period on April 12, irrelevant.
Roots said no motion has been filed to recuse or disqualify the judge. He said some of the defense attorneys have filed motions calling for a speedy trial, which, if granted, could mean that instead of the remaining defendants waiting their turn to be tried in the same courtroom with the same judge, they could be placed in different courtrooms for simultaneous trials. So far, this has not happened.
Navarro, in her motion, described the scene on April 12 as she interpreted it, “Deliberately lying, the leaders and organizers pleaded for gunmen and others to travel to Nevada to “stop the abuse,” by “making a show of force against (the officers)’” in order to “get them to back down” and “return the cattle.”
She goes into great detail about the events of the day as she believes they happened.
After the prosecution wrapped up about three weeks of witness testimony, the jury was not allowed to hear several of the defense’s witnesses.
Olson-Parker said that four defense witnesses “proffered” via Skype (an online video conference service) so that their testimony would be recorded in the case of a future appeal, but that the jury in this case was not allowed to hear those witnesses’ testimonies. A proffer is a preview of what a witness might tell a jury.
Eric Parker stepped onto the witness stand Aug. 10, a day after the proffering, and after a couple of hours of testimony, was told by the judge to step down before his testimony was completed.
“He couldn’t mention his own fear of BLM agents, he couldn’t say that the BLM agents were pointing guns at him. He said ‘my main focus was on those trucks, and straight forward and to the right,’” said Olson-Parker, who was present in the courtroom. “There were snipers on the mesa pointed at him, that’s the reason he got down (in the ‘prone position’).” But Eric was not allowed to talk about those details in trial and his description, as a witness, of his focus “forward and to the right” was enough to inspire the judge to remove him from the witness stand before he completed his testimony.
Olson-Parker said Eric walked back to the table, sat down by his attorney and cried.
“The jurors were open-mouthed,” she said, adding that she overheard some attorneys speculating that the judge might call a mistrial out of fear that the jury is beginning to side with the defense. Because there is no limit to the number of mistrials that can be called, the four defendants would likely wind up in a third trial with the same judge if a mistrial is called.
Olson-Parker also explained that, even in the first trial, the defense could only call three witnesses, while the prosecution called about 35.
Any potential civilian witnesses who were present during the April 12, 2014, standoff near Bunkerville, were informed by the court that if they testify, they could be charged as co-conspirators. “They were treated as if they needed a lawyer, then after 40 minutes with a lawyer, they were told ‘anything you say can and will be used against you,’” Olson-Parker said.
She said that the defense was denied a number of witnesses in the current trial but two of the most notable were witnesses whom the prosecution had called in the first trial.
“The government called Dennis Michael Lynch last time, but the defense isn’t allowed to call him this time.” Olson-Parker said of a Fox News correspondent who had been present the day of the standoff. The defense was also denied a second witness that had been called by the prosecution in the April, 2017, trial.
“We aren’t allowed to ask who pointed weapons first or show images of the BLM pointing firearms. There is so much evidence — there are videos and pictures that would help our case but we can’t bring that in,” Olson-Parker said.
Roots said there is no photographic evidence of any of the protesters pointing a firearm at a federal officer. “The government has spent millions of dollars trying to find a picture like that and they can’t.”
Eric Parker from central Idaho aims his weapon from a bridge as protesters gather by the Bureau of Land Management’s base camp, where cattle that were seized from rancher Cliven Bundy were being held near Bunkerville, on April 12, 2014. (Jim Urquhart/Reuters)
Eric Parker became an internet sensation when a photo of him lying on a bridge, with the a gun pointed through the cement sidewalls, in the general direction of a group of protesters and federal agents on April 12, 2014, went viral. Olson-Parker said Eric did not have a scope on his rifle and that he did not intend to fire unless it was as a protective measure.
No shots were fired that day. Olson-Parker’s slogan is: “No victim, no crime.”
A woman charged with attempted murder of a police officer during the North Dakota protests against the Dakota Access Pipeline was released from prison on bond so she could live in a halfway house. According to the Morton County public information officer, on Oct. 27, (2016) Red Fawn Fallis fired three shots at law enforcement officers and refused to relinquish the firearm until it was forcefully removed from her possession by law enforcement. Fallis has not yet been tried but will face a maximum sentence of 20 years and/or a $20,000 fine.
It was after they staged a protest in Oregon in January 2016, to call attention to the prison sentence of ranchers Steve and Dwight Hammond, that many of the Bundys and others were arrested. One man in that protest party, LaVoy Finicum, was shot and killed by state and federal officers while on his way to a meeting. The protesters did not fire their weapons. The others in the group allowed themselves to be arrested that day, and others, including Cliven Bundy, who were not involved in the Oregon protest, were arrested shortly afterward, for their involvement in the 2014 Bundy standoff.
According to Roots, the defendants in this case, who have served about 18 months in prison, awaiting their trials, are facing a mandatory minimum of seven years in prison if found guilty and 25 years to life if they are convicted of more than one offense. “They are looking at potentially life in prison. And some were only there for one day.”
Neither the Nevada BLM office nor the Nevada Department of Justice replied to requests for information for this story. ❖