Case 2:16-cr-00046-GMN-PAL Document 712 Filed 10/03/16 Page 1 of 11

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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
-oOo-

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UNITED STATES OF AMERICA,

Plaintiff,

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vs.
RYAN W. PAYNE,
Defendant.

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Case No. 2:16-cr-046-GMN-PAL
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DEFENDANT RYAN W. PAYNES
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) MOTION TO DISMISS SUPERSEDING
) INDICTMENT COUNTS 10, 11 AND 12
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Certification: This Motion is timely filed.

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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, and

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moves this Court for an order dismissing Counts 10, 11, and 12 of the Superseding Indictment.

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A Memorandum of Points and Authorities is attached here to.

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Case 2:16-cr-00046-GMN-PAL Document 712 Filed 10/03/16 Page 2 of 11

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DATED this 3rd day of October, 2016.

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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MEMORANDUM OF POINTS AND AUTHORITIES

Defendant Ryan Payne seeks an Order from this Court dismissing several counts of the

superseding indictment. ECF No. 27, pp. 47-49 (Mar. 2, 2016). Counts 10, 11 and 12 charge

Mr. Payne and others with obstructing the due administration of justice under 18 U.S.C.

1503 and 2. Id. at pp. 47-49. For the reasons explained herein, each of these counts must be

dismissed.

RELEVANT BACKGROUND

The allegations in this case are narrated in detail in the superseding indictment, which

explains that the Bureau of Land Management (BLM) planned to seize and remove co-

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defendant Cliven Bundys trespassing cattle from public lands in Bunkerville, Nevada, pursuant

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to a civil court order issued in 2013. ECF No. 27, p. 9. In the underlying Bundy civil case, the

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district court enjoined Cliven Bundy from trespassing on the specified public lands and

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permitted the United States to seize and remove to impound any trespassing cattle. Order, ECF

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No. 56, United States v. Bundy, 2:98-cv-00531-LRH-VCF (D. Nev. Oct. 9, 2013). To enforce

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the civil order, BLM entered into a contract with a civilian contractor in Utah to round-up and

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gather the trespassing cattle. ECF No. 27, 43. Allegedly, [i]t was part of the plan that BLM

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would use BLM and NPS Rangers, Officers, and Special Agents to provide security for

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impoundment operations, including securing the cattle at the Impoundment Site and protecting

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the civilian contractors and government employees engaged in impoundment operations. Id.

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at 46. But, according to the government, armed gunmen thwarted those plans from being

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carried out to completion. See generally ECF No. 27.

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Mr. Payne is charged with various counts in the Superseding Indictment. Relevant here,

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he is charged with three counts of obstructing the due administration of justice by impeding or

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threatening to impede the execution of federal court orders to impound cattle in three

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instances:

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Count 10 alleges Mr. Payne (along with Cliven Bundy, Ryan Bundy,
Ammon Bundy, Peter Santilli, and David Bundy) threatened to
impede the execution of federal Court Orders when R. Bundy, D.
Bundy, and others working with them, attempted to impede and
obstruct a BLM convoy at or near Nevada State Route 160 while the
convoy was engaged in impoundment operations, on or about April
6, 2014. ECF No. 27, 174.

Count 11 alleges Mr. Payne (along with Cliven Bundy, Ryan Bundy,
Ammon Bundy, Peter Santilli, and Melvin Bundy) threatened force
and violence and used force and violence to impede and thwart the
execution of federal Court Orders, in that the defendants did impede
and obstruct, and attempt to impede and obstruct, a BLM convoy
while it was engaged in impoundment operations near Nevada State
Route 170 on or about April 9, 2014. ECF No. 27, 176.

Count 12 alleges Mr. Payne (along with seventeen co-defendants)

threatened force and violence and used force and violence to
impede, obstruct and thwart the execution of federal Court Orders
by assaulting and extorting federal officers at the Impoundment
Site, on or about April 12, 2014. ECF No. 27, 178.

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ARGUMENT
Counts 10, 11, and 12 should be dismissed with prejudice because Mr. Payne cannot be
guilty of obstructing the due administration of justice.

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The alleged conduct falls outside the ambit of 18 U.S.C. 1503 as this
statute requires a nexus to a pending judicial proceeding and only
applies to acts similar in nature to interfering with witnesses and
jurors.

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The charging statute, 18 U.S.C. 1503, applies to certain kinds of conduct aimed at

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jurors, witnesses, and officers of federal courts, or conduct that obstructs the due

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administration of justice, stating:

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A.

Whoever corruptly, or by threats or force, or by any threatening

letter or communication, endeavors to influence, intimidate, or
impede any grand or petit juror, or officer in or of any court of
the United States, or officer who may be serving at any
examination or other proceeding before any United States
magistrate judge or other committing magistrate, in the discharge
of his duty, or injures any such grand or petit juror in his person
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or property on account of any verdict or indictment assented to

by him, or on account of his being or having been such juror, or
injures any such officer, magistrate judge, or other committing
magistrate in his person or property on account of the
performance of his official duties, or corruptly or by threats or
force, or by any threatening letter or communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct, or
impede, the due administration of justice, shall be punished as
provided in subsection (b). . . .

18 U.S.C. 1503(a) (emphasis added). The alleged obstructive conduct in this case lacks the

requisite nexus in time, causation, or logic with thator any otherjudicial proceeding

required by this statute.

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The government appears to allege Mr. Paynes conduct falls within the catch-all

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provision of 1503 (italicized above). Known as the omnibus clause, this language was

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designed to proscribe all manner of corrupt methods of obstructing justice. United States v.

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Bonds, 784 F.3d 582, 583 (9th Cir. 2015) (en banc) (Kozinski, J., concurring).

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Moreover, 1503 has a nexus requirementthe act must have a relationship in time,

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causation, or logic with judicial proceedings. United States v. Aguilar, 515 U.S. 593, 599-600

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(1995) (citations omitted). In other words, the endeavor must have the natural and probable

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effect of interfering with the due administration of justice. Id. at 599 (citation omitted).

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The action taken by the accused must be with an intent to influence judicial or grand jury

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proceedings; it is not enough that there be an intent to influence some ancillary proceeding,

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such as an investigation independent of the courts or grand jurys authority. Id. (citing United

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States v. Brown, 688 F.2d 596, 598 (9th Cir. 1982). Section 1503 cannot be construed to

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proscribe conduct which takes place wholly outside the context of an ongoing judicial or quasi-

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judicial proceeding. Brown, 688 F.2d at 598. Accordingly, in Aguilar, the Supreme Court

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held that uttering false statements to an investigating agent who might or might not testify

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before a grand jury is not obstruction under 1503. Aguilar, 515 U.S. at 600. In Brown, the

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Ninth Circuit held interfering with the execution of a search warrant is not obstruction under

1503. Brown, 688 F.2d at 598.

Here, the government cannot meet the nexus requirement. The governments allegations

that Mr. Payne impeded and obstructed a BLM convoy in April of 2014 lack a requisite nexus

to any pending judicial proceeding. The civil Bundy case was complete in October of 2013,

when the district court issued a permanent injunction against Cliven Bundy. BLMs cattle

round-up was not even an ancillary proceeding within the meaning of the statuteit was

government action taken some time after the granting of a civil court order. Counts 10, 11, and

12 must be dismissed under Aguilar and Brown.

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Moreover, 18 U.S.C. 1503 does not encompass all obstructive conduct and must be

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strictly construed. Haili v. United States, 260 F.2d 744, 745 (9th Cir. 1958); see also Bonds,

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784 F.3d at 584. While many matters other than proceedings pending in court are related to the

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administration of justice, the Ninth Circuit has long-held the phrase due administration of

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justice in the omnibus clause is limited by the prior enumeration of specific judicial functions

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in the statute. Haili, 260 F.2d at 745-46; see also United States v. Rasheed, 663 F.2d 843, 851

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(9th Cir. 1981) (explaining Haili court holding). Therefore, the omnibus clause only applies to

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acts similar in nature to interfering with witnesses and jurors. Haili, 260 F.2d at 745-46.

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The particularly defined instances of violation of [18 U.S.C. 1503(a)] all relate to

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conduct designed to interfere with the process of arriving at an appropriate judgment in a

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pending case and which would disturb the ordinary and proper functions of the court. Haili,

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260 F.2d at 746. Accordingly, interfering with the terms of anothers probation is not an

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interference with the due administration of justice within the meaning of the statute. Id. at 745-

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46 (reversing conviction). Nor would impeding an FBI investigation violate 18 U.S.C. 1503.

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Haili, 260 F.2d at 745 (citing United States v. Scoratow, 137 F. Supp. 620, 621 (W.D. Pa.

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1956)); Scoratow, 137 F. Supp. 622 (The Federal Bureau of Investigation is an investigating

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agency rather than a judicial arm of the government. It does not administer justice within the
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meaning of Section 1503.). Nor would encouraging a prisoner to escape from a penitentiary

violate the statute. Haili, 260 F.2d at 746. Although investigating crimes and supervising

convicted prisoners are part of the administration of justice in a general way, the statute cannot

be given such a very wide meaning to encompass those types of conduct. Id. By contrast,

destroying or concealing subpoenaed documents is similar in nature to the enumerated acts

in 18 U.S.C. 1503. Rasheed, 663 F.2d at 852. The destruction or concealment of subpoenaed

documents results in the improper suppression of evidence, and thus the influencing,

obstructing and impeding of judicial proceedings, just as much as does the intimidation of a

witness. Id. (citation omitted).

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Here, the obstructive acts alleged in Counts Ten, Eleven, and Twelve are clearly not

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similar in nature to the specific acts set forth in 18 U.S.C. 1503(a). The government alleges

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on or about April 6, 9, and 12, 2014, Mr. Payne impeded and obstructed a BLM convoy

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executing 2013 federal court orders to impound cattle. Impeding BLM from gathering cattle is

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not at all similar in nature to intimidating a juror in a court proceeding or destroying

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documents resulting in the improper suppression of evidence. Chiefly, impeding a cattle

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convoy is not conduct designed to interfere with the process of arriving at an appropriate

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judgment in a pending case. See Haili, 260 F.2d at 746. The civil Bundy case was long over

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appropriate judgment was issued in 2013 when the permanent injunction was granted. Thus,

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there was no process in a pending case with which to interfere. Nor is gathering cattle an

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ordinary and proper function[] of the court. See Haili, 260 F.2d at 746. The BLM, like the

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FBI, does not administer justice within the meaning of 18 U.S.C. 1503. Section 1503

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proscribes conduct that obstructs the administration of justicenot the post hoc enforcement

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of civil orders.

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B.

The omnibus clause of 18 U.S.C. 1503 is constitutionally overbroad.

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The Ninth Circuit recently reaffirmed the limited scope of 18 U.S.C. 1503 in United

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States v. Bonds, 784 F.3d 582 (9th Cir. 2015) (en banc). In Bonds, the defendant, a professional
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baseball player, was convicted of obstructing justice after he gave a rambling, non-responsive

answer to a question about his suspected steroid use in a grand jury proceeding. Bonds, 784

F.3d at 572 (per curiam). The Ninth Circuit reversed the conviction, finding insufficient

evidence to support a conviction under the statute. 1 Id.

In the principal concurrence, the Bonds Court explained why the statutes omnibus

clause requires prudential limitations. Bonds, 784 F.3d at 583-86 (Kozinski, J., concurring).

The amorphous nature of the statute is . . . at odds with the constitutional requirement that

individuals have fair notice as to what conduct may be criminal. Id. at 584-85. Because the

statute sweeps so broadly, due process calls for prudential limitations on the governments

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power to prosecute under it. Id. at 585. In the context of threatening statements made under

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1503, one such prudential limitation is the requirement that the statement be material. Id.

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(citing United States v. Thomas, 612 F.3d 1107, 1128-29 (9th Cir. 2010)).

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Materiality screens out many of the statutes troubling

applications by limiting convictions to those situations where an
act has a natural tendency to influence, or was capable of
influencing, the decision of the decisionmaking body. See
Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 99
L.Ed.2d 839 (1988) (internal quotation marks omitted); Thomas,
612 F.3d at 1124. Put another way, the government must prove
beyond a reasonable doubt that the charged conduct was capable
of influencing a decisionmaking person or entityfor example,
by causing it to cease its investigation, pursue different avenues
of inquiry or reach a different outcome. See United States v.
McKenna, 327 F.3d 830, 840 (9th Cir. 2003) (finding statement
material because it could have affected the decision-making
process); Weinstock v. United States, 231 F.2d 699, 703 (D.C.
Cir. 1956) (noting that, to be material, a statement must have
some weight in the process of reaching a decision).

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Bonds, 784 F.3d at 585-86 (Kozinski, J., concurring).

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The Bonds court reversed Bonds conviction in a short per curiam opinion, and issued
four separate concurrences and one dissent. Bonds, 784 F.3d 572. The concurring opinions
agreed Bonds statement was not material to sustain a conviction, but for different reasons.
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Here, the government alleges Mr. Payne and others obstructed the due administration

of justice by making threatening communications. ECF No. 27, pp. 47-49. The superseding

indictment does not specify what those threatening communications were. If the threatening

communications were statements, the government must prove materialitythat the statements

had a natural tendency to influence, or was capable of influencing, the decision of the

decisionmaking body. Bonds, 784 F.3d at 584 (quoting Kungys, 485 U.S. at 770). For the

same reasons articulated above, the government cannot prove this element. In April of 2014,

there was no decisionmaking body to influence as the Bundy civil judgment was issued in

2013. Nor do BLM workers constitute a decisionmaking body for purposes of the statute.

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On the other hand, if there is no materiality requirement, due process calls for

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prudential limitations on the governments power to prosecute under 1503. Bonds, 784 F.3d

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at 585. Particularly in a case like this, where the government alleges eighteen people with

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myriad conduct over three days, the statute is unconstitutionally overbroad. Such a vast

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interpretation of the statute violates Mr. Paynes due process rights, and the counts should be

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dismissed.

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CONCLUSION

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Counts 10, 11, and 12 lack the requisite nexus to a judicial proceeding within the

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meaning of 18 U.S.C. 1503. Impeding a BLM convoy is completely unrelated to the judicial

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process of arriving at an appropriate judgment in a pending case and the ordinary and proper

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judicial functions of the court. The conduct alleged in Counts 10, 11, and 12 clearly fall outside

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the scope of 18 U.S.C. 1503. Accordingly, those counts should be dismissed for failure to

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state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v).

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Should the Court step away from Ninth Circuit precedent requiring the obstructive

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conduct be similar in nature to juror intimidation, Counts 10, 11, and 12 should still be

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dismissed because the omnibus clause is constitutionally overbroad.

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Dismissing these counts requires the Court to strike (1) the allegation Mr. Payne

conspired to commit Obstruction of the Due Administration of Justice, in violation of Title 18,

United States Code, Section 1503 in Count One (ECF No. 27, p. 38); (2) the allegations in

Forfeiture Allegation One, Two, and Four (pp. 55, 60).

DATED this 3rd day of October, 2016.

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Respectfully submitted,
RENE VALLADARES
Federal Public Defender

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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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CERTIFICATE OF ELECTRONIC SERVICE

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 W. PAYNES MOTION TO DISMISS SUPERSEDING

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INDICTMENT COUNTS 10, 11 AND 12 by electronic service (ECF) to the person named
below:

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DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
Assistant United States Attorney
NICHOLAS DICKINSON
Assistant United States Attorney
STEVEN MYHRE
Assistant United States Attorney
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101

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/s/ Lauren Pullen

Employee of the Federal Public Defender

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