Case 2:16-cr-00046-GMN-PAL Document 833 Filed 10/10/16 Page 1 of 7

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DANIEL J. HILL, ESQ.

NV Bar # 12773
WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN LLP
3556 East Russell Road, 2nd Floor
Las Vegas, Nevada 89120
Tel: (702) 341-5200
Fax: (702) 341-5300
DHill@wrslawyers.com
Attorney for Defendant Ammon E. Bundy

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
vs.

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AMMON E. BUNDY, et al.,

Defendants.

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CASE NO.: 2:16-cr-00046-GMN-PAL

DEFENDANT AMMON E. BUNDYS
MOTION TO DISMISS THE
INDICTMENT FOR DESTRUCTION OF
EVIDENCE OR IN THE ALTERNATIVE
FOR A REMEDIAL JURY
INSTRUCTION
(Evidentiary hearing requested)

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Certification: This motion is timely filed.

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This is Defendant Ammon E. Bundys (Ammon) motion to dismiss the indictment for

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destruction of evidence. Alternatively, Ammon requests a remedial jury instruction. The government

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destroyed evidence in bad faith by shredding documents from the BLMs base at the site of cattle

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impoundment that were of potential use to Ammon, thus violating Ammons due process rights.

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Ammon also respectfully requests an evidentiary hearing on this motion, as there will be contested

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facts requiring witness testimony to settle.

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Case 2:16-cr-00046-GMN-PAL Document 833 Filed 10/10/16 Page 2 of 7

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION AND BACKGROUND

Beginning on April 3, 2014, Bureau of Land Management (BLM) agents and other law

enforcement officers arrived in Mesquite and Bunkerville, in the areas surrounding Cliven Bundys

ranch. They erected a base camp outside the Toquop Wash for their operations, which were ostensibly

aimed at impounding Cliven Bundys purportedly trespassing cattle. The BLM operated out of the

camp until April 12, 2014, when they left Bunkerville.

On April 12, 2014, after Sherriff Doug Gillespie announced that the impoundment operations

were to cease, the BLM left the Toquop Wash. The BLM had rented dumpsters from Virgin Valley

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Disposal, which they left behind in the area that served as their base. In the dumpsters were, among

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other things, large trash bags full of thoroughly shredded documents. See Photographs of Shredded

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Documents, true and correct copies of which are attached as Exhibit A; see also Declaration of Keith

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Gordon, a true and correct copy of which is attached as Exhibit C. The caliber of shredder or

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shredders the BLM used rendered the documents impossible to reassemble. But, there are enough

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segments to confirm that the shreds were once government documents, in addition to the fact that they

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were found in the BLMs dumpster. See id.

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Because the governments agents destroyed their own documents, Ammon is entitled to have

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the indictment dismissed. First, the government acted in bad faith because the BLMs internal memos

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anticipated criminal charges well before the agents shredded their own documents, which is

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impossible to do negligently. Second, the other materials in the dumpsters and the fact that the

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destroyed documents were authored by potential government witnesses insist that the documents were

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potentially useful to Ammons defense. There must be ramifications for the governments actions.

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Otherwise, it will be permissible for agents who know criminal charges are coming to destroy their

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own related documentswhich could be used to impeach themas long as they destroy them so early

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and so thoroughly that only they can know what the documents contained.

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Case 2:16-cr-00046-GMN-PAL Document 833 Filed 10/10/16 Page 3 of 7

II.

ARGUMENT

A defendant claiming a due process violation based on the governments destruction of

evidence must make two showings. He must show first that the government acted in bad faith, the

presence or absence of which turns on the governments knowledge of the apparent exculpatory value

of the evidence at the time it was lost or destroyed. United States v. Sivilla, 714 F.3d 1168, 1172 (9th

Cir. 2013) (internal citations and quotations omitted). Second, the defendant must show that the

missing evidence is of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means. Id. (internal citations and quotations omitted). Bad

faith on the part of the government is required for dismissal where missing evidence is shown to be

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potentially useful, rather than demonstrably exculpatory. See United States v. del Toro-Barboza, 673

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F.3d 1136, 1149 (9th Cir. 2012).

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A.

The Court should dismiss the indictment because the government knew charges
were coming, but intentionally destroyed documents that could have
exonerated Ammon

The exculpatory value of the documents was apparent when the government agents shredded
them. First, there is no question that the agents in Bunkerville thought that the protestors had
committed a crime. On day three of their operation, the BLM arrested Ammons brother, Davey
Bundy, while he filmed impoundment operations. By day four, they had sicced dogs on and tased
Ammon, and forcibly taken down his 56-year-old aunt, Margaret Houston. Furthermore, on
information and belief, both an Assistant United States Attorney and FBI investigators were present in
Bunkerville during the goings-on described above. On April 9, 2014, the BLM operation produced an
internal memo titled Free Speech vs. Impeding Operations, which opined that the protestors have
crossed over into illegal activity and noted that they will be met with law enforcement actions. See
Memo, Free Speech vs. Impeding Operations, a true and correct copy of which is attached as Exhibit
B; see also Exh. C.
The documents the government shredded were voluminous. Because they were authored in the
course of the BLM operation that resulted in this case, they necessarily contained written statements of
potential government witnesses. The likelihood that they contained exculpatory material is high; the

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likelihood that they contained impeachment material is higher still. That they were potentially useful

is a certainty. The documents were shredded by federal agents, who are well trained in defendants

rights to the written statements of witnesses. There is no doubt, then, that the government agents were

fully aware of the exculpatory value of the documents when they shredded them.

Neither is Ammon able to obtain comparable evidence by other reasonably available means.

The shreds indicate that hand-written notes by potential witnesses were among the documents

destroyed. See Exh. A. They are lost forever. Although no reasonable person could deny that the piles

and piles of other shredded documents included statements of potential witnesses, the documents were

destroyed so thoroughly that they cannot be identified for the purposes of subpoena on the off chance

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copies exist somewhere.

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The government was aware of the exculpatory value of the documents when they destroyed

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them, and Ammon cannot obtain comparable evidence. The documents were surely of potential use,

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and the government acted in bad faith by shredding them. Accordingly, the indictment must be

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dismissed.

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B.

If the Court does not find bad faith, a remedial jury instruction is required to
hold the government accountable

Bad faith is not required for a remedial jury instruction. See Sivillia, 714 F.3d at 1173. Rather,
the balancing test centers on the quality of the governments conduct against the degree of prejudice
to the accused, where the government bears the burden of justifying its conduct and the accused of
demonstrating prejudice. Id. (citing United States v. Loud Hawk, 638 F.2d 1139, 1146 (9th Cir.
1979)) (internal quotations omitted). The Ninth Circuit sets forth the appropriate inquiry for
determining the quality of the governments conduct as follows:
[T]he court should inquire whether the evidence was lost or destroyed while
in [the governments] custody, whether the government acted in disregard for
the interests of the accused, whether it was negligent in failing to adhere to
established and reasonable standards of care for police and prosecutorial
functions, and, if the acts were deliberate, whether they were taken in good
faith or with reasonable justification.
Id. Sivilla also set forth the appropriate inquiry for determining prejudice to the defendant:
In analyzing prejudice, the court must consider a wide number of factors
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including, without limitation, the centrality of the evidence to the case and its
importance in establishing the elements of the crime or the motive or intent of
the defendant; the probative value and reliability of the secondary or
substitute evidence; the nature and probable weight of factual inferences or
other demonstrations and kinds of legal proof allegedly lost to the accused;
the probable effect on the jury from absence of the evidence, including
dangers of unfounded speculation and bias that might result to the defendant
if adequate presentation of the case requires explanation about the missing
evidence.

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Id.
Here, the documents were shredded while in the governments custody. By destroying

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documents that necessarily contained the written statements of potential government witnesses, the

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government acted in disregard for Ammons rights and interests. For the same reason, and because

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federal agents are trained regarding the value of such documents, the government failed to adhere to

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established standards of care. Finally, the destruction was deliberate. The documents were shredded by

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the very government team that produced them, which must have known their value.

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As a result, Ammon is prejudiced. As explained above, the evidence no longer exists by other

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reasonably available means. Furthermore, the documents would have been probative. This case

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involves allegations of assault and intimidation of the very government agents who shredded the

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documents. Accordingly, the state of mind of the agents during the same period that these documents

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were produced and destroyed is crucial. The agents testimony regarding their state of mind will hinge

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on their credibility. But, because reams of documents, including hand-written notes, were shredded,

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Ammon has lost untold impeachment material. Accordingly, should the Court find there was no bad
faith, a remedial jury instruction is warranted.
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III.

CONCLUSION

For the foregoing reasons, Ammon Bundy respectfully requests that the Court dismiss the

superseding indictment for due process violations. Alternatively, Ammon Bundy requests that a

remedial jury instruction be ordered. Finally, Ammon Bundy respectfully requests that the Court

conduct an evidentiary hearing on this motion to allow further factual development.

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DATED this 10th day of October 2016.

WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN, LLP
By: /s/ Daniel J. Hill
DANIEL J. HILL, ESQ.
Nevada Bar No. 12773
3556 E. Russell Road, Second Floor
Las Vegas, Nevada 89120
Attorney for Defendant Ammon E. Bundy

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Case 2:16-cr-00046-GMN-PAL Document 833 Filed 10/10/16 Page 7 of 7

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CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of October 2016, a true and correct copy of DEFENDANT

3 AMMON E. BUNDYS MOTION TO DISMISS THE INDICTMENT FOR DESTRUCTION OF

4 EVIDENCE OR IN THE ALTERNATIVE FOR A REMEDIAL JURY INSTRUCTION was
5 served via the United States District Court CM/ECF system on all parties or persons requiring notice.
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By /s/ Jennifer Finley

Jennifer Finley, an Employee of
WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN, LLP

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