FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

CLIVEN D. BUNDY, AKA Cliven

Bundy; RYAN C. BUNDY; AMMON E.

BUNDY; RYAN W. PAYNE,

Defendants-Appellees.

No. 18-10287

D.C. No.

2:16-cr-00046-

GMN-PAL-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted May 29, 2020

Las Vegas, Nevada

Filed August 6, 2020

Before: William A. Fletcher, Jay S. Bybee,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Bybee
2 UNITED STATES V. BUNDY

SUMMARY*

Criminal Law

The panel affirmed the district court’s judgment

dismissing with prejudice, due to violations of Brady v.

Maryland, an indictment charging Cliven Bundy; two of his

sons, Ryan and Ammon Bundy; and Ryan Payne with

obstructing federal law enforcement officials carrying out

lawful court orders.

The indictment followed a well-publicized effort by the

Bureau of Land Management to impound Cliven Bundy’s

cattle for a twenty-year failure to pay federal grazing fees. 

Cliven Bundy and hundreds of armed supporters from around

the United States forced federal officials to abandon the

impoundment plan.

Days into the defendants’ trial, the government began

disclosing information in its possession that, under Brady,

was arguably useful to the defense and should have been

produced to the defendants well before trial. As additional

documents came forth, the district court held a series of

hearings, eventually deciding that the trial could not go

forward and that the indictment must be dismissed with

prejudice.

Reviewing whether the district court properly dismissed

the indictment under its supervisory powers, the panel

considered the evidence cited by the district court to decide

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. BUNDY 3

whether substantial prejudice resulted from the Brady

violations, whether flagrant misconduct occurred, and

whether alternative remedies could have redressed the injury

here.

Central to the government’s case were allegations that the

defendants intentionally lied about being surrounded by

snipers as a ploy to gather armed supporters. Had the

defendants been able to proffer a basis for genuinely

believing that government snipers surrounded the Bundy

Ranch, they potentially could have negated the government’s

scienter theory. Surveying all of the withheld evidence –

including surveillance-camera evidence, FBI “302”

investigative reports regarding snipers, Tactical Operations

Center (TOC) log records, and threat assessments – the panel

held that the record amply supports the district court’s

conclusion that the defendants suffered substantial prejudice

in not being able to prepare their case fully, refine their voir

dire strategy, and make stronger opening statements.

Regarding the question of flagrant misconduct, the panel

wrote that to the extent any government agencies or actors,

through their own flagrant misconduct, failed to make known

exculpatory information, the flagrant nature of such conduct

will be imputed to the prosecution. The panel explained that

flagrant misconduct need not be intentional; reckless

disregard for the prosecution’s constitutional obligations is

sufficient. Although it saw only negligence in the

withholding of the TOC log records, the panel found no clear

error in the district court’s conclusion that the withholding of

the surveillance-camera evidence, the 302s, and the threat

assessments crossed the threshold from negligence to

recklessness. The panel observed that the prosecution

withheld facially exculpatory evidence that directly negated
4 UNITED STATES V. BUNDY

the government’s theory that the defendants lied about fearing

snipers, and that the deliberate choices to withhold those

documents were not cases of simple misjudgment.

The panel wrote that although dismissal with prejudice

requires a district court to find that “no lesser remedial action

is available,” the panel understands by this phrase that a

district court must conclude that no lesser remedy will fully

address the damage caused by the government’s misconduct. 

The panel concluded that the district court, which thoroughly

considered the prejudicial effects, did not abuse its discretion

in dismissing the indictment with prejudice. The panel wrote

that lesser sanctions would have given the government an

opportunity to strengthen its case at the defendants’ expense,

and noted the related need to impose a sanction that will serve

to deter future prosecutions from engaging in the same

misconduct as occurred here.

COUNSEL

Elizabeth O. White (argued), Appellate Chief; Nicholas A.

Trutanich, Attorney General; Office of the Attorney General,

Reno, Nevada; for Plaintiff-Appellant.

Larry E. Klayman (argued), Washington, D.C., for

Defendant-Appellee Cliven D. Bundy.

Amy B. Cleary (argued), Cristen C. Thayer, and Ellesse

Henderson, Assistant Federal Public Defenders; Rene L.

Valladares, Federal Public Defender; Office of the Federal

Public Defender,Las Vegas,Nevada; for Defendant-Appellee

Ryan W. Payne.
UNITED STATES V. BUNDY 5

Daniel Hill, Hill Firm, Las Vegas, Nevada, for DefendantAppellee Ammon E. Bundy.

Alyssa D. Bell, Cohen Williams LLP, Los Angeles,

California, for Defendant-Appellee Ryan C. Bundy.

OPINION

BYBEE, Circuit Judge:

Cliven Bundy, two of his sons, Ryan and Ammon Bundy,

and sixteen other persons were charged with obstructing

federal law enforcement officials carrying out lawful court

orders. The indictments followed a well-publicized effort by

the Bureau of Land Management (BLM) to impound Cliven

Bundy’s cattle for a twenty-year failure to pay federal grazing

fees. Bundy and hundreds of armed supporters from around

the United States forced federal officials to abandon the

impoundment plan. Fortunately, no one was injured in the

confrontation.

Days into the Bundys’ trial, the government began

disclosing information in its possession that, under Brady v.

Maryland, 373 U.S. 83 (1963), was arguably useful to the

defense and should have been produced to the defendants

well before trial. As additional documents came forth, the

district court held a series of hearings, eventually deciding

that the trial could not go forward and that the indictments

must be dismissed with prejudice. Under Brady, “[t]he

prosecution is trusted to turn over evidence to the defense

because its interest ‘is not that it shall win a case, but that

justice shall be done.’” Amado v. Gonzalez, 758 F.3d 1119,

1133–34 (9th Cir. 2014) (quoting Strickler v. Greene,
6 UNITED STATES V. BUNDY

527 U.S. 263, 281 (1999)). A district court is imbued with

discretion in the supervision of proceedings before it and may

dismiss an action when, in its judgment, “the defendant

suffers substantial prejudice and where no lesser remedial

action is available.” United States v. Chapman, 524 F.3d

1073, 1087 (9th Cir. 2008) (citations and quotation marks

omitted). Finding no abuse of discretion, we affirm the

judgment of the district court.

I. BACKGROUND

A. Factual History

This case stems from an infamous standoff between

Cliven Bundy, his sons,1and groups of dedicated followers

and BLM. Bundy lives on 160 acres of land near

Bunkerville, Nevada, about eighty miles northeast of Las

Vegas, near the Arizona border. It is rugged, Mojave-dry

country, bounded by the Gold Butte National Monument and

the Lake Mead National Recreation Area, and watered by the

Virgin River—which, by any standards, is more a creek than

a river. For decades, Bundy and his family have grazed their

cattle on the more than half a million acres of surrounding

federal land. Since the early 1990s, Bundy has refused to

obtain permits and pay fees and fines for grazing his cattle on

the federal lands surrounding his property. Several court

orders previously found that Bundy’s cattle were trespassing

on federal land and ordered Bundy to remove his cattle or risk

having them impounded. See United States v. Bundy,

1 Two of Cliven Bundy’s sons, Ammon and Ryan, are defendants in

this proceeding. Others figure in the facts. For convenience we will refer

to Cliven Bundy as “Bundy” and his sons by their full names, e.g.,

“Ammon Bundy” and “Ryan Bundy.”
UNITED STATES V. BUNDY 7

No. 2:12-cv-0804, 2013 WL 3463610, at *1–3 (D. Nev.

July 9, 2013) (authorizing the government to “seize and

remove to impound any of Bundy’s cattle for any future

trespasses”); see also United States v. Bundy, 178 F.3d 1301

(9th Cir. 1999) (unpublished table decision). Bundy ignored

those orders, claiming that he had “vested grazing rights” and

that the State of Nevada, not the United States, was the

rightful owner of the lands.

In early 2014, BLM began putting into place a large-scale

operation to impound Bundy’s cattle. The plan called for

contractors from Utah to round up cattle that were trespassing

on federal land. The cattle would then be sold at auction. 

BLM notified Bundy of its intentions in mid-March of 2014. 

Bundy did not respond to the notices, but in interviews with

local papers stated that he was “ready to do battle with the

BLM,” that he would muster family, friends, and supporters,

and “do whatever we have to after that.”

BLM made extensive preparations for “Operation Gold

Butte Impound.” Coordinating with agents from the National

Park Service and Federal Bureau of Investigation, BLM

anticipated resistance from Bundy and his supporters. It

planned to escort the contractors in and out of the area each

day. BLM established a Listening Post/Observation Post

(LP/OP) “strategically placed at elevated positions around the

Bundy residence each evening” where agents were outfitted

with binoculars, spotting scopes, night-vision goggles, and

thermal-imaging devices. The LP/OP personnel were to have

“agency-issued rifles with them at all times.” BLM also

established a Tactical Operations Center (TOC), Forward

Operating Base (FOB), a media site, and a “free speech area.”
8 UNITED STATES V. BUNDY

On-site operations began the first week of April. On

April 6, 2014, another of Bundy’s sons, Dave Bundy, blocked

a BLM convoy on a state route and was arrested. The Bundys

responded by inviting private militia groups such as

Operation Mutual Aid, 3 Percenters Club, Freedom and

Fighters, and Oath Keepers to come to their defense. The

Bundys claimed that the government was taking their cattle

and holding one of the Bundys prisoner, and had snipers in

position surrounding the Bundy compound. Among those

who responded was defendant Ryan Payne, who was a

founder of Operation Mutual Aid. Hundreds of Bundy

supporters, many heavily armed, poured into the area.

On April 9, 2014, Ammon Bundy led a mob to block a

BLM convoy and was tased by officers. Payne used the

incident to contact additional militia groups and solicit their

help. By April 11, BLM had seized approximately

400 animals. FBI agents informed BLM that the gathering

militia posed a significant threat to federal officials and

private contractors, and advised BLM to cease the operation. 

The next day, Bundy and his supporters, then estimated to be

more than 200 people, assembled to reclaim Bundy’s cattle. 

Clark County Sheriff Doug Gillespie intervened with Bundy

and told the group that BLM had called off the impoundment. 

Bundy made additional demands, and when they were not

met, told the crowd that it was time to “get those cattle.” The

crowd then moved to the entrance of the impoundment site,

located in a dry-wash bed under an Interstate 15 bridge. 

Armed supporters took up threatening and tactically

advantageous positions, pointing guns at BLM officers. 

Additional supporters arrived, some on horseback, swelling

Bundy’s ranks to more than 400 people. The Bundys

demanded that the officers leave. Heavily outnumbered and

interested in avoiding bloodshed, federal officials evacuated
UNITED STATES V. BUNDY 9

the impoundment site and left the cattle for the Bundys to

reclaim.

B. Procedural History

1. The Indictment

In March 2016, a federal grand jury indicted nineteen

defendants, including Bundy, his sons Ammon and Ryan, and

Ryan Payne (collectively, “the defendants”), for a slate of

federal crimes stemming from the standoff, including

impeding federal officers, threatening federal law

enforcement, and extortion, along with conspiracy to commit

these crimes. The district court divided the defendants into

three groups, according to their degree of involvement. 

Cliven Bundy, Ryan Bundy, Ammon Bundy, Ryan Payne,

and another militia leader, Peter Santilli, were placed in Tier

1. The district began with a trial for the Tier 3 defendants, to

be followed by Tier 1 and Tier 2.2

A central pillar of the government’s case was the

allegation that the defendants recruited armed followers by

intentionally deceiving those followers into believing that the

Bundys feared for their lives because government snipers

surrounded their ranch. According to the indictment, once

the large group of supporters had amassed, the defendants

were then able to use their followers to thwart the impound

operation. Specifically, ¶ 58 of the indictment alleged that

2 The Tier 3 trial commenced on February 6, 2017 and resulted in

conviction of two defendants; the jury hung as to the remaining

defendants. On retrial, the jury acquitted two defendants on all charges

and two defendants on some charges; the jury hung for a second time on

the remaining charges.
10 UNITED STATES V. BUNDY

the defendants “used deceit and deception to recruit gunmen

and other Followers,” flooding the internet with “false,

deceitful, and deceptive images” for the “unlawful purpose of

interfering with impoundment operations, obstructing the

execution of federal court Orders and using force and

violence against federal law enforcement officials.” 

Paragraph 84 further stated that the defendants had created

“false, deceitful and deceptive statements to the effect that the

BLM supposedly: employed snipers against Bundy family

members . . . .” As for Ryan Payne, ¶ 88 alleged that on

April 7, 2014, he had posted messages to followers “stating

falsely, among other things, that the Bundy Ranch was

surrounded by BLM snipers, that the Bundy family was

isolated, and that the BLM wanted BUNDY dead.” 

Regarding Bundy, ¶ 92 of the indictment recounted how, on

April 8, 2014, he had broadcast a statement saying, “they

have my house surrounded . . . the federal government is

stealing my property . . . [the BLM] are armed with assault

rifles . . . they have snipers.” The indictment contended that

this statement was deceitful and made with “the purpose of

recruiting gunmen and other Followers” to come to the

Bundy Ranch and obstruct the impoundment.

2. The Motion-in-Limine Order

In preparation for trial, the defendants requested any

potentially exculpatory evidence under Brady v. Maryland,

373 U.S. 83 (1963), including evidence that could negate the

government’s scienter theory. Notably, to combat the

government’s allegation that the defendants had lied about

fearing being surrounded by snipers, the defendants sought

materials showing the presence of armed officers in tactical

gear taking positions around the Bundy Ranch. The defense
UNITED STATES V. BUNDY 11

also wanted evidence to support their claim that the

impoundment operation was over-militarized.

In October of 2017, shortly before trial began, the

government obtained a favorable ruling on a motion in

limine, which limited the defense’s ability to introduce

evidence regarding the affirmative defense of self-defense

against government actors. The district court concluded that

the affirmative defense was not available to the defendants

because they knew the “official status” of the federal officers

and there was no evidence that the officers used excessive

force. However, the district court left open the possibility

that the defendants could present evidence supporting the

affirmative defense with “an offer of proof outside the

presence of the jury that the defense should apply.” In the

same order, the court denied the government’s request to

preclude evidence regarding the defendants’ state of mind. 

The government cited this order to justify several of its

decisions to withhold evidence.

3. Opening Statements

Trial commenced on October 30, 2017. The

government’s opening statements emphasized the theory that

the Bundys and their co-conspirators intentionally spread

misinformation about being surrounded by snipers to inflame

supporters. The government recounted that following Dave

Bundy’s arrest on April 6, the Bundys posted messages and

photos on social media:

And the messaging that was put out by the

Bundys, by the Bundys and their supporters,

was that this was BLM being a large Army

that was coming to attack them, was coming
12 UNITED STATES V. BUNDY

to interfere with them, was coming to abuse

them. And you will hear how the messaging

transformed from stealing cattle to now

they’ve got snipers aimed at us. Now they’ve

got our house surrounded. Now we can’t

move. We’ve got to shelter in place. We

can’t do anything because the BLM has got us

surrounded.

And that was false . . . .

The government made clear that the Bundys’ purported lies

about feeling surrounded by menacing snipers was key to

their recruiting followers such as Ryan Payne and Peter

Santilli to come to Nevada, obstruct the impound operation,

and “protect against tyranny.”

4. Hearings Regarding Withheld Evidence

As trial got underway, it became apparent that important

evidence had been withheld by the government. Over the

course of the following weeks, the district court held several

hearings regarding this evidence as it trickled out during trial.

a. November 7 and 8 Hearings. On November 6 and 7,

2017, just a week into the trial, the defendants filed

successive motions to dismiss for discovery misconduct. 

They faulted the government for failing to provide evidence

regarding (1) video surveillance of the Bundy property and

(2) the presence of FBI and BLM tactical units armed with

AR-15 rifles. In August 2017, the defense had requested

information related to a camera placed near the Bundy Ranch. 

The request was supported by an affidavit from Ryan Bundy,

who averred that he had seen a camera device on a tripod
UNITED STATES V. BUNDY 13

with a telephoto lens and a “visible laser.” He said the tripod

was on a hill northeast of and overlooking the Bundy house. 

The government, however, had opposed this request,referring

to it and other requests as a “fantastical fishing expedition.” 

Yet on November 3, the fourth day of trial, the defense

learned that the FBI had in fact set up a camera on a hill

northeast of the Bundy home. The camera had a live feed to

BLM’s command center.

The district court held a hearing on November 7 regarding

the camera evidence. The court held another hearing the next

day regarding newly released evidence showing the presence

of heavily armed patrols near the Bundy property. The

defendants emphasized that this new evidence was material

because it undercut the government’s ability to prove that

they had intentionally lied to supporters about fearing

government snipers. Specifically, the defendants argued that

the presence of surveillance equipment and law-enforcement

officers armed with AR-15 rifles contributed to the

defendants’ fear that they were surrounded.

The district court agreed with the defendants that the

requested surveillance-camera evidence was material. 

However, it also concluded that the government had not acted

in bad faith by withholding information about the camera

because the court had previously thought that the information

related to surveillance cameras was irrelevant and there was

“no apparent or readily apparent materiality.” As for the late

evidence regarding heavily armed officers, the district court

agreed that the information was material because it was

“relevant to developing a possible defense to the allegation

that false statements were provided about the existence of

snipers and being isolated and surrounded.” The district court
14 UNITED STATES V. BUNDY

ordered the government to turn over any additional evidence

related to the surveillance camera or snipers.

b. November 13 Hearing. During the first week of

November, the government disclosed additional evidence

regarding the surveillance camera and officers armed with

assault rifles in full tactical gear. Two disclosures came in

the form of FBI investigative reports known as “302s.” The

first was a 302 regarding Kevin Egbert (the Egbert 302). This

302 recorded the placement of the camera and attempts to

repair it after it was damaged. The second was a 302

describing the activities of Special Agent Edward Delmolino

(the Delmolino 302). This 302 described how Agent

Delmolino was dressed in BLM tactical gear and took an

overwatch position near the Bundy Ranch. A thumbdrive

with a log of activities at the Tactical Operations Center,

referred to as the “TOC Log,” was produced on

November 11, 2017. This log served as the FBI’s record for

SWAT operations during the impound operation. The Log

referenced the insertion of “snipers” and recounted

descriptions of the live feed from the surveillance camera.

The defense renewed its motions to dismiss and the

district court held another hearing on November 13, 2017. 

The government represented that the prosecutors from the

U.S. Attorney’s Office had “been as diligent as we possibly

can.” The district court agreed that “everyone’s doing the

best they can faced with the information that we have, which

is more interesting than in the usual case” and found that

“there’s no Brady violation . . . , much less a pattern of any

Brady violations.” But the court then stated that the

government would need “to do more than it’s already done.” 

The defense, meanwhile, again emphasized the crucial nature

of this evidence to countering the government’s theory that
UNITED STATES V. BUNDY 15

the defendants had purposefully “spread[] false information

about the presence of militarized government operation

surrounding” the Bundy home.

As for the motions to dismiss, the district court said that

the defendants’ arguments were “premature” because “only

24 pages [of new discovery] ha[d] been provided.” But the

court noted that if “more information . . . is provided and . . .

creates prejudice, then the Court would certainly entertain”

further motions. The court also expressed its dismay with the

government that important evidence was being produced so

late and, in particular, that the government had made 

“representations . . . that things did not exist but ultimately

were found to exist.” Thus, while the district court believed

that the prejudice to the defense was not at that point

sufficient to keep the case from proceeding, it explained that

prejudice would have to be reassessed “to see whether this

has put the defense . . . in an untenable position.” The court

warned that it might have to consider a remedy, including

continuance or mistrial, with or without prejudice. “[T]here’s

a lot of information that’s coming to light very late. And, so,

it’s troubling to the Court.” The government, however,

continued to maintain that a lot of the new information

produced was not material.

c. November 29 Hearing. As trial continued, testimony

exposed even more withheld documents. During the pretrial

discovery phase, the defense had requested “all the threat

assessments prepared in this case.” The government provided

one threat assessment prepared in 2014. In its opening

statement, the government had referred to a BLM decision to

impound Bundy’s cattle in 2012. The government

represented that BLM decided not to confront Bundy

“because of the concern for violence.” During testimony,
16 UNITED STATES V. BUNDY

however, a prosecution witness mentioned a 2012 threat

assessment, and recounted howthe assessment concluded that

Bundy posed no threat of harm. It then came to light that

other threat assessments had beenwithheld—several of which

had been prepared for a possible impoundment action in

2012. These assessments rated Bundy as having a low-tomoderate risk of violence. The government also produced

new evidence regarding surveillance of Bundy’s home and

the presence of armed officers. The new evidence was two

Nevada Joint Terrorism Task Force reports. One report noted

the presence of SWAT personnel and the presence of the

camera with supporting technicians. It also detailed events

leading to the FBI’s placement of the camera.

The district court held another hearing about this new

evidence on November 29, 2017. The court again expressed

frustration with the “dribs and drabs” of new discovery being

released. The court recognized that “the [U.S. Attorney’s

Office] has been diligent,” but faulted “other government

agencies; not in the U.S. Attorney’s Office.” But the

prosecution conceded that it had had the threat assessments

in its possession all along. The government explained that it

did not hand the assessments over because it considered them

neither exculpatory nor responsive to the defense’s request

for threat assessments “in this case.”

The government also explained why it had been late in

turning over several FBI investigative reports regarding

tactical-operations teams once it became evident that the

presence of “snipers” would be an integral part of the

defense’s strategy. And it insisted that the officers present at

the site were not actually snipers. The district court,

however,found this explanation “very troubling,” because the

court had excluded testimony at the earlier trial of the Tier 3
UNITED STATES V. BUNDY 17

co-defendants regarding the presence of snipers based on the

government’s representation that there were no snipers at the

site. Yet, in the middle of Bundy’s trial, the government was

producing documents that referred to its own agents as

“snipers.”

d. December 11 Hearing. On December 11, 2017, the

district court held a final hearing on the defendants’ motions

to dismiss. The court reviewed the evidence that had been

produced after the start of the trial. It noted that there were

different deadlines for the government to produce evidence to

the defense, depending on whether its obligations arose under

Brady, Giglio, Jencks, or Federal Rule of Criminal Procedure

16(a)(1)(E). In general, however, the court found that the

evidence should have been produced no later than October 1,

2017, thirty days before the start of trial.

Beginning with the surveillance-camera evidence, the

district court was “concerned that there seems to [have been]

some coyness on behalf of the government” in turning over

that evidence. However, the court explained that, at that time,

it appeared the information was timely provided.

But the district court then stated that it was inclined to

find that much of the information regarding the presence of

snipers was untimely. Even though the FBI promptly turned

over several 302s prepared after the discovery deadline, the

district court explained that the information contained in the

302s was nevertheless untimely. The TOC Log “was in

existence long before [November 2017].” The court also

expressed dissatisfaction with the government’s explanation

that it had not provided this information earlier because the

government was unaware that this information would be

central to the defense’s theory of the case.
18 UNITED STATES V. BUNDY

The district court then went through the materiality of the

late threat assessments. The court explained that the March

2011 assessment information contradicted other evidence and

“could be useful for impeachment purposes.” It further found

that the government’s production of the threat assessments

was likely untimely. Thus, the district court agreed to take

the motions to dismiss under submission.

5. The District Court Declares a Mistrial

On December 20, 2017, the district court concluded that

the trial could not proceed. It began by emphasizing that

Brady requires the prosecution “to learn of material

exculpatory and impeachment evidence in the possession of

other agencies.” Where there is doubt about the usefulness of

evidence to the defense, the government should “resolve such

doubts in favor of full disclosure.” The court reviewed each

piece of evidence—evidence regarding the surveillance

camera, snipers, and threat assessments—contained in newly

provided FBI 302s, the TOC Log, the prior threat

assessments, and other documents. The court found that the

government had failed to timely disclose most of the evidence

at issue, and that the failure was “willful” on the

government’s part and prejudiced the defense.

As for possible remedies, the district court found that

recalling witnesses or granting a continuance to allow the

defendants time to review the new evidence would be

insufficient. The parties had already impaneled a jury and

made opening statements. The court believed that the

withheld evidence had deprived the defendants of the

opportunity to better tailor their voir-dire strategy and make

stronger opening statements. Thus, the court concluded that

mistrial was necessary. The court stopped short of dismissing
UNITED STATES V. BUNDY 19

the case, instead asking for briefing on whether “mistrial

should be with or without prejudice.”

6. The Decision to Dismiss the Indictment with

Prejudice

On January 8, 2018, after permitting written briefing, the

district court concluded that the Brady violations were so

egregious and prejudicial that the indictment needed to be

dismissed with prejudice. It found “that retrying the case

would only advantage the government by allowing [it] to

strengthen [its] witnesses’ testimony based on the knowledge

gained from the information provided by the defense and

revealed thus far.” The court also highlighted “the

prosecution’s failure to look beyond the FBI file that was

provided” for additional relevant information constituted a

“reckless disregard for its [constitutional] obligations to learn

and seek out favorable evidence.” The court characterized

the government’s “representations about whether individuals

were technically ‘snipers’ or not ‘snipers’ [as] disingenuous”

given that the FBI’s own documents referred to government

“snipers’ in the operation. It concluded that the FBI’s failure

to produce these documents was “flagrant prosecutorial

misconduct in this case even if the documents themselves

were not intentionally withheld [by the U.S. Attorney’s

Office] from the defense.” Thus, it decided that no lesser

sanction was available because the government’s “conduct

has caused the integrity of a future trial and any resulting

conviction to be even more questionable.” Retrial “would

only advantage the government.” The court dismissed the

indictment with prejudice as a remedy for a due process

violation and under its supervisory powers.
20 UNITED STATES V. BUNDY

The government moved for reconsideration. First, the

government argued that the court had mistakenly found the

evidence “material” because there was no legally cognizable

way for the defendants to assert the affirmative defenses of

provocation or self-defense against a law officer. The

government pointed to the district court’s grant of its motion

in limine, which determined that evidence related to the

affirmative defenses was irrelevant.

The district court was unmoved. It highlighted how the

motion-in-limine order had specifically left open the

possibility that the defendants could raise an affirmative

defense if they could make an offer of proof to support a

theory of provocation or self-defense. The court said that its

order “placed the Government on notice that evidence that

could bolster a theory of self-defense might become relevant

at trial.” Hence, the court stated that its order did not excuse

the government from turning over evidence helpful to the

defense. The court again chastised the government for

claiming ignorance that the defendants would need evidence

about the cameras or snipers because a central part of the

government’s case was that the defendants knowingly spread

false statements that snipers were surrounding the Bundy

Ranch.

Second, the government asserted that the court had failed

to consider less drastic remedies. In response, the court

pointed to its discussion in the record that lesser sanctions

could not cure the prejudice. And it said that any lack of

consideration for a specific remedy was the fault of the

government, because it failed to raise possible alternative

sanctions. Thus, the district court denied the government’s

motion for reconsideration. The government now appeals.
UNITED STATES V. BUNDY 21

II. STANDARD OF REVIEW

We review the district court’s dismissal of an indictment

under its supervisory powers for an abuse of discretion. 

Chapman, 524 F.3d at 1086. Any legal issues predicating the

district court’s dismissal receive de novo review. United

States v. Velarde-Gavarrete, 975 F.2d 672, 674 (9th Cir.

1992). However, the “district court’s findings of fact are

reviewed for clear error.” Id.

III. DISCUSSION

The question presented in this case is whether the

government’s actions were sufficiently egregious to merit

dismissal with prejudice. A district court may dismiss an

indictment for government misconduct for one of two

reasons, each with its own standard: either because it finds a

serious due-process violation or because it concludes that

dismissal is warranted under its supervisory powers. United

States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993). 

Dismissal for a due-process violation requires the

government’s conduct to “be so grossly shocking and

outrageous as to violate the universal sense of justice.” Id.

“The [due process argument] is usually raised in situations

where law enforcement conduct involves extreme physical or

mental brutality or where the crime is ‘manufactured by the

government from whole cloth.’” United States v. Green,

962 F.2d 938, 942 (9th Cir. 1992) (citation omitted).

A district court may dismiss an indictment under its

inherent supervisory powers “(1) to implement a remedy for

the violation of a recognized statutory or constitutional right;

(2) to preserve judicial integrity by ensuring that a conviction

rests on appropriate considerations validly before a jury; and
22 UNITED STATES V. BUNDY

(3) to deter future illegal conduct.” United States v.

Struckman, 611 F.3d 560, 574 (9th Cir. 2010) (quoting United

States v. Hasting, 461 U.S. 499, 505 (1983) (internal citations

and quotation marks omitted)). The court’s exercise of its

supervisory powers protects the integrity of the federal courts

and prevents the courts from “making . . . . themselves

accomplices in willful disobedience of law.” McNabb v.

United States, 318 U.S. 332, 345 (1943). A district court can

dismiss an indictment under its supervisory powers even if

“the conduct does not rise to the level of a due process

violation.” United States v. Barrera-Moreno, 951 F.2d 1089,

1091 (9th Cir. 1991). Because it is unnecessary to decide if

both standards are met here, we will only review whether the

district court properly dismissed the indictment under its

supervisory powers. See Chapman, 524 F.3d at 1084 n.5

(“Because the district court did not abuse its discretion in

dismissing the indictment under its supervisory powers, we

need not consider whether the dismissal was also justified by

the government’s violation of Defendants’ due process

rights.”).

When considering an exercise of its supervisory powers,

a district court has various options. The court may limit the

witnesses or testimony offered by the government, or it may

sanction the attorneys. See Hasting, 461 U.S. at 506 & n.5. 

The court may dismiss the case without prejudice, which

requires dismissing the jury and forces the government to

begin anew. The most drastic remedy is dismissal with

prejudice, because this prevents the government fromretrying

the defendants at all. See Chapman, 524 F.3d at 1085

(explaining that improper dismissal of “an indictment with

prejudice encroaches on the prosecutor’s charging authority”

(internal quotation marks omitted)); United States v. Isgro,

974 F.2d 1091, 1097 (9th Cir. 1992) (“Dismissal of an
UNITED STATES V. BUNDY 23

indictment with prejudice necessarily implicates separationof-powers principles. . . . Such dismissal exercised under the

guise of ‘supervisory power’ is impermissible absent ‘a clear

basis in fact and law for doing so.’”). Under its supervisory

powers, a district court may dismiss an indictment with

prejudice for prosecutorial misconduct only if there is

“(1) flagrant misbehavior and (2) substantial prejudice.” 

Kearns, 5 F.3d at 1253. Further, the district court must

“approach[ the remedy] with some caution and a with a view

toward balancing the interests involved,” Hasting, 461 U.S.

at 506–07 (citations and quotation marks omitted), and have

concluded that there is “no lesser remedial action” available

to it. Chapman, 524 F.3d at 1087 (citations omitted).

The district court concluded that dismissal with prejudice

was appropriate because the government withheld key

evidence favorable to the defense until after trial was

underway—in clear violation of its duties under Brady—and

dismissing without prejudice would allow the government to

cure its mistakes, to the detriment of the defendants. It is, of

course, beyond dispute that under Brady a defendant is

entitled to evidence “both favorable to the accused and

‘material either to guilt or to punishment.’” United States v.

Bagley, 473 U.S. 667, 674 (1985) (quoting Brady, 373 U.S.

at 87). “Brady evidence” can be favorable “either because it

is exculpatory or impeaching.” Milke v. Ryan, 711 F.3d 998,

1012 (9th Cir. 2013). For a Brady violation to occur, “the

government must have willfully or inadvertently failed to

produce the evidence” and “the suppression must have

prejudiced the defendant.” Id. But simply showing a Brady

violation—withholding of evidence that caused prejudice—is

not a sufficient basis to dismiss an indictment. Only where

the government withheld Brady material through “flagrant

misconduct,” causing “substantial prejudice” to the accused,
24 UNITED STATES V. BUNDY

will justify the court’s exercise of its supervisory powers to

dismiss the case with prejudice. Kearns, 5 F.3d at 1253.

Determining whether these prerequisites for dismissal

were satisfied here requires us to review the evidence in

question and the circumstances of its withholding. We begin

with a review of the evidence to decide whether substantial

prejudice resulted, keeping in mind that not everything that

the government turned over to the defense after the trial

began was important to the defense. Nor did the district court

rely on all the evidence produced. Accordingly, our review

is confined to evidence cited by the district court. We then

turn to whether flagrant misconduct occurred. Finally, we

examine whether alternative remedies could have redressed

the injury here.

A. Whether the Withheld Evidence Substantially Prejudiced

the Defense

Central to the government’s case against the defendants

were the allegations in ¶¶ 58, 84, 88 and 92 of the indictment

that the defendants intentionally lied about being surrounded

by snipers as a ploy to gather armed supporters. The

indictment alleged that the Bundy defendants used “false,

deceitful, and deceptive” images to recruit supports to

Bunkerville to interfere with BLM’s impoundment operation. 

The government’s opening statement reinforced this,

promising the jury that it would “hear how the messaging

transformed from stealing cattle to now there’s government

snipers around us” and “BLM has got us surrounded” and that

these statements were “false.” Had the defendants been able

to proffer a basis for genuinely believing that government

snipers surrounded the Bundy Ranch, they potentially could

have negated the government’s scienter theory. Thus, the
UNITED STATES V. BUNDY 25

defendants contend that the withheld evidence was crucial to

defending their case.

1. The Surveillance-Camera Evidence

Prior to trial, Ryan Bundy had submitted an affidavit in

which he claimed to have seen a device with a telephoto lens

on a tripod overlooking Bundy’s house. The government

opposed the request for information about this device as a

“fantastic fishing expedition.” On the fourth day of trial,

witness testimony confirmed that the government had indeed

set up a camera overlooking Bundy’s property, and that the

camera had a live feed to the BLM’s command center. The

defendants assert that this camera contributed to their feeling

of being surrounded and, hence, helped rebut the

government’s position that the defendants deceitfully claimed

that they feared for their lives because of government snipers.

Two specific pieces of evidence about the camera were

withheld. Both of these documents were prepared in 2014,

and both confirm the existence of the surveillance camera set

up to monitor the Bundy Ranch. The first document is the

Egbert 302 prepared in April 2014. The Egbert 302 recounts

that on April 6, 2014, Egbert went to investigate issues with

the camera after its live feed had been lost. The government

produced the Egbert 302 a week into trial, apparently in

response to a defense request for any video recordings from

the surveillance camera. Upon reviewing the 302 at the

November 8 hearing, the district court agreed with the

defense that evidence related to the camera was material. The

court ordered the government to turn over any evidence

related to the camera. Following this order, the government

provided a second document, the “Law Enforcement

Operations Order,” on November 17, 2017. That document
26 UNITED STATES V. BUNDY

was prepared in March 2014, in advance of the impound

operation. The document records that an Internet camera was

to be set up “with a view of the Bundy residence.”

The district court concluded that the documents were

Brady material because the camera’s “location” and

“proximity to the home” showed that “its intended purpose

was to surveil the Bundy home,” which “potentially rebuts

the allegations of defendants’ deceit” in stating that they felt

surrounded by snipers. The court found that the disclosure

was untimely and the failure to disclose was prejudicial. The

court also concluded that the government had been

misleading in its earlier representations that the camera was

not meant to surveil the Bundy home. Given that the Law

Enforcement Operations Order specifically stated that the

camera was to be placed “with [a] view of Bundy residence,”

the district court agreed with the defendants that “this

information potentially rebuts the allegations of the

defendants’ deceit . . . about being surrounded, about the

BLM pointing guns at them, and using snipers.”

The government assails the district court’s conclusion by

arguing that a lone surveillance camera is unremarkable and

proves nothing. As such, it claims that the withholding of

these two pieces of evidence created no appreciable prejudice

to the defense. But the government misses the point. This

evidence undermined the government’s theory that the

defendants intentionally lied about fearing government

snipers surrounding the property. The government could

have argued the significance of the evidence to the jury, but

it is hard to see how the government could argue that the

evidence was irrelevant, much less a “fantastic fishing

expedition.”
UNITED STATES V. BUNDY 27

Whether a jury would ultimately find the evidence

convincing and lead to an acquittal is not the measuring rod

here. Because no verdict was rendered, the usual

“retrospective test, evaluating the strength of the evidence

after trial has concluded” is not applicable here. United

States v. Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013). “[T]he

retrospective definition of materiality is appropriate only in

the context of appellate review”; thus, “trial prosecutors must

disclose favorable information without attempting to predict

whether its disclosure might affect the outcome of the trial.” 

Id. n.3; see United States v. Safavian, 233 F.R.D. 12, 16

(D.D.C. 2005) (“[T]he government must always produce any

potentially exculpatory or otherwise favorable evidence

without regard to how the withholding of such evidence

might be viewed . . . as affecting the outcome of the trial. 

The question before trial is not whether the government

thinks that disclosure of the information or evidence . . .

might change the outcome of the trial going forward, but

whether the evidence is favorable and therefore must be

disclosed.”). Since the new evidence emerged mid-trial,

neither the district court (in the first instance) nor we (as a

reviewing court) can measure prejudice against all the

evidence produced during the trial. Rather, the district court

had to assess the relative value of the Egbert 302 and the Law

Enforcement Operations Order on the basis of the indictment,

the pretrial proceedings, the opening statements, and the

evidence introduced up to that point.

In that light, there can be no question but that this was

Brady material and that it should have been disclosed to the

defense well in advance of the start of trial. This evidence

was obviously favorable to the defense—it could have helped

show that the defendants had a basis for feeling that their

property was surrounded by snipers surveilling the home.
28 UNITED STATES V. BUNDY

The government also argues that even if it should have

disclosed the fact of the camera, the defendants could not

have suffered prejudice because they knew about the camera. 

While the defendants may have known about the camera’s

existence—that is confirmed inRyanBundy’s affidavit—they

had no specific information about the camera. They did not

know what kind of equipment the government was using, its

sophistication, and its purpose. And it was not until the

documents were released that it became evident that the

camera was deliberately placed so it would have a view of the

Bundy home—contradicting the government’s representation

that it was only placed “to cover the roads” near the Bundy

Ranch. Thus, the district court’s finding that the defense was

prejudiced because it would have developed a stronger case

if this evidence had been timely provided is not clearly

erroneous.

2. FBI 302s Regarding Snipers

Several FBI 302s showing that heavily armed officers

were present around the Bundy property were produced after

the start of the trial. Two merit attention here.3

The first was the Delmolino 302, drafted in March 2015,

and describing the activities of Agent Delmolino. The

Delmolino 302 recounts that Agent Delmolino held a position

“east of the Bundy Ranch” and at the time “was dressed in

3 A third 302 was also withheld. This 302 was drafted in April 2014,

following an interview with Curtis Racker, a field staff agent. Racker had

been assigned a listening and observation post near the Bundy Ranch on

April 4, 2014. The Racker 302 was provided on December 15, 2017. The

parties hardly discuss this 302 in their briefing. Thus, we will not pass on

this 302.
UNITED STATES V. BUNDY 29

BLM tactical clothing and carried a BLM AR-15 rifle.” This

302 was not provided to the defense until November 2017,

after trial began. The government claims that withholding the

Delmolino 302 was inadvertent.4In the district court, the

government represented that it considered the 302 relevant

only after the court determined that information regarding

surveillance devices was relevant. Delmolino used a “seismic

sensor,” which the government believed the defendants could

argue was a surveillance device.

The district court concluded that the Delmolino 302 was

helpful Brady material, the withholding of which caused

prejudice. Given that the Delmolino 302 shows that Agent

Delmolino was positioned, armed, and wearing tactical gear

near the Bundy property, it weakened the government’s

position that the defendants had no basis for fearing that they

were surrounded by government snipers and, hence,

deliberately spread misinformation to recruit armed

followers. And before the Delmolino 302’s release, the

defense would have had no information about Agent

Delmolino being positioned near the Bundy Ranch. Thus, we

conclude that district court did not clearly err in finding

prejudice related to this 302.

The second 302 improperly withheld from the defense

recounted the observations of a National Park Service

official, Ernesto Felix (the Felix 302). This 302 was drafted

in January 2015, but was not produced until December 5,

2017—well after trial began. According to the government,

4 The government had previously provided 302s regarding other

responsibilities of Agent Delmolino during the impound operation. 

However, these documents do not recount Agent Delmolino’s being

posted near the Bundy Ranch in tactical gear.
30 UNITED STATES V. BUNDY

the Felix 302 was found only after Payne had made a midtrial discovery request for information about specific agents. 

The 302 describes Felix’s recollection of the arrest of Dave

Bundy on April 6, 2014. It states that Felix “observed a BLM

Agent on the high ground in a ‘tactical over watch position,’

southwest of where Dave’s arrest occurred.” The date of

Dave Bundy’s arrest is significant, because it was only after

his arrest that the Bundys sent out a call for help, claiming

that there were government snipers surrounding them.

The district court concluded that the Felix 302 was Brady

material, the withholding of which prejudiced the defense. 

The government assails the prejudice finding by saying that

the Felix 302 contains duplicative information. It claims that

the defendants already possessed an email that referred to

agents who took an “overwatch” position during Dave

Bundy’s arrest. But the government’s argument misses why

these documents were useful. The defendants claim that the

Bundys feared they were surrounded by heavily armed

snipers. Keeping the defense from gathering as much

evidence as possible to show that there was a reasonable basis

to fear that snipers surrounded the property was itself

harmful.

Moreover, the Felix 302 actually refers to the BLM agent

in the overwatch position as a “sniper.” Indeed, the Felix 302

uses both “tactical over watch position” and “sniper” to refer

to the same agent. This was tangible documentation showing

that the government’s own officials understood agents in

overwatch positions to be equivalent to “snipers.” Even if the

defendants had some other evidence of agents taking

“overwatch” positions around the Bundy property, the Felix

302 supported their theory in ways that the provided emails

did not. The Felix 302, therefore, adds credibility to the
UNITED STATES V. BUNDY 31

Bundys’ claims that they feared the presence of “snipers” and

it should have been disclosed prior to trial.

In sum, like the evidence regarding the camera, these

documents could have helped the defense show that the

defendants genuinely feared the presence of snipers—

contradicting the allegations that the defendants intentionally

lied about being surrounded by snipers to inflame supporters. 

Given the importance of these documents, the district court

did not clearly err in finding that their withholding constituted

a Brady violation that prejudiced the defendants.

3. The TOC Log

Another piece of exculpatory evidence speaking to both

the presence of snipers and the surveillance camera is the

TOC Log. The log records the operations and actions of

members of the SWAT team at the FOB. In one entry, the

log records: “Snipers inserted.” The log also records

observations from the camera’s live feed.

The government did not produce the log until

November 17, 2017—well after trial was underway. The

government had taken the position that there were no

“snipers,” and that agents in the “overwatch” position were

simply “law enforcement officers.” Indeed, in the Tier 3 trial

conducted some nine months earlier, the government had

represented that no “snipers” were involved in the operation. 

Based on this representation, the district court had entered an

order precluding testimony referencing snipers. The court

even removed a testifying defendant from the stand because

he made several references to snipers. Given the value of the

TOC Log and its black-and-white reference to “snipers,” the

district court concluded that it constituted Brady evidence and
32 UNITED STATES V. BUNDY

that its withholding prejudiced the defense. There can be no

question that the withholding of a government document

recording “snipers inserted” caused prejudice.

4. The Threat Assessments

The defendants also contend that several withheld threat

assessments were exculpatory and that their absence caused

prejudice. The government had timely provided one threat

assessment, prepared in 2014 in anticipation of the MarchApril 2014 impoundment. That assessment concluded there

was a moderate risk of violence from Bundy if the impound

operation were undertaken. But the government withheld

four additional threat assessments, all prepared in 2011 or

2012, some of which concluded that Bundy posed a lesser

risk of violence. The defendants had asked for all threat

assessments “in this case.” That phrase was ambiguous, and

the government might reasonably have believed that it

complied with defendants’ request when it provided the threat

assessment prepared for this action. But, at the very least, the

prior assessments became relevant when the government told

the jury in its opening statement that BLM had weighed

whether to impound Bundy’s cattle in 2012 and decided not

to proceed “because of concern for the violence” and when a

witness testified on November 16, 2017 that there had been

earlier threat assessments.

The first withheld threat assessment was a March 2011

FBI threat assessment of Bundy, created in anticipation of an

impound operation. The assessment concluded that Bundy

represented a “low to moderate risk of significant or

imminent violence.” The assessment noted, inter alia, how

Bundy had no criminal record, was attached to his family, and
UNITED STATES V. BUNDY 33

appeared to prefer using non-violent means of channeling his

frustration, such as litigation and media appearances.

The second assessment was generated a year later by the

Southern Nevada Counterterrorism Center. This assessment

concluded that “[t]he likelihood of violence from Cliven

Bundy is minimal.” It specifically highlighted his age and

lack of a criminal history as indicators that he was unlikely to

act violently.

The third assessment was a Department of the Interior

(DOI) assessment of Bundy and members of his family. It

also concluded that there was moderate threat of violence. 

The DOI assessment compiled accounts fromindividuals who

had interacted with Bundy or his family in the past, several of

whom said that he was unlikely to act violently.

Finally, the DOI conducted another assessment in

anticipation of enforcement operations. This assessment

concluded that the risk of violence was “moderate.” It

recommended that BLM develop a media strategy with

“talking points” to keep ahead of negative publicity as a

means of mitigating the potential risk of backlash. The

district court specifically highlighted how BLM’s failure to

implement this recommended public-relations plan favored

the defense because the government was not actively

correcting disinformation from the Bundys.

These withheld threat assessments had significant

exculpatory and impeachment value. The 2011 and 2012

threat assessments would have countered the government’s

opening statement. Beyond that, the earlier assessments were

at least contrary to, though not necessarily inconsistent with,

the 2014 assessment. The withheld threat assessments also
34 UNITED STATES V. BUNDY

undermined the need for an aggressive, militarized impound

operation because they suggest alternative ways of defusing

emotions surrounding actions taken against the Bundys.

The government asserts that the withholding of the threat

assessments was not prejudicial because the March 2014

assessment contained essentially the same information as the

withheld assessments. It also points to testimony by

government witnesses regarding how Bundy was viewed as

a minimal threat. But it is apparent the documents

themselves have value that testimony alone does not

necessarily carry. The assessments are reasoned, written

evaluations of the danger posed by the Bundys. They were

more than the bottom-line assessments offered by witness

testimony. Further, even if some similar information had

been produced earlier, the repeated description of Bundy as

a low-to-moderate threat in several assessments is itself

important to the defense and could have at least been readily

deployed as impeachment evidence to any testimony

regarding why a militarized impound was necessary. The

withheld threat assessments also contain information that the

March 2014 assessment does not include—a notable example

being the DOI assessment’s summary of encounters with

Bundy. Thus, the district court did not clearly err in

concluding that the defendants suffered prejudice by not

receiving these documents.5

5 The district court also concluded that several withheld maps

constituted Brady material, werewillfully withheld, and created prejudice. 

But the maps’ withholding does not appear to have had prejudicial impact. 

The government had previously disclosed several maps showing the same

information.

The defense also asserts that the government wrongfully withheld an

internal whistle-blower memorandum regarding possible bias by BLM
UNITED STATES V. BUNDY 35

* * *

Surveying all of the withheld evidence, we agree with the

district court that the defendants suffered not only prejudice,

but substantial prejudice. The district court concluded that

the defendants specifically suffered prejudice in not being

able to prepare their case fully, refine their voir dire strategy,

and make stronger opening statements. The record amply

supports this conclusion.

B. Whether the Government Engaged in Flagrant

Misconduct

In this section, we first review the standard for judging

“flagrant misconduct” and then consider the circumstances

under which the government withheld Brady material in this

case.

1. Flagrant Misconduct

Substantial prejudice alone does not entitle defendants to

have their indictments dismissed with prejudice. Nor is it

sufficient that the government committed multiple Brady

violations. To warrant dismissal of an indictment with

prejudice, the government must have engaged in flagrant

misconduct in withholding the evidence. Kearns, 5 F.3d

at 1253.

Agent Dan Love, who oversaw the impoundment. The memorandum

appears helpful to the defense. However, because the district court did not

make any determinations regarding thismemorandum, we will not address

it.
36 UNITED STATES V. BUNDY

The government candidly admitted at oral argument that

“in light of the district court’s findings of materiality, what is

clear is that we fell short.” But it forcefully contends that it

was not guilty of flagrant misbehavior because it did not

willfully withhold exculpatory evidence from the defense. 

The government points out that many of the documents at

issue were in the hands of other federal agencies, such as the

FBI, and not the prosecution team. For that reason, the

government decries the possibility of turning the flagrantmisconduct requirement into a strict-liability standard where

any Brady violation caused by the actions of another

government agency can lead to dismissal of an indictment. 

Indeed, the district court itself believed that the

nondisclosures were the fault of “other government agencies;

not in the U.S. Attorney’s Office.” We are sensitive to the

government’s concern and agree that dismissal of an

indictment is not an appropriate remedy for an ordinary

Brady violation. See id. But both the factual record and the

law belie the government’s concerns here.

As a matter of law, the prosecution is “deemed to have

knowledge of and access to anything in the possession,

custody or control of any federal agency participating in the

same investigation of the defendant.” United States v. Bryan,

868 F.2d 1032, 1036 (9th Cir. 1989). The government’s

attempts to absolve itself of wrongdoing for other agencies’

failures therefore fall flat. To the extent that any government

agencies or actors, through their own flagrant misconduct,

failed to make known exculpatory information, the flagrant

nature of such conduct will be imputed to the prosecution—

just as the agencies’ or actors’ Brady violations are imputed

to the prosecution. See Youngblood v. West Virginia, 547

U.S. 867, 869–70 (2006) (per curiam) (holding that a Brady

violation occurs “when the government fails to turn over even
UNITED STATES V. BUNDY 37

evidence that is ‘known only to police investigators and not

to the prosecutor’”); United States v. Cano, 934 F.3d 1002,

1023 (9th Cir. 2019) (explaining that prosecutors are

responsible for turning over “information known to other

agents of the government” of which the prosecutor did “not

know but could have learned” (citation omitted)), petition for

rehearing en banc docketed, No. 17-50151 (9th Cir. Jan. 2,

2020).

Further, the government is wrong to suggest that flagrant

misconduct must be intentional or malicious. Although

flagrant misconduct cannot be an “accidental or merely

negligent” failure to disclose, the misconduct need not be

intentional. Chapman, 524 F.3d at 1085. “[R]eckless

disregard for the prosecution’s constitutional obligations” is

sufficient to give rise to flagrant misconduct. Id.

2. The Withholding of Brady Material

a. The Surveillance Camera. The district court

permissibly found that withholding of information about the

surveillance camera was willful rather than merely

inadvertent. Recall that Ryan Bundy requested information

regarding the camera in August of 2017. The government

opposed the request, saying that Ryan Bundy was engaging

in “little more than a fantastical fishing expedition for

evidence justifying attacking law enforcement.” The district

court initially denied the request because the request did not

comply with the local rules and failed to include supporting

arguments for why the evidence requested was discoverable. 

But the district court later noted that the government had

acted with “some coyness” in turning over evidence.
38 UNITED STATES V. BUNDY

The government made no effort to locate the documents

regarding the camera and turn them over before the discovery

deadline in October 2017. The prosecution has an affirmative

obligation to learn of potentially favorable evidence and

provide it to the defense. See Kyles v. Whitley, 514 U.S. 419,

437 (1995) (explaining that a “prosecutor has a duty to learn

of any favorable evidence known to the others acting on the

government’s behalf in the case”); Cano, 934 F.3d at 1023

(stating that prosecutors are responsible for “information held

by subordinates such as investigating police officers and [the

duty to inquire] sometimes extends to information held by

other executive branch agencies” (citations omitted)). Rather

than looking into the request and locating the documents

before trial began, the government chose to fight rather than

respond to the request. This was a deliberate choice and the

district court did not err in concluding otherwise.

In an effort to absolve itself of responsibility, the

government points out that the district court originally ruled

that Ryan Bundy’s requests for information regarding

surveillance cameras were inadequately supported and

appeared to request immaterial evidence. But the district

court’s order cannot innoculate the government here. Ryan

Bundy requested specific information about the surveillance

camera, namely its make, model, and characteristics; the

district court failed to see why that information was material. 

Contrary to the government’s insinuation, however, the

district court never suggested that information regarding the

existence and purpose of the camera was immaterial. And

once the district court was presented with all of the

information about the camera—particularly that it was set up
UNITED STATES V. BUNDY 39

with a view of the Bundy home,6the district court had no

difficulty determining that the evidence was material and

should have been provided to the defense under Brady. Over

the course of the hearings, the district court found the

information “favorable to the accused and potentially

exculpatory,” and criticized the government for withholding

it on the “implausible claim” that no one viewed anything

reported from the camera.

The fact remains that the government, at least the FBI,

had this information in its possession. The district court,

when it made its initial ruling, did not. A court does not have

the same degree of familiarity or access to the evidence that

a prosecutor has. Hence, it is prosecutors, not courts, that are

“presumed to recognize [the] significance” of evidence. 

United States v. Agurs, 427 U.S. 97, 110 (1976). In short,

prosecutors cannot hide behind a court’s discovery order to

suppress exculpatory evidence. We therefore decline to offer

blanket protection against findings of flagrant misconduct

simply because the court initially failed to see why a certain

aspect of evidence was material when the defense failed to

show materiality. Granting such protection could well

6 At one point in the discussion of the camera, the government stated

that the camera “was placed on high ground above the Bundy residence,”

but added, “I don’t want to leave the Court with the impression that it was

fixed on the Bundy residence.” However, the Law Enforcement

Operations Order—the master plan for the impoundment—called for

“Surveillance Systems,” and specified that it would be an “Internet camera

with [a] view of [the] Bundy residence.”
40 UNITED STATES V. BUNDY

encourage prosecutors to seek favorable discovery rulings to

use later as weapons against Brady claims.7

The materiality of evidence regarding a surveillance

camera pointed at a home to a case where the family claimed

that they felt surrounded by government snipers should have

been self-evident. Ryan Bundy had stated that he thought the

device had a “visible laser.” There is no evidence that it did. 

The government’s evidence would have confirmed the

existence of a device but dispelled speculation about use of a

laser. Providing the information would have clarified the

situation for both sides, allowing each to muster the best facts

in support of its argument. Whether the withholding of the

document was the fault of the FBI or the prosecution team,

someone decided to withhold it. With or without a request

from the defense, the government should have handed this

information over—not fought its release. See Strickler,

527 U.S. at 280 (“[T]he duty to disclose [favorable] evidence

is applicable even though there has been no request by the

accused . . . .”).

b. Evidence of Snipers. Of particular concern is the

government’s handling of evidence related to the presence of

snipers. This was a hot-button issue. The term is evocative,

rhetorically charged, and would have been a dog whistle for

7 We also note that the materiality of evidence under Brady is an

objective inquiry. See United States v. Jordan, 316 F.3d 1215, 1252 (11th

Cir. 2003); Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); see also Fed.

R. Crim. P. 16(a)(1)(E)(i). Once the district court had a full view of the

evidence here, it properly concluded that the documents related to the

camera were material—a conclusion that the government should have

reached on its own. As such, a district court’s failure to appreciate the

importance of exculpatory evidence does not relieve the prosecution of its

obligation to turn over material evidence.
UNITED STATES V. BUNDY 41

summoning members of private militias in ways that

screaming “surveillance cameras!” would not. The

government said the Bundys’ claim of “snipers” was “false”

and “deceitful,” yet the government’s own documents

referred to its agents as “snipers.” The government disputed

the relevance of this information, fixating on the question of

whether the officers in the “overwatch” were technically

“snipers.” The district court had to remind the government

that these were questions for the jury.

The failure to produce evidence regarding “snipers” was

particularly troubling for the district court because, during the

Tier 3 trial of other co-defendants, the district court

prohibited testimony regarding the presence of snipers, based

on the government’s assurances that there were no snipers

involved in the impound operation. The district court even

removed a testifying defendant from the stand in that trial

because the defendant kept stating that snipers were present. 

The district court was understandably exasperated when

evidence came to light in this trial, showing that the

government referred to its agents as “snipers.”

In short, the government had to know the import that any

evidence regarding snipers, or agents who looked and

functioned like snipers, would have in this case. 

Nevertheless, it withheld a slate of information bolstering the

claim that the defendants could have had a reasonable basis

for believing there were snipers in the area. The government

claims that it relied on the district court’s motion-in-limine

order in believing that much of the evidence at issue here was

irrelevant. Even assuming that the government could have

understood the district court’s motion-in-limine order to

preclude the usefulness of evidence supporting an affirmative

claim of self defense, the evidence was still quite obviously
42 UNITED STATES V. BUNDY

Brady material.8 Specifically, the evidence speaking to the

presence of snipers undermined the government’s scienter

theory—that the defendants recruited armed supporters by

lying to them about snipers surrounding the Bundy Ranch. 

The defendants were entitled to any evidence that could

contradict this theory, irrespective of whether they could or

would muster an affirmative defense. Espousing the belief

that evidence undercutting the government’s central theory of

mens rea was somehow irrelevant and not Brady material was

preposterous and reckless.

As for the Delmolino and Felix 302s, the government

once again points out that this information was in the hands

of the FBI. The district court concluded, irrespective of the

agency responsible, that the government’s withholding the

Delmolino 302 was willful. It noted how the prosecution

team had direct knowledge that Agent Delmolino had been

stationed near the Bundy home in tactical gear. While the

Delmolino 302 itself was in the hands of the FBI, the district

court specifically noted that members of the trial team from

8 The motion-in-limine order left open the possibility that the

defendants could make an offer of proof regarding self-defense. Thus, far

fromclosing the door on information helpful to an affirmative defense, the

order highlighted that the evidence could have been useful, and hence

should have been handed over. As the district court pointed out, this

language should have “placed the Government on notice that evidence that

could bolster a theory of self-defense might become relevant at trial.” 

Indeed, by not providing evidence about the affirmative defense, the

government basically foreclosed opportunities for the defendants to make

an offer of proof. Furthermore, Brady evidence does not necessarily have

to be admissible. See United States v. Price, 566 F.3d 900, 911–12 (9th

Cir. 2009). Even assuming that the evidence here had no value in

challenging the government’s theory of mens rea, it still would have had

impeachment value and potentially could have led to other evidence

supporting a self-defense claim.
UNITED STATES V. BUNDY 43

the U.S. Attorney’s Office were present at the interview with

Agent Delmolino in March 2015. Yet, the information about

Agent Delmolino’s posting near the Bundy Ranch was not

revealed until the Delmolino 302 was released in November

of 2017, after trial began. Likewise, members of the

prosecution team were present for the interview of Felix in

2015. Hence, the prosecution team was not entirely ignorant

of the information provided by Delmolino and Felix in the

302s—even if it turns out that the blame for not turning over

these 302s lies with the FBI.

Because the prosecution team had direct knowledge of

some of this information, its claim that the court imposed

“strict liability” for the FBI’s failure to hand over the 302s

falls flat. Regardless, the argument is of no moment because

the FBI’s decisions not to provide the information are

imputed to the prosecution. See Youngblood, 547 U.S.

at 869–70; Bryan, 868 F.2d at 1036. And the government has

not explained how simple inadvertence or oversight within

the FBI kept the agency from producing these documents.

c. The Threat Assessments. Likewise, with the threat

assessments, the government failed to turn over beneficial

information speaking to Bundy’s potential for violence. 

These documents could have helped bolster the defense’s

claim that the government had engaged in an overmilitarized

impound operation that the Bundys claim fueled their fears of

being surrounded by snipers. But irrespective of the theory

defendants were to put forward, these documents should have

been released. They, at the very least, provided impeachment

evidence because some of their findings contrasted with the

2014 threat assessment used as the basis for planning the

impound operation, and they undermined the prosecution’s

opening statement.
44 UNITED STATES V. BUNDY

Moreover, these documents were in the prosecution’s

possession all along. Notably absent from the government’s

brief is any discussion of how or why these documents were

overlooked. All the government says is that it relied on the

district court’s motion-in-limine order, believing that the

information in the threat assessments was not relevant. 

However, the independent impeachment value of these

documents should have been obvious, given that certain

documents contained information about Bundy presenting a

minimal threat. And to the extent that the prosecution

doubted “the usefulness of evidence,” the government

“should resolve such doubts in favor of full disclosure.” 

United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir.

1984).

Someone in the government made a conscious choice to

withhold these documents. It may not have been a malicious

choice, but it also was not a matter of simple oversight. At

best, the government failed to appreciate the relevance of the

evidence. At worst, it sought to handicap the defendants by

withholding evidence directly relevant to mens rea. In either

circumstance, the government fell well short of its obligations

to work toward fairly and faithfully dispensing justice rather

than simply notching another win. See Chapman, 524 F.3d

at 1088 (affirming dismissal of an indictment with prejudice

because the prosecutor did not abide by his “‘sworn duty . . .

to assure that the defendant has a fair and impartial trial,’ and

his ‘interest in a particular case is not necessarily to win, but

to do justice’” (alteration in original) (quoting N. Mariana

Islands v. Bowie, 236 F.3d 1083, 1089 (9th Cir. 2001))). 

Thus, the district court had grounds for concluding that the

government’s failure to produce this evidence rose to the

level of reckless disregard and, hence, flagrant misconduct.
UNITED STATES V. BUNDY 45

d. The TOC Log. The TOC Log presents a different

circumstance. The district court found that the failure to turn

it over was willful on the government’s part. We conclude

that the district court clearly erred here.

Unlike the 302s, which were created as part of an ongoing

investigation and prosecution, the TOC Log was simply

forgotten about following the impound operation. According

to the government, because the “FBI never activated its

SWAT teams” during the impound operation, the TOC Log

“was never added to the investigative file or to FBI’s ‘police

assist’ file, but instead remained on a thumb drive in the TOC

trailer.” Specifically, the log’s thumb drive was left hanging

“in the TOC truck next to the computer on a designated

hook” and not placed in an investigation file or database. It

was located only after an FBI agent tried to gather any

remaining evidence related to the camera following the

November 8 hearing.

The district court concluded that the failure to turn over

the TOC Log was willful suppression. Although we agree

that failing to turn over the TOC Log was a Brady violation,

we do not agree that the failure to produce the TOC Log

amounted to a flagrant misconduct. We have been careful to

note that negligence or inadvertence cannot formthe basis for

flagrant misconduct. Chapman, 524 F.3d at 1085; Kearns,

5 F.3d at 1255.

We cannot see how the failure to turn over the TOC Log

resulted from anything other than negligence. The Log was

left in the TOC vehicle pursuant to protocol. Given the

unique circumstances of how the Bundy impound operation

and subsequent investigation played out, the TOC Log was

not added to the FBI’s investigation file. Only after
46 UNITED STATES V. BUNDY

significant efforts, directed to locating other evidence, was it

located. Thus, even though the TOC Log’s withholding was

a significant Brady violation, we see no ground for

concluding that its absence was the result of reckless

disregard.

* * *

Although we see only negligence in the withholding of

the TOC Log, we can find no clear error in the district court’s

conclusion that the withholding of the camera evidence, the

Delmolino and Felix 302s, and the threat assessments crossed

the threshold from negligence to recklessness. The

prosecution withheld facially exculpatory evidence that

directly negated the government’s theory that the defendants

lied about fearing snipers. The deliberate choices to withhold

these documents were not cases of simple misjudgment,

especially given that doubt about the helpfulness of evidence

should be resolved in favor of disclosure. Van Brandy,

726 F.2d at 552.

In the end, the clearly erroneous standard recognizes that

the district court is closest to the case, the parties, and the

record. The district court was quite familiar with the case. It

had supervised the case from its inception. The court had

already conducted a trial and retrial for the Tier 3 defendants. 

It is not surprising that the district court registered its

frustration with the government’s intransigence in turning

over discovery. At the November 13 hearing, it expressed

dismay “with these late disclosures and representations made

by the government that things did not exist but ultimately

were found to exist.” At the November 29 hearing, it

commented on the “dribs and drabs” being released weeks

after the trial began, and well after the date scheduled for
UNITED STATES V. BUNDY 47

production of the material. The district court was best

positioned to decide whether the government acted with

flagrant misbehavior that prejudiced the defendants.9 Given

the evidence that the government acted with at least reckless

disregard for the Brady value of some evidence that

prejudiced the defense’s ability to marshal their case, we

conclude that the district court’s findings of substantial

prejudice and flagrant misconduct in relevant part were not

clear error.

C. Whether Dismissal of the Indictment with Prejudice Was

Justified

A district court may dismiss an indictment as “an

appropriate sanction for a constitutional violation only where

less drastic alternatives are not available.” Kearns, 5 F.3d

at 1254. As we previously discussed, even when a district

court finds substantial Brady violations, prejudice to the

defendants, and flagrant government misconduct, a district

court has a range of options before it. Dismissal with

prejudice is, short of disciplining attorneys personally, “the

most severe sanction possible” for a court to order, because

it ends the government’s case. Isgro, 974 F.2d at 1097. 

Despite the severity of that sanction, the fact remains that

9 Although we affirm the district court’s finding of flagrant

misconduct for the purposes of dismissing an indictment, we do not intend

to cast aspersion on the professionalism of the members of the U.S.

Attorney’s Office here. This was obviously a difficult and trying case for

everyone involved and, while we find a serious constitutional violation

based on choices made by the government, we in no way imply that the

misjudgments made here rise to the level of professional misconduct. 

Indeed, much of the “blame” from the constitutional violations here falls

on the prosecution only because actions and knowledge related to

evidence by other government agencies are imputed to the prosecution.
48 UNITED STATES V. BUNDY

“[t]he district court is in the best position to evaluate the

strength of the prosecution’s case and to gauge the prejudicial

effect of a retrial.” Chapman, 524 F.3d at 1087. It is for this

reason that we review the district court’s choice of remedy

“for abuse of discretion, a standard of review that is ‘limited

and deferential.’” Herb Reed Enters., LLC v. Fla. Entm’t

Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013). Although

we have said that dismissal with prejudice requires a district

court to find that “no lesser remedial action is available,”

Chapman, 524 F.3d at 1087 (citation omitted), we recognize

that, in theory, a lesser remedy will always be available. We

understand by this phrase that a district court must conclude

that no lesser remedy will fully address the damage caused by

the government’s misconduct. We do not have to find that

dismissal with prejudice is the only remedy the district court

could have chosen, because to conclude so would mean that

it would have been an abuse of discretion for the district court

to have made any other decision.

What the phrase “no lesser remedial action is available”

means is that any lesser sanction will put the defense at a

greater disadvantage than it would have faced had the

government produced the Brady material in the first

place—thereby perpetuating the harm from a violation of a

federal constitutional right. See Struckman, 611 F.3d

at 577–78. In Chapman, we explained that in that case, “the

mistrial remedy would advantage the government, probably

allowing it to salvage what the district court viewed as a

poorly conducted prosecution.” Chapman, 524 F.3d at 1087. 

We concluded that the government should not be permitted

“a chance to try out its case, identify any problem areas, and

then correct those problems in a retrial.” Id. (citation and

alterations omitted); see United States v. Shafer, 987 F.2d

1054, 1059 (4th Cir. 1993) (“[The government’s] self-
UNITED STATES V. BUNDY 49

inflicted injury cannot be used to afford the government a

second chance to prosecute so that it may argue a recast

theory of the case better supported by the evidence.”).

Notwithstanding the government’s earnest efforts,we can

find no grounds for concluding that the district court abused

its discretion in dismissing this indictment with prejudice. 

The government claims that the district court’s findings are

unsupported, arguing that the court gave only cursory

consideration to the actual prejudice suffered by the

defendants as a result of the government’s Brady violations. 

The record, however, satisfies us that the district court

thoroughly considered the prejudicial effects.

The district court held several hearings on the various

Brady violations, complete with rounds of briefing and oral

arguments. Several times, the district court highlighted its

concerns to the government. The district court also gave the

government ample opportunity to brief and argue whether the

prejudice suffered was substantial. The district court recited

the proper legal standards and made the appropriate findings.

The district court specifically concluded that retrial here

was inappropriate. It found that retrying the case “would

only advantage the government by allowing them to

strengthen their witnesses’ testimony based on the knowledge

gained from the information provided by the defense and

revealed thus far.” The district court explained that the

government could “perfect its opening statements based on

the revealed defense strategy in its opening and . . . conduct

more strategic voir dire at the retrial.”

The district court did not abuse its discretion in

concluding as much. Lesser sanctions—such as a
50 UNITED STATES V. BUNDY

continuance to allow the defendants to review discovery or

declaring a mistrial and starting over—would have given the

government an opportunity to strengthen its case at the

defendants’ expense. Other remedies such as recalling

witnesses or granting a continuance would not cure the

prejudice already suffered by the defense in the form of lost

voir-dire and opening-statement opportunities. Moreover,

once the government turned over the Brady material, it may

have realized it might be difficult to pursue the case it had

promised in the indictment and the opening statement: that

the defendants had lied about the snipers and being

surrounded. Accordingly, not only would the Brady

documents affect the defendants’ strategy, it might well have

altered the prosecution’s strategy. Having “tr[ied] out its

case” and “identif[ied] . . . problem area[s],” the government

could have “correct[ed] those problems in a retrial.”

Chapman, 524 F.3d at 1087 (fourth alteration in original).

The government responds that even if dismissal were

warranted, the district court could have struck the portions of

the indictment alleging that the defendants intentionally lied

about feeling surrounded by snipers, and not dismissed the

entire indictment with prejudice. The paragraphs in question,

however, are not counts, but factual allegations supporting the

government’s charges. It is unclear to us whether striking

these sections would have served the remedial purposes of the

court’s exercise of its supervisory power. These do not

appear to be elements of the crimes alleged, but were a theory

of the government’s case, as elaborated in its opening

statement. The government’s case, therefore, would have

been significantly altered without these allegations, but

perhaps not weakened. And that would have meant that the

government would get a second shot at preparing its case,

“allowing [the government] to salvage” the case. Chapman,
UNITED STATES V. BUNDY 51

524 F.3d at 1087. The district court did not abuse its

discretion in failing to choose partial dismissal as a remedy.

There is also the related need to impose a sanction that

will serve to deter future prosecutions from engaging in the

same misconduct as occurred here. We note the

government’s failure to acknowledge and confess any

wrongdoing during the course of this case—especially as to

material misrepresentations to the district court about the

presence of snipers. Rather than accepting responsibility, the

government blamed the defense for not requesting more

specific information. Even in its motion for reconsideration,

the government continued to maintain that it never had an

obligation to turn these documents over and that any omission

on the government’s part was the fault of the defendants for

not doing a better job of showing why this information was

relevant. Only on appeal has the government admitted that it

should have turned these documents over.

In Chapman, we specifically highlighted the prosecutor’s

“unwillingness to take responsibility for his conduct,” finding

that this supported the district court’s decision to dismiss an

indictment with prejudice. 524 F.3d at 1088; see also id.

(“We are similarly troubled, both by the AUSA’s actions at

trial and by the government’s lack of contrition on appeal.”). 

Likewise, “attempt[s] to minimize the extent of the

prosecutorial misconduct, completely disregarding the

AUSA’s repeated misrepresentations to the court and the

failure to obtain and prepare many of the critical documents

until after the trial was underway” are themselves added

grounds for dismissing an indictment with prejudice. Id.

Given the government’s efforts to minimize the defendants’

discovery requests and its misrepresentations to the district

court in such a high-profile case, the district court
52 UNITED STATES V. BUNDY

understandably sought a remedy that would reinforce the

seriousness of the violations here.

Finally, we note that other courts have recognized the

great prejudice suffered when a defendant is denied access to

evidence challenging the government’s central theory of the

case until mid-trial. In United States v. Shafer, for example,

the government lost evidence that significantly undermined

the testimony of key witnesses. 987 F.2d at 1056. The

defendant moved to dismiss the case with prejudice. Id. The

district court, however, only declared a mistrial and declined

to dismiss with prejudice, giving the government another

chance to prosecute the case. Id. The Fourth Circuit

concluded that the district court abused its discretion in

giving the government the opportunity to retry the case. Id.

at 1058. The court reiterated the seriousness of federal

felonies and how the government had ample time to prepare

the case. Id. at 1059. It then concluded that “[t]he proper

course of action was for the district court to dismiss the case

with prejudice.” Id. It closed by saying that there is no

“manifest necessity” to try a case tainted by “the mid-trial

‘discovery’ of substantial exculpatory evidence contradicting

the government’s theory of the case.” Id. Here, the district

court concluded that the government should not benefit from

its misconduct. And there can be no denying that the

government would enjoy the benefit of having done a “dry

run” of this case. Because the district court could find no

other way to avoid giving the government this benefit, it did

not abuse its discretion in dismissing the indictment.

We do not need to go so far as to affirm that each of us

would also have dismissed the case with prejudice. It is the

nature of discretion and a consequence of the vicissitudes of
UNITED STATES V. BUNDY 53

life that district courts have leeway to fashion an appropriate

remedy. As Justice Frankfurter explained for the Court:

The civilized conduct of criminal trials cannot

be confined within mechanical rules. It

necessarily demands the authority of limited

direction entrusted to the judge presiding in

federal trials, including a well-established

range of judicial discretion, subject to

appropriate review on appeal . . . . Such a

system as ours must, within the limits here

indicated, rely on the learning, good sense,

fairness and courage of federal trial judges.

Nardone v. United States, 308 U.S. 338, 342 (1939). It is

sufficient for us to conclude that the district court did not

abuse the discretion entrusted to it, that dismissal with

prejudice was within the range of appropriate remedies in this

case.

IV. CONCLUSION

The district court can dismiss an indictment under its

supervisory powers “(1) to implement a remedy for the

violation of a recognized statutory or constitutional right;

(2) to preserve judicial integrity by ensuring that a conviction

rests on appropriate considerations validly before a jury; and

(3) to deter future illegal conduct.” Struckman, 611 F.3d

at 574 (internal quotation marks omitted). These

prerequisites are met here.
54 UNITED STATES V. BUNDY

The judgment is AFFIRMED.

10

10 Ryan Payne’s motion to unseal Volume IX of the government’s

excerpts of record is denied. The government’s motion to maintain under

seal Volumes 18 to 22 of the excerpts of record submitted by Ryan Payne

and Ammon Bundy is granted but the request to strike those same

volumes is denied. The government’s motion to maintain under seal

Volume 23 of the excerpts of record submitted by Ryan Payne and

Ammon Bundy is denied and the request to strike that same volume is

denied.