FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U NI T E D S TAT E S O F A ME R I C A , Plaintiff-Appellant
,

v

.

C L IVE N D. B U ND Y , AKA Cliven Bundy; R

Y A N C. B U ND Y ; A MM ON E. B U ND Y ; R Y A N W

. P A Y NE , 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 Subm itted May 29, 2020 Las Vegas, Nevada

Filed August 6, 2020

Before: W illiamA. Fletcher, Jay S. Bybee, and Paul J. W atford, Circuit Judges.

Opinion by Judge BybeeU NI T E D S TAT E S V

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SUMMARY *

Criminal Law

Th e panel affirm ed the district court’s judgm e n t dism issing with prej u d ice, due to v iolations of Brady v. Maryland
, an indictm ent charging C liven Bundy; two of his
sons, Ryan an d Amm o n Bundy; and Ryan Payne with obstructing federal law enforcem ent officials carrying out lawful court orders.

The indictm ent followed a w ell-publici ze d effort by the Bureau o f Land Managem ent to im p o un d Cliven Bundy’s cattle for a twenty-year failure to pay federal grazing fe e s. Cliven Bundy and hundreds of arm ed supporters from around the United States forced fede ral officials to abandon the im poundm ent plan.

Days into the d efendants’ trial, the governm ent began disclosing inform ation in i ts possession that, under Brady
, was arguably usefu l t o the defense and should have been produced to the defendants well b efore trial. As additional docum ents cam e forth, the d istrict court he ld a series o f hearings, eventually deciding that the trial c o u l d not go forward and that the indictm ent m ust be d ismi ssed with prejudice.

Reviewing whether the district court properly dism issed the indictm ent under its supervisory powers, th e p anel considered the e v i d ence cited by the district court to decide

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U NI T E D S TAT E S V

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whether substantial prejudice resulted from the Br a dy violations, wh e th er flagrant m isconduct occurred, and whether alternative rem edies could have redressed the injury here.

Central to the governm ent’s case were allegations that the defendants intenti o n ally lied about being surrounded by snipers as a ploy to gather arm ed supporters. Had the defendants been able to proffer a b a s is for genuinely believing that govern me nt snipers surrounded the Bundy Ranch, they p otentially could have negated the governm ent’s scienter theory. Surveying all o f the withheld evidence

– i n c l u d i n g s urv e i l l a n c e

- c ame r a e v i d en c e, FBI “ 3 0 2 ” investigative reports r e garding snipers, Tactical Operations Center (TOC) log records, and threat assessm ents – the panel hel d that the record am ply supports the district court’s conclusion that the defendants suffered substantial p rejudice in not being able to prepare their case f ully, refine their voir dire strategy, and m ake stronger opening statem ents.

Regarding the question of flagrant m isconduct, the panel
wrote that to the extent any governm ent agencies or actors, through their own flagrant m isconduct, failed to m ake known exculpatory inform ation, the flagrant nature of such conduct will be im puted to the prosecution. The panel explained that flagrant m isconduct n e ed not be intentional; reckless disregard f

or the prosecution’s constitutional obligatio ns is sufficient. A lthough it s aw only negligence in the withholding of the TOC log records, the p anel found no clear

error in the d istrict court’s conclusion that the withholding o f the surveillance-cam era evidence, the 302s, and the thr e at

assessm ents crossed the threshold from negligen c e to recklessness. The p an e l observed that the prosecution withheld facially exculpatory evidence that directly negatedU NI T E D S TAT E S V

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the governm ent’s th eo ry th at t h e d ef en d ants lied about fearing snipers, and that the deliberate choices to withhold those docum ents were not cases of simple m isjudgm ent.

The p anel wrote that although dism issal w ith p rejudice requires a district court to find that “no lesser rem edial action is available,” the panel understands b y thi s p hr a s e that a district court m

u s t conclude that no lesser rem edy will fully address the dam age caused by the governm ent’s m isconduct. The panel concluded that the district court, which thoroughly considered the prejudicial effects, did not abuse its discretion in dism issing the indictm ent with p rejudice. The panel wrote that lesser sanctions would have given the g overnm ent an opportunity to strengthen its case at the defendants’ expense, and noted the related need to im pose a sanction that will serve t o d eter future prosecutions from engaging in the s ame

m isconduct as occurred here.

C OUNSEL

Elizabeth O. White (argued), Appellate Ch i e f; Nicholas A

. Trutanich, Attorney General; Office of the Attorney General, Reno, Nevada; for Plaintiff-Appellant.

Larry E. Klaym an (argued), W ashington, D.C., for Defendant-Appellee Cliven D. Bundy.

Amy B. Cleary (argued), C risten C. Thayer, and E llesse Henderson, Assistant Federal P ublic Defenders; Re ne L. Valladares
, Federal Public D efender; Office o f the Federal P u b lic D ef en d e r, L as V eg as, N ev ad a; f o r D ef en d ant-A p p ellee Ryan W

. Payne.U NI T E D S TAT E S V

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Daniel Hill, Hill Firm
, Las Vegas, Neva da, for DefendantAppellee Amm on E. Bundy.

Aly ss a D. Bell, Cohen W illiam s LLP, Los Angeles, California, for Defendant-Appellee Ryan C. Bundy.

OPINION

BYBEE, Circuit Judge:

Cliven Bundy, two of his sons, R yan and Amm on Bundy, and sixteen o ther persons were charged with obstructing federal law en forcem ent o fficials carrying out lawful court orders. The indictm ents followed a well-publicized effort by the Bureau of Land Managem ent (BLM) to im pound Cliven Bundy’s cattle for a twenty-year failure to pay federal grazing fees. Bundy and hundreds of arm ed supporters from around the United States forced federal officials to abandon the im poundm ent plan. Fortunately, no o n e was injured in the confrontation.

Days into th e B undys’ trial, the governm ent began disclosing inform ation in its possession that, under Brady v. Maryland
, 3 73 U. S. 83 (1963), was arguably useful to the defe n s e and should have been produced to the defendants well before trial. As additional docum ents cam e fo rth
, the d is trict court held a series of hearings, eventually deci d i n g that the tr i a l could not go forward and that the indictm ents

m ust be dism issed with prejudice. Under Brady
, “[t]he prosecution is trusted to turn over evidence to the defense be cause 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. 201 4 ) (quoting Strickler v. Greene
,U NI T E D S TAT E S V

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527 U.S. 263, 2 8 1 (1999)). A district court is im bued with discretion in the supervision of proceedings before it and m ay dism iss an action when, in its ju d g ment, “the defendant suffers substantial prejudice and where no lesser r e me dial action is available.” United States v. Chapman
, 5 2 4 F.3d 1073, 1 087 (9th Cir. 2008) (citations and quotati o n marks

om itted). F inding no abuse of discretion, we affirm the judgm ent of the district court.

I. BACKGROUND

A. Factual History

This case stem s from an infam ous s t andoff between Cliven Bundy, h is sons, 1 and groups of dedicated followers and BLM. Bun dy lives on 160 acres of land near Bunkerville, Nevada, about eighty m iles northeast of L as Vegas, near the Ar izona b order. It is rugged, Mojave-dry country, bounded by the Gold Butte N ational Monum ent and the Lake Mead National Recreation Area, and watered by the Virgin River—which, by any standards, is m ore a creek than

a river. For decades, Bundy and his fam ily h ave grazed their cattle on the m ore than h alf a m illion acres of surrounding federal l an d

. Since the early 1990s, Bundy has refused to obtain perm its and pay fees and f ines 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 rem ove his cattle or risk having them im

pounded. See United States v. Bundy
,

1 T wo o f Cliven Bundy’s sons, Am m on and Ryan, are d efendants in this proceeding. O thers figure in the facts. F or convenience we will refer
to Clive n Bundy as “Bundy” and his sons by their full n am es, e.g. , “Am m on Bundy” and “Ryan Bundy.”U NI T E D S TAT E S V

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No. 2:12-cv-0804, 2 013 W L 3463610, a t *1–3 (D. Nev. July 9, 2013) (authoriz i n g the governm ent to “seize and

rem ove to im

pound any of Bundy’ s cattle for any future trespasses”); see also United S tates v. Bundy
, 178 F.3d 1301 (9th Cir. 1999) (unpublished table decision). Bundy ignored those orders, claim ing that he had “vested grazing rights” and that th e 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
op e r at i o n to im

pound B undy’s cattle. The plan called for
contractors from Utah to round u p cattle that were trespassing

o n federal land. The cattle would then be sold at auction. BLM notified Bundy of its intentions in m id-March of 2014. Bundy did not respond to the notices, but in interviews with loc a l p ap e r s stated that he was “ready to do battle with the BLM,” that he would m

uster fam ily, friends, and supporters, and “do whatever we have to after that.”

BLM m ade extensive pr e p arations for “Operation Gold Butte Im pound.” Coordinating with agents from the N ational Park S ervice and Federal Bureau of Investigation, BLM anticipated resistance f

ro m Bun dy and his supporters. It planned to escort the contractors in and o ut o f the area each day. BLM established a Listening Po s t/Observation Post (L P /O P ) “strategically placed at elevated positions around th e Bundy residence each evening” where agents were outfitted with binoculars, spotting sco p es, night-vision goggles, and therm al-im aging devices. The LP/OP personnel w ere to have “agency-issued rifles with them a t a ll tim es.” BLM also established a Tactical Operations Cent e r (TOC), Forward Operating Base (FOB), a m edia site, and a “free speech area.”U NI T E D S TAT E S V

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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 m ilitia g roups such as Operation Mutual Aid, 3 Pe r c enters Club, Freedom and Fighters, and Oath Keepers to com e to their defen s e

. The Bundys claim ed that the governm ent was taking their cattle and holding o ne of the Bundys prisoner, an d h a d s nipers in position surrounding the Bundy co mp ound. Am o ng those who responded was defendant Ryan Payne, who wa s a founder of Operation Mutual Aid. Hundred s o f Bundy supporters, m any heavily arm ed, poured into the area.

On April 9, 2014, Amm on Bun dy l e d a m ob to block a BLM convoy and was tased by officer s

. Payne u sed the incident to contact additional m ilitia groups and solicit their help. By April 11, BLM had seized approxim ately 400 anim als. FBI a g ents inform ed BLM that the gathering

m ilitia posed a signific ant threat to federal o fficials and private contractors, and advised BLM to cease the operation. The n ext day, Bundy and his supporters, then estim ated to be

m ore than 200 people, assem bled to reclaimBundy’s cattle. Clark County Sheriff Doug Gillespie intervened with Bundy and told the group that B LM h ad called off the im poundm ent. Bun dy m ade additional dem ands, and when they were not

m et, told the crowd that it was tim e to “get those cattle.” The crowd then m oved to the entrance o f th e im poundm ent site, located in a dry-wa s h b ed under an Interstate 1 5 bridge. Armed supporters took up threatening and tacticall y advantageous positions, pointin g guns at BLM officers. Additional supporters arrived, som e on horseback, swe ll i ng Bundy’s ranks t o mo r e than 4 00 people. The Bundys dem anded that the o f

ficers leave. Heavily o utnum bered and interested in avoiding bloodshed, federal officials evacuatedU NI T E D S TAT E S V

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th e im p oundm ent site and left the cattle for the Bundys t o reclaim

.

B. Procedural History

1. The Indictm ent

In March 2016, a federal grand jury indicted nineteen defendants, including Bundy, his sons Amm on and R yan, and Ryan Payne (collect iv e ly, “the defendants”), for a slate o f fe deral crim es stemm ing from the standoff, including i mp e d i n g fe de r a l o f

f i c e r s , th r e a t e n i n g f

e d e r a l l aw enforcem ent, and extortion, along w ith conspiracy to comm it these crim es. The district court divided the defendant s i nto three groups, according to their degree of i nvo lvem ent. Cliven Bundy, Ryan Bundy, Amm on Bun dy , Ryan Payne, and another m ilitia leader, Peter Santilli, were placed in Tier 1. The district began with a trial for the T ier 3 d efendants, to be followed by Tier 1 and Tier 2. 2

A central pillar of the g o ve rnment’s case was the allega tion that the defendants recruited arm ed followers by intentionally d eceiving those followers into believing that the Bundys f eared f or their lives because governm ent sn i p e rs

surroun d ed their ranch. According to the indictm ent, once the large group of supporters ha d ama ssed, the defendants

were then able to use their followe r s to thwart the im pound operation. Specifically, ¶ 58 o f the indi c tme n t alleged that

2 The Tier 3 trial comm ence d on F ebruary 6, 2017 and resulted in conviction of t

w o defendants; t

he jury hung as to the r em aining d e fendants. On retrial, the j ury acquitted two defendants on all charges and two defendants on som e charges; the jury hung for a second time on the rem aining charges.U NI T E D S TAT E S V

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the defendants “used d eceit and deception to recruit gunm en and other F ollowers,” flooding the internet with “false, deceitful, and deceptive im ages” for the “unlawful purpose o f interfering with im

poundm ent operations, ob structing the execution of fe d e r a l court Orders and using f orce and violence against federal law enforcem ent offici al s

. ” Paragraph 84 further stated that the d efe n dants had created “false, deceitful and deceptive statem ents to the effect that the BLM supposedly: em

ployed snipers against Bundy f am ily

me mb e r s

. . . .” As for Ryan Payne, ¶ 88 alleged that on April 7, 2014
, h e ha d posted m essages to followers “stating falsely, am ong other things, that th e Bundy Ranch was surrounded by BLM snipers, that the Bundy family was isolated, and that the BLM w anted BUNDY de a d.” Regarding Bundy, ¶ 9 2 o f the indictm ent recounted h ow, on April 8, 201 4
, he had broadcast a statem ent saying, “they have my house surrounded

. . . the federal governm ent is stealing my property

. . . [th e BLM ] ar e arm ed with assault rifles

. . . they have snipers.” T he indictm ent contended that this statem ent wa s d e c e itful and m ade with “the purpose o f recruiting gunm en and other Followers ” to com e to the Bundy Ranch and obstruct the impoundm ent.

2. The Motion-in-Lim ine Order

In preparation for trial, the d efendants requested any potentially exculpatory evidence under Brady v. Maryland
, 373 U.S. 8 3 (1963), including evidence that could negate the
governm ent’s scienter th e ory. Notably, to com bat the
g ov ernm ent’s allegation that the defendants had lied ab o ut fearing being surrounded by snipers, the defendants s o u ght

m aterials showing the pr e s e n ce of arm ed officers in tactical
gear taking positions around the Bundy R anch. The defenseU NI T E D S TAT E S V

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also wanted evidence to support their claim that the im poundm ent operation was over-m ilitarized.

In October o f 2017, shortly before trial began, the
governm ent obt a i n ed a favorable ruling on a m otion in lim ine, which lim ited the defense’s ability to introduce evidence regarding the affirm ative defense o f s elf-defense against governm ent actors. The district court concluded that the affirm ative defense was not available to the defendants because they k

new the “official status” o f the federal officers and there was no evidence that the officers used excessive force. However, the d istrict court left open the possibility that th e defendants could present evidence supporting the affirm ative defense w ith “an offer of proof outside the
presence of the j ury that the d efense should apply.” In the

same o rd er, the court denied the g overnm ent’s request to preclude evidence regar d ing the defendants’ state o f m ind. The governm ent c i ted this order to justify several of its decisions to withhold evidence.

3. Opening Statem ents

Trial comm enced on O ctober 30, 2 017. The
governm ent’s opening statem ents em phasized the theory that the Bundys and their co-conspi r a tors intentionally spread

m isinform ation about being surrounded by snipers to inflam e supporters. The governm ent recoun ted that following Dave Bundy’s arrest on April 6, the Bundy s posted m essages and photos on social m edia:

And the m essaging that was put out by the Bundys, by the Bun dys and their supporters,

was that this was BLM being a lar g e Army that w as com ing to attack them
, was comi n gU NI T E D S TAT E S V

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to interfere with them
, wa s com ing to abuse them

. And you will hear how the m essaging transform ed f

rom steal i n g cattle to now they’ve got snipers aim ed at us. Now they’ve got our house surrounded. Now we can’t

mo v e. W e’ve got to shelter in place. W e can’t do anything because the BLM has got us surrounded.

And that was false . . . .

The g o v e rnm ent m ade clear that the Bundys’ purported lies about f eeling surrounde d b y m enacing snipers was key to their recruiting followers such a s Ry an Payne and Peter Santilli to com e to Nevada, obstruct the im pound operation, and “protect against tyranny.”

4. Hearings Regarding W ithheld Evidence

As trial got underway, it becam e apparent that im p ortant evidence had been withheld by the governm ent. Ov e r the

course of the following weeks, the d istrict court held several hearings regarding this evidence as it trickled out during trial.

a

. November 7 and 8 Hearings. On Novem ber 6 and 7
, 2017, just a week into the tr ia l
, the defendants filed successive m otions to dism iss for d iscovery m isconduct. They faulted the governm ent for failing to provide evidence regarding (1) video surveillance of the Bundy property and (2) the presence of FBI and BLM tactical un i t s arm ed with AR-15 rifles. In August 2017, the d e fense had requested inform ation related to a cam era placed near the Bundy Ranch. The request was supported by an affidavit from Ryan Bundy, wh o averred that h e had seen a cam era device on a tripo dU NI T E D S TAT E S V

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

was o n a hill northeast of and overlooking the Bundy house. The governm ent, h o w ev er, h ad o p p o sed th is req u e st, ref e rrin g to it and other requests as a “fanta st i c al fishing expedition.” Ye t o n Novem

ber 3, the fourth day of trial, the defen s e learned that the FBI had in fact set up a cam era on a h ill northeast of the Bundy h om e. The cam era h ad a live feed to BLM’s comm and center.

The district court held a h earing on Novem ber 7 regarding the cam era evidence. The court held another hearing the next day regarding newly released evidence showing the presence of heavil y arme d p atrols n ear the Bundy property. The defendan ts em

phasized that this new evidence was m aterial because it undercut the g ov e rnme nt’s ability to prove that they had intentionally lied to supporters about f eari ng governm ent snipers. Specifically, the defendants argued that the presence of surveillance equipm ent and law-enforcem ent officers arm ed with AR-15 rifles contributed to the defendants’ fear that they were surrounded.

The district court agreed wi th th e defendants that the
reque sted surveillance-cam era evidence w as m aterial. However, it also concluded that the governm ent had not acted i n bad faith by withholding inform ation about the cam era because the court h ad previously thought that the inform ation related to surveillance cam eras was irrelevant and there was “no apparent or readily apparent m ateriality.” As for the late evidence regarding heavily arm ed officers, the district court agreed that the inform ation was m aterial because it was “relevant to developing a p ossibl e d e fense to the allegation that false statem ents were provided about the exist e n c e o f snipers and being isolated an d su r rounded.” The district courtU NI T E D S TAT E S V

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ordered the governm ent to turn over any additional evidence related to the surveillance cam era or snipers.

b. November 13 Hearing

. Dur i ng the first week o f Novemb er, the g o vernm ent disclosed additional evidence regarding the surveillance cam era and o fficers arme d with assault rifles in full tactical g e ar

. Two disclosures cam e in the form of FBI investigative reports known as “302s.” The first w as a 302 regarding Kevin Egbert (the Egbert 302). This 302 recorded the placem ent of the cam era and attem pts to repair it after i t was dam aged. The second was a 302 describing the activities of Special Agent Edward Delm olino (the Delm olino 302). This 302 d escribed ho w Ag e n t Delm olino was d

ressed i n B LM tactical gear and took an overwatch position near the B undy Ran c h. A thum bdrive with a log of activities at the T actical Op e r a t i ons Center, referred to as the “TOC Log,” was produced on Novem ber 1 1, 2017. This log served as the FBI’s record for SWAT operations during the im p ound oper a t ion. The Log referenced the insert i on of “snipers” and recounted descriptions of the live feed fromthe surveillance cam era.

The defense renewed its m otions to dism iss and the district court held another h e aring o n Novem ber 1 3, 2017. Th e governm ent represented that the prosecutors from the U.S. Attorney’s Office had “been as dilig e n t a s we possibly can.” The district court agreed th a t “everyone’s d oing the best they can faced with the inform ation that we have, which is m ore interesting than in the usual case” and f ound that “there’s n o Brady violation

. . . , m uch less a patt ern of any Brady v iolations.” But the court then stated th a t the
governm ent would n eed “to do m ore than it’s already done.” The defense, m eanwhile, again em phasized the crucial nature of this evidence to countering the governm ent’s theo ry thatU NI T E D S TAT E S V

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the defendants h ad p urposefully “spread[] false inform ation about the presenc e of m ilitarized g overnm ent operation surrounding” the Bundy hom e.

As for the m otions to d ism iss, the district court said that the defendants’ argum ents w ere “prem ature” because “onl y 24 pages [of n ew discovery] h a[d] been provided.” B ut the
court n oted that if “m ore inform ation

. . . is provided and

. . . creates p reju d ice, then the C ourt would certainly entertain” further m otions. The court also expressed its dism ay with the
governm ent that im

portant evi de nce was being produced so late and, in particular, that the g ov ernm ent h ad m ade “representations

. . . that th i ng s did not exist but ultim ately

were found to exist.” Thus, while the district court believed that the prejudice to the d efense was not a t that point sufficient to keep the case f rom proceeding, it explained that prejudice would have to b e reassessed “to see whether this has put the d efense

. . . in an untenable position.” The court warned that it m ig h t have to consider a rem edy, including continuance or m istrial, with or without prejudice. “[T]here’s

a lot o f inform ation that’s com ing to light very late. And, so, it’ s tr oubling to the Court.” The governm ent, h owever, continued to m aintain that a lot of the new inform ation produced was not m aterial.

c. November 29 Hearing . As trial continued, testim ony exposed even m ore withheld docum ents. During the pretrial d iscovery phase, the defense had requested “all the threat

assessments prepared in this case.” The governm ent p ro v id ed

one threat assessm ent prepar ed in 2 014. In its opening
statem ent, the governm ent had referred to a BLM decision to im pound Bundy’s cattle i n 2 012. The governm ent represented that BLM decided not to confront Bundy “because of the concern for violence.” During t e st i mo ny,U NI T E D S TAT E S V

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howe ver, a prosecution w itness m entioned a 2012 threat

assessm ent, an d reco unted h o w t h e assessment concluded that Bun dy p osed no threat of harm

. It then cam e to lig h t th at

o th er threat assessments h a d b een w i thheld—several of wh ich had be en prepared for a possible im p oundm ent action in 2 01 2

. These assessm ents rated Bundy as having a low-to

m oder a te risk of violence. The governm ent also produced

new evidence regarding surve illance of Bundy’s hom e and the p resence o f arm ed officers. The new evidence was two Nevada Joint Terrorism Task Force reports. One report noted the presence of S WAT personnel and th e p resence of the

cam era with supporting technicians. It als o detailed events leading to the FBI’s placem ent of the cam era.

The district court h eld another heari n g about this new evidence on Novem

ber 29, 2017. The court again expressed frustration with the “dribs and d rabs” of new discovery being released. The court r ecognized that “the [U.S. Attorney’s Office] has been d i l i ge nt,” but f aulted “other governm ent

a g encies; not in the U.S. Attorney’s Office.” But th e prosecution conceded that it had had the threat assessm ents in its possession all along. The governm ent explained that it did not hand the assessm ents over because it considered them neither exculpatory nor responsive to the defense’s r equest for threat assessm ents “in this case.”

The governm ent also explained why it ha d b een late in turning over several FBI investigative reports regarding tactical-operations team s once it becam e evident that the
presence o f “snipers” would be an integral part of the defense’s strategy. And it insisted that the officers p resent at the site were not actually snipers. The d is trict court, h o w ev e r, f

o un d this explanation “v ery tro u b lin g , ” b ecau s e th e court had excluded testim ony at the earlier trial of the Tier 3U NI T E D S TAT E S V

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co-defendants regarding the presence of snipers based on the
governm ent’s representation that there were no snipers at the site. Yet, in the m iddle o f Bundy’s trial, the governm ent was producing docum ents that referred to its own a g ents as “snipers.”

d. December 11 Hearing

. On Decem ber 1 1
, 2017, the district court held a final hearing on the defendants’ m otions
to dism iss. The court reviewed the evi d ence that had been produced after the start o f the trial. It noted that there were different deadlines for the governm ent to produce evidence to the d efense, depending on whether its obligations arose under Brady
, Giglio
, Jencks
, or Federal Rule of Crim inal Procedure 16(a)(1)(E). In general, however, the court found that the evidence should have b een produced no later than October 1, 2017, thirty days before the start of trial.

Beginning with the surveillance-cam era evidence, the district court was “concerned that there seem s to [have been]

som e coyness on beha l f o f the governm ent” in turning over that evidence. However, the court explained that, at that tim e, it appeared the inform ation was tim ely provided.

But the di s tr i c t court then stated that it was inclined to find that m

uch of the inform ation regarding the p r esence o f snipers was untim ely. Even though the F BI p rom p tly turned

over several 3 02s prepared after the discovery deadline, the district court explained that the inform ation contained in the 302s was nevertheless untim ely. Th e TOC Log “was in existence long before [Novemb e r 2017].” The court also expressed dissatisfaction with the governm ent’s explanation that it had not provided this inform ation earlier because the
governm ent was unaware that this inform at i on would be central to the defense’s theory of the case.U NI T E D S TAT E S V

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The district court then went through the m ateriality of the late threat assessm ents

. Th e court explained that the March 20 1 1 a ssessment in f

o rm ation contradicted other evidence and “could be useful for im

peachm ent purposes.” It further f ound that the governm ent’s production of the threat a s sessm ents

was likely untim ely. Thus, the district court agreed to take the m otions to dism iss under subm ission.

5. The District Court Declares a Mistrial

On Decem

ber 20, 2017, the district court concluded that the trial could not proceed. It be g an b y em p hasizing that Brady requires the prosecution “to learn of material exculpatory and impeachm ent evidence in the possession o f other agencies.” Where there is d oubt about the usefulness o f evidence to the defense, the g o vernm ent should “resolve such doubts in favor of full disclosure.” The court reviewed each piece of evidence—evidence regarding the surveillance

cam era, snipers, and threat assessm ents—contained in newly provided FBI 302s, the TOC Log, the prior threat

assessm ents, and other docum ents. The court found that the
governm ent had f

ailed to tim ely disclose m ost of the evidence
at issue, and that the failure was “willful” on the
governm ent’s part and prejudiced the defense.

As f or possible rem edies, the district court found that recalling witnesses o r granting a continuance to allow the defendants tim e to revie w the n ew evidence would be insufficient. T he part ie s had already im paneled a jury and

m ade opening statem ents. The court believed that the withheld evidence had dep ri v e d the defendants of the opportunity to better tailor their voir-dire strategy and m ake stronger opening statem ents. Thus, the court concluded that

m istrial was necessary. The court stopped short of dism issingU NI T E D S TAT E S V

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the case, instead asking for briefing on whether “m istrial should be with or without prejudice.”

6. The Decision to Dism iss the I ndictm ent with Prejudice

On January 8, 2018, after perm itting written briefing, the district court concluded that the Brady v io l a t ions w ere so egregious and prejudicial that the indictm ent needed to be dism issed with prej u di c e

. It found “that retrying the case

wou l d on l y advantage the governm ent by allowing [it] to strengthen [its] witnesses’ testim ony b ased on the knowledge gained from the inform a tion provided by the defense and revealed thus far

. ” The court also highlighted “the prosecution’s failure to lo o k beyond the FBI file that was provided” for additional relevant inform at i o n constituted a “reckless disregard for its [constitutional] obligations to learn and seek out favorabl e e vidence.” The court characterized the governm ent’s “representations about whether individuals

were technically ‘snipers’ or not ‘snipers’ [as] disingenuous” given that the FBI’s own docum ents referred to governm ent “snipers’ in the operation. It concluded that the FBI’s failure
to produce these docum ents was “flagrant p r osecutorial

m isconduct in this case even if the docum ents them se lves

were not intentionally withheld [b y the U.S. Attorney’s Office] from the defense.” T hus, it deci d e d th a t no lesser sanction was av a i lable because the governm ent’s “conduct has c aus ed the integrity o f a f uture trial and any resulting conviction to be even m ore questionabl e

. ” Retrial “would only advantage the g overnm ent.” T h e court dism issed the indictm ent with prejudice as a rem edy for a due process violation and under its supervisory powers.U NI T E D S TAT E S V

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The g overnm ent m oved for reconsideration. F irst
, th e governm ent argued that the court had m istakenly found the evidence “m aterial” because there was no legally cognizable
way fo r th e d efendants to assert the affirm ative defenses o f
p ro vocation or self-defense against a law officer. Th e governm ent pointed to the district court’s grant of its m otion in li mi n e , which determ ined that evidence related to the affirm ative defenses was irrelevant.

The district court was unm oved. It highlighted h o w the

m otion-in-lim ine order had specifically left open the possibility that the defendants co u l d raise an affirm ative defens e i f th e y could m ake an offer of proof to support a theory of provocation or self-defense. The court said that its order “pla c e d the Governm ent on n otice that evidence that could bolster a theory of self-defense m ight becom e relevant
at trial.” Hence, the court stated that its order did not excuse the governm ent fr o m turning over evidence helpful to the defense. The court again chastised the g o ve rnm ent for claim ing ignorance that the defendants would need evidence about the cam er a s o r s nipers because a central part of the
governm ent’s case was that the defendants k nowingly spread false statem ents that snipers w ere surroundin g th e Bundy Ranch.

Second, the governm ent asserted that the court had failed
to c o ns i de r less drastic rem edies. In response, the court pointed to its discussion in the record th a t l e s ser sanctions could not cure the prej u d i ce. And it said that any lack o f consideration for a specific re me dy was the f ault of the
governm ent, because it f ailed to raise possible alternative sanctions. Thus, the d i strict court denied the governm ent’s

m otion for reconsideration. The governm ent now appeals.U NI T E D S TAT E S V

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II. STANDARD OF REVIEW

W e review the district court’s dism issal of an indictm ent under its supervisory p owers for an abuse o f discretion. Chapman
, 524 F.3d at 1086. Any legal issues predicating the district court’s dism issal receive de novo review. United States v. Velarde-Gavarrete
, 975 F .2d 672, 674 (9th Cir. 1992). H owever, the “district court’s findings of fact are reviewed for clear error.” Id.

III. DISCUSSION

The question presented in this case is wheth er th e governm ent’s actions were sufficiently egregious to m erit dism issal with prejudice. A d istrict court m ay dism iss an indictm ent f

or gov e rnme nt m isconduct for one of two
reasons, each with its own standard: either because it finds a serious due-process v iolation or because it concludes that dism issal is w arranted under its supervisory p owers. United States v. Kearns
, 5 F .3d 1251, 1253 (9th Ci r

. 19 9 3 ). Dism issal for a due-process violation requires the
governm ent’s conduct t o “be so grossly shocking and outrageous as to v iolate the universal sense of justi c e.” Id. “The [due process argum ent] is usually raised in situ a tions where law enforcem ent conduct involves extrem e p hysical o r

m ental b rutality or where the crim e is ‘manu fa c tured by the
governm ent from whole cloth.’” United States v. Gree n , 962 F.2d 938, 942 (9th Cir. 1992) (citation om itted).

A district court m ay dism iss an indictm ent under its inherent supervisory powers “(1) to im plem ent a rem edy for the v iolation 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; andU NI T E D S TAT E S V

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(3) to deter fu ture illegal conduct.” United S tates v. Struckman
, 611 F.3d 560
, 5 7 4 (9 th Cir. 2010) (quoting United States v. Hasting
, 461 U.S. 499, 505 (1983) (internal citations

and quotation m arks o m itted)). T h e court’s exercise of i t s supervisory powers protects the integrity of the federal courts and prev en ts the courts f rom “m aking

. . . . them selves

accom p lices in wil l fu l disobedience of law.” McNabb v. United States
, 318 U.S. 332, 345 (1943). A district court can dism iss an indictm ent under its supervisory powers even if “the conduct does not r i s e to the level of a due process violation.” United S

tates v. Barrera-Moreno
, 951 F.2d 1089, 1091 (9th Cir. 1991). Because it is unnecessary to decide if both standards are m et here, we will only review whether the district court properly dism i ss e d the indictm ent under its supervisory powers. S

ee Chapman
, 5 24 F.3d at 1084 n.5 (“Because the district court d id not abuse its discretion in dism issing the indictm e n t under its supervisory powers, we need not consider whether the dism issal w as also justified by the governm ent’s v iolation of Defendants’ due process rights.”).

When considering an exercise o f its supervisory powers, a district court has v arious options. The court m ay lim it the witnesses or testim ony offered by the g overnm ent, o r it m ay sanction the attorneys. See Hast ing
, 461 U.S. at 506 & n.5. The court m ay d ism iss the case without prej u d i c e , which requires dism issing the jury and fo r c es the governm ent to beg i n anew. The m ost drastic rem edy is dism issal with
p rejudice, because this prev e nts th e g o v e rnm ent f ro m retryin g the defendants at all. See Chapman
, 524 F.3d at 1085 (explaining that im

proper d ism issal of “an indictm ent wi th prejudice encroaches on the prosecutor’s charging authority” (internal quo t a t ion m arks om itted)); U nited States v. Isgro
, 974 F. 2 d 1091, 1097 (9th C ir. 1992) (“Dism issal of anU NI T E D S TAT E S V

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indictm ent with prejudice necessarily im plicates separationof-powers principles.

. . . Such dism issal exercised under the guise of ‘supervisory power’ is im perm issible absent ‘a clear basis in fact and law for doing so.’”). Under its supervisory
powers, a district court m ay dism iss an indictm ent wi th prejudic e fo r prosecutorial m isconduct only if there is “(1) flagrant m isbehavior and (2) substantial p reju d i c e

. ” Kearns
, 5 F.3d at 1253. Further, the district court m u st “approach[ the rem edy] with som e caution and a with a view toward balancing th e interests involved,” Hasting
, 461 U.S.
at 506–07 (citations and quotation m arks om itted), and have concluded that there is “no lesser rem edial action” available to it. Chapman , 524 F.3d at 1087 (citations om itted).

The district court concluded that dism issal with p rejudice

was appropriate be c ause the governm ent w ithheld k ey evidence fa v orable to the defense until after trial was underway—in clear violation o f its d uties under Brady

—and dism issing w ithout prejudice would allow the governm ent to

cure its m istakes, to the detrim ent of the defendants. It is, o f
course, beyon d dispute that under Brady a defendant is
ent i tl e d to evidence “both favorable to the accused and ‘m aterial either to guilt or to punishm ent.’” United S tates v. Bagley
, 4 73 U.S. 667, 674 (1 9 8 5 ) (quoting Brady
, 373 U.S.
at 8 7). “Brady evidence” can be favorable “either because it is exculpatory or im

peaching.” Milke v. Ryan
, 711 F.3d 998, 1012 (9th Cir. 2013). For a B rady v i o la t ion to occur, “the
governm ent m

ust have w illfully or in a dv e rtently f ailed to produce the evidence” and “the supp r ession m ust have prejudiced the defendant.” Id. But sim ply showing a Brady

v io latio n

— w i thh o ld in g o f ev id en ce that caused prejudice—is
not a sufficient basis to dism iss an indictm ent. Only where the governm ent withheld Brady m aterial through “fl a g r ant

m isconduct,” causing “substantial prejudice” to the accused,U NI T E D S TAT E S V

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will justify th e c o urt’s exercise of its supervisory powers to dism iss the case with prejudice. Kearns , 5 F.3d at 1253.

Determ ining whether these prerequisites f or dism i s s al

were satisfied here requires us to review the e v id ence in question and the circum stances o f its w ithholding. W e begin with a review of the evidence to deci de whether substantial prejudice resulted, k ee p i ng in m ind that not everything that the governm ent turned over to the defense after the tri al began w as im

portant to the defense. Nor did the district court rely o n all th e evidence produced. Accordingly, our review is confined to evidenc e c i t ed b y the district court. W e then
turn to whether flagrant m iscon d uct occurred. F inally, we

exam ine wh ether alternative rem edies could h ave redressed the injury here.

A. Whether the Withheld E vidence Substantially Prejudiced the Defense

Central to the governm ent’s case again s t th e defendants

were the allegations in ¶¶ 58, 84, 88 and 92 of the indictm ent that the defendants intentionally lied about being surrounded by snipers as a ploy t o ga ther arm ed supporters. The indictm ent alleged that the Bundy defendants used “false, deceitful, and deceptive” im ages t o recruit supports to Bunkerv ille t o interfere with BLM’s im poundm ent operation. Th e governm ent’s opening statem ent reinforced thi s , prom ising the jury that it would “hear how the m essaging
transform ed from stealing cattle to now there’s governm en t snipers around us” and “BLM has got us surrounded” and that these statem ents w ere “false.” Had the defendants been able
to proffer a basis for genuinely believing that gov e rnme nt snipers surrounded the Bundy R anch, they potentially could have negated the governm ent’s scienter theory. Thu s , theU NI T E D S TAT E S V

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defendants contend that the withheld evidence was crucial to defending their case.

1. The Surveillance-Cam era Evidence

Prior to trial, Ryan B undy had subm itted an affidavit in which he claim ed to have seen a device with a telephoto lens

on a tripod overlooking Bundy’s house. The gov e rnm ent opposed the request for inform ation abo ut th is device as a “fantastic fishing expedition.” O n the fourth day o f trial, witness testim ony confirm ed that the governm ent had indeed
set u p a cam era overlooking Bundy ’s p r operty, and that the

cam era had a live f

eed to the BLM’s comm and center. The defendants assert that this cam era contributed to their feeling of being surrounded and, hence, helpe d rebut the
governm ent’s position that th e d ef en dants deceitfully claim ed that they feared for their lives because of g overnm ent snipers.

Two specific pieces of evidence about the cam era were withheld. B oth of the s e d ocum ents were prepared in 2014, and both confirm the existence of the surveillance cam era set up to m onitor the Bundy Ranch. The first d o cum ent is the Egbert 302 prepared in April 2014. The Egbert 302 recounts that on April 6, 2014, Egbert w ent to investigate issues with the cam era after its live feed had been lost. The governm ent produce d the Egbert 302 a week into trial, apparently in
response to a defense request for any v ideo recordings from the surv e i l l ance cam era. Upon reviewing the 302 at the Novem ber 8 hearing, the district court agreed with the defense that evidence related to the cam era was m aterial. The
court ordered the governm ent to turn over any e vidence related to the cam era. Following this o rder, the governm ent p rovided a second docum ent, the “Law Enforcem ent Operations Or der,” on Novem b er 17, 2 017. That docum entU NI T E D S TAT E S V

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was prepared in March 2014, in advance of the imp o un d operation. The docum ent records that an Internet cam era was to be set up “with a view of the Bundy residence.”

The district court concluded that the d ocum ents were Brady m aterial because the cam era ’ s “ location” and “proxim ity to the h om e” showed that “its intended p urpose

was to surveil the Bundy h om e,” which “potentially re b ut s the allegations of d efendants’ deceit” in stating that they felt surrounded by snipe r s. The court found that the d isclosure

was untim ely and the failure to disclose was prejudicial. The
court also con c l uded that the governm ent had been

m isleadi n g i n its earlier representations that the cam era was not m eant to surveil the Bundy hom e. Given that the Law Enforcem en t Operations Order specifically stated that the

cam era was to be placed “with [a] view of Bundy residence,” the d istr ic t co urt agreed w ith the d efendants that “this inform ation p otentially rebuts the al l e g ations of the defendants’ deceit

. . . about b eing surrounded, about the BLM pointing guns at them , and using snipers.”

The governm ent assails the district court’s conclusion by arguing that a lone surveillance cam era is unrem arkable and
proves nothing. As such, it claim s that the withhold ing o f these two pieces of evidence created no appreciable p rejudice
to the d efense. But the governm ent m isse s the point. This evidence underm ined the governm ent’s theo ry that the defendants intentionally lied about fearing governm ent snipers surroundin g th e property. The governm ent could have argued th e significance o f the evidence to the jury, but it is hard to see h ow the governm ent could argue that the evidence w as irrelevant, m uch less a “fantastic fi shing expedition.”U NI T E D S TAT E S V

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Whether a jury would ultim ately fi n d the evidence convincing and lead to an a c quittal is not the m easuring rod he re

. Because no verdict was rendered, the usual “retrospective test, evaluating the strength o f the evidence after trial has concluded” is not applicable h e r e. United States v. Olsen
, 704 F.3d 1172, 1183 (9th Cir. 2013). “[T]he retrospective definition of m ateriality is appropriate o nly in the context of appellate review”; thus, “trial prosecutors m ust disclose favorable inform ation w ithout attem p ting to predict whether its disclosure m ight affect the outcom e of the trial.” Id

. n. 3; s ee United States v. Safavian
, 233 F.R.D. 12, 16 (D.D.C. 2005) (“[T]he g overnm ent m ust always produce any potentially exculpatory or otherwise favorable evidence without regard to how th e wi thholding of such evidence

m ight be viewe d

. . . as affecting the outcom e of the trial. Th e question before trial is not whether the governm e n t thinks that disclosure of the information or evidence

. . . m ight change th e outcom e o f the trial going forward, but whether the evidence is f avo r ab l e and therefore m ust be disclosed.”). Since the ne w evidence em erged m id-trial, neither the district court (in the first i n s t an ce) nor we (as a reviewing court) can m easur e p rejudice 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 Enforcem ent Operations Order on the basis of the indictm ent, the pretrial proceedings, the op ening statem ents, and the evidence introduced up to that point.

In that light, there can be no q uestio n b ut that this was Brady m aterial and that it should have been d i s closed to the defense well in advance of the st art of trial. This evidence

was obviously favorable to the defense—it could have helped

s ho w th at the defendants h ad a basis for feeling that thei r property was surrounded by snipers surveilling the hom e.U NI T E D S TAT E S V

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The g o vernm ent also argues that even if it should have disclosed the fact of the cam era, the defendants coul d not have suffered p rejudice because they knew about the cam era. While the defendants m ay have known about the c am era’s

ex isten ce—

th at is co n f

irm ed in R

y an B un d y ’s af f i d av i t

— t h ey had no specific inform ation about the cam era. They did not know what kind of equipm ent the governm ent was using, its sophistication, and its purpose. And it wa s n o t until the docum ents w ere released that it b ecam e evident that the

cam era was deliberately placed so it would have a view o f the B un d y h o m e—contradicting the g o v e rnm ent’s rep resen tatio n that it was only p laced “to cover the roads” near the Bundy Ranch. Thus, the district court’s finding that the defense was prejudiced because it would have d eveloped a stronger case i f this evidence had been tim ely provided is not clear l y

erroneous.

2. FBI 302s Regarding Snipers

Several F BI 302s showing that heavily arm ed offi cers

were present around the Bundy property were produced after the start of the trial. Two m erit attention here. 3

The first was the Delm olino 302, drafted in March 2015, and describing th e activities of Agent Delm olino. The Delm olino 302 recounts that A gent Delm olino held a position “east of the Bundy Ranch” and at the tim e “was dressed in

3 A t hird 302 was also withheld. This 302 w as drafted in April 2014, following an interview with Curtis Racker, a field staff agent. Racker h ad been assigned a listening and observation post near the Bundy Ranch on April 4, 2014. The Racker 3 02 was provided on D ecem ber 15, 2017. The parties hardly discuss this 302 in their briefing. Thus, we will not pass o n this 302.U NI T E D S TAT E S V

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BLM tactical clothing and carried a B LM AR-15 rifle.” This 302 was not provided to the defe n s e until Novem b er 2017, after trial b egan. T he governm ent claim s that withholding the Delm olino 30 2 wa s inadvertent. 4 In the district court, the
governm ent represented that it considered the 3 02 relevant only after the court determ ined that inform at i o n regarding surveillance devices was relevant. D e l m o lin o u sed a “seism ic sensor,” which the governm ent believed the defendants could argue was a surveillance device.

The d istrict court concluded that the Delm olino 302 was helpful Brady m aterial, the withholding of which caused prejud i ce. Given that the Delm o lino 302 shows that Agent Delm olino was positioned, arm ed, and wearing tactical gear

near the Bundy property, it weakene d th e governm ent’s position that the defendants had no basis for fearing that they

were surrounded by g o vernm ent snipers and, hence, deliberately spread mi sinform ation to recruit arm ed followers. And before the De l mo l ino 302’s release, the defense would h ave h ad no inform ation abo ut Ag ent Delm olino being positioned near the Bundy Ranch. Thus, we conclu d e th a t district court did not clearly err in finding prejudice related to this 302.

The second 302 im

properly withheld from the defe ns e recounted the observa t i o n s of a National Park Service official, E rnesto Felix (the Felix 3 02). This 302 was drafted in January 2 0 1 5, but was not produced until Decem ber 5, 2017—well after trial began. According to the governm ent,

4 The governm e n t h ad previously provided 302s regarding other responsibilities of Agent Delm oli n o during t he im pound operation. However, t

hese docum e nts do not recount Agent Delm olino’s being posted near the Bundy Ranch in tactical gear.U NI T E D S TAT E S V

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the Felix 302 was found o n l y a fter Payne h ad m ade a m idtrial d iscovery request f

or inform ation about specific agents. The 302 descr i b e s Fe lix’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,’

s outhwest of where Dave’s arrest occurred.” The date of Dave Bundy’s arrest is significant, because it was only after his arrest that th e Bundys sent out a call for help, claim ing that there were governm ent snipers surrounding them

.

The district court concluded that the Felix 302 was Brady

m aterial, the withholding of whic h p r ejudiced the defense. The g overnm ent assails the prejudice finding by saying that the Felix 302 contains duplicative inform ation. It claim s that the defendants already possessed an em ail that referred to agents who took an “ o v erwatch” position during Dave Bundy’s arrest. But the governm ent’s argum ent m isses why these docum ents were useful. T he defendants claim that the Bundys feared they were surrounded by heavily arm ed snipers. K eeping the defense from gatherin g a s m u ch evidence as possible to show that there w as a reasonable basis
to fe ar that snipers surrounded the p roperty was itself harm ful.

Moreover, the Felix 302 actually refers to the BLM agent in the overwatch position as a “sniper.” Indeed, the F elix 302

uses both “tactical o ver watch position” and “sniper” to refer
to the sam e agent. This was tangible docum entation showing that the governm ent’s own o fficials understood agents in overwatch positions to be equivalent to “snipers.” Even if the d efendants had som e other evidence of agents taking “overwatch” positions around the Bundy property, the Felix 3 02 supported their theory in ways that the p rovided em ail s d id not. The Felix 302, therefore, adds credibility t o th eU NI T E D S TAT E S V

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Bundys’ claim s that they feared the presence of “snipers” and it should have been disclosed prior to trial.

In sum , like the evidence regarding the cam era, these docum ents coul d have helped the defense show that the defendants genuinely feared the presence of sni pers— contradicting the allegations that the defendants intentionally lied about b eing surrounded by snipers to inflam e supporters. Given the im

p ortance o f these docum ents, the district court did not clearly err in finding that their withholding constituted

a Brady v iolation that prejudiced the defendants.

3. The TOC Log

Another piece of exculpatory evidence speaking to both the presence of snipers an d the surveillance cam era is the TOC Log. Th e lo g records the operations and actions o f

m em bers o f the SWAT t e am at the FOB. In o ne entry, the log records: “Snipers inserted.” The l o g also records observations fromthe cam era’s live feed.

The g o vernm ent d id not produce the log until Novem ber 17, 2017—we l l after trial was underway. The
governm ent had taken the po s i t ion that there were no “snipers,” and that agents in the “overwatch” p o s i t i on were sim ply “law enforcem ent officers.” Indeed, in the Tier 3 trial conducted som e nine m onths earlier, the gov e rnm ent h ad represented that no “snipers” were involved in the operation. Based o n this representation, the district court had entered an order precluding testim o ny referencing snipers. T h e co urt

even rem oved a testifying defendant from the stand because he m ade several references to snipers. Given the value of the TOC Log and its black-and-white reference to “snipers,” the district co urt co n clu d ed that it constituted Brady evidence andU NI T E D S TAT E S V

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that its withholding prejudiced the d efense. There can be no question that the withholding of a governm ent docum ent recording “snipers inserted” caused prejudice.

4. The Threat Assessm ents

The d efendants also contend that several withheld threat

assessm ents were exculpatory and that the i r absence caused prejudice. The governm ent had tim ely provided one threat

assessm ent, prepared in 2014 in antic ip a tion of the MarchApril 2014 im

poundm ent. That assessm ent concluded there

was a m o derate risk o f violence from Bundy if the im pound operation were undertak e n

. B ut the governm ent withheld four additional threat assessm ents, all prepared in 20 1 1 o r 2012, som e of which concluded that Bundy po sed a lesser risk of violence. The defendants had asked for all threat

assessm ents “in this case.” That phrase was am biguous, and the governm ent m ight reasonably have b e l ieved that it

com plied with defendants’ request when it prov id ed th e threat

assessm ent prepared for this action. But, at the v ery least, the prior assessm ents becam e relevant when the governm ent told the jury in its opening sta t e m e n t that BLM had weighed whether to impound Bundy’s cattle in 2012 and decided not
to proceed “because o f concern f or the violence” and when a witness te s tified on N ovem ber 16, 2017 that there had been earlier threat assessm ents.

The first w ithheld threat assessm ent was a March 2011 FBI threat assessm ent of Bundy, created in anticipation of an im pound operation. The asse s s me n t concluded that Bundy
repre s ented a “low to m oderate risk of significant o r imm inent v iolence.” The assessm ent n oted, inter a li a , h ow Bundy h ad no crim inal record, was attached to his fam ily, andU NI T E D S TAT E S V

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appeared to prefer u sing non-violent m eans of channeling his frustration, such as litigation and m edia appearances.

The second assessm ent was generated a year later by the Southern Nevada Counterterrorism C enter. T h is assessm ent concluded that “[t]he likelihood o f violence from Clive n Bundy is m inim al.” It specifically h ighlighted his age and lack of a crim inal history as indicators that he was unlikely to act violently.

The third assess me n t was a Departm ent of the Interior (DOI) assessm ent of Bundy and m em b e r s of h i s f

am ily. It also concluded that there was moderate threat of violence. The DOI assessment co m

p iled acco unts f

r o m in dividuals who had interacted with Bundy or h is fam ily in the past, several o f whom said that he was unlikely to act violently.

Finally
, the DOI conducted another assessm ent in anticipation of enforcem ent operations. This assessm ent concluded that the risk of violence wa s “mo derate.” It

recomm ended that BLM d evelop a m e d i a strategy with “talking points” to keep ah ead of negative publicity as a

m eans o f m itigating the potential risk of bac k l as h. The district court specifically highlighted how BLM’s failure to im plem ent this recomm ended public-relations plan favored the defense b ecause the g ov ernm ent was not actively correcting disinform ation fromthe Bundys.

Thes e withheld threat assessm ents had significant exculpatory and im

peachm ent value. The 2 01 1 and 2012 threat assessm ents would have counter e d the governm ent’s opening statem ent. Beyond that, the earlier assessm ents were at least contrary to, though not necessarily inconsistent with, the 2014 assessm ent. The withheld threat assessme nts alsoU NI T E D S TAT E S V

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underm ined the need for an aggressive, m ilitarized im pound operation because they suggest alternative ways of defusing

em otions surrounding actions taken against the Bundys.

The governm ent asserts that the withholding of the threat

assessm ents w as not p r ejudicial because the March 2014

assessm ent contained essentially the sam e inform ation as the withheld assess m ents. It also points to testim ony by
governme n t witnesses regarding h ow Bundy was viewed as

a m inim al threa t

. But it is apparent the docum ents them selves have v alue that testim ony alone does not

nece s s ar i ly carry. The assessm ents are reasoned, written evalua t i o ns o f the danger posed by the Bundys. They were

m ore than the bottom -line assessm ents offered b y witness testim ony. Further, even if som e sim ilar inform ation h ad been produced earlier, the repeated descri p t ion of Bundy as

a low-to-m oder ate threat in several assessm ents is itself im portant to the defense and could have at least been readily deploye d as im

peachm ent evidence to any testim ony regarding why a m ilitarized im pound wa s necessary. The withheld threat assessm ents also contain inform ation that the March 2014 assessm ent does not include—a notable exam ple being the DOI assess m ent’s summ ary of encounters with Bundy. Thus, the distr i c t court did not clearly err in

c o n cluding that the defendants suffered prejudice by not receiving these docum ents. 5

5 T h e district court also concluded that several withheld m ap s constituted Brady m at eri al
, w e r e w i l lfully withheld, and created prejudice. But the m aps’ withholding does n ot appear to have had prejudicial im pact. The governm ent h ad p reviously disclosed several m aps showing the sam e inform ation.

The defense also asserts that the governm ent wrongfully withheld an internal whistle-blower m em orandum r egarding possible bias by BLMU NI T E D S TAT E S V

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* * *

Surveying all of the withheld evidence, we agree with the district court that the defendants suffered not only prejudice, b ut substantial prejudice. T he district court concluded th at the defendants specifically suffered prejud i ce in not being able to prepare their case fully, refine their voir d ire strategy, and m ake stronger opening statem ents. The record am ply supports this conclusion.

B. Whether the Government Engage d in Flagrant Misconduct

In this s ec t i on, we first review the standard for judging “flagrant m isconduct” and then consider the circum stances under which the governm ent w ithheld Brady m aterial in this

case.

1. Flagrant Misconduct

Substantial prejudice alone d oes not entitle d efendants to have their indictm ents dism issed with prejudice. Nor is it sufficient th a t the governm ent comm itted m ultiple Brady violations. To warrant d i s m issal o f an indictm ent with prejudice, the governm ent m u st hav e engaged in flagrant

m isconduct in withholding the evidence. Ke a rns , 5 F.3d at 1253.

Agent Dan Love, who oversaw the im poundm ent. The m e m o ra n dum appears helpful t o the defense. However, because the district court did not

m ake any determ i nations regarding t h i s mem orandum
, we will not address it.U NI T E D S TAT E S V

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The governm ent candidly adm itted at oral argum ent that “in light of the district court’s findings of m ateriality, what is clear is that w e fell short.” But i t fo rcefully contends that it

was not guilty of flagrant m isbehavior because it did not willfully withhold exculpatory evidence from th e defense. The gove rnm ent points out that m any of the docum ents at issue were in the hands of other federal agencies, such as the FBI, and no t th e pr osecution team

. F or that reason, the
governm ent decries the po s s i b ility of turning the flagrantm isconduct requirem ent into a strict-liability standard where
any Brady violation caused b y the actions o f another
governm ent agency can lead to dism issal of an indictm ent. Indeed, the district court itself believed th a t the nondisclosures were the f

ault o f “other governm ent agencies;
not in the U. S. At to rn ey’s Office.” W e are sensitive to the
governm ent’s conce rn and agree that dism issal of an indictm ent is not an appropriate rem edy f or an ordinary Brady violation. See id. B ut both the factual record and the law belie the governm ent’s concerns here.

As a m atter o f l aw, the prosecution is “deem ed to have knowledge o f and access to any th ing in the possession, custody or control of any federal agency participating in the

sam e investigation of the defendant.” United States v. Bryan
, 868 F.2d 1032, 10 36 (9th C ir. 1989). The governm ent’s
attem p ts to absolve its e lf of wrongdoing for other agencies’ failures therefore fall flat. To the extent that any governm ent

a gencies or actors, through their own flagrant m isconduct, fa i l ed to m ake known exculpatory inform ation, the f lagran t nature of such conduct w ill be im puted to the prosecution— just as the agencies’ or actors’ Bradyviolations are im puted
to the prosecution. See Youngblood v. West Virginia
, 547 U.S. 867, 8 69–70 (2006) (per curiam ) (holding that a Brady violation occurs “when the governm ent f ails to turn o v er evenU NI T E D S TAT E S V

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evidence that is ‘known o nly to p o lice investigators and not to the p r o s ecutor’”); United S tates v. Cano
, 934 F .3d 1002, 1023 (9th Cir. 2019) (explainin g that prosecutors are responsible for turning over “inform ation known to other agents of the governm ent” of which the prosecutor did “not know but could have learned” (citation om itted)), petitionfor rehearing en banc d

ocketed
, No. 17-50151 (9th Cir. Jan. 2, 2020).

Further, the governm ent is wrong to suggest that flagrant

m isconduct m

ust b e intentional or ma l i c i ous. Although flagrant m isconduct cannot be an “accidental or me re l y negligent” failure to disclose, the m isconduct need not be intentional. C

ha p ma n , 524 F.3d at 1085. “[R]eckless disregard for the prosecution’s constitutional obligations” is sufficient to give rise to flagrant m isconduct. Id.

2. The W ithholding of B rady Material

a. The Surveillance Camera. The d i s trict court perm issibly found that w ithholding of inform ation about the surveillance c am era was willful rather than m erely inadvertent

. Recall that Ryan Bundy requested inform ation regarding the cam era in August o f 2017. The governm ent

o pp o sed the request, saying that Ryan B undy was engaging in “little m ore than a fantastic al fishing expedition for evidence justifying attacking law enforcem ent.” The district
court initially denied the request because the request did not

com ply with the local rules and failed to include sup p o rting
argum ents for why the evidence requested was d iscoverable. But the d istrict court later noted that the governm en t h ad acted with “som e coyness” in turning over evidence.U NI T E D S TAT E S V

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The governm ent m ade no effort to locate the docume n ts regarding the cam era and turn them over before the discovery deadline in October 2017. The prosecution has an affirm ative obligation to learn of p otentially favorable e v i dence and provide it to the defense. S ee 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
governm ent’s behalf in the case”); Cano
, 934 F.3d at 1 0 2 3 (stating that prosecutors are responsible for “inform atio n held by subordinates such as investigating police o f ficers and [the duty to inquire] som etim es extends to inform ation held by other executive branch agencies” (citations om itted)). Rather than looking into the request and locatin g the docum ents before trial began, the g overnm ent chose to fight rather than respond to the request. T his was a deliberate choice and the district court did not err in concluding otherwise.

In an effort to absolve itself of re s ponsibility, the
governm ent points o ut that the d istrict court o riginally ruled that Ryan Bundy’s requests for inform ation r e g arding surveillance c ameras were inadequately supported and appeared to r e que s t imm aterial evidence. But the district court’s ord e r cannot innoculate the g overnm ent here. Ryan Bundy requested specific inform ation about the surveillance

c amera, nam ely its m ake, m odel, and characteristics; the district court failed to see why that inform ation was m aterial. Contrary to the governm ent’s insinuation, h o wever, the district court never suggested that inform ation regarding the existence and purpose of th e cam era was imm aterial. And

once the district court w as presented wi th a l l of the inform ation about the cam era—particularly that it w as set upU NI T E D S TAT E S V

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with a view of th e Bundy hom e, 6 the district court had no difficulty determ ining that the evidence was m aterial and should have been provided to the defense under Brady

. Over the course of the hearings, the district co urt found the inform ation “favorable to the accused and potentially exculpatory,” and criticized the governm ent for withholding it on the “im

plausible claim ” that no one viewed any th i n g reported fromthe cam era.

The f act rem ains that the governm ent, at least the FBI, had this inform ation in its possession. The district court, when it m ade its initial ruling, d id not. A court does not have the sam e degree of fam iliarity o r access to the evidence that

a prosecutor has. Hence, it is prosecutors, not courts, that are “presum ed to recognize [the] significance” of evidence. United S tates v. Agurs
, 427 U.S. 97, 110 ( 1 9 7 6 )

. In short, prosecutors cannot hide behind a court’s discovery order to suppress exculpatory evidence. W e therefore decline to offer blanket protection against findings of flagrant m isconduct sim ply because the court initially failed to see why a certain aspect of evide n c e was m aterial when the defense failed to show m ateriality. Granting such protection could well

6 At one point in the discussion of the cam era, the governm ent stated that t he cam era “was placed on high ground above the Bundy residence,” but added, “I don’t want to leave t he Court with t

he im pression that it was fixed on the Bundy residence.” H owever, the Law Enfo rc e m e n t Operations Order—the m aster plan for the im poundm ent—called f

o r “Surveillance System s,” and specified that it would be an “Internet cam era with [a] view of [the] Bundy residence.”U NI T E D S TAT E S V

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encourage p rosecutors to seek favorable discovery rulings to use later as weapons against Brady claim s. 7

The m a t eriality of evidence regarding a surveillance

cam era pointed at a h om e to a case where the fam ily claim ed that they f

elt surrounded by governm ent snipers should have been self-evident. Ryan B undy had stated that he thought the device had a “visible laser.” There is no evidence that it did. The governm ent’s eviden ce would have confirm ed the existence of a d evice but dispelled speculation about use o f a laser. Providing the inform ation would have clarified the situation f or both sides, allowing each to m uster the best facts in support of its argum ent. Whether the withholding of the docum ent was the fault of the FBI or the prosecution team , som eone decided to w ithhold it. W ith or without a request fro m th e defense, the g o vernm ent should have handed this inform ati o n o v er—not fought its release. See Strickler
, 527 U.S. at 280 (“[T]he duty to disclose [favorable] evidence is applicable even th o u g h there has been no request by the accused . . . .”).

b. Evidence of Snipers. Of p articular concern is the
governm ent’s handling of evidence related to the presence o f snipers. This was a h ot-button issue. T h e term is evocative, rhetorically charged, and would have been a dog whistle for

7 W e also n ote that t

he m ateriality of evidence under Brady i s an objective inquiry. See United States v. Jordan
, 316 F.3d 1 215, 1252 (11th Cir. 2 003); Carter v. B ell
, 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 docum ents related t o the

cam era w ere m aterial—a conclusion tha t the g overnm ent should have reached on its o w n

. As such, a d istrict court’s failure t o appreciate the im portance of exculpatory evidence d oes not r elieve t he prosecution of its obligation to turn over m aterial evidence.U NI T E D S TAT E S V

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summ oning m em

bers of p rivate m ili t i a s in ways that

scream ing “survei llance cam eras!” would not. The
governm ent said the Bundys’ claim o f “snipers” w as “false” and “deceitfu l,” yet the governm ent’s o wn docum ents referred to its agents as “snipers.” T h e governm ent disputed the relevance o f this inform ation, fixating on the question o f wheth er the officers in the “overwatch” were technically “snipers.” T he district court h a d t o rem ind the governm ent that these were questions for the jury.

The f ailure to p roduce evidence regarding “snipers” was particularly troubling for the district court because, during the Tier 3 trial of other c o

- d efendants, the district court prohibited testim ony regarding the presence of snipers, based

on the gov e rnm ent’s assurances that there were no snipers involved in the im

pound operation. The district court even

rem oved a testifying d efendant from the stand in that trial because the defendant k ept stating that snipers w ere present. The district court w as understandably e x a s p erated when evidence cam e to light in this trial, showing that th e governm ent referred to its agents as “snipers.”

In short, the governm ent had to know the im port that any evidence regarding snipers, o r agents who looked and functioned like s n ipers, would have in this case. Nevertheless, it withheld a slate of inform ation bolstering the claim that the defendants could hav e h a d a reasonable basis for believing there w ere snipers in the area. The governm ent claim s that it relied on the district court’s m o tion-in-lim ine order in believing that m

u ch of the evidence at issue here was irrelevant. Even assum ing that the govern me nt could have understood the district court’s m o tion-in-li mi n e order to preclude the usefulness of evidence supporting an affirm ative claim of self d efen s e, the evidence was still quite obviouslyU NI T E D S TAT E S V

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Brady m aterial. 8 Specifically, the evidence speaking to the
presence of snipers underm ined th e governm ent’s scienter theory—that the defendants recruited arm ed 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 wheth e r they could o r would m uster an affirm ative defense. E spou s i ng the belief that evidence und ercu

tting the governm ent’s central theory o f

m ens rea was som ehow irrelevant and n ot Brady m aterial was preposterous and reckless.

As for the Delm olino and Felix 302s, the governm ent

once again points out that this i nfo rm a t ion was in the h ands of the FBI. The d istrict court c o n cluded, irrespective of the
agency res p onsible, that the governm ent’s withholding the Del m o lino 302 was willful. It noted how the prosecution
team had d i rect knowledge that Agent Delm olino had been stationed near the B un dy h om e in tactical gear. While the Delm olino 302 itself was in the hands of the FBI, the district
court specifically n oted that m em bers of the trial team from

8 The m otion-i n -lim ine o rder left open t he possibility that the defendants could m ake an o ffer of proof regarding self-defense. T hus, far from closing the door on inform ation helpful to an affirm ative defense, the order highlighted that the evidence could have been useful, an d he n ce

s ho u l d have b een handed over. As the district court pointed out, th i s language should have “p l aced the Governm ent o n notice t hat evidence t

hat could bolster a theory of self-defense m ight b e com e relevant at trial.” Indeed, by not providing evidence about the affirm ative d efense, the
governm ent basically foreclosed opportunities for the defendants to m ake

an offer of proof. Furtherm ore, Brady evidence does not necessarily have
to be adm issible. See United States v. Price
, 566 F.3d 9 00, 911–12 (9th Cir. 2009). Even assum ing that the ev idence here had no value in challenging the governm ent’s theory of m ens r ea, it still would have had im peachm e n t value and potentially could have led to other evidence supporting a self-defense claim

.U NI T E D S TAT E S V

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the U.S. Attorney’s Office w ere present at the interview with Agent D elm o lino in March 2015. Yet, the inform ation about Agent Delm olino’s posting near the Bundy Ranch was not revealed until the Delm o lino 3 02 was released in Novem ber of 2017, after tr ial began. Likewise, m em bers of the prosecution team were present for the interview of Felix in 2015. H ence, the prosecution team was not entirely ignorant of the inform ation provided by Delm o lino and F elix in the 302s—even if it turns out that the blam e for not turning over these 302s lies with the FBI.

Because the prosecution t e am had direct knowledge o f

som e of this inform ation, its c l a im that the court im p osed “strict liability” for the FBI ’ s failure to hand over the 302s falls flat. R egardless, the argum ent is of no m om ent because
th e FBI’s decisions not to provide the inform ation ar e im puted to the pro secution. See Youngblood
, 547 U.S.
at 869–70; Bryan
, 868 F.2d at 1036. And the governm ent has
not explained how s i mp le inadvertence or oversight within the FBI kept the agency fromproducing these docum ents.

c. Th e Threat Assessments. Likewise, with the threat

assessm ents , th e governm ent failed to turn o ver beneficial inform ation speaking to Bundy’s potential for violence. These docum ents could have helped b o l s ter the defense’s claim that the governm ent had engaged in an overm ilitarized im pound o peration that the Bundys claim fueled their f ears o f bei n g surrounded b y snipers. But irrespective of the theory defendants were to put forward, these docum ents should have been released. They, at the very least, p rovided im peachm ent evidence be c ause som e of their findings contrasted with the 2014 threat assessm ent used as the basis for planning the im pound operation, and they underm ined the prosec ut ion’s opening statem ent.U NI T E D S TAT E S V

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Moreover, these docum ents were in th e prosecution’s possession all along. Notably absent from the governm ent’s brief is any discussion of how o r why these docum ents were overlooked. Al l the governm ent says is that it relied on the district court’s m otion-in-lim ine order, believin g that the inform at i on in the threat assessm ents was not relevant. However, the independent im peachm ent va l u e of these docum ents should have been obvious, given that c e rtain docum ents contain e d inform ation about Bundy presenting a

m inim al threat. And to the extent that the pros e c ution d oubted “the usefulness of evidence,” the governm ent “sho u l d resolve such doubts in favor of full disclosure.” United States v. Van Brandy
, 726 F.2d 548
, 5 5 2 (9th Cir. 1984).

Som eone i n the governm ent m ade a conscious choice to withhold these docum ents. It m ay not have been a m alicious

c hoice, but it also was not a m atter o f sim ple oversight. At best, the governm ent failed to appreciate the relevance of the evidence. At worst, it sought to handicap the defendants by withholding evidence directly relevant to m ens rea. In either circum stance, the g o v ern

m ent fell well short of its obligations
to work toward fairly and faithfully dispensing justice rather
th an sim ply notching another win. See Chapman
, 524 F. 3 d
at 1088 (affirm ing dism issal of an indictm ent with p rejudice because the p rosecutor did not abide b y his “‘sworn duty

. . . to assure that the defendant has a fair and im partial 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. B owie
, 236 F.3d 1083
, 1089 (9th C ir. 2001))). Thus, the district court had groun ds f or concluding that the
governm ent’s failure to produce this evidenc e ro s e to the level of reckless disregard and, hence, flagrant m isconduct.U NI T E D S TAT E S V

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d. The TOC Log. The TOC Log pre s e n ts a different circum stance. The district court found that the failure to turn it over w as willful on the g overnm ent’s part. W e c onclude that the district court clearly erred here.

Unlike the 302s, which were created as part of an ongoing i nvestigation and p rosecution, the TOC Log was simp l y forgotten about following the im pound o p eration. According
to the g overnm ent, because the “FBI ne v e r activated its SWAT team s” during the im p ound o peration, the TOC Lo g “was never added to the investigative file or to FBI’s ‘police assist’ file, but instead rem ained on a thum b drive in the T OC trailer.” Specifically, the log’s thum b drive was left hanging “in the TOC truck next t o the com puter o n a designated hook” and n o t placed in an investigation file or d atabase. It

wa s l oc ated only after an FBI agent tried to gather any

rem aining ev idence related to the cam era following the Novem ber 8 hearing.

The district court c o n cluded that the failure to turn over the T OC Log was w illful suppression. Although we agree that failing to turn o ver the TOC Log was a Brady violation,

we do not agr e e that the f ailure to produce the TOC Log

am ounted to a flagrant m isconduct. W e have been careful to note that negligence or inadvertence cannot f orm the basis for flagrant m isconduct. C

hapman
, 524 F.3d at 1085; Kearns
, 5 F.3d at 1255.

W e 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 p r o t o c ol. Given the unique circum stances of how the Bundy im pound op e ration and subsequent investigation played out, the TOC Lo g was not added to the FBI’s investigation file. O nly afterU NI T E D S TAT E S V

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significant efforts, d irected to locating other evidence, w as it located. Thus, even though the TOC Log’s withholding was

a significant Brady violation, we see n o ground for concluding that its absence was the result of r eckless disregard.

* * *

Although we see o nly negligence in the withholding o f the TOC Log, we can find no clear error in the district court’s conclusion th a t th e w ithholding of the cam era evidence, the Delm olino and Felix 302s, and the threat assessm ents crossed the threshold from negligence to recklessn e s s. The prosecution withheld facially exc u l p atory evidence that directly negated the governm ent’s theory that the defendants lied about fearing snipers. The deliberate choices to withhold these docum ents we r e not cases of sim ple m isjudgm ent, especially given that d oubt about the helpfulness o f evidence should be resolved in favor o f disclosure. Van Brandy
, 726 F.2d at 552.

In the end, the clearly erroneous standard recognizes that
th e district court is closest to the case, the parties, and th e record. The district court was quite fam iliar with the case. It had sup e rv is e d the case f rom its inception. The court h ad already conducted a trial and retrial for the Tier 3 d efendants. It is not surprising that the distr i ct c o urt registered its fru s tration w ith the governm ent’s intransigence in turning

over discovery. At the Novem ber 13 h e ar i n g , it expressed dism ay “with these late disclosures and representations m ade by the g overnm ent that things did n ot exist b ut u ltima tely

were found to exist.” At the N ovem ber 29 hearing, it

comm ented on the “dribs and d rabs” being released weeks aft e r the trial began, and well after the date scheduled forU NI T E D S TAT E S V

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production of the m aterial. The district court was best positioned to dec i d e whether the governm ent acted with flagrant m isbehavior that p rejudiced the defendants. 9 Given the evidence that the governm ent acted with at least reckless disregard f

or the Brady value of som e e v i d ence that prejudiced the defense’s ability to m arshal th e ir c ase, we conclude that the district court’s findings of substantial prejudice and flagrant m iscondu c t i n relevant part were not clear error.

C. Whether Dismissal of the Indictment with Prejudice Was Justified

A district court m ay dism iss an i ndictm ent as “an appropriate sanction f

or a constitutional violation only where less drastic alternatives are not available.” Kearns
, 5 F.3d
at 1254. As w e previou s l y d i s cussed, even when a district
court finds substanti a l Brady violations, prejudice to the defendants, and fla grant governm ent m isconduct, a district
court has a range of options before it

. Dism issal with prejudice is, short o f disc i plining attorneys personally, “the

m os t severe sanction possible” for a court to order, because it ends the governm ent’s case. Isgro
, 974 F. 2 d at 1097. Despite the severity of that sanction, the fa c t rem ains that

9 A l th ough we affirm the district court’s finding of flagrant

m isconduct for the purposes o f dism issing an indictm ent, we d o not intend
to cast aspersion on the professionalism of the m em bers of the U .S. Attorney’s O ffice here. This was obviously a difficult and trying case f o r everyone involved and, while we find a serious constitutional v iolation based on choices m a d e b y the governm ent, w e i n no way im ply that the

m isj udgm ents m ade here rise to the level of p rofessional m isconduct. Indeed, m uch of the “blam e” from the constitutional violations here falls

on the prosecution only because actions and knowledge re l ated to evidence by other governm ent agencies are imputed to the prosecution.U NI T E D S TAT E S V

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“[t]he district court is in the best position to evalu ate the strength o f the prosecution’s case and to g auge 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 re m edy “for abuse of discretion, a standard of review that is ‘lim ited and deferential.’” Herb Reed E nters., LLC v. Fla

. En tm’ t Mgmt., Inc.
, 736 F.3d 1239, 1 247 (9th C ir. 2 013). Although

we have said that dism issal with prejudice requires a district
court to find that “no lesser rem edial action is available,” Chapman
, 524 F.3d at 1087 (citation om itted), we recognize that, in theory, a lesser rem edy will always be available. W e understand by this p hrase that a district court m ust conclude that no lesser rem edy will fully address the dam age caused by the gove rnment’s m isconduct. W e do not have to find that dism issal with prejudice is the only rem edy the district court could have chosen, because to conclude so would m ean that it would have been an abuse of discretion for the district court to have m ade any other decision.

What the phrase “no lesser rem edial action is available”

m eans is tha t any lesser sanction will put the defense at a gr e a t e r disadvantage than it would have f aced had the
g overnm ent produced the Brady m aterial in the fi r s t place—thereby perpetuating th e harm from a violation of a federal constitutional right. S ee Struckman
, 611 F.3d
at 577–78. In Chapman
, we explained that in that case, “the

m istrial rem e dy w ould advantage the governm ent, probably

a l lowing it to salvage what the district court v iewed as a poorly conducted prosecution.” Chapman
, 524 F.3d at 1087. W e concluded that the governm ent s h ould not be p erm itted “a chance to try out its case, identify any problem areas, and then correct those problem s in a retrial.” Id. (citation and alterations o m itted); see United States v. Shafer
, 987 F.2 d 1054, 1 059 (4th C ir. 1993) (“[The governm ent’s] self-U NI T E D S TAT E S V

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inflicted injury cannot b e used to afford the g overnm ent a second chance to prosecute so th a t i t m ay argue a recast theory of the case better supported by the evidence.”).

N o tw ithstanding the governm ent’s earnest efforts, w e can find no grounds for concluding that the district court abused its discretion in dism issing this i nd ictm ent with prejudice. The governm ent claim s th at the district court’s findings are unsupported, arguing that the court gave only cursory consideration to the actual p rejudice suffered by the defendants as a result of the governm ent’s Brady v iolations. The record, however, satisfies us that the district court thoroughly considered the prejudicial effects.

The district court held several hearings on the v arious Brady violations, com

plete with rounds of b r iefing and oral
argum ents. Se v eral tim es, the district court highlighted its

concerns to the governm ent. The district court also gave the
governm ent am

ple opportunity to brief and argue whether the prejudice suffered was substantial. The district court recited the proper legal standards and m ade the appropriate findings.

The district court specifically concluded that retrial here

was inappropriate. It found that retrying the case “would only advantage th e governm ent b y allowing them to strengthen their witnesses’ testimo ny b ased on the knowledge gained from the inform ation provided by the defense and

r evealed thus far.” The district court explained that the
governm ent could “perfect its opening s t a t e m ents based on the revealed defense strategy in its opening and

. . . conduct

m ore strategic voir dire at the retrial.”

The district court did not abuse its discre t ion in concluding a s m

uch. Lesser sanctions—such as aU NI T E D S TAT E S V

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continuance to allow the defendants to review discovery o r declaring a m istrial and starting over—would have given the
governm ent an opportunity to stre n g th en its case at the defendants’ expense. Other rem edies such as recalling witne sses or granting a continuance would not cure the prejudice already suffered b y the defense in the form of lost voir-dire and opening-statem ent opportunities. Mor e over,

once the governm ent turned over the Brady m aterial, it m ay hav e realized it m ight be difficult to pursue the case it h ad
prom ised in the ind ictm ent and the o pening statem ent: that the d efendants had lied about the snipers and being surrounded. Accordingly, not only would the Brady docum ents affect the defendants’ strategy, it m ight well have altered the prosecution ’s strategy. Having “tr[ied] o ut its case” and “identif[ied]

. . . problem area[s],” the governm ent

c o u l d h ave “correct[ed] those problem s in a retrial.” Chapman , 524 F.3d at 1087 (fourth alteration in original).

The governm ent responds that even if dism issa l we r e warranted, the district court could h ave struck the portions o f the indictm ent alleging that the defendants intentionally lied about f eeling s urrounded by snipers, and n ot dism issed the entire indictm ent w ith p rejudice. The paragraphs in question, h o wever, are not counts, but factual alleg atio n s su p p o rtin g th e governm ent’s charges. It is unclear to us wheth e r striking these sections w ould have served the rem edial purposes of the court’s exerc ise of its supervisory power. T h ese do not appear to be elem ents of the crim es alleged, but were a theory of the governm ent ’s c ase, as elaborated in its opening
statem ent. The governm ent’s ca se, therefore, would have been significantly altered without these a l l egations, but perhaps not weakened. And that would have me an t that the
governm ent would get a second shot at preparin g its case, “allowing [the governm ent] to salvage” the case. Chapman
,U NI T E D S TAT E S V

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524 F.3d at 1 0 8 7

. The district court did not abuse its discretion in failing to choose partial dism issal as a rem edy.

There is also the related need to im pose a s an ct ion that will serve to deter future prosecutions from engaging in the

sam e m isconduct as occurred here. W e not e the
governm ent’s failure to acknowledge and confess any wrongdoing during the course of this case—especially as to

m aterial m isrepresentations to the district court about the
presence of snipers. Rather than accepting responsibility, the
governm ent blam e d the defense f or not requesting m ore specific inform ation. Even in its m otion for reconsideration, the go ve rnment continued to m aintain that it never had an obligation to turn these docum ents over and that any om ission

on the governm ent’s part was the fault of the defendants for
not doing a better job of s howing why this inform ation was relevant. Only on appeal has the governm ent adm itted that it should have turned these docum ents over.

In Chapman
, we specifically highlighted the prosecutor’s “unwillingness to take responsibility fo r h is co n d u c t,” finding that this supported the district court’s decision to dism iss an indictm ent wi th prejudice. 524 F.3d at 1088; see also id. (“W e are s imi larly troubled, both by the AUSA’s actions at trial and by the governm ent’s lack of contrition on appeal.”). Likewise, “attemp t[s] t o minim ize the extent of the prosecutorial m isconduct, com pletely di sregarding the AUSA’s r e p eated m isrepresentations to the court and the failure to obtain and prepare m any of the critical docum ents until a fter the trial w as underway” are them selves added grounds for dism issing an indictm ent with p r e judice. Id. Given the governm ent’s efforts to m inim ize the defendants’ discovery requests and its m isrep r e s entations to the district
court in such a high-profile case, the district courtU NI T E D S TAT E S V

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understandabl y s ought a rem edy that w ould reinforce the seriousness of the violations here.

Finally, we note that other courts have recog n i z e d the great prejudice suffered when a defendant is denied access to evidence challenging the governm ent’s central theory of the

case until m id-trial. In United States v. Shafer
, for exam ple, the g overnm ent lost evidence that signifi c an tly underm ined the testim ony of key witnesses. 987 F. 2d at 1056. The defendant m o ved to dism iss the case with prejudice. Id. The district court, however, only declared a m istrial and declined
to dism iss with prejudice, giving th e g overnm ent another chance to prosecute the case. Id. The Fourth Circuit concluded that the district court abused its discretion in giving the governm ent the opportunity to r e try the case. Id.
at 1058. Th e c o urt reiterated the seriousness o f federal felonies and how the governm ent had am ple tim e to prepare th e c a s e

. Id. at 1059. It then concluded that “[t]he prope r

course of action was for the district court to dism iss the case with prejudice.” Id. It closed by saying that there is no “m anifest nec e ssity” to try a case tainted by “the m id-trial ‘disco very’ o f substantial exculpatory evidence contradicting the governm ent’s theory of the case.” Id. Here, the d i s trict
court concluded that the governm ent should not benefit from its mi sconduct. And there can be no denying that the
governme n t would enjoy the benefit of having done a “dry run” of this c a s e

. Because the district court could f ind no other way to avoid giving the governm ent this benefit, it did not abuse its discretion in dism issing the indictm ent.

W e do not need to go so far as to affi rm that each of us would also have dism issed the case with prejudi c e

. It is the
nature of discretion and a consequence of the vicissitudes o fU NI T E D S TAT E S V

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life that district courts have leeway to fashion an appropriate

rem edy. As Justice Frankfurter explained for the Court:

The civilized conduct of crim inal trials cannot be confined within m echanical rul e s

. It

nec e ssarily dem ands the authority of lim ited dir e ction entrusted to the judge presiding in federal trials, includi n g a well-established
range of judicial discretion, sub j ect to appropriate review on appeal

. . . . Such a

s y s t e m as ours m

u st, within the lim its here indicated, rely on th e learning, good sense, fairness and courage of federal trial judges.

Nardone v. United States
, 30 8 U .S. 338, 342 (1939). It is sufficient f

o r u s to conclu d e that the district court did not abuse the disc r e t i on entrusted to it, that dism issal with prejudice was within the range of appropriate rem edies in this

case.

IV. CONCLUSION

The district court can dism iss an indictme nt under its supervisory powers “(1) to im plem ent a r e m edy for the violation of a recognized statuto ry or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before a jury; and ( 3 ) t o deter future illegal conduct.” S truckman
, 611 F.3d
at 5 7 4 ( internal quotation m arks om itted). These prerequisites are m et here.U NI T E D S TAT E S V

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The judgm ent is AFFIRMED

. 1 0

10 Ryan Payne’s m otion to unseal Volum e IX of the governm ent’s excerpts of r ecord is denied. The governm ent’s m otion to m aintain under seal Volum es 18 t o 2 2 o f the excerpts of record subm itted by Ryan Payne and Am m on Bundy i s granted but t he request to strike those sam e volum es is denied. Th e governm ent’s m otion to m aintain under seal Volum e 2 3 of the e x c erpts of record subm itted by Ryan Payne and A m m on Bundy i s denied and the request to strike t hat sam e v o l um e i s denied.