968 F.3d 1019
9th Cir.2020Background
- Cliven Bundy and co-defendants were indicted for obstructing federal officers after a 2014 BLM cattle-impoundment standoff that drew hundreds of armed supporters.
- Government’s central theory: defendants knowingly spread false claims that federal "snipers" surrounded the ranch to recruit armed followers and obstruct the impoundment.
- On the fourth day of trial (Oct–Dec 2017), the defense discovered the government had produced, mid-trial, multiple materials it had not disclosed earlier: surveillance-camera records, FBI 302s (including Delmolino and Felix 302s), a TOC log, and earlier threat assessments.
- The district court held multiple hearings, found the late disclosures were Brady material, concluded the government acted with at least reckless disregard (flagrant misconduct) as to several items, declared a mistrial, and then dismissed the indictment with prejudice under its supervisory powers.
- The government appealed; the Ninth Circuit reviewed the dismissal for abuse of discretion and affirmed, finding substantial prejudice and flagrant misconduct (though treating the TOC log withholding as negligent rather than reckless).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government withheld Brady material | Defendants: camera, FBI 302s, TOC log, and prior threat assessments were favorable/exculpatory or impeaching and were not timely disclosed, prejudicing defense | Govt: many items were inadvertent, held by other agencies, or irrelevant per pretrial rulings | Court: Brady violations occurred; camera, 302s, TOC log, and threat assessments were material and prejudicial (TOC log later treated as negligence for flagrant-analysis step) |
| Whether withholding rose to "flagrant misconduct" justifying dismissal with prejudice | Defendants: prosecution acted with reckless disregard; agency knowledge imputable to prosecutors; conduct was egregious | Govt: no intent; cannot be held strictly liable for other agencies’ failures; many omissions were inadvertent | Court: flagrant misconduct (reckless disregard) shown as to camera, Delmolino & Felix 302s, and threat assessments; TOC log withholding was negligent, not flagrant; overall misconduct imputed to prosecution |
| Whether dismissal with prejudice was the proper remedy (no lesser remedy available) | Defendants: lesser remedies (continuance, recall, partial redaction) would advantage government and not cure lost voir dire/opening-statement prejudice | Govt: lesser sanctions, partial-strike of allegations, or mistrial would suffice; dismissal with prejudice is extreme | Court: dismissal with prejudice was within district court’s discretion because retrial would advantage government and lesser measures would not fully remediate the prejudice |
| Whether prosecutors are responsible for evidence held by other federal agencies | Defendants: prosecutor duty includes knowledge of materials in other agencies involved in the investigation | Govt: should not be strict-liability for other agencies’ record-keeping or inadvertence | Court: prosecutors deemed to have knowledge/access to materials held by other federal agencies and must disclose such Brady material |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (Sup. Ct. 1963) (prosecution must disclose favorable material evidence)
- United States v. Bagley, 473 U.S. 667 (Sup. Ct. 1985) (Brady materiality standard framed as favorable and material to guilt or punishment)
- Kyles v. Whitley, 514 U.S. 419 (Sup. Ct. 1995) (prosecutor's duty to learn of favorable evidence known to others acting on government's behalf)
- Youngblood v. West Virginia, 547 U.S. 867 (Sup. Ct. 2006) (Brady violations include evidence known to investigators but not the prosecutor)
- Strickler v. Greene, 527 U.S. 263 (Sup. Ct. 1999) (Brady/Giglio principles and materiality analysis)
- United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) (dismissal with prejudice under supervisory powers requires flagrant misbehavior and substantial prejudice)
- United States v. Kearns, 5 F.3d 1251 (9th Cir. 1993) (standards for dismissal for prosecutorial misconduct)
- United States v. Struckman, 611 F.3d 560 (9th Cir. 2010) (supervisory-power purposes: remedy rights, judicial integrity, deterrence)
- United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992) (dismissal with prejudice implicates separation-of-powers; requires clear factual/legal basis)
- United States v. Shafer, 987 F.2d 1054 (4th Cir. 1993) (mid-trial discovery of substantial exculpatory evidence may justify dismissal with prejudice)