Note to right-wing patriots: Beware of televising your revolution because a federal indictment awaits

February 18, 2016

The Bundy Gang made it easy for the feds to destroy them. With the able assistance of videographer and radio-show host Pete Santilli, they created an unambiguous and unimpeachable record of their self-described sagebrush revolution, including (1) what they intended to do, (2) why they intended to do it, (3) what they did, and (4) what they hoped to accomplish.

Having thereby delivered their heads on a platter to the feds, who used the evidence to create a damning indictment, they now face the prospect of a lengthy humiliating public trial with no defense to be followed by many years in prison.

Yes, ladies and gentlemen: a federal grand jury in Nevada yesterday returned a 51-page, 16 count indictment against Cliven Bundy, Aamon Bundy, Ryan Bundy, Ryan Payne and Pete Santilli. Each defendant is charged with 16 felony counts, including extortion, obstruction of justice, conspiracy to commit an offense against the United States, conspiracy to impede or injure a federal officer, assault on a federal officer, threatening a federal law enforcement officer and using and carrying a firearm in a crime of violence. The government is also seeking forfeiture of assets worth $3 million from the five men if they are convicted of the crimes.

I encourage readers to read the indictment. It sets out the case, chapter and verse, against the defendants and serves as a good example of how devastatingly thorough the feds can be when they put their vast resources to work in stitching up a group of defendants.


Cliven Bundy may be looking at spending the rest of his life in prison

February 17, 2016

Cliven Bundy is charged in Nevada by a six-count federal complaint alleging;

Count 1: Conspiracy to assault a federal officer;

Count 2: Assault against a federal officer by use of a deadly and dangerous weapon’

Count 3: Use and carry of a firearm in relation to a crime of violence (the assault charged in count 2);

Count 4: Interference with commerce (by extortion);

Count 5: Use and carry of a firearm in relation to a crime of violence (the extortion charged in count 4);

Count 6: Obstruction of justice.

If he is convicted, Bundy could be sentenced up to five years in prison on the conspiracy charge, up to 10 years in prison on the obstruction of justice charge, up to 20 years in prison on the assault on a federal law enforcement and interference with commerce by extortion charges and a mandatory minimum consecutive seven years on the use and carry of a firearm in relation to a crime a violence charge. The charges could also bring up to $250,000 per count.

Since he is 69-years-old, there is a significant possibility that he may spend the rest of his life in prison, if he is convicted on all counts.

He has been detained without bail. Oregonlive is reporting,

A federal judge [in Portland] Tuesday ordered Nevada rancher Cliven Bundy to remain in custody pending trial on a complaint stemming from his 2014 standoff with federal agents trying to round up his cattle grazing on public land.

U.S. Magistrate Judge Janice M. Stewart found Bundy, 69, remains a danger to the community and a risk to flee, citing his “ongoing defiance of federal court orders.”

For more information regarding the evidence that the government relied on to draft the complaint, please read the affidavit attached to the complaint (pp. 6-32).

Also, here’s the government’s memorandum in support of order detaining Bundy without bail.

Finally, here’s a link to an article I wrote about conspirator liability. Note that the government need not prove that Bundy ever held a gun or threatened anyone with a gun, so long as it proves that he was a member of the conspiracy and at least one other member of the conspiracy committed such an act or acts in furtherance of the conspiracy.


Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

January 9, 2015

Friday, January 9, 2014

Good afternoon:

The first 1200 people summoned for jury service in the Boston Marathon Bombing Case have completed the 28 page juror questionnaire. Prosecution and defense counsel will be busy this weekend reviewing the questionnaires in preparation for voir dire that will start Monday. I believe we can reasonably expect Judge O’Toole will excuse about half of the group for financial hardship due to the length of the trial that is expected to extend into June. Students, teachers, self-employed business owners, single parents with young children and people with prepaid vacations are typically excused.

Several people have asked me to explain coconspirator and accomplice liability under federal law. State prosecutors rarely charge people with conspiracy, so most people don’t know much about it.

A conspiracy is an agreement by two or more people to commit a specific crime and the commission of an overt act by one of them in furtherance of the conspiracy. Often, the overt act is a crime, but it does not have to be. For example, purchasing fireworks is not a crime if you are old enough, but it could be an overt act in furtherance of a conspiracy to build a bomb using the gunpowder in the fireworks. Indeed, overt act 19 alleges that Tamerlan Tsarnaev traveled to Phantom Fireworks in Seabrook, New Hampshire on or about February 6, 2013, where he purchased 48 mortars containing about 8 pounds of low grade gunpowder for use in furtherance of the conspiracy charged in Count 1 (conspiracy to use a weapon of mass destruction resulting in death).

A member of a conspiracy is responsible for all crimes committed by other members of the conspiracy, even if he did not know that the person who committed the crime was a member of the conspiracy or that he was going to commit that crime, so long as it was reasonably foreseeable that some member of the conspiracy would commit that crime.

Mere knowledge of the existence of a conspiracy, or presence at a location where a crime is committed by a member of the conspiracy, is not sufficient to establish guilt and there is no affirmative duty to inform police about the conspiracy.

Federal prosecutors typically structure indictments by charging a conspiracy to commit a specific crime in count 1 and allege any number of overt acts committed in furtherance of the conspiracy alleged in that count. Every member of the alleged conspiracy is accused of committing at least one of the overt acts. Overt acts that constitute crimes are added as separate counts in the indictment.

For example, in Overt Act 31 of Count I, Dzhokhar Tsarnaev is accused of killing MIT Police Officer Sean Collier by shooting him in the head at close range with a Ruger 9mm P95 semiautomatic handgun and attempting to steal his service weapon.

In Count 16 he is charged with possessing and using a firearm during the course of the conspiracy to murder Officer Sean Collier.

The government’s theory regarding the purpose for this shooting is that the Tsarnaev brothers only had one gun (Tamerlan’s Ruger 9mm P95 semiautomatic) and they wanted to obtain a second gun for Dzhokhar, so they sneaked up on him while he was sitting in his patrol vehicle and Tamerlan executed him with a single shot to the head. However, they were unable to get the gun out of the holster.

The government will argue that Dzhokhar is legally responsible for that shooting, even though he did not shoot the officer, because he was a member of the conspiracy and the shooting was an overt act committed by Tamerlan in furtherance of the conspiracy.

The government has a second argument to hold Dzhokhar accountable for the murder based 18 USC 2(a), which provides in pertinent part:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

This is the federal accomplice liability statute by which someone who assists another to commit a crime is as responsible as the person who committed the crime.

I hope this explanation helps readers to understand coconspirator and accomplice liability under federal law.

If we assume for the sake of argument that Dzhokhar Tsarnaev will be convicted on all counts on the basis of his own acts and on the basis of coconspirator and accomplice liability for acts committed by Tamerlan, that does not mean that his arguably lesser role would not result in an LWOP sentence instead of death. A lesser role is a mitigation factor as are his youth and subservient relationship to his brother.

I believe this case probably will boil down to whether one or more members of the jury decide that the evidence in support of those three factors merits an LWOP sentence. That is why I have stated that this case is not about winning or losing. It’s about living or dying.


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