Cliven Bundy v. Usdc-Nvl ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: CLIVEN BUNDY, No. 17-70700
______________________________
D.C. No.
CLIVEN BUNDY, 2:16-cr-00046-GMN-PAL-1
Petitioner,
OPINION
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA, LAS
VEGAS,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
Petition for Writ of Mandamus
Submitted March 24, 2017*
Before: W. FLETCHER, GOULD, and BYBEE, Circuit Judges.
PER CURIAM:
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Attorney Larry Klayman applied to be admitted pro hac vice in the
high-profile criminal trial of Cliven Bundy. The district court denied his
application without prejudice. Bundy filed an emergency petition with us for a
writ of mandamus to force the district court to admit Klayman. We declined to do
so in October 2016. See In re Bundy, 840 F.3d 1034 (9th Cir. 2016). We wrote
then:
Under our decisions, the district court had more than ample cause to
turn down Klayman’s application: he is involved in an ethics
proceeding before the District of Columbia Bar, and he was not
candid with the court about the status of those proceedings; he
disclosed that he was twice barred in perpetuity from appearing pro
hac vice before judges in the Central District of California and the
Southern District of New York, but he failed to list numerous
cases—all available on Westlaw or LEXIS—in which he has been
reprimanded, denied pro hac vice status, or otherwise sanctioned for
violating various local rules; and he has a record of going after judges
personally, and shortly after Chief Judge Gloria Navarro denied his
application, Bundy filed a frivolous Bivens action against her in her
own court. This litany of reasons for denying Klayman pro hac vice
status demonstrates that the district court did not abuse its discretion,
much less commit clear error.
Id. at 1036. Bundy petitioned for en banc review, but his petition was denied on
December 13, 2016. Bundy then petitioned the Supreme Court for a writ of
mandamus, but that petition, too, was denied on February 27, 2017. In re Bundy,
No. 16-908, 2017 WL 237570 (U.S. Feb. 27, 2017) (mem.).
2
Barely a week later, Bundy, through Klayman, filed the instant emergency
petition for a writ of mandamus. Bundy cites to “fundamentally changed
circumstances that underscore [his] compelling need to have a full legal defense
team, including Klayman, ready and able to represent him at trial.” Emergency
Pet. for Writ of Mandamus at 6–7, Mar. 9, 2017, ECF No. 1 [hereinafter Petition].
The petition is procedurally irregular in a number of respects. First, Klayman
purports to be representing Bundy in his request for a writ of mandamus. Bundy
has counsel of record, Nevada attorney Bret O. Whipple. Whipple, however, did
not sign the motion, file an affidavit, or otherwise join in any way Bundy’s latest
motion. Indeed, Bundy, in his reply filed on March 23, explains that his current
attorney refused to file a new pro hac vice application on behalf of Klayman
because Whipple did not want to “tarnish his reputation.” Appellant’s Br. in Reply
to Hon. Gloria Navarro’s Answer and Real Party in Interest’s Answer at 11, Mar.
23, 2017, ECF No. 8 [hereinafter Reply]. We have no affidavit or other evidence
that Bundy authorized Klayman to file this motion or still wants Klayman to join
his defense team. Nevertheless, Klayman, purporting to represent Bundy,
represents that “Mr. Klayman had no other recourse but to file [the] instant
Emergency Petition for Writ of Mandamus.” Id. Mr. Klayman’s “recourse” is his
own affair; it is not clear that he represents Bundy in anything he has presented to
3
us. Why Bundy (or Klayman) thinks that Whipple had to file a pro hac
vice application on behalf of Klayman, but that Klayman could file a petition for a
writ of mandamus on behalf of Bundy, we do not understand.
The motion is irregular for a second reason. It is not clear what Bundy
wants us to do, so it is not clear what standards we must apply to the request. If
Bundy is asking us to reconsider our prior decision, the request is late. We have
already denied Bundy’s petition for rehearing en banc, and the Supreme Court has
denied certiorari. If, as Bundy claims, there are “fundamentally changed
circumstances,” then Klayman’s renewed request for admission pro hac vice
should have been addressed to the district court in the first instance. It was not,
which means—we think—that Bundy or Klayman is asking this court to issue a
writ of mandamus to the district court for its failure sua sponte to admit Klayman
pro hac vice. So construing Bundy’s motion, and because the district court and
government filed answers to the petition, we will proceed to the merits.
I
There are no merits. The standards by which we approach a petition for a
writ of mandamus to direct a district court to admit an out-of-state attorney pro hac
vice have not changed since October:
4
Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved
for really extraordinary causes.’” Cheney v. U.S. Dist. Court, 542
U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259–60
(1947)). “As the writ is one of ‘the most potent weapons in the
judicial arsenal,’ three conditions must be satisfied before it may
issue.” Id. (citation omitted). “First, ‘the party seeking issuance of
the writ [must] have no other adequate means to attain the relief he
desires . . . .’” Id. (first alteration in original) (quoting Kerr v. U.S.
Dist. Court, 426 U.S. 394, 403 (1976)). Second, the petitioner must
show that “[his] right to issuance of the writ is ‘clear and
indisputable.’” Id. at 381 (alteration in original) (quoting Kerr, 426
U.S. at 403). “Third, even if the first two prerequisites have been met,
the issuing court, in the exercise of its discretion, must be satisfied
that the writ is appropriate under the circumstances.” Id.
In re Bundy, 840 F.3d at 1040 (alterations in original). We further explained:
Because, on direct appeal, we “normally review a denial of a motion
to appear pro hac vice for abuse of discretion,” United States v.
Walters, 309 F.3d 589, 591 (9th Cir. 2002), our review in mandamus
proceedings is “especially deferential,” In re United States, [791 F.3d
945, 955 (9th Cir. 2016)]. On petition for a writ of mandamus, we
look to see if the district court abused its discretion in a manner so
obvious that the error is “clear” to all.
Id. at 1041.
II
We hold that the district court’s failure sua sponte to grant Klayman pro hac
vice status as of March 2017 was neither an abuse of discretion nor clear error.
Bundy raises three claims of “changed circumstances”: (1) the district court’s
refusal to dismiss all charges against Bundy in light of the issuance of a report that
5
may cast doubt on the credibility of one of the government’s potential witnesses;
(2) a hearing at which defense counsel agreed to strike the district court’s husband,
Brian Rutledge, who is a deputy district attorney in Clark County, from its
potential witness list; and (3) the lack of federal criminal experience of Bundy’s
current counsel of choice, Bret Whipple. The circumstances cited by Bundy have
nothing but the most attenuated connections with the denial of Klayman’s pro hac
vice application. And none of them come close to demonstrating that the “district
court abused its discretion in a manner so obvious that the error is ‘clear’ to all.”
In re Bundy, 840 F.3d at 1041. This is particularly so when Bundy failed to
present his case for “changed circumstances” to the district court in the first place.
We will address each “circumstance” in turn.
A
First, Bundy complains that alleged prosecutorial misconduct occurred when
the government did not promptly turn over a report on ethical misconduct by a
Bureau of Land Management (BLM) official who may or may not testify for the
government. The misconduct was related to an event at the Burning Man Festival
in Northern Nevada, and does not involve Bundy. See Office of Inspector Gen.,
U.S. Dep’t of the Interior, Investigative Report of Ethical Violations and
Misconduct of Bureau of Land Management Officials (2017)
6
https://www.doioig.gov/sites/doioig.gov/files/EthcialViolationsAndMisconductBy
BLMOfficials_Public.pdf. Bundy argues that the district court should have
dismissed the charges against Bundy, and further alleges that earlier disclosure of
the report would at least have allowed Bundy and his co-defendants “to conduct a
meaningful investigation, move for discovery, and effectively impeach the
credibility of [the official].” Reply at 4. At first blush, it is unclear how this
possibly constitutes a changed circumstance related to Klayman’s pro hac vice
admission and the district court’s determination (as well as our own) that
Klayman’s admission would be a substantial impediment to the “ethical and
orderly administration of justice.” In re Bundy, 840 F.3d at 1042 (quoting United
States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996)).
Bundy, likely recognizing this logical gap, claims that only if Klayman is
immediately recognized as counsel will Bundy’s ability to respond properly to this
late-disclosed report be constitutionally adequate. Bundy further argues that, by
not dismissing the action entirely as a result of the allegedly-late-disclosed report,
the district court erred. See Petition at 8. In fact, he claims this is but one in a
seemingly never-ending series of “severely prejudicial ruling[s]” by the district
court. Id. at 9; Reply at 4. Bundy asserts that only Klayman will be able to
properly fight these prejudicial rulings.
7
Bundy’s claim of district court error in refusing to dismiss the charges on the
basis of the report is not, absent clear error, remediable at this stage of the
proceedings through mandamus. See DeGeorge v. U.S. Dist. Court, 219 F.3d 930,
935 (9th Cir. 2000) (“[D]irect appeal after trial, as opposed to immediate review, is
the typically adequate means of review.”). There will be ample opportunity for
Bundy to renew his claim before the district court in advance of trial. He may
preserve his argument by raising his claim again at trial, which is not scheduled
until April, at the earliest. And, failing that, Bundy may appeal to this court.
Similarly, Bundy is free to argue that the report may be used to impeach the BLM
official at trial, if he testifies. It is premature for us to grant mandamus at this
point.
B
Bundy further complains about the manner by which the district court struck
the district court judge’s husband (Rutledge) from Bundy’s proposed witness list.
Upon seeing Rutledge on Bundy’s witness list, the district court held an ex parte
hearing in which Bundy and three of his co-defendants were ordered to “produce
an offer of proof that complies with Federal Rule of Evidence 602 regarding their
listing of the husband of the presiding judge as a witness” on their witness lists.
Minute Order in Chambers, United States v. Bundy, No. 2:16-cr-00046-GMN-
8
PAL-1 (D. Nev. Mar. 8, 2017), ECF No. 1691; see Fed. R. Evid. 602 (requiring a
witness to have personal knowledge). Bundy characterizes the district court’s
issuance of this show-cause order as “threatening to hold Whipple in contempt”
and as an “attempt to neutralize anyone who even attempts to represent [Bundy].”
Petition at 17.
As evidence, Bundy states that Ms. Bundy said that Whipple told her that the
district court, at the ex parte hearing, told Whipple that he would be sanctioned
unless he agreed to withdraw Rutledge. The district court informs us that it never
threatened Whipple with contempt. District Ct. Judge Navarro’s Answer at 2, Mar.
21, 2017, ECF No. 7 [hereinafter Dist. Ct. Answer]. (And the sealed brief filed by
Whipple in response to the district court’s show-cause order where Whipple
effectively concedes removing the name calls into question the veracity of Bundy’s
double-hearsay evidence and supports the district court’s recollection of events.)
Bundy had wanted to call Rutledge because he worked in the district attorney’s
office and the Bundys had asked the district attorney’s office to investigate what
they claimed were abuses by federal agents. Petition at 17. When Whipple
admitted that he could not satisfy Rule 602 for Rutledge and had no good faith
basis for leaving the name on the list, the district court struck Rutledge’s name
from the witness list. Dist. Ct. Answer at 3–4. Complaints about properly
9
enforcing the rules of evidence are not the proper subjects of petitions for writs of
mandamus.
C
Bundy’s real complaint—or, at least, Klayman’s complaint—is that these
adverse rulings, combined with other factors, demonstrate that Whipple is not able
to defend Bundy adequately. Bundy claims that Whipple is not fully prepared to
defend Bundy because “Whipple has no federal criminal defense experience.”
Petition at 9. He adds, “Klayman has extensive experience in complex,
contentious federal criminal defense, and Petitioner’s local counsel, [Whipple], has
none.” Id. at 10; see also id. at 14 (“Klayman . . . has federal criminal defense
experience . . . .”); id. at 17 (“Klayman [is] the only defense counsel with federal
criminal experience that [Bundy] has been able to find . . . .”); id. Ex. I ¶ 9 (Bundy
Aff.) (“[Whipple] does not have comparable experience to Larry Klayman who is a
former federal prosecutor in any event.”).
The assertions made by Bundy about his counsel are demonstrably false.
Either Klayman has failed to ascertain the facts by, for example, talking with
Whipple or looking at Whipple’s website, or he has deliberately misled this court.
Neither option paints Klayman in a good light. At best, Klayman has shown such a
casual acquaintance with the facts that he is guilty of at least gross negligence in
10
his representations to this court. As both the government and the district court
point out to this court in their responses to Bundy’s petition, Whipple is well
qualified to serve as Bundy’s counsel. Dist. Ct. Answer at 4; Answer from the
United States at 13, Mar. 20, 2017, ECF No. 6. Whipple has been a member of the
Nevada Bar for more than twenty years. For six years, he was a public defender in
Clark County, including three years in the Special Public Defender’s Office, which
has responsibility for capital cases in Nevada state courts. The district court
verified that Whipple, now in private practice, has extensive experience in federal
criminal cases. For some thirteen years, Whipple has accepted federal appointment
under the Criminal Justice Act, where he has defended some 99 criminal cases,
including complex, multi-defendant cases. At least one of his recent cases was the
subject of a high-profile, multi-defendant, fourteen-day trial. Dist. Ct. Answer at
4.2
2
This court had little difficulty confirming most of these facts from
Whipple’s website, his LinkedIn account, and PACER. See Bret Whipple,
LinkedIn, https://www.linkedin.com/in/bret-whipple-67441117 (last visited Mar.
30, 2017); Las Vegas Nevada Attorney Bret Whipple, Just. L. Ctr.,
http://mylasvegaslawyer.com/las-vegas-nevada-attorney-bret-whipple (last visited
Mar. 30, 2017). That Klayman, evidently, failed to use the most primitive modern
tools to verify his serious accusations that counsel of record was not qualified is
inexcusable.
11
Confronted with these facts, Bundy shifted his argument in his reply. First,
Klayman now candidly admits in an affidavit that he “did not check Mr. Whipple’s
PACER history prior to preparing the Emergency Petition for Writ of Mandamus.”
Reply at 7. (PACER is our public, electronic database, which would have
informed Klayman of Whipple’s substantial federal criminal experience.)
Klayman offered no explanation for missing Whipple’s six years as a public
defender. According to Klayman’s affidavit, he now “believes that Mr. Whipple is
a highly competent attorney,” but that “Mr. Whipple, on his own, does not have the
necessary federal criminal defense experience or the resources to mount a zealous
and effect [sic] defense.” Id.; id. Ex. C ¶¶ 11–12, 16 (Klayman Aff.).
By contrast, although Klayman repeatedly assures us that he has “extensive
experience in complex, contentious criminal defense,” he has provided us no
evidence in support. Not a single example. As we noted in our prior opinion, we
are well aware of Klayman’s substantial experience in federal and state courts, but
from what we can tell, it is almost entirely civil in nature. See, e.g., In re Bundy,
840 F.3d at 1045–46. Klayman claims that he is a “former prosecutor with the
U.S. Department of Justice.” Klayman Aff. ¶ 3. But the only example he
identifies by name is United States v. AT&T, where he was “an instrumental part of
the team that helped break up AT&T.” Id. The AT&T litigation was, of course, an
12
enormously complex case brought by the Antitrust Division, but it was a civil, not
a criminal case.3 See, e.g., United States v. AT&T, 552 F. Supp. 131 (D.D.C.
1982). It may well be that Klayman has extensive criminal trial experience, and
perhaps even federal criminal trial experience, but we cannot verify this from
anything Klayman has provided us.
Even if the record would support Klayman’s claim to have extensive
criminal defense experience, that would not be sufficient to warrant the issuance of
a writ of mandamus. As we explained in our prior decision, Bundy has not offered
any explanation for why, if he needs additional counsel, he cannot secure the
services of attorneys in Nevada or out-of-state attorneys who can satisfy Nevada’s
pro hac vice rules. See In re Bundy, 840 F.3d at 1048 (“[W]e do not have an
affidavit from anyone—Bundy, Klayman, [Bundy’s former attorney], or anyone
else—telling us of unsuccessful efforts to find counsel.”). Bundy offers no case for
3
We have also consulted Klayman’s own website. Although he says he
“was a Justice Department prosecutor,” his sole example is that he “was on the trial
team that succeeded in breaking up the telephone monopoly of AT&T, thereby
creating competition in the telecommunications industry.” Biography, Larry
Klayman, http://www.larryklayman.com/about.php (last visited Mar. 30, 2017).
13
why Klayman is the only attorney who can help him or why Nevada must bend its
pro hac vice rules to accommodate him in the courtroom.4
Even if the district court’s sole obligation while considering whether to grant
pro hac vice admission to an attorney was to maximize the defendant’s chances of
receiving the best trial outcome, the district court would not have abused its
discretion or clearly erred in finding that Whipple could handle Bundy’s case. But
that is not the district court’s sole obligation. Instead, as we discussed in In re
Bundy, district courts have other legitimate policy considerations that bear on a pro
hac vice admission decision, such as the ethical practice of the law and the orderly
4
We do not understand the dissent to support Klayman’s reckless claims
against Whipple. We understand our dissenting colleague to maintain the position
he took in the initial action—that Bundy has a Sixth Amendment right to counsel
of his own choosing. Dissent at 1 & n.1; see In re Bundy, 840 F.3d at 1052
(Gould, J., dissenting).
14
administration of justice. See id. at 1041–42.5 And evaluating the decision to deny
Klayman pro hac vice status against the backdrop of these competing interests, the
documents filed with this court in support of the petition for a writ of
mandamus—by themselves and without looking to our earlier decision’s
consideration of Klayman’s record—entirely support the district court’s decision.
The petition and reply contain patently false assertions and lack the most basic of
due diligence in fact checking.
* * *
The district did not err, much less “clearly err” when it failed, sua sponte, to
admit Klayman pro hac vice. Future motions from Bundy must be filed by counsel
5
Lest there be any doubt, we agree with the dissent that a defendant’s Sixth
Amendment right to counsel “is not exhausted once [the defendant] has one
competent criminal defense lawyer.” Dissent at 3; see United States v. Lillie, 989
F.2d 1054, 1056 (9th Cir. 1993) (“[T]he defendant can’t be denied his choice of
retained counsel just because . . . the court thinks current counsel is doing an
adequate job.”), overruled on other grounds by United States v. Garrett, 179 F.3d
1143 (9th Cir. 1999) (en banc). But the adequacy of a defendant’s alternatives is a
relevant consideration in making a pro hac vice decision that necessarily weighs a
criminal defendant’s Sixth Amendment right to counsel against competing policy
considerations. Cf. United States v. Nolen, 472 F.3d 362, 375 (5th Cir. 2006)
(remanding to the district court “specifically for it to conduct and verbalize the
necessary balancing analysis” before denying pro hac vice status). We do not
evaluate constitutional rights in a vacuum. Bundy may add whatever counsel he
wishes so long as they satisfy Nevada’s minimal pro hac vice rules. Klayman has
not satisfied those rules, so Bundy will have to look to other Nevada-qualified
counsel to aid his defense.
15
of record. Future filings from Klayman personally should be accompanied by
either an affidavit from counsel of record or Bundy in support of the motion.
The petition for a writ of mandamus is DENIED.
16
FILED
In re Cliven D. Bundy, No. 17-70700
MAR 30 2017
GOULD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent from the court’s denial of the Emergency Petition for
Writ of Mandamus filed March 9, 2017. The reasons for my dissent are essentially
the same as for my earlier dissent to the majority’s published decision denying the
first mandamus petition.1 See In re Bundy, 840 F.3d 1034, 1049 (9th Cir. 2016)
(Gould, J., dissenting). So far as I can discern, Defendant Cliven Bundy’s high-
profile political status and prospects for retaining a skilled and aggressive defense
team have not substantially changed since my prior dissent. I do not doubt that
attorney Bret Whipple is a fine lawyer who has some federal criminal case
experience. But the long course of American justice shows that sometimes
representation by multiple attorneys is key to a robust defense.2 And I continue to
1
I might have instead written a concurring opinion, accepting as circuit law
the prior decision of this panel from which I previously dissented, but I think it
makes my views clearer to understand when my views are framed as a dissent.
2
It is not uncommon for a high-profile criminal defendant to have a team of
skilled defense lawyers. Well-known examples include O.J. Simpson’s defense to
the charged 1994 murders of Nicole Brown Simpson and Ronald Goldman, and
Dzhokhar Tsarnaev’s defense to charges related to the 2013 bombing at the site of
the Boston Marathon. Another famous case involving a defense team, this one
without charges of violent crimes, was the so-called Scopes “Monkey” trial in
1925. There, Clarence Darrow and a team of several other distinguished lawyers
defended a school teacher in Tennessee who had been charged with a crime for
teaching evolution. See Scopes Trial, HistoryNet,
1
believe that Bundy’s needs for experienced defense counsel of his choosing are
more important than the articulated concerns about Larry Klayman’s ethics, where
he has not been disbarred or suspended by another bar association or proven to
have engaged in unethical conduct that could justify disbarment. See In re Evans,
524 F.2d 1004, 1007 (5th Cir. 1975); Schlumberger Techs., Inc. v. Wiley, 113 F.3d
1553, 1561 (11th Cir. 1997). Attorney Klayman has told the district court and our
appellate panel that he will in this case abide by all orders of the district court. I
take him at his word on this.
This is a complex, multi-defendant proceeding, and the stakes could not be
higher for Defendant Cliven Bundy. Bundy could spend the rest of his life in
prison if convicted. To be sure, Klayman’s aggressive tactics are likely to irritate
the district court judge. But in a tough case with experienced prosecutors, forceful
advocacy can be necessary to a full defense. And concerns over Klayman’s
aggressive style must yield to a superordinate concern: that Bundy have the
counsel of his choice to receive a fair shake at this most critical trial. The
government has chosen to marshal its massive resources towards convicting
Bundy. We ought to let Bundy marshal the defense team he chooses. I rest my
decision on the fundamental premise that Bundy has a Sixth Amendment right to
http://www.historynet.com/scopes-trial.htm (last visited Mar. 28, 2017).
2
counsel of his choice and that that right is not exhausted once he has one
competent criminal defense lawyer. So long as he is footing the bill, the Sixth
Amendment protects Bundy’s right to convene a defense team of his choosing. See
United States v. Walters, 309 F.3d 589, 592 (9th Cir. 2002) (Sixth Amendment
violation for pro hac vice denial where defendant was represented by other
competent counsel). A system of extreme deference to a district court’s decisions
on pro hac vice admission of an experienced lawyer long-admitted to other bars is
not a valid reason to deny Bundy his counsel of choice in the circumstances of this
case. I respectfully dissent.
3