United States v. Cliven Bundy ( 2020 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 18-10287
    Plaintiff-Appellant,
    D.C. No.
    v.                     2:16-cr-00046-
    GMN-PAL-1
    CLIVEN D. BUNDY, AKA Cliven
    Bundy; RYAN C. BUNDY; AMMON E.
    BUNDY; RYAN W. PAYNE,                      OPINION
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Gloria M. Navarro, District Judge, Presiding
    Argued and Submitted May 29, 2020
    Las Vegas, Nevada
    Filed August 6, 2020
    Before: William A. Fletcher, Jay S. Bybee,
    and Paul J. Watford, Circuit Judges.
    Opinion by Judge Bybee
    2                   UNITED STATES V. BUNDY
    SUMMARY*
    Criminal Law
    The panel affirmed the district court’s judgment
    dismissing with prejudice, due to violations of Brady v.
    Maryland, an indictment charging Cliven Bundy; two of his
    sons, Ryan and Ammon Bundy; and Ryan Payne with
    obstructing federal law enforcement officials carrying out
    lawful court orders.
    The indictment followed a well-publicized effort by the
    Bureau of Land Management to impound Cliven Bundy’s
    cattle for a twenty-year failure to pay federal grazing fees.
    Cliven Bundy and hundreds of armed supporters from around
    the United States forced federal officials to abandon the
    impoundment plan.
    Days into the defendants’ trial, the government began
    disclosing information in its possession that, under Brady,
    was arguably useful to the defense and should have been
    produced to the defendants well before trial. As additional
    documents came forth, the district court held a series of
    hearings, eventually deciding that the trial could not go
    forward and that the indictment must be dismissed with
    prejudice.
    Reviewing whether the district court properly dismissed
    the indictment under its supervisory powers, the panel
    considered the evidence cited by the district court to decide
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. BUNDY                       3
    whether substantial prejudice resulted from the Brady
    violations, whether flagrant misconduct occurred, and
    whether alternative remedies could have redressed the injury
    here.
    Central to the government’s case were allegations that the
    defendants intentionally lied about being surrounded by
    snipers as a ploy to gather armed supporters. Had the
    defendants been able to proffer a basis for genuinely
    believing that government snipers surrounded the Bundy
    Ranch, they potentially could have negated the government’s
    scienter theory. Surveying all of the withheld evidence –
    including surveillance-camera evidence, FBI “302”
    investigative reports regarding snipers, Tactical Operations
    Center (TOC) log records, and threat assessments – the panel
    held that the record amply supports the district court’s
    conclusion that the defendants suffered substantial prejudice
    in not being able to prepare their case fully, refine their voir
    dire strategy, and make stronger opening statements.
    Regarding the question of flagrant misconduct, the panel
    wrote that to the extent any government agencies or actors,
    through their own flagrant misconduct, failed to make known
    exculpatory information, the flagrant nature of such conduct
    will be imputed to the prosecution. The panel explained that
    flagrant misconduct need not be intentional; reckless
    disregard for the prosecution’s constitutional obligations is
    sufficient. Although it saw only negligence in the
    withholding of the TOC log records, the panel found no clear
    error in the district court’s conclusion that the withholding of
    the surveillance-camera evidence, the 302s, and the threat
    assessments crossed the threshold from negligence to
    recklessness. The panel observed that the prosecution
    withheld facially exculpatory evidence that directly negated
    4                 UNITED STATES V. BUNDY
    the government’s theory that the defendants lied about fearing
    snipers, and that the deliberate choices to withhold those
    documents were not cases of simple misjudgment.
    The panel wrote that although dismissal with prejudice
    requires a district court to find that “no lesser remedial action
    is available,” the panel understands by this phrase that a
    district court must conclude that no lesser remedy will fully
    address the damage caused by the government’s misconduct.
    The panel concluded that the district court, which thoroughly
    considered the prejudicial effects, did not abuse its discretion
    in dismissing the indictment with prejudice. The panel wrote
    that lesser sanctions would have given the government an
    opportunity to strengthen its case at the defendants’ expense,
    and noted the related need to impose a sanction that will serve
    to deter future prosecutions from engaging in the same
    misconduct as occurred here.
    COUNSEL
    Elizabeth O. White (argued), Appellate Chief; Nicholas A.
    Trutanich, Attorney General; Office of the Attorney General,
    Reno, Nevada; for Plaintiff-Appellant.
    Larry E. Klayman (argued), Washington, D.C., for
    Defendant-Appellee Cliven D. Bundy.
    Amy B. Cleary (argued), Cristen C. Thayer, and Ellesse
    Henderson, Assistant Federal Public Defenders; Rene L.
    Valladares, Federal Public Defender; Office of the Federal
    Public Defender, Las Vegas, Nevada; for Defendant-Appellee
    Ryan W. Payne.
    UNITED STATES V. BUNDY                      5
    Daniel Hill, Hill Firm, Las Vegas, Nevada, for Defendant-
    Appellee Ammon E. Bundy.
    Alyssa D. Bell, Cohen Williams LLP, Los Angeles,
    California, for Defendant-Appellee Ryan C. Bundy.
    OPINION
    BYBEE, Circuit Judge:
    Cliven Bundy, two of his sons, Ryan and Ammon Bundy,
    and sixteen other persons were charged with obstructing
    federal law enforcement officials carrying out lawful court
    orders. The indictments followed a well-publicized effort by
    the Bureau of Land Management (BLM) to impound Cliven
    Bundy’s cattle for a twenty-year failure to pay federal grazing
    fees. Bundy and hundreds of armed supporters from around
    the United States forced federal officials to abandon the
    impoundment plan. Fortunately, no one was injured in the
    confrontation.
    Days into the Bundys’ trial, the government began
    disclosing information in its possession that, under Brady v.
    Maryland, 
    373 U.S. 83
     (1963), was arguably useful to the
    defense and should have been produced to the defendants
    well before trial. As additional documents came forth, the
    district court held a series of hearings, eventually deciding
    that the trial could not go forward and that the indictments
    must be dismissed with prejudice. Under Brady, “[t]he
    prosecution is trusted to turn over evidence to the defense
    because its interest ‘is not that it shall win a case, but that
    justice shall be done.’” Amado v. Gonzalez, 
    758 F.3d 1119
    ,
    1133–34 (9th Cir. 2014) (quoting Strickler v. Greene,
    6                   UNITED STATES V. BUNDY
    
    527 U.S. 263
    , 281 (1999)). A district court is imbued with
    discretion in the supervision of proceedings before it and may
    dismiss an action when, in its judgment, “the defendant
    suffers substantial prejudice and where no lesser remedial
    action is available.” United States v. Chapman, 
    524 F.3d 1073
    , 1087 (9th Cir. 2008) (citations and quotation marks
    omitted). Finding no abuse of discretion, we affirm the
    judgment of the district court.
    I. BACKGROUND
    A. Factual History
    This case stems from an infamous standoff between
    Cliven Bundy, his sons,1 and groups of dedicated followers
    and BLM. Bundy lives on 160 acres of land near
    Bunkerville, Nevada, about eighty miles northeast of Las
    Vegas, near the Arizona border. It is rugged, Mojave-dry
    country, bounded by the Gold Butte National Monument and
    the Lake Mead National Recreation Area, and watered by the
    Virgin River—which, by any standards, is more a creek than
    a river. For decades, Bundy and his family have grazed their
    cattle on the more than half a million acres of surrounding
    federal land. Since the early 1990s, Bundy has refused to
    obtain permits and pay fees and fines for grazing his cattle on
    the federal lands surrounding his property. Several court
    orders previously found that Bundy’s cattle were trespassing
    on federal land and ordered Bundy to remove his cattle or risk
    having them impounded. See United States v. Bundy,
    1
    Two of Cliven Bundy’s sons, Ammon and Ryan, are defendants in
    this proceeding. Others figure in the facts. For convenience we will refer
    to Cliven Bundy as “Bundy” and his sons by their full names, e.g.,
    “Ammon Bundy” and “Ryan Bundy.”
    UNITED STATES V. BUNDY                     7
    No. 2:12-cv-0804, 
    2013 WL 3463610
    , at *1–3 (D. Nev.
    July 9, 2013) (authorizing the government to “seize and
    remove to impound any of Bundy’s cattle for any future
    trespasses”); see also United States v. Bundy, 
    178 F.3d 1301
    (9th Cir. 1999) (unpublished table decision). Bundy ignored
    those orders, claiming that he had “vested grazing rights” and
    that the State of Nevada, not the United States, was the
    rightful owner of the lands.
    In early 2014, BLM began putting into place a large-scale
    operation to impound Bundy’s cattle. The plan called for
    contractors from Utah to round up cattle that were trespassing
    on federal land. The cattle would then be sold at auction.
    BLM notified Bundy of its intentions in mid-March of 2014.
    Bundy did not respond to the notices, but in interviews with
    local papers stated that he was “ready to do battle with the
    BLM,” that he would muster family, friends, and supporters,
    and “do whatever we have to after that.”
    BLM made extensive preparations for “Operation Gold
    Butte Impound.” Coordinating with agents from the National
    Park Service and Federal Bureau of Investigation, BLM
    anticipated resistance from Bundy and his supporters. It
    planned to escort the contractors in and out of the area each
    day. BLM established a Listening Post/Observation Post
    (LP/OP) “strategically placed at elevated positions around the
    Bundy residence each evening” where agents were outfitted
    with binoculars, spotting scopes, night-vision goggles, and
    thermal-imaging devices. The LP/OP personnel were to have
    “agency-issued rifles with them at all times.” BLM also
    established a Tactical Operations Center (TOC), Forward
    Operating Base (FOB), a media site, and a “free speech area.”
    8                UNITED STATES V. BUNDY
    On-site operations began the first week of April. On
    April 6, 2014, another of Bundy’s sons, Dave Bundy, blocked
    a BLM convoy on a state route and was arrested. The Bundys
    responded by inviting private militia groups such as
    Operation Mutual Aid, 3 Percenters Club, Freedom and
    Fighters, and Oath Keepers to come to their defense. The
    Bundys claimed that the government was taking their cattle
    and holding one of the Bundys prisoner, and had snipers in
    position surrounding the Bundy compound. Among those
    who responded was defendant Ryan Payne, who was a
    founder of Operation Mutual Aid. Hundreds of Bundy
    supporters, many heavily armed, poured into the area.
    On April 9, 2014, Ammon Bundy led a mob to block a
    BLM convoy and was tased by officers. Payne used the
    incident to contact additional militia groups and solicit their
    help. By April 11, BLM had seized approximately
    400 animals. FBI agents informed BLM that the gathering
    militia posed a significant threat to federal officials and
    private contractors, and advised BLM to cease the operation.
    The next day, Bundy and his supporters, then estimated to be
    more than 200 people, assembled to reclaim Bundy’s cattle.
    Clark County Sheriff Doug Gillespie intervened with Bundy
    and told the group that BLM had called off the impoundment.
    Bundy made additional demands, and when they were not
    met, told the crowd that it was time to “get those cattle.” The
    crowd then moved to the entrance of the impoundment site,
    located in a dry-wash bed under an Interstate 15 bridge.
    Armed supporters took up threatening and tactically
    advantageous positions, pointing guns at BLM officers.
    Additional supporters arrived, some on horseback, swelling
    Bundy’s ranks to more than 400 people. The Bundys
    demanded that the officers leave. Heavily outnumbered and
    interested in avoiding bloodshed, federal officials evacuated
    UNITED STATES V. BUNDY                            9
    the impoundment site and left the cattle for the Bundys to
    reclaim.
    B. Procedural History
    1. The Indictment
    In March 2016, a federal grand jury indicted nineteen
    defendants, including Bundy, his sons Ammon and Ryan, and
    Ryan Payne (collectively, “the defendants”), for a slate of
    federal crimes stemming from the standoff, including
    impeding federal officers, threatening federal law
    enforcement, and extortion, along with conspiracy to commit
    these crimes. The district court divided the defendants into
    three groups, according to their degree of involvement.
    Cliven Bundy, Ryan Bundy, Ammon Bundy, Ryan Payne,
    and another militia leader, Peter Santilli, were placed in Tier
    1. The district began with a trial for the Tier 3 defendants, to
    be followed by Tier 1 and Tier 2.2
    A central pillar of the government’s case was the
    allegation that the defendants recruited armed followers by
    intentionally deceiving those followers into believing that the
    Bundys feared for their lives because government snipers
    surrounded their ranch. According to the indictment, once
    the large group of supporters had amassed, the defendants
    were then able to use their followers to thwart the impound
    operation. Specifically, ¶ 58 of the indictment alleged that
    2
    The Tier 3 trial commenced on February 6, 2017 and resulted in
    conviction of two defendants; the jury hung as to the remaining
    defendants. On retrial, the jury acquitted two defendants on all charges
    and two defendants on some charges; the jury hung for a second time on
    the remaining charges.
    10                UNITED STATES V. BUNDY
    the defendants “used deceit and deception to recruit gunmen
    and other Followers,” flooding the internet with “false,
    deceitful, and deceptive images” for the “unlawful purpose of
    interfering with impoundment operations, obstructing the
    execution of federal court Orders and using force and
    violence against federal law enforcement officials.”
    Paragraph 84 further stated that the defendants had created
    “false, deceitful and deceptive statements to the effect that the
    BLM supposedly: employed snipers against Bundy family
    members . . . .” As for Ryan Payne, ¶ 88 alleged that on
    April 7, 2014, he had posted messages to followers “stating
    falsely, among other things, that the Bundy Ranch was
    surrounded by BLM snipers, that the Bundy family was
    isolated, and that the BLM wanted BUNDY dead.”
    Regarding Bundy, ¶ 92 of the indictment recounted how, on
    April 8, 2014, he had broadcast a statement saying, “they
    have my house surrounded . . . the federal government is
    stealing my property . . . [the BLM] are armed with assault
    rifles . . . they have snipers.” The indictment contended that
    this statement was deceitful and made with “the purpose of
    recruiting gunmen and other Followers” to come to the
    Bundy Ranch and obstruct the impoundment.
    2. The Motion-in-Limine Order
    In preparation for trial, the defendants requested any
    potentially exculpatory evidence under Brady v. Maryland,
    
    373 U.S. 83
     (1963), including evidence that could negate the
    government’s scienter theory. Notably, to combat the
    government’s allegation that the defendants had lied about
    fearing being surrounded by snipers, the defendants sought
    materials showing the presence of armed officers in tactical
    gear taking positions around the Bundy Ranch. The defense
    UNITED STATES V. BUNDY                     11
    also wanted evidence to support their claim that the
    impoundment operation was over-militarized.
    In October of 2017, shortly before trial began, the
    government obtained a favorable ruling on a motion in
    limine, which limited the defense’s ability to introduce
    evidence regarding the affirmative defense of self-defense
    against government actors. The district court concluded that
    the affirmative defense was not available to the defendants
    because they knew the “official status” of the federal officers
    and there was no evidence that the officers used excessive
    force. However, the district court left open the possibility
    that the defendants could present evidence supporting the
    affirmative defense with “an offer of proof outside the
    presence of the jury that the defense should apply.” In the
    same order, the court denied the government’s request to
    preclude evidence regarding the defendants’ state of mind.
    The government cited this order to justify several of its
    decisions to withhold evidence.
    3. Opening Statements
    Trial commenced on October 30, 2017.                The
    government’s opening statements emphasized the theory that
    the Bundys and their co-conspirators intentionally spread
    misinformation about being surrounded by snipers to inflame
    supporters. The government recounted that following Dave
    Bundy’s arrest on April 6, the Bundys posted messages and
    photos on social media:
    And the messaging that was put out by the
    Bundys, by the Bundys and their supporters,
    was that this was BLM being a large Army
    that was coming to attack them, was coming
    12                UNITED STATES V. BUNDY
    to interfere with them, was coming to abuse
    them. And you will hear how the messaging
    transformed from stealing cattle to now
    they’ve got snipers aimed at us. Now they’ve
    got our house surrounded. Now we can’t
    move. We’ve got to shelter in place. We
    can’t do anything because the BLM has got us
    surrounded.
    And that was false . . . .
    The government made clear that the Bundys’ purported lies
    about feeling surrounded by menacing snipers was key to
    their recruiting followers such as Ryan Payne and Peter
    Santilli to come to Nevada, obstruct the impound operation,
    and “protect against tyranny.”
    4. Hearings Regarding Withheld Evidence
    As trial got underway, it became apparent that important
    evidence had been withheld by the government. Over the
    course of the following weeks, the district court held several
    hearings regarding this evidence as it trickled out during trial.
    a. November 7 and 8 Hearings. On November 6 and 7,
    2017, just a week into the trial, the defendants filed
    successive motions to dismiss for discovery misconduct.
    They faulted the government for failing to provide evidence
    regarding (1) video surveillance of the Bundy property and
    (2) the presence of FBI and BLM tactical units armed with
    AR-15 rifles. In August 2017, the defense had requested
    information related to a camera placed near the Bundy Ranch.
    The request was supported by an affidavit from Ryan Bundy,
    who averred that he had seen a camera device on a tripod
    UNITED STATES V. BUNDY                     13
    with a telephoto lens and a “visible laser.” He said the tripod
    was on a hill northeast of and overlooking the Bundy house.
    The government, however, had opposed this request, referring
    to it and other requests as a “fantastical fishing expedition.”
    Yet on November 3, the fourth day of trial, the defense
    learned that the FBI had in fact set up a camera on a hill
    northeast of the Bundy home. The camera had a live feed to
    BLM’s command center.
    The district court held a hearing on November 7 regarding
    the camera evidence. The court held another hearing the next
    day regarding newly released evidence showing the presence
    of heavily armed patrols near the Bundy property. The
    defendants emphasized that this new evidence was material
    because it undercut the government’s ability to prove that
    they had intentionally lied to supporters about fearing
    government snipers. Specifically, the defendants argued that
    the presence of surveillance equipment and law-enforcement
    officers armed with AR-15 rifles contributed to the
    defendants’ fear that they were surrounded.
    The district court agreed with the defendants that the
    requested surveillance-camera evidence was material.
    However, it also concluded that the government had not acted
    in bad faith by withholding information about the camera
    because the court had previously thought that the information
    related to surveillance cameras was irrelevant and there was
    “no apparent or readily apparent materiality.” As for the late
    evidence regarding heavily armed officers, the district court
    agreed that the information was material because it was
    “relevant to developing a possible defense to the allegation
    that false statements were provided about the existence of
    snipers and being isolated and surrounded.” The district court
    14               UNITED STATES V. BUNDY
    ordered the government to turn over any additional evidence
    related to the surveillance camera or snipers.
    b. November 13 Hearing. During the first week of
    November, the government disclosed additional evidence
    regarding the surveillance camera and officers armed with
    assault rifles in full tactical gear. Two disclosures came in
    the form of FBI investigative reports known as “302s.” The
    first was a 302 regarding Kevin Egbert (the Egbert 302). This
    302 recorded the placement of the camera and attempts to
    repair it after it was damaged. The second was a 302
    describing the activities of Special Agent Edward Delmolino
    (the Delmolino 302). This 302 described how Agent
    Delmolino was dressed in BLM tactical gear and took an
    overwatch position near the Bundy Ranch. A thumbdrive
    with a log of activities at the Tactical Operations Center,
    referred to as the “TOC Log,” was produced on
    November 11, 2017. This log served as the FBI’s record for
    SWAT operations during the impound operation. The Log
    referenced the insertion of “snipers” and recounted
    descriptions of the live feed from the surveillance camera.
    The defense renewed its motions to dismiss and the
    district court held another hearing on November 13, 2017.
    The government represented that the prosecutors from the
    U.S. Attorney’s Office had “been as diligent as we possibly
    can.” The district court agreed that “everyone’s doing the
    best they can faced with the information that we have, which
    is more interesting than in the usual case” and found that
    “there’s no Brady violation . . . , much less a pattern of any
    Brady violations.” But the court then stated that the
    government would need “to do more than it’s already done.”
    The defense, meanwhile, again emphasized the crucial nature
    of this evidence to countering the government’s theory that
    UNITED STATES V. BUNDY                      15
    the defendants had purposefully “spread[] false information
    about the presence of militarized government operation
    surrounding” the Bundy home.
    As for the motions to dismiss, the district court said that
    the defendants’ arguments were “premature” because “only
    24 pages [of new discovery] ha[d] been provided.” But the
    court noted that if “more information . . . is provided and . . .
    creates prejudice, then the Court would certainly entertain”
    further motions. The court also expressed its dismay with the
    government that important evidence was being produced so
    late and, in particular, that the government had made
    “representations . . . that things did not exist but ultimately
    were found to exist.” Thus, while the district court believed
    that the prejudice to the defense was not at that point
    sufficient to keep the case from proceeding, it explained that
    prejudice would have to be reassessed “to see whether this
    has put the defense . . . in an untenable position.” The court
    warned that it might have to consider a remedy, including
    continuance or mistrial, with or without prejudice. “[T]here’s
    a lot of information that’s coming to light very late. And, so,
    it’s troubling to the Court.” The government, however,
    continued to maintain that a lot of the new information
    produced was not material.
    c. November 29 Hearing. As trial continued, testimony
    exposed even more withheld documents. During the pretrial
    discovery phase, the defense had requested “all the threat
    assessments prepared in this case.” The government provided
    one threat assessment prepared in 2014. In its opening
    statement, the government had referred to a BLM decision to
    impound Bundy’s cattle in 2012.            The government
    represented that BLM decided not to confront Bundy
    “because of the concern for violence.” During testimony,
    16               UNITED STATES V. BUNDY
    however, a prosecution witness mentioned a 2012 threat
    assessment, and recounted how the assessment concluded that
    Bundy posed no threat of harm. It then came to light that
    other threat assessments had been withheld—several of which
    had been prepared for a possible impoundment action in
    2012. These assessments rated Bundy as having a low-to-
    moderate risk of violence. The government also produced
    new evidence regarding surveillance of Bundy’s home and
    the presence of armed officers. The new evidence was two
    Nevada Joint Terrorism Task Force reports. One report noted
    the presence of SWAT personnel and the presence of the
    camera with supporting technicians. It also detailed events
    leading to the FBI’s placement of the camera.
    The district court held another hearing about this new
    evidence on November 29, 2017. The court again expressed
    frustration with the “dribs and drabs” of new discovery being
    released. The court recognized that “the [U.S. Attorney’s
    Office] has been diligent,” but faulted “other government
    agencies; not in the U.S. Attorney’s Office.” But the
    prosecution conceded that it had had the threat assessments
    in its possession all along. The government explained that it
    did not hand the assessments over because it considered them
    neither exculpatory nor responsive to the defense’s request
    for threat assessments “in this case.”
    The government also explained why it had been late in
    turning over several FBI investigative reports regarding
    tactical-operations teams once it became evident that the
    presence of “snipers” would be an integral part of the
    defense’s strategy. And it insisted that the officers present at
    the site were not actually snipers. The district court,
    however, found this explanation “very troubling,” because the
    court had excluded testimony at the earlier trial of the Tier 3
    UNITED STATES V. BUNDY                     17
    co-defendants regarding the presence of snipers based on the
    government’s representation that there were no snipers at the
    site. Yet, in the middle of Bundy’s trial, the government was
    producing documents that referred to its own agents as
    “snipers.”
    d. December 11 Hearing. On December 11, 2017, the
    district court held a final hearing on the defendants’ motions
    to dismiss. The court reviewed the evidence that had been
    produced after the start of the trial. It noted that there were
    different deadlines for the government to produce evidence to
    the defense, depending on whether its obligations arose under
    Brady, Giglio, Jencks, or Federal Rule of Criminal Procedure
    16(a)(1)(E). In general, however, the court found that the
    evidence should have been produced no later than October 1,
    2017, thirty days before the start of trial.
    Beginning with the surveillance-camera evidence, the
    district court was “concerned that there seems to [have been]
    some coyness on behalf of the government” in turning over
    that evidence. However, the court explained that, at that time,
    it appeared the information was timely provided.
    But the district court then stated that it was inclined to
    find that much of the information regarding the presence of
    snipers was untimely. Even though the FBI promptly turned
    over several 302s prepared after the discovery deadline, the
    district court explained that the information contained in the
    302s was nevertheless untimely. The TOC Log “was in
    existence long before [November 2017].” The court also
    expressed dissatisfaction with the government’s explanation
    that it had not provided this information earlier because the
    government was unaware that this information would be
    central to the defense’s theory of the case.
    18               UNITED STATES V. BUNDY
    The district court then went through the materiality of the
    late threat assessments. The court explained that the March
    2011 assessment information contradicted other evidence and
    “could be useful for impeachment purposes.” It further found
    that the government’s production of the threat assessments
    was likely untimely. Thus, the district court agreed to take
    the motions to dismiss under submission.
    5. The District Court Declares a Mistrial
    On December 20, 2017, the district court concluded that
    the trial could not proceed. It began by emphasizing that
    Brady requires the prosecution “to learn of material
    exculpatory and impeachment evidence in the possession of
    other agencies.” Where there is doubt about the usefulness of
    evidence to the defense, the government should “resolve such
    doubts in favor of full disclosure.” The court reviewed each
    piece of evidence—evidence regarding the surveillance
    camera, snipers, and threat assessments—contained in newly
    provided FBI 302s, the TOC Log, the prior threat
    assessments, and other documents. The court found that the
    government had failed to timely disclose most of the evidence
    at issue, and that the failure was “willful” on the
    government’s part and prejudiced the defense.
    As for possible remedies, the district court found that
    recalling witnesses or granting a continuance to allow the
    defendants time to review the new evidence would be
    insufficient. The parties had already impaneled a jury and
    made opening statements. The court believed that the
    withheld evidence had deprived the defendants of the
    opportunity to better tailor their voir-dire strategy and make
    stronger opening statements. Thus, the court concluded that
    mistrial was necessary. The court stopped short of dismissing
    UNITED STATES V. BUNDY                      19
    the case, instead asking for briefing on whether “mistrial
    should be with or without prejudice.”
    6. The Decision to Dismiss the Indictment with
    Prejudice
    On January 8, 2018, after permitting written briefing, the
    district court concluded that the Brady violations were so
    egregious and prejudicial that the indictment needed to be
    dismissed with prejudice. It found “that retrying the case
    would only advantage the government by allowing [it] to
    strengthen [its] witnesses’ testimony based on the knowledge
    gained from the information provided by the defense and
    revealed thus far.” The court also highlighted “the
    prosecution’s failure to look beyond the FBI file that was
    provided” for additional relevant information constituted a
    “reckless disregard for its [constitutional] obligations to learn
    and seek out favorable evidence.” The court characterized
    the government’s “representations about whether individuals
    were technically ‘snipers’ or not ‘snipers’ [as] disingenuous”
    given that the FBI’s own documents referred to government
    “snipers’ in the operation. It concluded that the FBI’s failure
    to produce these documents was “flagrant prosecutorial
    misconduct in this case even if the documents themselves
    were not intentionally withheld [by the U.S. Attorney’s
    Office] from the defense.” Thus, it decided that no lesser
    sanction was available because the government’s “conduct
    has caused the integrity of a future trial and any resulting
    conviction to be even more questionable.” Retrial “would
    only advantage the government.” The court dismissed the
    indictment with prejudice as a remedy for a due process
    violation and under its supervisory powers.
    20               UNITED STATES V. BUNDY
    The government moved for reconsideration. First, the
    government argued that the court had mistakenly found the
    evidence “material” because there was no legally cognizable
    way for the defendants to assert the affirmative defenses of
    provocation or self-defense against a law officer. The
    government pointed to the district court’s grant of its motion
    in limine, which determined that evidence related to the
    affirmative defenses was irrelevant.
    The district court was unmoved. It highlighted how the
    motion-in-limine order had specifically left open the
    possibility that the defendants could raise an affirmative
    defense if they could make an offer of proof to support a
    theory of provocation or self-defense. The court said that its
    order “placed the Government on notice that evidence that
    could bolster a theory of self-defense might become relevant
    at trial.” Hence, the court stated that its order did not excuse
    the government from turning over evidence helpful to the
    defense. The court again chastised the government for
    claiming ignorance that the defendants would need evidence
    about the cameras or snipers because a central part of the
    government’s case was that the defendants knowingly spread
    false statements that snipers were surrounding the Bundy
    Ranch.
    Second, the government asserted that the court had failed
    to consider less drastic remedies. In response, the court
    pointed to its discussion in the record that lesser sanctions
    could not cure the prejudice. And it said that any lack of
    consideration for a specific remedy was the fault of the
    government, because it failed to raise possible alternative
    sanctions. Thus, the district court denied the government’s
    motion for reconsideration. The government now appeals.
    UNITED STATES V. BUNDY                      21
    II. STANDARD OF REVIEW
    We review the district court’s dismissal of an indictment
    under its supervisory powers for an abuse of discretion.
    Chapman, 
    524 F.3d at 1086
    . Any legal issues predicating the
    district court’s dismissal receive de novo review. United
    States v. Velarde-Gavarrete, 
    975 F.2d 672
    , 674 (9th Cir.
    1992). However, the “district court’s findings of fact are
    reviewed for clear error.” 
    Id.
    III. DISCUSSION
    The question presented in this case is whether the
    government’s actions were sufficiently egregious to merit
    dismissal with prejudice. A district court may dismiss an
    indictment for government misconduct for one of two
    reasons, each with its own standard: either because it finds a
    serious due-process violation or because it concludes that
    dismissal is warranted under its supervisory powers. United
    States v. Kearns, 
    5 F.3d 1251
    , 1253 (9th Cir. 1993).
    Dismissal for a due-process violation requires the
    government’s conduct to “be so grossly shocking and
    outrageous as to violate the universal sense of justice.” 
    Id.
    “The [due process argument] is usually raised in situations
    where law enforcement conduct involves extreme physical or
    mental brutality or where the crime is ‘manufactured by the
    government from whole cloth.’” United States v. Green,
    
    962 F.2d 938
    , 942 (9th Cir. 1992) (citation omitted).
    A district court may dismiss an indictment under its
    inherent supervisory powers “(1) to implement a remedy for
    the violation of a recognized statutory or constitutional right;
    (2) to preserve judicial integrity by ensuring that a conviction
    rests on appropriate considerations validly before a jury; and
    22               UNITED STATES V. BUNDY
    (3) to deter future illegal conduct.” United States v.
    Struckman, 
    611 F.3d 560
    , 574 (9th Cir. 2010) (quoting United
    States v. Hasting, 
    461 U.S. 499
    , 505 (1983) (internal citations
    and quotation marks omitted)). The court’s exercise of its
    supervisory powers protects the integrity of the federal courts
    and prevents the courts from “making . . . . themselves
    accomplices in willful disobedience of law.” McNabb v.
    United States, 
    318 U.S. 332
    , 345 (1943). A district court can
    dismiss an indictment under its supervisory powers even if
    “the conduct does not rise to the level of a due process
    violation.” United States v. Barrera-Moreno, 
    951 F.2d 1089
    ,
    1091 (9th Cir. 1991). Because it is unnecessary to decide if
    both standards are met here, we will only review whether the
    district court properly dismissed the indictment under its
    supervisory powers. See Chapman, 
    524 F.3d at
    1084 n.5
    (“Because the district court did not abuse its discretion in
    dismissing the indictment under its supervisory powers, we
    need not consider whether the dismissal was also justified by
    the government’s violation of Defendants’ due process
    rights.”).
    When considering an exercise of its supervisory powers,
    a district court has various options. The court may limit the
    witnesses or testimony offered by the government, or it may
    sanction the attorneys. See Hasting, 
    461 U.S. at
    506 & n.5.
    The court may dismiss the case without prejudice, which
    requires dismissing the jury and forces the government to
    begin anew. The most drastic remedy is dismissal with
    prejudice, because this prevents the government from retrying
    the defendants at all. See Chapman, 
    524 F.3d at 1085
    (explaining that improper dismissal of “an indictment with
    prejudice encroaches on the prosecutor’s charging authority”
    (internal quotation marks omitted)); United States v. Isgro,
    
    974 F.2d 1091
    , 1097 (9th Cir. 1992) (“Dismissal of an
    UNITED STATES V. BUNDY                      23
    indictment with prejudice necessarily implicates separation-
    of-powers principles. . . . Such dismissal exercised under the
    guise of ‘supervisory power’ is impermissible absent ‘a clear
    basis in fact and law for doing so.’”). Under its supervisory
    powers, a district court may dismiss an indictment with
    prejudice for prosecutorial misconduct only if there is
    “(1) flagrant misbehavior and (2) substantial prejudice.”
    Kearns, 
    5 F.3d at 1253
    . Further, the district court must
    “approach[ the remedy] with some caution and a with a view
    toward balancing the interests involved,” Hasting, 
    461 U.S. at
    506–07 (citations and quotation marks omitted), and have
    concluded that there is “no lesser remedial action” available
    to it. Chapman, 
    524 F.3d at 1087
     (citations omitted).
    The district court concluded that dismissal with prejudice
    was appropriate because the government withheld key
    evidence favorable to the defense until after trial was
    underway—in clear violation of its duties under Brady—and
    dismissing without prejudice would allow the government to
    cure its mistakes, to the detriment of the defendants. It is, of
    course, beyond dispute that under Brady a defendant is
    entitled to evidence “both favorable to the accused and
    ‘material either to guilt or to punishment.’” United States v.
    Bagley, 
    473 U.S. 667
    , 674 (1985) (quoting Brady, 
    373 U.S. at 87
    ). “Brady evidence” can be favorable “either because it
    is exculpatory or impeaching.” Milke v. Ryan, 
    711 F.3d 998
    ,
    1012 (9th Cir. 2013). For a Brady violation to occur, “the
    government must have willfully or inadvertently failed to
    produce the evidence” and “the suppression must have
    prejudiced the defendant.” 
    Id.
     But simply showing a Brady
    violation—withholding of evidence that caused prejudice—is
    not a sufficient basis to dismiss an indictment. Only where
    the government withheld Brady material through “flagrant
    misconduct,” causing “substantial prejudice” to the accused,
    24               UNITED STATES V. BUNDY
    will justify the court’s exercise of its supervisory powers to
    dismiss the case with prejudice. Kearns, 
    5 F.3d at 1253
    .
    Determining whether these prerequisites for dismissal
    were satisfied here requires us to review the evidence in
    question and the circumstances of its withholding. We begin
    with a review of the evidence to decide whether substantial
    prejudice resulted, keeping in mind that not everything that
    the government turned over to the defense after the trial
    began was important to the defense. Nor did the district court
    rely on all the evidence produced. Accordingly, our review
    is confined to evidence cited by the district court. We then
    turn to whether flagrant misconduct occurred. Finally, we
    examine whether alternative remedies could have redressed
    the injury here.
    A. Whether the Withheld Evidence Substantially Prejudiced
    the Defense
    Central to the government’s case against the defendants
    were the allegations in ¶¶ 58, 84, 88 and 92 of the indictment
    that the defendants intentionally lied about being surrounded
    by snipers as a ploy to gather armed supporters. The
    indictment alleged that the Bundy defendants used “false,
    deceitful, and deceptive” images to recruit supports to
    Bunkerville to interfere with BLM’s impoundment operation.
    The government’s opening statement reinforced this,
    promising the jury that it would “hear how the messaging
    transformed from stealing cattle to now there’s government
    snipers around us” and “BLM has got us surrounded” and that
    these statements were “false.” Had the defendants been able
    to proffer a basis for genuinely believing that government
    snipers surrounded the Bundy Ranch, they potentially could
    have negated the government’s scienter theory. Thus, the
    UNITED STATES V. BUNDY                     25
    defendants contend that the withheld evidence was crucial to
    defending their case.
    1. The Surveillance-Camera Evidence
    Prior to trial, Ryan Bundy had submitted an affidavit in
    which he claimed to have seen a device with a telephoto lens
    on a tripod overlooking Bundy’s house. The government
    opposed the request for information about this device as a
    “fantastic fishing expedition.” On the fourth day of trial,
    witness testimony confirmed that the government had indeed
    set up a camera overlooking Bundy’s property, and that the
    camera had a live feed to the BLM’s command center. The
    defendants assert that this camera contributed to their feeling
    of being surrounded and, hence, helped rebut the
    government’s position that the defendants deceitfully claimed
    that they feared for their lives because of government snipers.
    Two specific pieces of evidence about the camera were
    withheld. Both of these documents were prepared in 2014,
    and both confirm the existence of the surveillance camera set
    up to monitor the Bundy Ranch. The first document is the
    Egbert 302 prepared in April 2014. The Egbert 302 recounts
    that on April 6, 2014, Egbert went to investigate issues with
    the camera after its live feed had been lost. The government
    produced the Egbert 302 a week into trial, apparently in
    response to a defense request for any video recordings from
    the surveillance camera. Upon reviewing the 302 at the
    November 8 hearing, the district court agreed with the
    defense that evidence related to the camera was material. The
    court ordered the government to turn over any evidence
    related to the camera. Following this order, the government
    provided a second document, the “Law Enforcement
    Operations Order,” on November 17, 2017. That document
    26               UNITED STATES V. BUNDY
    was prepared in March 2014, in advance of the impound
    operation. The document records that an Internet camera was
    to be set up “with a view of the Bundy residence.”
    The district court concluded that the documents were
    Brady material because the camera’s “location” and
    “proximity to the home” showed that “its intended purpose
    was to surveil the Bundy home,” which “potentially rebuts
    the allegations of defendants’ deceit” in stating that they felt
    surrounded by snipers. The court found that the disclosure
    was untimely and the failure to disclose was prejudicial. The
    court also concluded that the government had been
    misleading in its earlier representations that the camera was
    not meant to surveil the Bundy home. Given that the Law
    Enforcement Operations Order specifically stated that the
    camera was to be placed “with [a] view of Bundy residence,”
    the district court agreed with the defendants that “this
    information potentially rebuts the allegations of the
    defendants’ deceit . . . about being surrounded, about the
    BLM pointing guns at them, and using snipers.”
    The government assails the district court’s conclusion by
    arguing that a lone surveillance camera is unremarkable and
    proves nothing. As such, it claims that the withholding of
    these two pieces of evidence created no appreciable prejudice
    to the defense. But the government misses the point. This
    evidence undermined the government’s theory that the
    defendants intentionally lied about fearing government
    snipers surrounding the property. The government could
    have argued the significance of the evidence to the jury, but
    it is hard to see how the government could argue that the
    evidence was irrelevant, much less a “fantastic fishing
    expedition.”
    UNITED STATES V. BUNDY                     27
    Whether a jury would ultimately find the evidence
    convincing and lead to an acquittal is not the measuring rod
    here.     Because no verdict was rendered, the usual
    “retrospective test, evaluating the strength of the evidence
    after trial has concluded” is not applicable here. United
    States v. Olsen, 
    704 F.3d 1172
    , 1183 (9th Cir. 2013). “[T]he
    retrospective definition of materiality is appropriate only in
    the context of appellate review”; thus, “trial prosecutors must
    disclose favorable information without attempting to predict
    whether its disclosure might affect the outcome of the trial.”
    Id. n.3; see United States v. Safavian, 
    233 F.R.D. 12
    , 16
    (D.D.C. 2005) (“[T]he government must always produce any
    potentially exculpatory or otherwise favorable evidence
    without regard to how the withholding of such evidence
    might be viewed . . . as affecting the outcome of the trial.
    The question before trial is not whether the government
    thinks that disclosure of the information or evidence . . .
    might change the outcome of the trial going forward, but
    whether the evidence is favorable and therefore must be
    disclosed.”). Since the new evidence emerged mid-trial,
    neither the district court (in the first instance) nor we (as a
    reviewing court) can measure prejudice against all the
    evidence produced during the trial. Rather, the district court
    had to assess the relative value of the Egbert 302 and the Law
    Enforcement Operations Order on the basis of the indictment,
    the pretrial proceedings, the opening statements, and the
    evidence introduced up to that point.
    In that light, there can be no question but that this was
    Brady material and that it should have been disclosed to the
    defense well in advance of the start of trial. This evidence
    was obviously favorable to the defense—it could have helped
    show that the defendants had a basis for feeling that their
    property was surrounded by snipers surveilling the home.
    28                   UNITED STATES V. BUNDY
    The government also argues that even if it should have
    disclosed the fact of the camera, the defendants could not
    have suffered prejudice because they knew about the camera.
    While the defendants may have known about the camera’s
    existence—that is confirmed in Ryan Bundy’s affidavit—they
    had no specific information about the camera. They did not
    know what kind of equipment the government was using, its
    sophistication, and its purpose. And it was not until the
    documents were released that it became evident that the
    camera was deliberately placed so it would have a view of the
    Bundy home—contradicting the government’s representation
    that it was only placed “to cover the roads” near the Bundy
    Ranch. Thus, the district court’s finding that the defense was
    prejudiced because it would have developed a stronger case
    if this evidence had been timely provided is not clearly
    erroneous.
    2. FBI 302s Regarding Snipers
    Several FBI 302s showing that heavily armed officers
    were present around the Bundy property were produced after
    the start of the trial. Two merit attention here.3
    The first was the Delmolino 302, drafted in March 2015,
    and describing the activities of Agent Delmolino. The
    Delmolino 302 recounts that Agent Delmolino held a position
    “east of the Bundy Ranch” and at the time “was dressed in
    3
    A third 302 was also withheld. This 302 was drafted in April 2014,
    following an interview with Curtis Racker, a field staff agent. Racker had
    been assigned a listening and observation post near the Bundy Ranch on
    April 4, 2014. The Racker 302 was provided on December 15, 2017. The
    parties hardly discuss this 302 in their briefing. Thus, we will not pass on
    this 302.
    UNITED STATES V. BUNDY                      29
    BLM tactical clothing and carried a BLM AR-15 rifle.” This
    302 was not provided to the defense until November 2017,
    after trial began. The government claims that withholding the
    Delmolino 302 was inadvertent.4 In the district court, the
    government represented that it considered the 302 relevant
    only after the court determined that information regarding
    surveillance devices was relevant. Delmolino used a “seismic
    sensor,” which the government believed the defendants could
    argue was a surveillance device.
    The district court concluded that the Delmolino 302 was
    helpful Brady material, the withholding of which caused
    prejudice. Given that the Delmolino 302 shows that Agent
    Delmolino was positioned, armed, and wearing tactical gear
    near the Bundy property, it weakened the government’s
    position that the defendants had no basis for fearing that they
    were surrounded by government snipers and, hence,
    deliberately spread misinformation to recruit armed
    followers. And before the Delmolino 302’s release, the
    defense would have had no information about Agent
    Delmolino being positioned near the Bundy Ranch. Thus, we
    conclude that district court did not clearly err in finding
    prejudice related to this 302.
    The second 302 improperly withheld from the defense
    recounted the observations of a National Park Service
    official, Ernesto Felix (the Felix 302). This 302 was drafted
    in January 2015, but was not produced until December 5,
    2017—well after trial began. According to the government,
    4
    The government had previously provided 302s regarding other
    responsibilities of Agent Delmolino during the impound operation.
    However, these documents do not recount Agent Delmolino’s being
    posted near the Bundy Ranch in tactical gear.
    30               UNITED STATES V. BUNDY
    the Felix 302 was found only after Payne had made a mid-
    trial discovery request for information about specific agents.
    The 302 describes Felix’s recollection of the arrest of Dave
    Bundy on April 6, 2014. It states that Felix “observed a BLM
    Agent on the high ground in a ‘tactical over watch position,’
    southwest of where Dave’s arrest occurred.” The date of
    Dave Bundy’s arrest is significant, because it was only after
    his arrest that the Bundys sent out a call for help, claiming
    that there were government snipers surrounding them.
    The district court concluded that the Felix 302 was Brady
    material, the withholding of which prejudiced the defense.
    The government assails the prejudice finding by saying that
    the Felix 302 contains duplicative information. It claims that
    the defendants already possessed an email that referred to
    agents who took an “overwatch” position during Dave
    Bundy’s arrest. But the government’s argument misses why
    these documents were useful. The defendants claim that the
    Bundys feared they were surrounded by heavily armed
    snipers. Keeping the defense from gathering as much
    evidence as possible to show that there was a reasonable basis
    to fear that snipers surrounded the property was itself
    harmful.
    Moreover, the Felix 302 actually refers to the BLM agent
    in the overwatch position as a “sniper.” Indeed, the Felix 302
    uses both “tactical over watch position” and “sniper” to refer
    to the same agent. This was tangible documentation showing
    that the government’s own officials understood agents in
    overwatch positions to be equivalent to “snipers.” Even if the
    defendants had some other evidence of agents taking
    “overwatch” positions around the Bundy property, the Felix
    302 supported their theory in ways that the provided emails
    did not. The Felix 302, therefore, adds credibility to the
    UNITED STATES V. BUNDY                      31
    Bundys’ claims that they feared the presence of “snipers” and
    it should have been disclosed prior to trial.
    In sum, like the evidence regarding the camera, these
    documents could have helped the defense show that the
    defendants genuinely feared the presence of snipers—
    contradicting the allegations that the defendants intentionally
    lied about being surrounded by snipers to inflame supporters.
    Given the importance of these documents, the district court
    did not clearly err in finding that their withholding constituted
    a Brady violation that prejudiced the defendants.
    3. The TOC Log
    Another piece of exculpatory evidence speaking to both
    the presence of snipers and the surveillance camera is the
    TOC Log. The log records the operations and actions of
    members of the SWAT team at the FOB. In one entry, the
    log records: “Snipers inserted.” The log also records
    observations from the camera’s live feed.
    The government did not produce the log until
    November 17, 2017—well after trial was underway. The
    government had taken the position that there were no
    “snipers,” and that agents in the “overwatch” position were
    simply “law enforcement officers.” Indeed, in the Tier 3 trial
    conducted some nine months earlier, the government had
    represented that no “snipers” were involved in the operation.
    Based on this representation, the district court had entered an
    order precluding testimony referencing snipers. The court
    even removed a testifying defendant from the stand because
    he made several references to snipers. Given the value of the
    TOC Log and its black-and-white reference to “snipers,” the
    district court concluded that it constituted Brady evidence and
    32               UNITED STATES V. BUNDY
    that its withholding prejudiced the defense. There can be no
    question that the withholding of a government document
    recording “snipers inserted” caused prejudice.
    4. The Threat Assessments
    The defendants also contend that several withheld threat
    assessments were exculpatory and that their absence caused
    prejudice. The government had timely provided one threat
    assessment, prepared in 2014 in anticipation of the March-
    April 2014 impoundment. That assessment concluded there
    was a moderate risk of violence from Bundy if the impound
    operation were undertaken. But the government withheld
    four additional threat assessments, all prepared in 2011 or
    2012, some of which concluded that Bundy posed a lesser
    risk of violence. The defendants had asked for all threat
    assessments “in this case.” That phrase was ambiguous, and
    the government might reasonably have believed that it
    complied with defendants’ request when it provided the threat
    assessment prepared for this action. But, at the very least, the
    prior assessments became relevant when the government told
    the jury in its opening statement that BLM had weighed
    whether to impound Bundy’s cattle in 2012 and decided not
    to proceed “because of concern for the violence” and when a
    witness testified on November 16, 2017 that there had been
    earlier threat assessments.
    The first withheld threat assessment was a March 2011
    FBI threat assessment of Bundy, created in anticipation of an
    impound operation. The assessment concluded that Bundy
    represented a “low to moderate risk of significant or
    imminent violence.” The assessment noted, inter alia, how
    Bundy had no criminal record, was attached to his family, and
    UNITED STATES V. BUNDY                      33
    appeared to prefer using non-violent means of channeling his
    frustration, such as litigation and media appearances.
    The second assessment was generated a year later by the
    Southern Nevada Counterterrorism Center. This assessment
    concluded that “[t]he likelihood of violence from Cliven
    Bundy is minimal.” It specifically highlighted his age and
    lack of a criminal history as indicators that he was unlikely to
    act violently.
    The third assessment was a Department of the Interior
    (DOI) assessment of Bundy and members of his family. It
    also concluded that there was moderate threat of violence.
    The DOI assessment compiled accounts from individuals who
    had interacted with Bundy or his family in the past, several of
    whom said that he was unlikely to act violently.
    Finally, the DOI conducted another assessment in
    anticipation of enforcement operations. This assessment
    concluded that the risk of violence was “moderate.” It
    recommended that BLM develop a media strategy with
    “talking points” to keep ahead of negative publicity as a
    means of mitigating the potential risk of backlash. The
    district court specifically highlighted how BLM’s failure to
    implement this recommended public-relations plan favored
    the defense because the government was not actively
    correcting disinformation from the Bundys.
    These withheld threat assessments had significant
    exculpatory and impeachment value. The 2011 and 2012
    threat assessments would have countered the government’s
    opening statement. Beyond that, the earlier assessments were
    at least contrary to, though not necessarily inconsistent with,
    the 2014 assessment. The withheld threat assessments also
    34                  UNITED STATES V. BUNDY
    undermined the need for an aggressive, militarized impound
    operation because they suggest alternative ways of defusing
    emotions surrounding actions taken against the Bundys.
    The government asserts that the withholding of the threat
    assessments was not prejudicial because the March 2014
    assessment contained essentially the same information as the
    withheld assessments. It also points to testimony by
    government witnesses regarding how Bundy was viewed as
    a minimal threat. But it is apparent the documents
    themselves have value that testimony alone does not
    necessarily carry. The assessments are reasoned, written
    evaluations of the danger posed by the Bundys. They were
    more than the bottom-line assessments offered by witness
    testimony. Further, even if some similar information had
    been produced earlier, the repeated description of Bundy as
    a low-to-moderate threat in several assessments is itself
    important to the defense and could have at least been readily
    deployed as impeachment evidence to any testimony
    regarding why a militarized impound was necessary. The
    withheld threat assessments also contain information that the
    March 2014 assessment does not include—a notable example
    being the DOI assessment’s summary of encounters with
    Bundy. Thus, the district court did not clearly err in
    concluding that the defendants suffered prejudice by not
    receiving these documents.5
    5
    The district court also concluded that several withheld maps
    constituted Brady material, were willfully withheld, and created prejudice.
    But the maps’ withholding does not appear to have had prejudicial impact.
    The government had previously disclosed several maps showing the same
    information.
    The defense also asserts that the government wrongfully withheld an
    internal whistle-blower memorandum regarding possible bias by BLM
    UNITED STATES V. BUNDY                             35
    * * *
    Surveying all of the withheld evidence, we agree with the
    district court that the defendants suffered not only prejudice,
    but substantial prejudice. The district court concluded that
    the defendants specifically suffered prejudice in not being
    able to prepare their case fully, refine their voir dire strategy,
    and make stronger opening statements. The record amply
    supports this conclusion.
    B. Whether the           Government        Engaged        in   Flagrant
    Misconduct
    In this section, we first review the standard for judging
    “flagrant misconduct” and then consider the circumstances
    under which the government withheld Brady material in this
    case.
    1. Flagrant Misconduct
    Substantial prejudice alone does not entitle defendants to
    have their indictments dismissed with prejudice. Nor is it
    sufficient that the government committed multiple Brady
    violations. To warrant dismissal of an indictment with
    prejudice, the government must have engaged in flagrant
    misconduct in withholding the evidence. Kearns, 
    5 F.3d at 1253
    .
    Agent Dan Love, who oversaw the impoundment. The memorandum
    appears helpful to the defense. However, because the district court did not
    make any determinations regarding this memorandum, we will not address
    it.
    36                UNITED STATES V. BUNDY
    The government candidly admitted at oral argument that
    “in light of the district court’s findings of materiality, what is
    clear is that we fell short.” But it forcefully contends that it
    was not guilty of flagrant misbehavior because it did not
    willfully withhold exculpatory evidence from the defense.
    The government points out that many of the documents at
    issue were in the hands of other federal agencies, such as the
    FBI, and not the prosecution team. For that reason, the
    government decries the possibility of turning the flagrant-
    misconduct requirement into a strict-liability standard where
    any Brady violation caused by the actions of another
    government agency can lead to dismissal of an indictment.
    Indeed, the district court itself believed that the
    nondisclosures were the fault of “other government agencies;
    not in the U.S. Attorney’s Office.” We are sensitive to the
    government’s concern and agree that dismissal of an
    indictment is not an appropriate remedy for an ordinary
    Brady violation. See 
    id.
     But both the factual record and the
    law belie the government’s concerns here.
    As a matter of law, the prosecution is “deemed to have
    knowledge of and access to anything in the possession,
    custody or control of any federal agency participating in the
    same investigation of the defendant.” United States v. Bryan,
    
    868 F.2d 1032
    , 1036 (9th Cir. 1989). The government’s
    attempts to absolve itself of wrongdoing for other agencies’
    failures therefore fall flat. To the extent that any government
    agencies or actors, through their own flagrant misconduct,
    failed to make known exculpatory information, the flagrant
    nature of such conduct will be imputed to the prosecution—
    just as the agencies’ or actors’ Brady violations are imputed
    to the prosecution. See Youngblood v. West Virginia, 
    547 U.S. 867
    , 869–70 (2006) (per curiam) (holding that a Brady
    violation occurs “when the government fails to turn over even
    UNITED STATES V. BUNDY                    37
    evidence that is ‘known only to police investigators and not
    to the prosecutor’”); United States v. Cano, 
    934 F.3d 1002
    ,
    1023 (9th Cir. 2019) (explaining that prosecutors are
    responsible for turning over “information known to other
    agents of the government” of which the prosecutor did “not
    know but could have learned” (citation omitted)), petition for
    rehearing en banc docketed, No. 17-50151 (9th Cir. Jan. 2,
    2020).
    Further, the government is wrong to suggest that flagrant
    misconduct must be intentional or malicious. Although
    flagrant misconduct cannot be an “accidental or merely
    negligent” failure to disclose, the misconduct need not be
    intentional. Chapman, 
    524 F.3d at 1085
    . “[R]eckless
    disregard for the prosecution’s constitutional obligations” is
    sufficient to give rise to flagrant misconduct. Id.
    2. The Withholding of Brady Material
    a. The Surveillance Camera. The district court
    permissibly found that withholding of information about the
    surveillance camera was willful rather than merely
    inadvertent. Recall that Ryan Bundy requested information
    regarding the camera in August of 2017. The government
    opposed the request, saying that Ryan Bundy was engaging
    in “little more than a fantastical fishing expedition for
    evidence justifying attacking law enforcement.” The district
    court initially denied the request because the request did not
    comply with the local rules and failed to include supporting
    arguments for why the evidence requested was discoverable.
    But the district court later noted that the government had
    acted with “some coyness” in turning over evidence.
    38               UNITED STATES V. BUNDY
    The government made no effort to locate the documents
    regarding the camera and turn them over before the discovery
    deadline in October 2017. The prosecution has an affirmative
    obligation to learn of potentially favorable evidence and
    provide it to the defense. See Kyles v. Whitley, 
    514 U.S. 419
    ,
    437 (1995) (explaining that a “prosecutor has a duty to learn
    of any favorable evidence known to the others acting on the
    government’s behalf in the case”); Cano, 934 F.3d at 1023
    (stating that prosecutors are responsible for “information held
    by subordinates such as investigating police officers and [the
    duty to inquire] sometimes extends to information held by
    other executive branch agencies” (citations omitted)). Rather
    than looking into the request and locating the documents
    before trial began, the government chose to fight rather than
    respond to the request. This was a deliberate choice and the
    district court did not err in concluding otherwise.
    In an effort to absolve itself of responsibility, the
    government points out that the district court originally ruled
    that Ryan Bundy’s requests for information regarding
    surveillance cameras were inadequately supported and
    appeared to request immaterial evidence. But the district
    court’s order cannot innoculate the government here. Ryan
    Bundy requested specific information about the surveillance
    camera, namely its make, model, and characteristics; the
    district court failed to see why that information was material.
    Contrary to the government’s insinuation, however, the
    district court never suggested that information regarding the
    existence and purpose of the camera was immaterial. And
    once the district court was presented with all of the
    information about the camera—particularly that it was set up
    UNITED STATES V. BUNDY                             39
    with a view of the Bundy home,6 the district court had no
    difficulty determining that the evidence was material and
    should have been provided to the defense under Brady. Over
    the course of the hearings, the district court found the
    information “favorable to the accused and potentially
    exculpatory,” and criticized the government for withholding
    it on the “implausible claim” that no one viewed anything
    reported from the camera.
    The fact remains that the government, at least the FBI,
    had this information in its possession. The district court,
    when it made its initial ruling, did not. A court does not have
    the same degree of familiarity or access to the evidence that
    a prosecutor has. Hence, it is prosecutors, not courts, that are
    “presumed to recognize [the] significance” of evidence.
    United States v. Agurs, 
    427 U.S. 97
    , 110 (1976). In short,
    prosecutors cannot hide behind a court’s discovery order to
    suppress exculpatory evidence. We therefore decline to offer
    blanket protection against findings of flagrant misconduct
    simply because the court initially failed to see why a certain
    aspect of evidence was material when the defense failed to
    show materiality. Granting such protection could well
    6
    At one point in the discussion of the camera, the government stated
    that the camera “was placed on high ground above the Bundy residence,”
    but added, “I don’t want to leave the Court with the impression that it was
    fixed on the Bundy residence.” However, the Law Enforcement
    Operations Order—the master plan for the impoundment—called for
    “Surveillance Systems,” and specified that it would be an “Internet camera
    with [a] view of [the] Bundy residence.”
    40                   UNITED STATES V. BUNDY
    encourage prosecutors to seek favorable discovery rulings to
    use later as weapons against Brady claims.7
    The materiality of evidence regarding a surveillance
    camera pointed at a home to a case where the family claimed
    that they felt surrounded by government snipers should have
    been self-evident. Ryan Bundy had stated that he thought the
    device had a “visible laser.” There is no evidence that it did.
    The government’s evidence would have confirmed the
    existence of a device but dispelled speculation about use of a
    laser. Providing the information would have clarified the
    situation for both sides, allowing each to muster the best facts
    in support of its argument. Whether the withholding of the
    document was the fault of the FBI or the prosecution team,
    someone decided to withhold it. With or without a request
    from the defense, the government should have handed this
    information over—not fought its release. See Strickler,
    
    527 U.S. at 280
     (“[T]he duty to disclose [favorable] evidence
    is applicable even though there has been no request by the
    accused . . . .”).
    b. Evidence of Snipers. Of particular concern is the
    government’s handling of evidence related to the presence of
    snipers. This was a hot-button issue. The term is evocative,
    rhetorically charged, and would have been a dog whistle for
    7
    We also note that the materiality of evidence under Brady is an
    objective inquiry. See United States v. Jordan, 
    316 F.3d 1215
    , 1252 (11th
    Cir. 2003); Carter v. Bell, 
    218 F.3d 581
    , 601 (6th Cir. 2000); see also Fed.
    R. Crim. P. 16(a)(1)(E)(i). Once the district court had a full view of the
    evidence here, it properly concluded that the documents related to the
    camera were material—a conclusion that the government should have
    reached on its own. As such, a district court’s failure to appreciate the
    importance of exculpatory evidence does not relieve the prosecution of its
    obligation to turn over material evidence.
    UNITED STATES V. BUNDY                      41
    summoning members of private militias in ways that
    screaming “surveillance cameras!” would not.              The
    government said the Bundys’ claim of “snipers” was “false”
    and “deceitful,” yet the government’s own documents
    referred to its agents as “snipers.” The government disputed
    the relevance of this information, fixating on the question of
    whether the officers in the “overwatch” were technically
    “snipers.” The district court had to remind the government
    that these were questions for the jury.
    The failure to produce evidence regarding “snipers” was
    particularly troubling for the district court because, during the
    Tier 3 trial of other co-defendants, the district court
    prohibited testimony regarding the presence of snipers, based
    on the government’s assurances that there were no snipers
    involved in the impound operation. The district court even
    removed a testifying defendant from the stand in that trial
    because the defendant kept stating that snipers were present.
    The district court was understandably exasperated when
    evidence came to light in this trial, showing that the
    government referred to its agents as “snipers.”
    In short, the government had to know the import that any
    evidence regarding snipers, or agents who looked and
    functioned like snipers, would have in this case.
    Nevertheless, it withheld a slate of information bolstering the
    claim that the defendants could have had a reasonable basis
    for believing there were snipers in the area. The government
    claims that it relied on the district court’s motion-in-limine
    order in believing that much of the evidence at issue here was
    irrelevant. Even assuming that the government could have
    understood the district court’s motion-in-limine order to
    preclude the usefulness of evidence supporting an affirmative
    claim of self defense, the evidence was still quite obviously
    42                  UNITED STATES V. BUNDY
    Brady material.8 Specifically, the evidence speaking to the
    presence of snipers undermined the government’s scienter
    theory—that the defendants recruited armed supporters by
    lying to them about snipers surrounding the Bundy Ranch.
    The defendants were entitled to any evidence that could
    contradict this theory, irrespective of whether they could or
    would muster an affirmative defense. Espousing the belief
    that evidence undercutting the government’s central theory of
    mens rea was somehow irrelevant and not Brady material was
    preposterous and reckless.
    As for the Delmolino and Felix 302s, the government
    once again points out that this information was in the hands
    of the FBI. The district court concluded, irrespective of the
    agency responsible, that the government’s withholding the
    Delmolino 302 was willful. It noted how the prosecution
    team had direct knowledge that Agent Delmolino had been
    stationed near the Bundy home in tactical gear. While the
    Delmolino 302 itself was in the hands of the FBI, the district
    court specifically noted that members of the trial team from
    8
    The motion-in-limine order left open the possibility that the
    defendants could make an offer of proof regarding self-defense. Thus, far
    from closing the door on information helpful to an affirmative defense, the
    order highlighted that the evidence could have been useful, and hence
    should have been handed over. As the district court pointed out, this
    language should have “placed the Government on notice that evidence that
    could bolster a theory of self-defense might become relevant at trial.”
    Indeed, by not providing evidence about the affirmative defense, the
    government basically foreclosed opportunities for the defendants to make
    an offer of proof. Furthermore, Brady evidence does not necessarily have
    to be admissible. See United States v. Price, 
    566 F.3d 900
    , 911–12 (9th
    Cir. 2009). Even assuming that the evidence here had no value in
    challenging the government’s theory of mens rea, it still would have had
    impeachment value and potentially could have led to other evidence
    supporting a self-defense claim.
    UNITED STATES V. BUNDY                    43
    the U.S. Attorney’s Office were present at the interview with
    Agent Delmolino in March 2015. Yet, the information about
    Agent Delmolino’s posting near the Bundy Ranch was not
    revealed until the Delmolino 302 was released in November
    of 2017, after trial began. Likewise, members of the
    prosecution team were present for the interview of Felix in
    2015. Hence, the prosecution team was not entirely ignorant
    of the information provided by Delmolino and Felix in the
    302s—even if it turns out that the blame for not turning over
    these 302s lies with the FBI.
    Because the prosecution team had direct knowledge of
    some of this information, its claim that the court imposed
    “strict liability” for the FBI’s failure to hand over the 302s
    falls flat. Regardless, the argument is of no moment because
    the FBI’s decisions not to provide the information are
    imputed to the prosecution. See Youngblood, 
    547 U.S. at
    869–70; Bryan, 
    868 F.2d at 1036
    . And the government has
    not explained how simple inadvertence or oversight within
    the FBI kept the agency from producing these documents.
    c. The Threat Assessments. Likewise, with the threat
    assessments, the government failed to turn over beneficial
    information speaking to Bundy’s potential for violence.
    These documents could have helped bolster the defense’s
    claim that the government had engaged in an overmilitarized
    impound operation that the Bundys claim fueled their fears of
    being surrounded by snipers. But irrespective of the theory
    defendants were to put forward, these documents should have
    been released. They, at the very least, provided impeachment
    evidence because some of their findings contrasted with the
    2014 threat assessment used as the basis for planning the
    impound operation, and they undermined the prosecution’s
    opening statement.
    44                UNITED STATES V. BUNDY
    Moreover, these documents were in the prosecution’s
    possession all along. Notably absent from the government’s
    brief is any discussion of how or why these documents were
    overlooked. All the government says is that it relied on the
    district court’s motion-in-limine order, believing that the
    information in the threat assessments was not relevant.
    However, the independent impeachment value of these
    documents should have been obvious, given that certain
    documents contained information about Bundy presenting a
    minimal threat. And to the extent that the prosecution
    doubted “the usefulness of evidence,” the government
    “should resolve such doubts in favor of full disclosure.”
    United States v. Van Brandy, 
    726 F.2d 548
    , 552 (9th Cir.
    1984).
    Someone in the government made a conscious choice to
    withhold these documents. It may not have been a malicious
    choice, but it also was not a matter of simple oversight. At
    best, the government failed to appreciate the relevance of the
    evidence. At worst, it sought to handicap the defendants by
    withholding evidence directly relevant to mens rea. In either
    circumstance, the government fell well short of its obligations
    to work toward fairly and faithfully dispensing justice rather
    than simply notching another win. See Chapman, 
    524 F.3d at 1088
     (affirming dismissal of an indictment with prejudice
    because the prosecutor did not abide by his “‘sworn duty . . .
    to assure that the defendant has a fair and impartial trial,’ and
    his ‘interest in a particular case is not necessarily to win, but
    to do justice’” (alteration in original) (quoting N. Mariana
    Islands v. Bowie, 
    236 F.3d 1083
    , 1089 (9th Cir. 2001))).
    Thus, the district court had grounds for concluding that the
    government’s failure to produce this evidence rose to the
    level of reckless disregard and, hence, flagrant misconduct.
    UNITED STATES V. BUNDY                     45
    d. The TOC Log. The TOC Log presents a different
    circumstance. The district court found that the failure to turn
    it over was willful on the government’s part. We conclude
    that the district court clearly erred here.
    Unlike the 302s, which were created as part of an ongoing
    investigation and prosecution, the TOC Log was simply
    forgotten about following the impound operation. According
    to the government, because the “FBI never activated its
    SWAT teams” during the impound operation, the TOC Log
    “was never added to the investigative file or to FBI’s ‘police
    assist’ file, but instead remained on a thumb drive in the TOC
    trailer.” Specifically, the log’s thumb drive was left hanging
    “in the TOC truck next to the computer on a designated
    hook” and not placed in an investigation file or database. It
    was located only after an FBI agent tried to gather any
    remaining evidence related to the camera following the
    November 8 hearing.
    The district court concluded that the failure to turn over
    the TOC Log was willful suppression. Although we agree
    that failing to turn over the TOC Log was a Brady violation,
    we do not agree that the failure to produce the TOC Log
    amounted to a flagrant misconduct. We have been careful to
    note that negligence or inadvertence cannot form the basis for
    flagrant misconduct. Chapman, 
    524 F.3d at 1085
    ; Kearns,
    
    5 F.3d at 1255
    .
    We cannot see how the failure to turn over the TOC Log
    resulted from anything other than negligence. The Log was
    left in the TOC vehicle pursuant to protocol. Given the
    unique circumstances of how the Bundy impound operation
    and subsequent investigation played out, the TOC Log was
    not added to the FBI’s investigation file. Only after
    46               UNITED STATES V. BUNDY
    significant efforts, directed to locating other evidence, was it
    located. Thus, even though the TOC Log’s withholding was
    a significant Brady violation, we see no ground for
    concluding that its absence was the result of reckless
    disregard.
    * * *
    Although we see only negligence in the withholding of
    the TOC Log, we can find no clear error in the district court’s
    conclusion that the withholding of the camera evidence, the
    Delmolino and Felix 302s, and the threat assessments crossed
    the threshold from negligence to recklessness. The
    prosecution withheld facially exculpatory evidence that
    directly negated the government’s theory that the defendants
    lied about fearing snipers. The deliberate choices to withhold
    these documents were not cases of simple misjudgment,
    especially given that doubt about the helpfulness of evidence
    should be resolved in favor of disclosure. Van Brandy,
    
    726 F.2d at 552
    .
    In the end, the clearly erroneous standard recognizes that
    the district court is closest to the case, the parties, and the
    record. The district court was quite familiar with the case. It
    had supervised the case from its inception. The court had
    already conducted a trial and retrial for the Tier 3 defendants.
    It is not surprising that the district court registered its
    frustration with the government’s intransigence in turning
    over discovery. At the November 13 hearing, it expressed
    dismay “with these late disclosures and representations made
    by the government that things did not exist but ultimately
    were found to exist.” At the November 29 hearing, it
    commented on the “dribs and drabs” being released weeks
    after the trial began, and well after the date scheduled for
    UNITED STATES V. BUNDY                            47
    production of the material. The district court was best
    positioned to decide whether the government acted with
    flagrant misbehavior that prejudiced the defendants.9 Given
    the evidence that the government acted with at least reckless
    disregard for the Brady value of some evidence that
    prejudiced the defense’s ability to marshal their case, we
    conclude that the district court’s findings of substantial
    prejudice and flagrant misconduct in relevant part were not
    clear error.
    C. Whether Dismissal of the Indictment with Prejudice Was
    Justified
    A district court may dismiss an indictment as “an
    appropriate sanction for a constitutional violation only where
    less drastic alternatives are not available.” Kearns, 
    5 F.3d at 1254
    . As we previously discussed, even when a district
    court finds substantial Brady violations, prejudice to the
    defendants, and flagrant government misconduct, a district
    court has a range of options before it. Dismissal with
    prejudice is, short of disciplining attorneys personally, “the
    most severe sanction possible” for a court to order, because
    it ends the government’s case. Isgro, 
    974 F.2d at 1097
    .
    Despite the severity of that sanction, the fact remains that
    9
    Although we affirm the district court’s finding of flagrant
    misconduct for the purposes of dismissing an indictment, we do not intend
    to cast aspersion on the professionalism of the members of the U.S.
    Attorney’s Office here. This was obviously a difficult and trying case for
    everyone involved and, while we find a serious constitutional violation
    based on choices made by the government, we in no way imply that the
    misjudgments made here rise to the level of professional misconduct.
    Indeed, much of the “blame” from the constitutional violations here falls
    on the prosecution only because actions and knowledge related to
    evidence by other government agencies are imputed to the prosecution.
    48               UNITED STATES V. BUNDY
    “[t]he district court is in the best position to evaluate the
    strength of the prosecution’s case and to gauge the prejudicial
    effect of a retrial.” Chapman, 
    524 F.3d at 1087
    . It is for this
    reason that we review the district court’s choice of remedy
    “for abuse of discretion, a standard of review that is ‘limited
    and deferential.’” Herb Reed Enters., LLC v. Fla. Entm’t
    Mgmt., Inc., 
    736 F.3d 1239
    , 1247 (9th Cir. 2013). Although
    we have said that dismissal with prejudice requires a district
    court to find that “no lesser remedial action is available,”
    Chapman, 
    524 F.3d at 1087
     (citation omitted), we recognize
    that, in theory, a lesser remedy will always be available. We
    understand by this phrase that a district court must conclude
    that no lesser remedy will fully address the damage caused by
    the government’s misconduct. We do not have to find that
    dismissal with prejudice is the only remedy the district court
    could have chosen, because to conclude so would mean that
    it would have been an abuse of discretion for the district court
    to have made any other decision.
    What the phrase “no lesser remedial action is available”
    means is that any lesser sanction will put the defense at a
    greater disadvantage than it would have faced had the
    government produced the Brady material in the first
    place—thereby perpetuating the harm from a violation of a
    federal constitutional right. See Struckman, 
    611 F.3d at
    577–78. In Chapman, we explained that in that case, “the
    mistrial remedy would advantage the government, probably
    allowing it to salvage what the district court viewed as a
    poorly conducted prosecution.” Chapman, 
    524 F.3d at 1087
    .
    We concluded that the government should not be permitted
    “a chance to try out its case, identify any problem areas, and
    then correct those problems in a retrial.” 
    Id.
     (citation and
    alterations omitted); see United States v. Shafer, 
    987 F.2d 1054
    , 1059 (4th Cir. 1993) (“[The government’s] self-
    UNITED STATES V. BUNDY                     49
    inflicted injury cannot be used to afford the government a
    second chance to prosecute so that it may argue a recast
    theory of the case better supported by the evidence.”).
    Notwithstanding the government’s earnest efforts, we can
    find no grounds for concluding that the district court abused
    its discretion in dismissing this indictment with prejudice.
    The government claims that the district court’s findings are
    unsupported, arguing that the court gave only cursory
    consideration to the actual prejudice suffered by the
    defendants as a result of the government’s Brady violations.
    The record, however, satisfies us that the district court
    thoroughly considered the prejudicial effects.
    The district court held several hearings on the various
    Brady violations, complete with rounds of briefing and oral
    arguments. Several times, the district court highlighted its
    concerns to the government. The district court also gave the
    government ample opportunity to brief and argue whether the
    prejudice suffered was substantial. The district court recited
    the proper legal standards and made the appropriate findings.
    The district court specifically concluded that retrial here
    was inappropriate. It found that retrying the case “would
    only advantage the government by allowing them to
    strengthen their witnesses’ testimony based on the knowledge
    gained from the information provided by the defense and
    revealed thus far.” The district court explained that the
    government could “perfect its opening statements based on
    the revealed defense strategy in its opening and . . . conduct
    more strategic voir dire at the retrial.”
    The district court did not abuse its discretion in
    concluding as much.      Lesser sanctions—such as a
    50               UNITED STATES V. BUNDY
    continuance to allow the defendants to review discovery or
    declaring a mistrial and starting over—would have given the
    government an opportunity to strengthen its case at the
    defendants’ expense. Other remedies such as recalling
    witnesses or granting a continuance would not cure the
    prejudice already suffered by the defense in the form of lost
    voir-dire and opening-statement opportunities. Moreover,
    once the government turned over the Brady material, it may
    have realized it might be difficult to pursue the case it had
    promised in the indictment and the opening statement: that
    the defendants had lied about the snipers and being
    surrounded. Accordingly, not only would the Brady
    documents affect the defendants’ strategy, it might well have
    altered the prosecution’s strategy. Having “tr[ied] out its
    case” and “identif[ied] . . . problem area[s],” the government
    could have “correct[ed] those problems in a retrial.”
    Chapman, 
    524 F.3d at 1087
     (fourth alteration in original).
    The government responds that even if dismissal were
    warranted, the district court could have struck the portions of
    the indictment alleging that the defendants intentionally lied
    about feeling surrounded by snipers, and not dismissed the
    entire indictment with prejudice. The paragraphs in question,
    however, are not counts, but factual allegations supporting the
    government’s charges. It is unclear to us whether striking
    these sections would have served the remedial purposes of the
    court’s exercise of its supervisory power. These do not
    appear to be elements of the crimes alleged, but were a theory
    of the government’s case, as elaborated in its opening
    statement. The government’s case, therefore, would have
    been significantly altered without these allegations, but
    perhaps not weakened. And that would have meant that the
    government would get a second shot at preparing its case,
    “allowing [the government] to salvage” the case. Chapman,
    UNITED STATES V. BUNDY                     51
    
    524 F.3d at 1087
    . The district court did not abuse its
    discretion in failing to choose partial dismissal as a remedy.
    There is also the related need to impose a sanction that
    will serve to deter future prosecutions from engaging in the
    same misconduct as occurred here.             We note the
    government’s failure to acknowledge and confess any
    wrongdoing during the course of this case—especially as to
    material misrepresentations to the district court about the
    presence of snipers. Rather than accepting responsibility, the
    government blamed the defense for not requesting more
    specific information. Even in its motion for reconsideration,
    the government continued to maintain that it never had an
    obligation to turn these documents over and that any omission
    on the government’s part was the fault of the defendants for
    not doing a better job of showing why this information was
    relevant. Only on appeal has the government admitted that it
    should have turned these documents over.
    In Chapman, we specifically highlighted the prosecutor’s
    “unwillingness to take responsibility for his conduct,” finding
    that this supported the district court’s decision to dismiss an
    indictment with prejudice. 
    524 F.3d at 1088
    ; see also 
    id.
    (“We are similarly troubled, both by the AUSA’s actions at
    trial and by the government’s lack of contrition on appeal.”).
    Likewise, “attempt[s] to minimize the extent of the
    prosecutorial misconduct, completely disregarding the
    AUSA’s repeated misrepresentations to the court and the
    failure to obtain and prepare many of the critical documents
    until after the trial was underway” are themselves added
    grounds for dismissing an indictment with prejudice. 
    Id.
    Given the government’s efforts to minimize the defendants’
    discovery requests and its misrepresentations to the district
    court in such a high-profile case, the district court
    52               UNITED STATES V. BUNDY
    understandably sought a remedy that would reinforce the
    seriousness of the violations here.
    Finally, we note that other courts have recognized the
    great prejudice suffered when a defendant is denied access to
    evidence challenging the government’s central theory of the
    case until mid-trial. In United States v. Shafer, for example,
    the government lost evidence that significantly undermined
    the testimony of key witnesses. 
    987 F.2d at 1056
    . The
    defendant moved to dismiss the case with prejudice. 
    Id.
     The
    district court, however, only declared a mistrial and declined
    to dismiss with prejudice, giving the government another
    chance to prosecute the case. 
    Id.
     The Fourth Circuit
    concluded that the district court abused its discretion in
    giving the government the opportunity to retry the case. 
    Id. at 1058
    . The court reiterated the seriousness of federal
    felonies and how the government had ample time to prepare
    the case. 
    Id. at 1059
    . It then concluded that “[t]he proper
    course of action was for the district court to dismiss the case
    with prejudice.” 
    Id.
     It closed by saying that there is no
    “manifest necessity” to try a case tainted by “the mid-trial
    ‘discovery’ of substantial exculpatory evidence contradicting
    the government’s theory of the case.” 
    Id.
     Here, the district
    court concluded that the government should not benefit from
    its misconduct. And there can be no denying that the
    government would enjoy the benefit of having done a “dry
    run” of this case. Because the district court could find no
    other way to avoid giving the government this benefit, it did
    not abuse its discretion in dismissing the indictment.
    We do not need to go so far as to affirm that each of us
    would also have dismissed the case with prejudice. It is the
    nature of discretion and a consequence of the vicissitudes of
    UNITED STATES V. BUNDY                      53
    life that district courts have leeway to fashion an appropriate
    remedy. As Justice Frankfurter explained for the Court:
    The civilized conduct of criminal trials cannot
    be confined within mechanical rules. It
    necessarily demands the authority of limited
    direction entrusted to the judge presiding in
    federal trials, including a well-established
    range of judicial discretion, subject to
    appropriate review on appeal . . . . Such a
    system as ours must, within the limits here
    indicated, rely on the learning, good sense,
    fairness and courage of federal trial judges.
    Nardone v. United States, 
    308 U.S. 338
    , 342 (1939). It is
    sufficient for us to conclude that the district court did not
    abuse the discretion entrusted to it, that dismissal with
    prejudice was within the range of appropriate remedies in this
    case.
    IV. CONCLUSION
    The district court can dismiss an indictment under its
    supervisory powers “(1) to implement a remedy for the
    violation of a recognized statutory or constitutional right;
    (2) to preserve judicial integrity by ensuring that a conviction
    rests on appropriate considerations validly before a jury; and
    (3) to deter future illegal conduct.” Struckman, 
    611 F.3d at 574
     (internal quotation marks omitted).                These
    prerequisites are met here.
    54                 UNITED STATES V. BUNDY
    The judgment is AFFIRMED.10
    10
    Ryan Payne’s motion to unseal Volume IX of the government’s
    excerpts of record is denied. The government’s motion to maintain under
    seal Volumes 18 to 22 of the excerpts of record submitted by Ryan Payne
    and Ammon Bundy is granted but the request to strike those same
    volumes is denied. The government’s motion to maintain under seal
    Volume 23 of the excerpts of record submitted by Ryan Payne and
    Ammon Bundy is denied and the request to strike that same volume is
    denied.