Case 2:16-cr-00046-GMN-PAL Document 718 Filed 10/03/16 Page 1 of 11

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RENE L. VALLADARES
Federal Public Defender
Nevada State Bar No. 11479
WILLIAM CARRICO
Nevada State Bar No. 003042
Assistant Federal Public Defender
BRENDA WEKSLER
Nevada State Bar No. 8124
Assistant Federal Public Defender
RYAN NORWOOD
Assistant Federal Public Defender
411 E. Bonneville Avenue, Suite 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Ryan_Norwood@fd.org
Attorneys for Ryan W. Payne

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
-oOo-

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UNITED STATES OF AMERICA,

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Plaintiff,
vs.

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RYAN W. PAYNE,
Defendant.

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Case No. 2:16-cr-046-GMN-PAL
DEFENDANT RYAN PAYNE’S
MOTION TO STRIKE
SURPLUSAGE FROM
SUPERSEDING INDICTMENT

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Certification: This Motion is timely filed.

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COMES NOW defendant Ryan W. Payne, through his counsel, WILLIAM CARRICO,

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RYAN NORWOOD, and BRENDA WEKSLER, Assistant Federal Public Defenders, moves

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this Court for an Order Striking Surplusage from the Superseding Indictment in the event the

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Court intends to provide the jury with a copy of the superseding indictment. In that event, Mr.

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Payne asks the Court to strike portions of the superseding indictment under Rule 7(d) of the

Case 2:16-cr-00046-GMN-PAL Document 718 Filed 10/03/16 Page 2 of 11

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Federal Rules of Criminal Procedure and all other applicable constitutional, case, and statutory

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law. A Memorandum of Points and Authorities is attached hereto.

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DATED this 3rd day of October, 2016.

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RENE VALLADARES
Federal Public Defender
By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender

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Case 2:16-cr-00046-GMN-PAL Document 718 Filed 10/03/16 Page 3 of 11

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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

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Whether a court decides to provide the jury with a copy of the underlying indictment in

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a criminal case is generally within the discretion of the trial judge. Souza v. United States, 304

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F.2d 274, 280 (9th Cir. 1962). Here, for the reasons explained below, providing a copy of the

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superseding indictment to the jury would unduly prejudice Mr. Payne. It is therefore requested

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the Court not provide the jury with a copy of the superseding indictment. If, however, the Court

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does provide the jury with a copy of the superseding indictment, and without waiving his

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objection to the Court doing so, Mr. Payne alternatively requests the Court strike irrelevant,

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immaterial, inflammatory, and prejudicial language from the superseding indictment.
SUPERSEDING INDICTMENT
The superseding indictment in this case contains 37 pages of text under the following
headings that are incorporated throughout the entirety of the indictment:

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I.

SUMMARY;

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II.

THE DEFENDANTS;

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III.

TERMS AND DEFINITIONS;

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IV.

BUNDY TRESPASSED CATTLE ON PUBLIC LAND AND REFUSED TO
COMPLY WITH FOUR COURT ORDERS TO REMOVE THEM;

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THE BLM PLANNED TO SEIZE AND REMOVE THE CATTLE FROM
PUBLIC LANDS PURSUANT TO COURT ORDERS;

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BUNDY THREATENED TO “DO WHATEVER IT TAKES” TO PREVENT
THE IMPOUNDMENT OF HIS CATTLE; and

VII.

BUNDY CARRIED OUT HIS THREATS BY CONSPIRING TO LIE,
THREATEN FORCE AND VIOLENCE, AND USE FORCE AND
VIOLENCE.

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Heading VII begins on page 12 of the superseding indictment and is followed by four
subsections:
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A. Object and Nature of the Conspiracy;

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B. Manner and Means of the Conspiracy;

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C. Role of the Conspirators; and

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D. Overt Acts in Furtherance of the Conspiracy.
Subsection D of Heading VII is broken down further into three subparts, beginning on
page 18 of the superseding indictment:
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March 28 to April 11: The Conspirators Interfered with Impoundment
Operations and Used Deceit and Deception to Recruit Followers;

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April 12: The Conspirators Assaulted and Extorted Law Enforcement Officers;
and

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Continuing Conspiracy – Post-Assault to Indictment: The Conspirators
Organized Bodyguards, Patrols, and Checkpoints to Prevent and Deter Future
Law Enforcement Actions.

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APPLICABLE LAW

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Whether a court decides to provide the jury with a copy of the underlying indictment in

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a criminal case is generally within the discretion of the trial judge. United States v. Murray,

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492 F.2d 178, 193-94 (9th Cir. 1973); Souza 304 F.2d at 280. Here, for the reasons explained

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below, providing a copy of the superseding indictment to the jury would unduly prejudice Mr.

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Payne. It is therefore requested the Court not provide the jury with a copy of the superseding

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indictment.

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Moreover, Rule 7(d) of the Federal Rules of Criminal Procedure provides that, “[u]pon

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a defendant’s motion, the court may strike surplusage from the indictment or information.” “A

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part of the indictment unnecessary to and independent of the allegations of the offense proved

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may normally be treated as a useless averment that may be ignored.” United States v. Ayala,

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289 F.3d 16, 22 (1st Cir. 2002) (quoting United States v. Miller, 471 U.S. 130, 136 (1985)). “In
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other words, surplusage in an indictment need not be proved.” Id. (internal citation and

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quotation marks omitted).

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The Advisory Committee Notes to Rule 7(d) explain this rule provides a means to

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protect the defendant against immaterial or irrelevant allegations in the indictment that may be

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prejudicial. Fed. R. Crim. P. 7 (1944 Notes); see also United States v. Laurienti, 611 F.3d 530,

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546-47 (9th Cir. 2010) (“The purpose of a motion to strike under Fed. R. Crim. P. 7(d) is to

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protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor

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material to the charges.”) (internal quotation marks and citation omitted). As explained by

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Professor Charles Alan Wright:

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Prosecutors have been known to insert unnecessary allegations
for “color” or “background” hoping that these will stimulate the
interest of juries. The proper course is to move to strike the
surplusage rather than to move to dismiss the indictment.
1 Wright, Federal Practice and Procedure § 128 (4th ed.) (footnotes omitted).

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ANALYSIS

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The government appears to have drafted the superseding indictment for a purpose

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broader than merely giving notice to the defendants of the charged offenses’ elements. The

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first 37 pages of the superseding indictment include a prejudicial narrative that contains

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immaterial and irrelevant allegations that the Court should strike from it.

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1. The superseding indictment contains immaterial, irrelevant, prejudicial
codenames the government assigned to the defendants and others alleged to
have been involved.

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The second sentence of the superseding indictment alleges all the defendants “planned,

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organized, led and/or participated as gunmen in the assault” underlying this case. ECF No. 27,

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p. 3, lns. 7-10. The term “gunmen” is used to refer to all of the defendants. Id. at p. 14, lns.

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23-24 (“the defendants referred to herein as ‘gunmen’”). The indictment also refers to the

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individuals the government alleges joined the defendants in the charged conspiracy as both
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“gunmen” and “Followers.” ECF No. 27, p. 2 (alleging Bundy and other leaders and organizers

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of the conspiracy recruited “gunmen and other ‘Followers’”); see also id. at p. 29, lns. 8-9.

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Notably, the indictment uses the term “gunmen” 73 times in the narrative and the term

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“Followers” 79 times. Additionally, the indictment alternately refers to gunmen and Followers

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to be “snipers” and as persons having taken “sniper” positions against officials. See e.g., id. at

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p. 4, ln. 4, p. 34, lns. 6, 11, 16.

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The government will have every opportunity to demonstrate its case to the jury and

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attempt to prove the superseding indictment’s allegations. The government may not, however,

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attempt to improperly prejudice the jury with the inflammatory terms set forth in the

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superseding indictment—gunmen, Followers, and snipers—to refer to the defendants and

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unnamed others whom the government believes joined the defendants in some fashion. The

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government’s decision to select its own codenames to refer to the various individuals involved

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in this case is laden with prejudicial innuendo, will lead to confusion. The government’s use

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of codenames is also immaterial and irrelevant to the actual evidence the government must

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introduce to prove the charges alleged.

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Rule 7(d) has been “invoked to strike aliases from indictments where the alias was not

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relevant to the issue of the defendant’s identification.” United States v. Ramirez, 710 F.2d 535,

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545 (9th Cir. 1983) (citation omitted). The use of Rule 7(d) to strike the prejudicial terms

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contained in this superseding indictment has even more force here. The terms gunmen,

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Followers, and snipers are not aliases. They are the codenames the government chose to use to

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refer to the defendants and other individuals referred to in the indictment.

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Moreover, the government’s codenames are not “facts.” The codenames are identifiers

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the government chose when drafting the superseding indictment to pejoratively refer to the

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defendants and others involved in the case. Each such codename serves no other purpose than

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to prejudice the jury against the defendants. For these reasons, Mr. Payne requests the Court

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not provide the jury with a copy of the superseding indictment or, alternatively, strike all

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codenames from the superseding indictment as surplusage.

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2. Headings I, IV, and V contain allegations that Defendant Cliven Bundy violated
civil court orders from 1993 to February of 2014; however, the superseding
indictment alleges criminal conduct as having occurred from March 2014 to
2016.

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The Summary contained in Heading I contains inflammatory allegations that Defendant

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Cliven Bundy had trespassed on public lands for over 20 years. ECF No. 127, ¶¶ 2-3. The

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headings for subsections IV and V as well as paragraphs 33 through 48 of the superseding

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indictment allege Bundy violated several civil court orders from 1993 through 2013. ECF No.

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27, pp. 8-9. The government’s inclusion of alleged prior civil law violations is immaterial,

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irrelevant, and prejudicial to Mr. Payne. Whether Bundy violated any civil laws between 1993

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and 2013 is irrelevant and immaterial to the criminal charges alleged in this case. The charges

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in this case do not require the government to prove as an element Bundy’s alleged violation of

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civil court courts from 1993 and 2013. Moreover, it would be unduly prejudicial to allow the

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government to attempt to bolster the criminal indictment in this case with allegations that Bundy

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had committed civil law violations for the past 20 years. For these reasons, Mr. Payne requests

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the Court not provide the jury with a copy of the superseding indictment or, alternatively, strike

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all paragraphs 34 through 44 from the superseding indictment as surplusage.

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3. The government’s introductory “Summary” is surplusage.

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Though labeled as a “Summary,” the allegations contained in paragraphs 1 through 8 of

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the superseding indictment are styled in a manner suggesting the summarized allegations are

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accepted facts. The summarized allegations read as what could be a truncated version of the

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government’s opening statement of facts and does so without providing any reference to the

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specific crimes charged. The “Summary” differs greatly from the allegations set forth in the

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subparts entitled “Object and Nature of the Conspiracy” (paragraphs 55 and 56), the “Manner

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and Means of the Conspiracy” (paragraphs 57 to 76), and the “Overt Acts in Furtherance of the
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Conspiracy” (paragraphs 78 to 22), as these subparts could be argued to be an attempt to tie the

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allegations to the elements of the conspiracy crimes charged. The “Summary” does nothing

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other than to serve as a pseudo-opening statement for the government in a way that fails to

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provide the jury with any context for that summary. And if the “Summary” is truly summary,

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its contents are duplicitous, and the effect of which further prejudices Mr. Payne by allowing

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the government to repeat the allegations twice—once in the summary without tying those

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allegations to specific crimes charged, and once again within the superseding indictment.

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For these reasons, Mr. Payne requests the Court not provide the jury with a copy of the

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superseding indictment or, alternatively, strike the “Summary” from the superseding indictment

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as surplusage.

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4. Many of the superseding indictment’s headings contain legal conclusions that
the government has masked as factual allegations.

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The government drafted the superseding indictment by using textual headings that do

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more than merely aid in the reading of the superseding indictment. The government instead

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used the following headings as inflammatory signposts, each of which contains legal

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conclusions that the government must support at trial through evidentiary proof:

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IV.

BUNDY TRESPASSED CATTLE ON PUBLIC LAND AND REFUSED TO
COMPLY WITH FOUR COURT ORDERS TO REMOVE THEM;

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THE BLM PLANNED TO SEIZE AND REMOVE THE CATTLE FROM
PUBLIC LANDS PURSUANT TO COURT ORDERS;

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BUNDY THREATENED TO “DO WHATEVER IT TAKES” TO PREVENT
THE IMPOUNDMENT OF HIS CATTLE;

VII.

BUNDY CARRIED OUT HIS THREATS BY CONSPIRING TO LIE,
THREATEN FORCE AND VIOLENCE, AND USE FORCE AND
VIOLENCE.

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(D)(1) March 28 to April 11: The Conspirators Interfered with Impoundment
Operations and Used Deceit and Deception to Recruit Followers.
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(D)(2) April 12: The Conspirators Assaulted and Extorted Law Enforcement
Officers.

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(D)(3) Continuing Conspiracy – Post-Assault to Indictment: The Conspirators
Organized Bodyguards, Patrols, and Checkpoints to Prevent and Deter
Future Law Enforcement Actions.

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These headings and subparts themselves are in no way relevant, material, or necessary

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to the elements the government must prove at trial. The allegations to which each refers is

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contained in the text below each one. The government’s summary of the allegations in the

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headings and subparts only serves to prejudice Mr. Payne much like the “Summary” because

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they are styled in a manner suggesting the allegations contained therein are accepted facts. The

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headings are also duplicative of the allegations contained in the text below each one. For these

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reasons, Mr. Payne requests the Court not provide the jury with a copy of the superseding

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indictment or, alternatively, strike the headings listed above from the superseding indictment

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as surplusage.

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E. CONCLUSION

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The government drafted the superseding indictment in way that has left it inundated

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with “color” and “background” that has no justifiable purpose before the jury other than to

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prejudice Mr. Payne. Given the vast portions of the superseding indictment that must be struck

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to protect Mr. Payne from the prejudice that would ensue from exposing the jury to the

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superseding indictment’s surplusage, he requests that the Court not provide the jury with a copy

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of the superseding indictment or read the indictment aloud to the jury and, instead, inform the

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jury of the charges through jury instructions.

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However, if the Court intends to distribute the superseding indictment, Mr. Payne

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alternatively requests—and without waiving his objection to providing the indictment to the

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jury—requests the Court strike the following surplusage from the superseding indictment:

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1. All references to the terms “gunman/gunmen,” “Followers,” and “sniper(s);”
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2. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
48; and

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3. Headings IV and V, VI, VII, and subsections VII.D(1), VII.(D)(2), VII.(D)(3).

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DATED this 3rd day of October, 2016.

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Respectfully Submitted,
RENE VALLADARES
Federal Public Defender

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By: /s/ William Carrico
WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender

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CERTIFICATE OF ELECTRONIC SERVICE

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The undersigned hereby certifies that she is an employee of the Federal Public Defender

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for the District of Nevada and is a person of such age and discretion as to be competent to

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serve papers.

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That on October 3, 2016, she served an electronic copy of the above and foregoing
DEFENDANT RYAN PAYNE’S MOTION TO STRIKE SURPLUSAGE FROM

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SUPERSEDING INDICTMENT by electronic service (ECF) to the person named below:
DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
Assistant United States Attorney
NICHOLAS DICKINSON
Assistant United States Attorney
STEVEN MYHRE
Assistant United States Attorney
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101

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/s/ Lauren Pullen
Employee of the Federal Public Defender

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