Cliven Bundy v. USDC-NVL

Filing

FILED OPINION (WILLIAM A. FLETCHER, RONALD M. GOULD and JAY S. BYBEE) DENIED. Judge: RMG Dissenting, Judge: JSB Authoring. FILED AND ENTERED JUDGMENT. [10178079]

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FILED
OCT 28 2016

In re Cliven D. Bundy, No. 16-72275

MOLLY C. DWYER, CLERK

GOULD, Circuit Judge, dissenting:

U.S. COURT OF APPEALS

We confront in this case an unusual confluence of circumstances. A highly
controversial criminal defendant is a few months away from an enormous trial
effort in which he and eighteen other individuals are defendants. The defendant’s
chosen attorney has been denied admission pro hac vice to the district court, raising
in my mind serious concerns about the defendant’s ability to mount a vigorous
defense and receive a fair trial. Despite the majority’s expressed apprehensions
about the chosen attorney’s willingness to follow the rules of professional conduct
and the orders of the district court, while recognizing the high standards for
mandamus relief, I would hold that the writ should issue. My concerns about the
defendant’s ability to present a strong defense and receive a fundamentally fair trial
are simply too great, leading to my dissent.
I
On March 2, 2016, Cliven D. Bundy and eighteen others were indicted on
various federal charges for their alleged involvement in a “massive armed assault”
on federal officials near Bunkerville, Nevada nearly two years prior. The nowunsealed Superseding Indictment alleges that on April 12, 2014, Bundy led
“hundreds of people, including gunmen armed with assault rifles” in a coordinated
assault against the government officials.

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The events that day grew out of a dispute between Bundy and the federal
Bureau of Land Management. According to the Superseding Indictment, for over
20 years Bundy, a rancher, had refused to obtain permits or pay the required fees
for his cattle to graze on federal public lands. As a result, since 1998 Bundy had
been under a federal court order to remove his trespassing cattle. He never
complied with the order, and in 2013 federal officials received authorization to
seize and remove Bundy’s cattle from the land. They began the process of seizure
and removal on April 5, 2014.
While the removal process was ongoing, it is alleged that Bundy and his codefendants used the internet and other means of interstate communication to recruit
gunmen and “Followers” to travel to Nevada to help Bundy make a show of force
against the federal government. The defendants’ online communications allegedly
included requests for help from members of anti-government militia groups. The
content of the communications referred to the federal government as corrupt and to
government officials as thieves. Bundy was portrayed as a victim of government
abuse whose sovereign rights had been violated. Other statements alleged in the
Superseding Indictment show that Bundy viewed himself as involved in a “range
war” with federal officials.
By the morning of April 12, 2014, more than 400 people had allegedly
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shown up to help Bundy, many of them allegedly armed with assault rifles or other
weapons. Approaching from two different vantage points, Bundy and these
Followers allegedly used firearms to threaten federal officers into giving up
Bundy’s cattle. The Government also claims that after getting his cattle back,
Bundy organized his Followers into armed security patrols and checkpoints for the
purpose of protecting his cattle against future government seizures.
II
A writ of mandamus is an extraordinary writ used “to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise
its authority when it is its duty to do so.” Will v. United States, 389 U.S. 90, 95
(1967) (internal quotation marks omitted). We have jurisdiction to grant such writs
under 28 U.S.C. § 1651.
For a writ of mandamus to issue, the party seeking the writ must satisfy three
requirements. First, the petitioner must have no other means of attaining the
desired relief. In re United States, 791 F.3d 945, 954 (9th Cir. 2015). Second, the
right to issuance of the writ must be “clear and indisputable.” Id. (quotations
omitted). Third, even if the first two prerequisites are met, we must be satisfied in
the exercise of our discretion that the writ is appropriate under the circumstances.
Id. at 955. In assessing whether the writ is appropriate, we examine five factors:
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(1) whether the party seeking the writ has no other adequate means, such as a direct
appeal, to attain the relief he or she desires; (2) whether the petitioner will be
damaged or prejudiced in a way not correctable on appeal; (3) whether the district
court’s order is clearly erroneous as a matter of law; (4) whether the district court’s
order is an oft-repeated error, or manifests a persistent disregard of the federal
rules; and (5) whether the district court’s order raises new and important problems,
or issues of law of first impression. Bauman v. U.S. Dist. Court, 557 F.2d 650,
654–55 (9th Cir. 1977). These factors should be viewed as guidelines, not
requirements, and should be weighed together, as appropriate to the facts of the
case. DeGeorge v. U.S. Dist. Court., 219 F.3d 930, 934 (9th Cir. 2000). Typically,
the absence of the third factor, clear error as a matter of law, will defeat the
petition. Id.
In my view, both the first and second Bauman factors weigh solidly in favor
of granting relief. We have previously recognized that parties denied pro hac vice
admission are unable to obtain immediate relief through an appeal because the
denial of admission is neither a final appealable order under 28 U.S.C. § 1291 nor
an interlocutory order appealable under 28 U.S.C. § 1292. See In re United States,
791 F.3d at 958. Losing counsel of choice through a denial of pro hac vice
admission also produces a harm that is not correctable on a later direct appeal. Id.
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at 959. I view the fourth Bauman factor as weighing against granting the writ. As
I discuss below, this case is unusual in that Bundy faces an imminent, massive and
complex trial, as well as difficulties in retaining qualified counsel. These
circumstances make any error by the district court of a type not likely to be
repeated often. And I view the fifth factor as weighing slightly in favor of granting
relief. The central issue in this case—whether denying Klayman’s admission
significantly impairs Bundy’s ability to present a strong defense—is vastly
important, but is only an issue of first impression in the sense that the
circumstances Bundy finds himself in are relatively atypical. I more fully discuss
these circumstances below.
The outcome of this case turns not on the first, second, fourth, or fifth
Bauman factors, but on the third: whether the district court clearly erred in denying
Klayman’s pro hac vice application. In assessing this factor, I maintain a keen
awareness of the deference we give to the district court. We grant mandamus
petitions only sparingly, as writs of mandamus are an “extraordinary or drastic
remedy.” Calderon v. U.S. Dist. Court for Cent. Dist. of California, 163 F.3d 530,
534 (9th Cir. 1998) (en banc) (internal quotation marks omitted), abrogated on
other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). The task of looking
for clear error is a manifestation of this deference: “clear error” requires a more
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significant mistake than “mere error.” In addition, a district court’s decision to
accept or deny a pro hac vice application is itself reviewed only for abuse of
discretion. United States v. Walters, 309 F.3d 589, 591 (9th Cir. 2002). We do not
find an abuse of discretion unless the district court committed legal error, or made
a factual determination that was illogical, implausible, or without support in
inferences that may be drawn from the record. United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc).
We face then a dose of double deference: we review the district court order
under the abuse of discretion standard; and we grant mandamus relief in only
exceptional circumstances, looking for evidence of clear error. See In re United
States, 791 F.3d at 955. There are also pragmatic reasons for deferring to a district
court decision denying pro hac vice admission. After all, it is the district court
judge, not an appellate panel, that is on the front lines in the courtroom, dealing
closely with lawyers and having to do so in a way that ensures the orderly
administration of justice.
Yet, even in this highly deferential setting, there are limits on trial court
discretion, and there are times when we should act.
III
An overriding consideration, in my view, is that a little over three months
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from now, Bundy is scheduled to go to trial on sixteen serious federal charges, and
may do so without a lawyer of his choice; either without representation at all, or
with a different lawyer, not of Bundy’s first choice, who comes into the case so
late that there should be concern that the quality of representation may be
substantially impaired. The charges against Bundy include conspiracy to commit
an offense against the United States, 18 U.S.C. § 371, conspiracy to impede and
injure a federal officer, id. § 372, assault on a federal officer, id. § 111 (a)(1) and
(b), threatening a federal law enforcement officer, id. § 115(a)(1)(B), use and carry
of a firearm in relation to a crime of violence, id. § 924(c), obstruction of the due
administration of justice, id. § 1503, interference with interstate commerce by
extortion, id. § 1951, and interstate travel in aid of extortion, id. § 1952. If
convicted on some or all of the charges, Bundy, who is 70 years old, could spend
the rest of his life in prison.
The trial promises to be especially long and complex. The Superseding
Indictment alleges that Bundy led “hundreds of people” in “a massive armed
assault.”1 Along with Bundy, the government seeks to prosecute 18 other

1

While I mention the subject matter of the allegations against Bundy
because they are relevant to his ability to retain capable counsel, I express no view
on the merits of the underlying case. The merits of the criminal charges are not
before us, and I have not reviewed any evidence relating to them.
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individuals involved in that alleged assault, all in one proceeding. This enormous
trial effort is the product of a longer-than-two-year investigation that involved
government interviews with more than 150 witnesses. The Government ultimately
expects to produce about 1.4 terabytes of digital discovery to the defendants. The
litigation is sufficiently complicated that the district court designated the
proceeding a complex case under the Speedy Trial Act. See 18 U.S.C. §
3161(h)(7)(B)(ii).
In addition to its size and complexity, the trial effort against Bundy and his
cohorts is unusual in that Bundy’s political views, hostile to the United States
federal government, will likely be center-stage. The allegations in the indictment
portray Bundy as being strongly opposed to the federal government and as
considering himself involved in a “range war” with federal officials. The
Government alleges that Bundy and his Followers communicated with members of
anti-government militias, recruiting them to Bundy’s cause. Bundy also allegedly
made statements referring to the government’s seizure as “abuse,” and to
government agents as “thieves,” among other similar refrains. While Bundy’s trial
and any potential conviction will not, and must not, be based on politics, it is likely
that the evidence at trial will put his controversial political views in the courtroom
with him.
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The unique circumstances surrounding Bundy’s prosecution bring with them
a likelihood of constitutional problems. Like any defendant, Bundy’s Sixth
Amendment “right to the counsel of his choice includes the right to have an
out-of-state lawyer admitted pro hac vice.” Walters, 309 F.3d at 592 (quotations
omitted). While that right is not absolute, it may only be abridged to serve a
“compelling purpose.” Id. (quotations omitted). We have not specified the factors
that a district court must consider in determining what satisfies a compelling
purpose for pro hac vice denial. In re United States, 791 F.3d at 957. However,
case law on pro hac vice admission indicates that we should evaluate the district
court’s exercise of discretion in part based on the particular needs of the party
seeking representation.
In re United States is instructive. There, we held that a district court’s
general rule prohibiting the pro hac vice admission of Justice Department attorneys
amounted to clear error. Id. at 958. In reaching that conclusion, we emphasized
the special needs of the party before the court—the United States. See id. (“[A]
district court should consider the unique position of the government as a litigant in
determining whether to exercise its discretion.” (internal quotation marks

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omitted)).2 In United States v. Ensign, a case in which we ultimately affirmed the
district court’s pro hac vice denial, we likewise based our decision in part on the
particular needs of the party—a criminal defendant who was already well into trial
with different counsel at the time of the pro hac vice application. 491 F.3d 1109,
1115 (9th Cir. 2007). That we would give considerable weight to the needs of the
party makes sense: whether a purpose for denying pro hac vice admission is
“compelling” depends both on the importance of the purpose and the effect of the
denial.
Looking to Bundy’s needs and circumstances, both the complexity of the
proceeding against him and his controversial political views raise concerns about
his ability to retain competent counsel in a timely fashion. With so many
defendants, documents, and potential witnesses in the case, only a fraction of the
bar nationwide—let alone in Nevada—has the experience and resources necessary
to give Bundy a vigorous defense. Out of that fraction of qualified practitioners,
there is likely an even smaller proportion that would accept Bundy’s
representation. Bundy’s anti-government views and high-profile status among

2

Though the United States was not a criminal defendant in In re United
States, and so the Sixth Amendment did not apply, the case still supports
considering the needs of the party when deciding on pro hac vice admission
generally.
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those who oppose federal hegemony make the prospect of representing him
daunting for many seasoned defense attorneys. It is unsurprising, then, that not
only has Bundy sought out-of-state counsel, but that he has found himself retaining
an attorney with a controversial reputation of his own. It may be the case here that
a controversial advocate is the best chance at a competent defense for a
controversial defendant.
This point is made stark by the fact that since Klayman’s initial pro hac vice
denial on March 31, 2016, Bundy seems to have failed to find suitable replacement
trial counsel. This is so despite Bundy’s impending trial date and Klayman’s
second pro hac vice denial. Instead, Bundy is currently represented before the
district court by his local counsel, Nevada attorney Joel Hansen, who is by
Hansen’s own admission unable to provide Bundy with an adequate defense.
Hansen is part of a small Nevada firm lacking the resources to try this massive
case. Moreover, Hansen has attempted to withdraw from Bundy’s defense on the
ground that he suffers from a spine and neck injury. According to the
Government’s representations at oral argument before us, Hansen’s motion has
been granted on the condition that Hansen find replacement counsel. Shortly prior
to argument, Nevada attorney Bret O. Whipple filed a notice of appearance on
Bundy’s behalf, but only for the limited purpose of filing certain pretrial motions.
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Government counsel stated at argument that Whipple was currently in negotiations
with Bundy over his representation. After our oral argument on the mandamus
petition, the Government advised us that Whipple entered another appearance on
behalf of Bundy, this time “for the purpose of full representation throughout the
duration of the trial.” But Klayman responded that despite this new language from
Whipple, Bundy is still considering whether to hire Whipple and has not paid
Whipple any retainer, and that regardless of the additional appearance of Whipple,
Klayman’s assistance is still needed by Bundy on the defense team. At this point, I
am not confident that Bundy presently has retained counsel adequate to represent
him vigorously through trial.
Klayman appears ready and qualified to represent Bundy at trial. He is a
former federal prosecutor with experience litigating high-profile cases. He has
worked, in part during his time at Judicial Watch, in bringing lawsuits over
significant public policies. See, e.g., Klayman v. Obama, 957 F. Supp. 2d 1
(D.D.C. 2013) (challenge to government telephone metadata collection), vacated
and remanded, 800 F.3d 559 (D.C. Cir. 2015). He has almost 40 years of legal
experience and is a member in good standing of both the Florida and Washington,
D.C. Bars. Though not currently admitted before the district court, Klayman has
been in contact with Bundy about this case since around the time of Bundy’s
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indictment. Klayman presumably faces a much shorter learning curve than other
potential counsel, including, for example, Whipple.
Given Klayman’s present familiarity with this case and the difficulties
Bundy likely faces in retaining other capable counsel, denying Klayman admission
raises troubling concerns about the fairness of Bundy’s coming trial. The right to
counsel clause of the Sixth Amendment “was designed to assure fairness in the
adversary criminal process.” Wheat v. United States, 486 U.S. 153, 158 (1988). In
the typical choice of counsel case, concerns about fairness are present, but they do
not predominate, because missing out on the defendant’s preferred lawyer does not
mean missing out on qualified counsel altogether; the normal assumption is that
the defendant will be able to retain some other qualified attorney. See id. at 159.
But because of Bundy’s practical and predictable problems finding capable
representation in the time remaining before trial, the denial of his chosen counsel
risks leaving him without fully qualified counsel. The powerful concerns about
fundamental fairness that animated landmark right-to-counsel (not merely choiceof-counsel) cases like Powell v. Alabama, 287 U.S. 45 (1932), and Gideon v.
Wainwright, 372 U.S. 335 (1963), carry particular weight here. If Klayman’s
denial of admission results in Bundy going to trial without capable representation,
there will be doubts about the fairness of the proceeding. This risk of fundamental
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unfairness supports concluding that the district court acted outside the range of its
permissible discretion.
I recognize that the ethical concerns of the majority and the district court,
particularly their concern whether Klayman has been candid and forthcoming in
his representations seeking pro hac vice admission, have some weight. Klayman
properly disclosed the ongoing disciplinary proceeding in his initial application for
pro hac vice admission, saying that the proceeding had not yet been resolved. This
disclosure was accurate. But then, after the district court discovered his Petition
for Negotiated Disposition, he may have come near the line of lack of candor in
explaining it away. He stated that the disposition never went into effect because he
“later thought the better of having signed the affidavit . . . since he feels strongly
that he acted ethically at all times.” Yet, what had happened was a D.C. Board on
Professional Responsibility Hearing Committee had rejected the disposition as too
lenient for the bar’s tastes.3
3

This bar committee rejection for undue leniency does not indicate how
the merits of the proceeding will come out. The decision rejecting the negotiated
disposition said that it did not consider certain “potential mitigation” factors that
would be considered in determining whether any ultimate violation was “justified.”
These potential mitigation factors included that Klayman might not have actually
had a conflict in two of the three representations, that he represented two of the
individuals because he believed that “they would have no other recourse in their
lawsuits,” and that the representations were all performed pro bono. Moreover, a
(continued...)
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At oral argument before us, Klayman explained his view of the difference by
saying that after the rejection, he at first continued to negotiate with counsel for the
D.C. Bar, but then decided to withdraw from those negotiations. While this shows
that Klayman was not lying in his initial explanation, he still seems to have been, at
the least, selective in his disclosures to the district court. I agree with Klayman
that he was not obligated to re-litigate the D.C. proceeding before the district court
and that he did not have to provide the district court with the entire record from
D.C. And if his disclosures were selective, still he is an advocate, an advocate
representing defendant Cliven Bundy, and after submitting a compliant response to
the questions in the pro hac vice application, he had no greater duty to disclose any
possible blemish on his career or reputation beyond responding to the district
court’s further direct requests. Yet, for him to tell the district court that it was
wrong about the negotiated discipline being in effect and to not also tell the court
why the disposition lacked effect—its rejection by the bar committee—may have
been a relevant omission.
3

(...continued)
statement of a bar committee in this context is not, in my view, of controlling
weight because it is not a final determination of ethical violations. Instead, the
committee’s views remain subject to other information it could consider, and the
whole matter remains subject to review by the federal Court of Appeals for the
D.C. Circuit if a final resolution by the bar association was reached that Klayman
appealed.
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The other concerns raised by the district court in its briefing in this court and
its two orders denying Klayman admission, in my view, carry less weight. First,
the allegations underlying the D.C. proceeding are unproven, and we cannot know
what their resolution will be. The district court held this uncertainty against
Klayman, stating in its two orders denying his admission that Klayman would need
to show that the proceeding was resolved in his favor before the court would admit
him. This approach is contrary to the our legal tradition’s instinct to presume
innocence until finding guilt. Of course, the D.C. proceeding involves attorney
discipline and not criminal prosecution, but fundamental principles still have
weight—at least in terms of evaluating the district court’s exercise of discretion.
At this time, Klayman is still a member of the D.C. Bar, and has not been
disciplined by its Board on Professional Responsibility. Moreover, Klayman has
submitted a letter from Professor Ronald Rotunda, an expert on legal ethics,
expressing the opinion that Klayman’s actions at issue were ethical. This is all the
more reason not uncritically to credit unproven bar allegations.
The district court and the majority also point to the two instances of federal
judges banning Klayman from their courtrooms. While serious punishments, these
orders were issued 22 and 18 years ago. Two decades—half of Klayman’s
career—is enough time for the incidents to be relatively poor predictors of
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Klayman’s likely behavior today. The district court, as well as the New York state
court that denied Klayman pro hac vice admission, noted that other judges, even
recently, have in their written orders expressed irritation or disapproval of
Klayman’s actions. It may be that Klayman is not an attorney whom all district
court judges would favor making an appearance in their courtroom. It seems he
has been, and may continue to be, a thorn in the side. Still, concerns about trial
judge irritation pale in comparison to a criminal defendant’s need for robust
defense. In providing a full and fair defense to every criminal defendant, there will
by necessity be occasions when the difficult nature of the case evokes sharply
confrontational lawyering. In tough cases with skilled prosecutors, aggressive
positions by defense lawyers are sometimes an unavoidable part of strong
advocacy, and contribute to making the proceeding an ultimately fair one for the
defendant.
I do not dismiss lightly the district court’s ethical concerns regarding
Klayman, especially the issue of candor. The district court had good grounds to be
worried about Klayman appearing before it. But the need to provide a vigorous
defense for Bundy is a superordinate concern. Bundy faces a very complex trial on
serious criminal charges and a potential lack of qualified representation. If
convicted, he may spend the rest of his life in prison. We cannot evaluate ethical
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concerns without considering this context. The district court did not fully consider
this bigger picture, and did not ensure that Bundy’s need for a vigorous defense
was given due weight. In my view, these circumstances should be controlling in
our assessment of whether the district court’s decision to deny Klayman pro hac
vice admission was an abuse of discretion and clear error.
I also do not suggest that district courts generally must blink over ethical
concerns. At least two other circuits have held that the only thing a district court
may consider in pro hac vice admission is whether the out-of-state attorney is
guilty of conduct so unethical as to justify disbarment. See In re Evans, 524 F.2d
1004, 1007 (5th Cir. 1975); Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553,
1561 (11th Cir. 1997). Our circuit, by contrast, permits denial of pro hac vice
admission based on a broader standard—one that grants district courts leeway to
consider the facts pertinent to the particular case. See In re United States, 791 F.3d
at 956 (“We need not announce specific factors that should inform a district court’s
exercise of its discretion to deny pro hac vice admission.”). In holding the view
that the district court abused its discretion and clearly erred here, I need not suggest
that our circuit’s law should be disregarded and should conform with that of the
Fifth and Eleventh Circuits. I can agree with the principle reaffirmed in In re
United States that in appropriate cases, ethical concerns not meriting disbarment
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may be sufficient to justify pro hac vice denial. 791 F.3d at 956. But the matter
before us is not such an appropriate case. Concerns about Bundy receiving a
proper defense to ensure a fair criminal trial in my view should be considered
controlling by our panel.
I also emphasize that district courts have available to them many tools short
of denying admission that allow them to keep unruly lawyers in check. Through
the power of sanctions, and in extreme cases even contempt proceedings, district
courts can expect to be able to control a lawyer who is considered by the court to
be recalcitrant, tricky, or deceptive, subject to the normal legal standards governing
sanctions. At oral argument, Klayman advised us that he would follow all orders
issued by the district court regarding the orderly administration of justice, and that
he would abide by any other orders of the district court. I accept his representation
and expect that if he were admitted and then deviated from it, the district court
would be well-equipped through its sanction power to take corrective action.4
I acknowledge that we grant mandamus relief sparingly, particularly in cases
challenging the denial of pro hac vice admission. Yet given the number of serious

4

The Government made clear at oral argument that it does not
challenge Klayman’s representation, does not urge that Klayman not be admitted,
and generally suggests that Bundy is entitled to a vigorous defense.
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charges Bundy faces, the complexity of his trial, his likely difficulty in finding
other qualified counsel, and Klayman’s own qualifications, I conclude that the
district court’s concerns over Klayman’s practice history and candor are
outweighed by Bundy’s need for adequate representation in this important and
complex case. Based on the unusual facts of this case and the considerations that I
have voiced, I would hold that the district court abused its discretion, resulting in
clear error. If, as the majority holds, our circuit’s law on abuse of discretion and
clear error for mandamus relief requires its conclusion to deny the mandamus
petition, then in my view that law stands as a barrier to justice and should be
altered. In an unusual case such as this, involving a massive federal prosecution of
many persons and allegations that their sentiments and alleged criminal conduct
were sharply opposed to our federal government, it is particularly important to
ensure that target defendants are able to be represented and defended vigorously.
There is doubtless some merit to the bright-line views of the Fifth and Eleventh
Circuits that a counsel of choice should not be eliminated through the pro hac vice
admission process absent an ethical violation that could merit disbarment. But
even accepting our circuit’s broader view that ethical problems short of those may
be pertinent to a district court’s decision on whether a lawyer should be admitted
pro hac vice, there are nonetheless limits on a district court’s exercise of discretion,
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and I think they are transgressed here.
To give a metaphorical example, we would not need a finely-tuned judicial
scale to determine that a district court abused its discretion if it found that a mouse
outweighed an elephant. That would be an abuse of discretion, and clear error.
And here, even if the purported ethical flaws marshaled by the majority and the
district court are beyond “mouse” proportions, they are still relatively small in this
special context, where the elephant is Bundy’s general entitlement to the counsel of
his choice and to a vigorous defense at trial. In my view, concerns about whether
at this stage Bundy will have adequate and vigorous representation, absent
Klayman, outweigh the ethical concerns that have been expressed by the district
court and the majority.
I respectfully dissent.

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