Case 2:16-cr-00046-GMN-PAL Document 612 Filed 07/22/16 Page 1 of 14

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RENE L. VALLADARES
Federal Public Defender
State Bar No. 11479
SHARI L. KAUFMAN
Assistant Federal Public Defender
WILLIAM CARRICO
State Bar No. 003042
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
Shari_Kaufman@fd.org

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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,
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vs.
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RYAN W. PAYNE,
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Defendant.
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2:16-cr-046-GMN-PAL
DEFENDANT RYAN W. PAYNES
OBJECTIONS TO REPORT OF
FINDINGS AND
RECOMMENDATION (#589) TO
MOTION TO DISMISS (#291)

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Certification: These Objections are timely filed.

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Defendant RYAN W. PAYNE, through his counsel, SHARI L. KAUFMAN, WILLIAM

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CARRICO, and RYAN NORWOOD, Assistant Federal Public Defenders, hereby objects to the

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Magistrate Judges Report of Findings and Recommendation that his motion to dismiss be denied.

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DATED this 22nd day of July, 2016.

RENE VALLADARES
Federal Public Defender

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By: /s/ Shari L. Kaufman

SHARI L. KAUFMAN
Assistant 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

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Objections to Report and Recommendation

Defendant Ryan Payne timely objects to the Report of Findings and Recommendation

(R&R) that his motion to dismiss be denied. ECF No. 589. This Court must make a de novo

determination of the objected portions of the R&R and may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. 636(b)(1);

Local Rule IB 1-4; D. Nev. R. IB 32(b). Mr. Payne objects to the following.

I.

The Charges in Two Separate Federal District Courts Impermissibly Forced Mr.
Payne to Choose Between Guaranteed Constitutional Trial Rights.

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Mr. Payne moved to dismiss this case, inter alia, because the governments conduct has

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impermissibly forced him to elect between exercising his constitutional rights under the Fifth and

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Sixth Amendment in the Oregon case or in the Nevada case. The R&R fails to directly address

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this argument. Rather, the R&R applies the analysis set forth in the interlocutory appeal taken in

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the Oregon case that addressed whether it was impermissible for the Oregon district court to

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enforce a writ ad prosequendum to transfer Mr. Payne to the Nevada district court for purposes

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of arraignment. ECF No. 589, pp. 10-11 (referencing United States v. Bundy, 9th Cir. No. 16-

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30080, Mem. Op., 06-22-16).

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The issues underlying the Oregon appeal are distinct from the issues Mr. Payne raised in

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his motion to dismiss. Notably, the essence of the relief the Oregon appeal sought was rendered

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moot by the time the appellate panel heard the case, as Mr. Payne had already been transferred to

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the District of Nevada for twelve days and returned to the District of Oregon. Bundy, Mem. Op.,

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pp. 1-2. The prejudice in the Oregon case appears to have been limited to the 12-day time frame

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Mr. Payne was out of the Oregon district. The Ninth Circuit held it did not have jurisdiction to

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decide the interlocutory appeal under the collateral order doctrine as it believed the issue of

prejudice could be adjudicated on direct appeal. Id. at 2-3.

In the analysis section of the R&R, the Magistrate Judge heavily references the Ninth

Circuits application of the collateral review doctrine that appellate courts apply in adjudicating

interlocutory appeals. ECF No. 589, pp. 10-11 (referencing Bundy, supra). That the Ninth Circuit

declined to address Mr. Paynes separate and distinct arguments in his appeal of the Oregon case

has no relevance here. ECF No. 589, pp. 10-11. Mr. Payne submits reference to the appellate

standard of review in adjudicating his constitutional claims has no place here. As such, he

petitions this Court to adjudicate his constitutional claims.

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The dual prosecution of Mr. Payne in both Oregon and Nevada required him to invoke his

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constitutional rights to a speedy trial, to effective assistance of counsel, and to due process in the

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Oregon case or in the Nevada casenot both. The rights to a speedy trial, effective assistance

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of counsel, and due process are fundamental constitutional rights. Moore v. Arizona, 414 U.S.

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25, 27-28 (1973) (stating the right to a speedy trial is as fundamental as any of the rights secured

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by the Sixth Amendment) (internal quotation marks and citation omitted); Lockhart v. Fretwell,

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506 U.S. 364, 369 (1993) (finding the Sixth Amendment right to effective assistance of counsel

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exists to protect the fundamental right to a fair trial). The Supreme Court has been unyielding

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in its insistence that a defendants waiver of constitutional trial rights must be knowing,

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intelligent, and voluntary. Schriro v. Landigan, 550 U.S. 465, 484 (2007) (emphasis added).

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Mr. Payne could not proceed in the Oregon and Nevada cases simultaneously without being

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forced to waive constitutional rights that the government may not force him to waive. And,

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Mr. Payne could not invoke his constitutional trial rights in both cases simultaneouslythe

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logistics of the Oregon and Nevada cases render this impossible.

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Whether a defendant can knowingly, intelligently, and voluntarily waive his constitutional

rights is dependent upon the particular circumstances of the case and the nature of the right

involved. Gete v. I.N.S., 121 F.3d 1285, 1293 (9th Cir. 1997) (citing Johnson v. Zerbst, 304 U.S.

458 (1938)). There can be no argument that Mr. Payne waived any of his constitutional trial

rights in the instant case: Mr. Payne invoked in his motion to dismiss his constitutional rights to

a speedy trial, to effective assistance of counsel, and to due process. Mr. Payne never waived any

of his constitutional trial rights in the Oregon case: he specifically invoked his constitutional trial

rights in the Oregon case as well. See United States v. Payne, D. Or., Case No. 3:16-cr-00051-

BR-4, ECF No. 183, p. 2 (stating Mr. Payne invoked his rights under the Fifth and Sixth

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Amendment); ECF No. 340 p. 15 (defense counsel stating Mr. Paynes then-impending transfer

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to Nevada for arraignment started the clock for his statutory and constitutional speedy rights, the

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impact of which interferes with his right to effective assistance of counsel, speedy trial, and due

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process in the Oregon case).

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In United States v. Simmons, 390 U.S. 377, 394 (1969), the Supreme Court found it

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intolerable that one constitutional right should have to be surrendered in order to assert another.

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There, the Supreme Court considered the interplay between the Fourth and Fifth Amendments

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and held a defendants testimony offered to support suppression of evidence under the Fourth

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Amendment claim should not be admissible against him at trial on the question of guilt or

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innocence under the Fifth Amendment. Simmons, 390 U.S. at 394. Otherwise, the defendant

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would face a Hobsons choice: refuse to testify to raise the Fourth Amendment claim to preserve

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his Fifth Amendment right against self-incrimination. Id. at 392-94.

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In United States v. Jackson, 390 U.S. 570, 581 (1968), the Supreme Court struck a portion

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of the Federal Kidnaping Act that allowed imposition of the death penalty solely by means of a

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jury verdict, a circumstance that operated to discourage assertion of the Fifth Amendment right

not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.

The Supreme Court found this constitutionally impermissible as it would needlessly chill the

exercise of basic constitutional rights. Jackson, 390 U.S. at 582 (citations omitted).

Under Simmons and Jackson, the government should not have been permitted to force

Mr. Payne to choose which case should receive the benefit of guaranteed constitutional trial

rights. Such a choice is intolerable as it is no choice at all. The governments conduct in this

case requires this Court to serve as an accomplice in the intolerable infringement upon

Mr. Paynes constitutional rights, lest the Court grant the one true remaining remedy. The Court

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should dismiss the instant case with prejudice.

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Amendment rights will be violated in the following ways.

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Otherwise, Mr. Paynes Fifth and Sixth

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A. Mr. Paynes Sixth Amendment Right to a Speedy Trial Has Been Violated
Because He Has Been Forced to Litigate Both the Oregon and Nevada Cases
Simultaneously.

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The Sixth Amendment guarantees that [i]n all criminal prosecutions, the accused shall

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enjoy the right to a speedy . . . trial. U.S. Const. amend VI. In Barker v. Wingo, the Supreme

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Court explained the Constitutions guarantee of a speedy trial is to be determined through

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application of a balancing test that compels courts to approach speedy trial cases on an ad hoc

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basis. 407 U.S. 514, 530 (1972).

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There are four factors courts should consider as part of this inquiry: (1) the [l]ength of

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delay; (2) the reason for the delay; (3) the defendants assertion of his right to a speedy trial; and

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(4) prejudice to the defendant. Id. While each of the factors is relevant, [t]he flag all litigants

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seek to capture is the second factor, the reason for delay. Boyer v. Louisiana, 133 S. Ct. 1702,

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1706 (2013) (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)). Additionally, the

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Supreme Court has explained different weights should be assigned to different reasons. Boyer,

133 S. Ct. at 1706 (quoting Barker, 407 U.S. at 531). A deliberate attempt to delay the trial in

order to hamper the defense is particularly serious, and should be weighted heavily against the

government. Id. (same). Analysis of these factors demonstrates Mr. Payne cannot exercise his

constitutional right to a speedy trial in this case.

As to the first factor, the delay in this case approaches one year under the current trial

schedule because the government chose to pursue the Oregon case first. The indictment was filed

on February 17, 2016, and the trial is slated for February 6, 2017. Mr. Payne should not be forced

to allow the facts, evidence, and witnesses that are most distant in time to lay idle while the more

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recent Oregon case proceeds. Witnesses memories fade with time, and witnesses who may be

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available to assist his defense in Nevada now may not be available to him while he waits for the

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government to litigate to conclusion the Oregon case, whenever that might be. The conditions

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and layout of the land where much of the conduct is alleged to have occurred will also change

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with time due to natural causes, weather patterns, and public use and access. Mr. Payne must be

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present in Nevada to assist his counsel in investigating and mounting his defense in the Nevada

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case.

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The second factor, the reason for the delay, also weighs in Mr. Paynes favor. The

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government is responsible for the delay that will inevitably occur. The government chose when

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to indict Mr. Payne, where to indict Mr. Payne, whether to initiate proceedings to start the speedy

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trial clock in each case, and to seek Mr. Paynes detention.

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Additionally, the Court is contributing to the delay by failing to address the ongoing

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discovery issues suffered by Mr. Payne. As has been made clear in the pleadings, Mr. Payne has

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no viable means to review the discovery in this case. See ECF No. 442, Motion to Compel

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Discovery; ECF No. 530, Reply to Motion to Compel; ECF No. 600, Emergency Motion to

Reconsider. Undersigned counsel made this Court aware that discovery issues would occur as

early as the initial appearance in this district. ECF No. 249. Once the initial discovery was

provided to defense counsel, attempts were made to insure that Mr. Payne, who was in custody

in Oregon, was given access to his discovery. Counsel spoke with both the United States Marshal

in Oregon and the facility where Mr. Payne was housed in an attempt to facilitate his access to

the voluminous electronic discovery. The local jail where Mr. Payne is housed indicated that

there was no mechanism to allow Mr. Payne to review electronic discovery. Counsel then asked

the local facility for the rules on sending in paper discovery. Counsel was informed that the jail

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would only permit Mr. Payne to receive and store a limited amount of paper discovery. Counsel

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was advised that Mr. Payne could only receive additional discovery if some of the discovery he

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had previously received from Oregon was returned to his Oregon counsel.

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Counsel spoke with Mr. Paynes attorneys in Oregon, who indicated that they were

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exchanging old discovery with new discovery often, to allow Mr. Payne to review the discovery

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in the Oregon case.

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Mr. Payne had no access to that discovery electronically, Oregon counsel could not further limit

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the amount of discovery sent to Mr. Payne.

Since the Oregon case also had voluminous discovery, and because

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On May 24, 2016, Mr. Payne filed his initial motion to allow access to electronic discovery,

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or in the alternative for this Court to order his transfer to a facility where he could review electronic

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discovery. ECF No. 442. This Court did not rule on Mr. Paynes motion. On June 22, 2016,

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Mr. Payne filed an emergency motion for a status hearing requesting this Court rule on his previous

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request, since a month had passed and he still no access to the discovery. ECF No. 560. The

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Court did not treat the motion as an emergency motion. On July 8, 2016, the Magistrate Judge

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denied Mr. Paynes motion, indicating the discovery issue in this case should be raised in Oregon.

ECF No. 590. On July 12, 2016, Mr. Payne filed an emergency motion to reconsider to allow

Mr. Payne access to the electronic discovery, as Oregon had no jurisdiction concerning this case.

ECF No. 600. Again, this Court did not treat the request as an emergency motion and has not ruled

on his motion to reconsider.

defendants who were charged solely in Nevada, and housed at the local detention facility, have

access to the discovery electronically. ECF No. 321. These defendants have had the discovery

for months.

The Magistrate Judge did, however, rule months ago that the

The Court, however, has not provided any judicial management to resolve these issues as

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to Mr. Payne. As of the date of this filing, this Court has done nothing to insure that the defendant

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have access to his discovery, even though the reason the Court declared this case complex, over

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defense counsels objection, was because of voluminous discovery and complex issues. By not

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resolving any of these discovery issues, Mr. Payne is prohibited from preparing for trial in this

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case. The governments decision to seek Mr. Paynes pretrial detention has thus allowed the

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government to keep Mr. Payne in the dark about the evidence against him and has inhibited his

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ability to strategize in any meaningful way with his counsel.

The third factor is indisputable as Mr. Payne has promptly asserted his right to a speedy

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trial.

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The final and fourth factor, the prejudice to Mr. Payne, is also indisputable and ongoing.

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Mr. Payne cannot hope to participate in any trial, speedily or otherwise, unless and until he is

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given sufficient time to review the discovery in this case and consult confidentially with his

counsel. 1

The balancing of these factors weighs strongly in Mr. Paynes favor. Mr. Payne objects

to the R&Rs failure to dismiss this case with prejudice, as dismissal with prejudice is the only

remedy available to cure the government-caused violation of Mr. Paynes constitutional speedy

trial rights.

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B. Mr. Paynes Sixth Amendment Right to Effective Assistance of Counsel Has Been
Violated Because He Has Been Forced to Litigate Both the Oregon and Nevada
Cases Simultaneously.

The Sixth Amendment also guarantees the accused effective assistance of counsel both

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before trial and after trial. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 684-

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686 (1984). Within this realm, the Supreme Court has suggested the most critical period of the

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litigation is that between arraignment and the beginning of trial. Powell v. Alabama, 287 U.S.

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45, 57 (1932). The government violates an accuseds right to effective assistance when it

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interferes in certain ways with the ability of counsel to make independent decisions about how to

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conduct the defense. Strickland, 466 U.S. at 686.

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The District of Oregon ordered Mr. Payne detained and has housed him in the Multnomah

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County Jail in the Inverness facility. Mr. Payne is not permitted access to electronic devices to

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Mr. Paynes inability to prepare for trial in this case has not been altered by his decision to enter
a guilty plea in the Oregon case on July 19, 2016. There are 27 defendants in the Oregon case,
including one whose name has not yet been unsealed. It appears from the Oregon docket that 8 of
Mr. Paynes co-defendants have also entered guilty pleas. Trial is still set in the Oregon case for
September 7, 2016. Given the number of defendants in the Oregon case, it is unknown how long
it will take to actually resolve the proceedings in Mr. Paynes case, as it is unclear if the Oregon
district court will sentence defendants piecemeal or whether sentencing will only be completed
once trial is completed for the remainder of the defendants. Furthermore, should fair and just
reasons necessitate his guilty plea be withdrawn and he proceed to trial in Oregon, the prejudice
suffered will be compounded.
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view the discovery in this case and is only permitted a certain number of pages to review at any

one time. The only manner in which Mr. Payne can view the discovery in this case is for

undersigned counsel to bring a laptop during visitation sessions.

For undersigned counsel to investigate this case, prepare a defense, and communicate with

Mr. Payne, counsel must fly to Portland and review the discovery in person with Mr. Payne during

scheduled visitation sessions. The economic costs required of this procedure notwithstanding,

counsel cannot hope to effectively represent Mr. Payne if he only has access to the electronic case

materials during scheduled in-person visits with counsel. 2

Effective trial preparation in this case demands the assistance of Mr. Payneassistance

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that has been rendered nearly impossible as there is a phenomenal amount of work to be done to

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meet the governments accusations. Detention of Mr. Payne in a district approximately 1,000

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miles away eviscerates any possibility for effective communication and necessary dialogue

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between Mr. Payne and his counsel. The Sixth Amendments guarantee of the assistance of

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counsel, coupled with basic principles of fairness, which should inhere in any criminal

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proceeding, command that Mr. Payne is entitled to prepare his defense with defense counsel.

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Mr. Paynes detention in Oregon at the Multnomah County Jail prohibits this from occurring in

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any meaningful way. Dismissal of the instant indictment with prejudice is warranted as the

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present circumstances of Mr. Paynes detention and the dual prosecutions prohibit undersigned

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from providing effective assistance of counsel to Mr. Payne.

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C. Mr. Paynes Fifth Amendment Right to Due Process Has Been Violated Because
He Has Been Forced to Litigate Both the Oregon and Nevada Cases
Simultaneously.

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The Oregon district courts order releasing Mr. Payne to the custody of the U.S. Marshal Service
does not diminish this argument as Mr. Payne is still in custody in Oregon and, even if transferred
to Nevada, could be transferred back to Oregon before his case there is resolved. See supra note
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The Fifth Amendments Due Process Clause provides [n]o person shall . . . be deprived
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of life, liberty, or property, without due process of law. . . . U.S. Const. amend. V. The Supreme
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Court has held the Due Process Clause contains a substantive and a procedural component.
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Substantive due process protects defendants from government conduct that shocks the
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conscience, Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights implicit in
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the concept of ordered liberty,life, liberty, or property. Id. (quoting Palko v. Connecticut,
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302 U.S. 319, 325-326 (1937)); Herrera v. Collins, 506 U.S. 390, 435-36 (1993). If the
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governments conduct survives substantive due process scrutiny, procedural due process requires
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that the governments conduct in depriving a defendant of life, liberty, or property must be
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implemented in a fair manner. United States v. Salerno, 481 U.S. 739, 746 (1987).
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The government engaged in parallel proceedings, federally charging Mr. Payne in both
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the Oregon and Nevada at the same time. The government also unilaterally decided to try the
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Oregon case first, forcing Mr. Payne to delay trial and trial preparation in a case for which the
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factual underpinnings are alleged to have begun in 2014two years before the 2016 allegations
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in the Oregon case. The result of the governments decision forced Mr. Payne to allow the facts,
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evidence, and witnesses that are most distant in time to lay idle while the more recent Oregon
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case proceeds. Mr. Payne must be present in Nevada to assist his counsel in investigating and
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mounting his defense in the Nevada case. Dismissal of the instant indictment with prejudice is
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warranted as the governments charging and prosecution decisions in this case deny Mr. Payne
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substantive and procedural due process.
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VI.

Conclusion

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Mr. Payne objects to the R&Rs denial of his motion to dismiss and the R&Rs failure to
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address the specific constitutional violations raised herein. The government chose to force
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Mr. Payne to make his appearance in this case, over his objection. The only available remedy for

the governments conduct is dismissal with prejudice.

Dated this 22nd day of July, 2016.

Respectfully Submitted,

RENE VALLADARES
Federal Public Defender

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By: /s/ Shari L. Kaufman

SHARI L. KAUFMAN
Assistant Federal Public Defender

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By: /s/ William Carrico

WILLIAM CARRICO
Assistant Federal Public Defender

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By: /s/ Ryan Norwood

RYAN NORWOOD
Assistant Federal Public Defender

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CERTIFICATE OF ELECTRONIC SERVICE

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

the District of Nevada and is a person of such age and discretion as to be competent to serve papers.

That on July 22, 2016, he served an electronic copy of the above and foregoing

DEFENDANT RYAN W. PAYNES OBJECTIONS TO R&R by electronic service (ECF) to

the person named below:

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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/ Brandon Thomas

Employee of the Federal Public Defender

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