Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 1 of 10

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CAL J. POTTER, III, ESQ.

Nevada Bar No. 1988
C. J. POTTER, IV, ESQ.
Nevada Bar No. 13225
POTTER LAW OFFICES
1125 Shadow Lane
Las Vegas, NV 89102
Ph: (702) 385-1954
Fax: (702) 385-9081
[email protected]
[email protected]
Attorneys for Defendant David H. Bundy

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,

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CASE NO.:

2:16-CR-00046-GMN-PAL

DEFENDANT DAVID H. BUNDYS

MOTION FOR REVOCATION OF
PRETRIAL DETENTION ORDERS

v.
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DAVE H. BUNDY, erroneously referred to as

DAVID H. BUNDY, et. al.

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Defendants.
__________________________________________/

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Comes now the Defendant, DAVE H. BUNDY, erroneously named as DAVID H.
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BUNDY by and through his attorneys, CAL J. POTTER, III, ESQ. and C.J. POTTER, IV, ESQ,
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and respectfully moves this Court to revoke the detention Orders from both the District of Utah
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and the District of Nevada pursuant to 18 U.S.C. 3142(F), and to order the release of Mr. Bundy
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with the necessary conditions as articulated in 18 U.S.C. 3142(B).
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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 2 of 10

This motion is based upon discovery received, the following analysis, all papers and

pleadings on file herein, as well as the arguments of counsel at the time of the hearing in this

matter, and all exhibits previously provided to the Courts and attached hereto as appendix

Exhibits 4 & 5. (Defendant is using numbers to avoid confusion with the previously lettered

exhibits).

DATED this 14th day of June, 2016

By: /s/ Cal J. Potter, III, Esq.

CAL J. POTTER, III, ESQ.
Nevada Bar No. 1988
C.J. POTTER, IV, ESQ.
Nevada Bar No. 13225
POTTER LAW OFFICES
1125 Shadow Lane
Las Vegas, Nevada 89102

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I.
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INTRODUCTION
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Mr. Bundy hereby moves this Court to Revoke the Utah District Courts Order entered
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on March 9, 2016, detaining Dave Bundy and the District of Nevadas Order on May 16, 2016.
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(See, Exhibit 1 Transcript of Detention Hearing and Exhibit 2 Notice of Appeal of Detention
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Order from the District of Utah) because a letter that Dave Bundy wrote to a county sheriff in
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Oregon and his purported refusal to leave the roadside do not provide a sufficient basis to detain
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Mr. Bundy, but rather are protected First Amendment activities.
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II.
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ARGUMENT
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Title 18, United States Code, Section 3142(f) provides for review of a detention hearing.
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It states that:
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The hearing may be reopened, before or after a determination by
the judicial officer, at any time before trial if the judicial officer
finds that information exists that was not known to the movant at
the time of the hearing and that has a material bearing in the issue
whether there are conditions of release that will reasonably assure
the appearance of such person as required and the safety of any
other person and the community.

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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 3 of 10

It is worth noting that of the four overarching factors to be considered under 18 U.S.C.

3142(g), the weight of the evidence is considered to be the least important factor by courts.

United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). Further, while there is a

presumption of detention in this case given the serious nature of the charges, such presumption is

rebuttable. 18 U.S.C. 3142 (e). Once the presumption is involved, the Defendant only need to

present some credible evidence that they are not a flight risk or danger to the community to

overcome the presumption of detention. See e.g. United States v. Dominguez, 783 F.2d 702, 707

(7th Cir. 1986). (Defendants burden of production is not heavy, but must produce some

evidence). In this case the attached letters clearly are more than just some credible evidence that

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Mr. D. Bundy is not a flight risk or danger to the community. According to 18 U.S. C. 3142

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(g), family ties are specifically cited as criteria to consider when a court is to assess an

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individuals history and characteristics.

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Title 18 U.S.C. 3142, et seq., provides that an individual facing trial should be released

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with the least restrictive condition or combination of conditions reasonably necessary to ensure

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the safety of the community and secure the appearance of the defendant throughout the

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proceedings. 18 U.S.C. 3142(c)."Only in rare circumstances should release be denied, and

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doubts regarding the propriety of release should be resolved in the defendant's favor."

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United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) (Emphasis added), citing United

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States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985).

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The statute articulates the factors that must be considered in determining whether

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conditions exist that will address the government's concerns for safety and appearance. The

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factors include: (1) the nature and circumstances of the offense or offenses charged; (2) the

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weight of the evidence against the defendant; (3) the defendant's personal characteristics,

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including but not limited to family ties, employment status, community ties, and criminal history;

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and (4) the nature and seriousness of the danger to persons or the community that would be

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present upon release of the individual. 18 U.S.C. 3142(g). Although the nature of the charges

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may create a presumption that no conditions or combination of conditions will meet the

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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 4 of 10

government's regulatory interest in community safety or the defendant's future appearance, that

presumption is rebuttable. 18 U.S.C. 3142(e)(2).

In support of their argument to detain Mr. D. Bundy, the government focuses large

portions of their arguments both with the District Court of Utah and this Court describing the

beliefs and actions of Mr. D. Bundy's father and co-defendant, Cliven Bundy. At the heart of the

government's argument is the presumption that Mr. D. Bundy benefits from the actions of the

others because he is related to the owner of the ranch where the cattle run and is, therefore,

inextricably intertwined with all of the alleged actions that occurred in April, 2014. The facts and

exhibits suggest otherwise. Indeed Mr. D. Bundy never was armed and never went to Oregon

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with his family members.

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While Mr. D. Bundy loves his extended family and expresses an understanding of their

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stated cause, that does not mean that he supports all tactics employed. This was never more

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evident than when he became the conduit between the Citizen Protesters, the Clark County

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Sheriff and the Federal agents on April 12, 2014. It is clear from the exhibits, both government

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and defense, that Mr. D. Bundy was the reason and the means by which the matter was peacefully

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de-escalated and the people dispersed without any injuries. Significantly, then Assistant Sheriff

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Lombardo indicated that, although the situation was tense and individuals were angry, Mr. D.

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Bundy did not yell, use profanity, or point a gun during the negotiations. Mr. D. Bundy

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adamantly disagrees with the government's allegations and characterizations of the events and

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statements leading up to these charges. While he will zealously defend against these charges,

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there can be little disagreement that, at all times relevant to this matter, Mr. D. Bundy remained

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unarmed and calmly helped bring the protest to a conclusion.

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A.

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THE MAGISTRATE ERRED

On or May 16, 2016 the Accused Dave Bundy, appeared before the Honorable Magistrate

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Judge Ferenbach, regarding Dave Bundys Motion to Re-Open Detention Hearing. The Court

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allowed the Detention Hearing to be re-opened (Exhibit 1, p.60, ln. 24) but denied release upon

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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 5 of 10

any conditions because inter alia, Mr. Bundy had written a letter to the Sheriff in Harney County,

Oregon that the government interpreted as demonstrating that Mr. Bundy would not comply with

this Courts Orders of pre-trial release. (Id. p. 60 ln. 18).

The Magistrate-judge erroneously found that Dave helped create the situation. Maybe

not as one of the primary leaders, but he cooperated. (Id. p. 59, lns.12-13). The Court then

confused the issues about the snipers on the high ground and the snipers on the interstate that

were pointing their long-arms at Metro and the BLM agents.

Dave Bundy, at the request of Sheriff Lombardo and Dan Love asked Dave Bundy to get

the protestors, both armed and unarmed out of the dry wash. The protesters that went to the high

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ground are not the snipers who had their long arm rifle pointed at the individual officers from the

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interstate over pass several hundred yards from the wash and banks of the wash. (Id. p. 61).

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The Court then focused upon a January 5, 2015 letter to a Sheriff Ward in Oregon, which

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the Court noted to not be criminal and protected speech under the First Amendment (Id. p. 60,

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lns. 16-25, pg. 61, lns. 1-4 ).

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NEW MATERIAL

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The Sheriff of Millard County, Utah Robert Decker, is willing to take custody and assist

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the United States Government to fashion a monitors release of Dave Bundy (Id. pgs. 5 & 6). Mr.

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Bundy's children also submitted letters to the Court outlining the day to day activities with his

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wife.

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C.

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CLARIFICATION OF DAVE BUNDY'S ROLE FROM THE UTAH HEARING

Mr. Dave Bundy was not blocking the highway or impeding any of the hauling of cattle

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by the contract cowboys. Mr. Bundy's sister took a picture showing that Mr. Bundy on April 06,

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2014 was actually on the shoulder of the road off of the pavement. This was prior to the date of

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the stand-off on April 12, 2014.

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Mr. Dave Bundy and his family members had seen the back hoes that he believed were

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being used to buy the cattle and calves that had been killed during the helicopter round-up of the

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cattle and that several cows had lost their calves. (Id. pg. 8).

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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 6 of 10

Secondly, Dave Bundy does not have a financial interest in the Bundy Ranch which is

located in Riverside, Nevada. Dave Bundy left the family ranch when he graduated high school

and went on a two-year mission for the LDS Church in Oregon and Southern Washington State.

In addition, Dave Bundy is licensed as a pilot with the Federal Aviation Administration

has a TSA clearance and has also cooperated with the BLM to obtain water from his home in

Delta, Utah where he lives with his wife and 6 children ages 15-1 years of age.

Dave Bundy currently lives with his in-laws in Delta, Utah while he is building his family

a home near his in-law's home. Mr. Dave Bundy is also a licensed underground contractor in

Nevada, Utah, and Arizona and did underground work in the tri-state area.

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The government also incorrectly stated that Dave Bundy quit his job at Grand Canyon

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Airlines to participate in the protest at his Father's Ranch. In reality, Dave Bundy worked until

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April 28, 2012 well past the date of the stand-off.

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Similarly, the Government also implied that Dave Bundy was involved in a helicopter

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that was alleged to fly over the grazing land to monitor the round-up. Mr. Bundy is not licensed

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to fly helicopters and does not fly helicopters.

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The Magistrate-Judge also recognized that any statements that Dave Bundy made about

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the injuries that he sustained at the hands of the BLM rangers was protected by the first

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amendment and was not criminal conduct. Like the letter written to the Harney County Sheriff.

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(Id. pgs. 41-42) was also protected speech. (Id. pgs. 42-43) (Id. pg 47).

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The Government also concedes that Dave Bundy followed the request of SAC Love's

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request that Dave Bundy request that crowd push back off of the fence and get some room and

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that SAC Love would need 30 minutes to accomplish the move as a peacemaker Dave Bundy

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honor SAC Love's Order and as a peacemaker had the crowd honor request. It should also be

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noted Dave Bundy was not armed during the time of the protest and stand-off (Id. pg. 38).

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The Government acknowledged that facebook posts that were made after Dave Bundy

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was arrested could not have been made by Dave Bundy. Instead the Government seeks detention

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of Dave Bundy because whomever was posting on the Bundy Ranch Facebook page; clearly not

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Dave Bundy on his Utah family was critical of the Utah Sheriff in Millard County assisting the
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United States Marshals in arresting Dave Bundy. (Id. pg. 45). Dave Bundy cooperated with the

Federal and State Authorities when he was arrested in Delta, Utah. Hence the Court could take

judicial notice when Federal Action was taken against Dave Bundy in the case at bar, his actions

were non violent and appropriate. (Id. pg. 51).

Ultimately, the Court recognized that the charges are indeed serious charges, but the

Court also noted that Mr. Dave Bundy is not as culpable as a lot of the other defendants. (Id. pg.

57). Similarly Dave does not have a criminal record. Dave also is a respected family man, a

licensed contractor and a licensed pilot and that Dave Bundy is a good family man.

The Court erroneously found that Dave Bundy has demonstrated a willingness to defy this

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Court's Order using treats of violence. The Court further erred in finding by clear and convincing

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evidence that, should law enforcement be required to enforce any imposed conditions of release

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they will be met with armed resistance.

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The Court then made a conclusory finding, by a preponderance of the evidence, that no

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conditions or combination of conditions will reasonably assure the safety of other persons or the

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community (Id. pg. 61-62), and that Magistrate Judge Wells ruling in Salt Lake City, Utah

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should not be disturbed.

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However, the detention decision of Magistrate Judge Wells in the District of Utahs

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Central Division, impermissibly relied upon Dave Bundys protected First Amendment activities

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in sitting by the side of the road and his letter to a county sheriff in Oregon as his basis for

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detention. (Exhibit 3, Transcript of Utah Detention Hearing, p. 41). Specifically Judge Wells

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articulated that: the evidence before me related to his position in terms of his resistence to a

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lawful arrest in another occasion constitutes his lack of respect and continued lack of respect for

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officers in their official duties. (Id.). The District of Utahs decision relied upon the

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governments pre-packaged boilerplate PowerPoint that impermissibly group all Defendants

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without an attempt to differentiate their conduct. (Exhibit 4, Defendants Exhibits from Utah

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Detention Hearing). The Defendant submits that the following conditions will assure Dave's

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appearance and the safety of the community.

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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 8 of 10

III.

CONCLUSION

Wherefore, Defendant Dave Bundy respectfully requests that this Court Revoke the

Pretrial Detention Orders from the District of Utah and the District of Nevada and fashion

appropriate conditions of pretrial release.

DATED this 14th day of June, 2016

POTTER LAW OFFICES

By: /s/ Cal J. Potter, III, Esq.

CAL J. POTTER, III, ESQ.
Nevada Bar No. 1988
C.J. POTTER, IV, ESQ.
Nevada Bar No. 13225
1125 Shadow Lane
Las Vegas, Nevada 89102
Attorneys for Defendant, Dave H. Bundy

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Case 2:16-cr-00046-GMN-PAL Document 526 Filed 06/14/16 Page 9 of 10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that pursuant to FRCP 5(b), I did serve at Las Vegas, Nevada on

this 14th day of June, 2016 a true and correct copy of DEFENDANT DAVID H. BUNDYS

MOTION FOR REVOCATION OF PRETRIAL DETENTION ORDERS on all parties to

this action via CM/ECF system addressed as follows:

Joel F. Hansen
Hansen Rasmussen
1835 Village Center Circle
Las Vegas, Nevada 89134
Attorney for Cliven Bundy

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Ryan Norwood
William C. Carrico
Rene Villadares
Federal Public Defenders Office
411 E. Bonneville Ave.
Las Vegas, Nevada 89101
Attorneys for Ryan Payne

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Chris T. Rasmussen, Esq.

RASMUSSEN & KANG
330 South Third Street, Ste. 1010
Las Vegas, NV 89101
Attorney for Peter T. Santilli, Jr.

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Lucas Gaffney
Oronoz, Ericsson & Gaffney LLC
1050 Indigo Drive, Suite 120
Las Vegas, Nevada 89145
Attorney for Melvin Bundy

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Brian James Smith

Law Office of Brian J. Smith, Ltd.
9525 Hillwood Drive, Ste. 190
Las Vegas, Nevada 89134
Attorney for Gerald A. Delemus

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Jess R. Marchese
Law Office of Jess R. Marchese
601 South Las Vegas Blvd.
Las Vegas, Nevada 89101
Attorney for Eric J. Parker

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Craig W. Drummond
Drummond Law Firm
228 South Forth Street First Floor
Las Vegas, Nevada 89101
Attorney for O. Scott Drexler

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Shawn R. Perez
Law Office of Shawn R. Perez
626 South Third Street
Las Vegas, Nevada 89101
Attorney for Richard R. Lovelien
Richard E. Tanasi
601 South Seventh Street, 2nd Floor
Las Vegas, Nevada 89101
Attorney for Steven A. Stewart

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Julian R. Gregory
Law Office of Julian Gregory
324 S. 3rd Street, Ste. 200
Las Vegas, Nevada 89101
Attorney for Todd C. Engel

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Terrence M. Jackson
Law Office of Terrence M. Jackson
624 South Ninth Street
Las Vegas, Nevada 89101
Attorney for Gregory P. Burleson

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Andrea Lee Luem

Law Office of Andrea L. Luem
499 South 4th Street, Ste. 280
Las Vegas, Nevada 89101
Attorney for Joseph D. O'Shaughnessy

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Chris Arabia
601 S. 10th Street
Las Vegas, Nevada 89101
Attorney for Micah L. Mcguire
Kristine M. Kuzemka
Kuzemka Law Group
9345 W. Sunset Road, Suite 100
Las Vegas, Nevada 89148
Attorney for Jason D. Woods
Erin M. Creegan, Esq.
Nadia Janjua Ahmed, Esq.
Nicholas D. Dickinson, Esq.
Daniel Bogden, Esq.
U.S. Attorney's Office
333 Las Vegas Blvd. South Suite 5000
Las Vegas, Nevada 89101
Attorneys for Plaintiff

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/s/ Stacie Comerio

An Employee of Potter Law Offices

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