By CHERI ROBERTS for Challenging the Rhetoric
The United States Government in the District of Nevada, in their case against 19 individuals, including 5 male members of the now notorious Bundy family, have filed a motion for a protective order regarding an undercover employee (UCE). In April 2014, those charged had participated in a heavily armed and tense standoff with Bureau of Land Management (BLM) employees and other law enforcement near the Bundy Ranch in Bunkerville, NV.
According to the document, the govt. intends to call the UCE as a witness against the defendants in the upcoming NV trial stating the UCE was involved in the investigation that led to the arrest and prosecution of the defendants. They are asking that the UCE testify as “Charles Johnson,” his cover identity. The govt. also says it may play recordings of conversations between the defendants and the UCE.
The govt. claims that public disclosure of the UCE’s true identity or physical images would jeopardize other investigations in which the UCE is active and may pose a risk of danger to the UCE. The govt.’s motion lists several examples of Bundy supporters using the internet and social media, stretching between the 2014 Bundy Ranch episode through the 2016 Oregon Standoff event, to issue calls for and/or to instigate violence and intimidation of federal employees, witnesses, and others. Because of this, the govt. is requesting certain security measures, consistent with measures approved in other cases. In addition, the govt. has moved to prevent any cross-examination leading to questioning of the UCE’s true identity or other investigations.
The govt. acknowledges that the Confrontation Clause of the Sixth Amendment gives a defendant the right to confront and cross-examine the government’s witnesses who testify against the defendant. The Confrontation Clause does, however, not require that a jury hears a witness’s true name.
In the document the govt. says their proposed measures are narrowly tailored and meant to assure that the identity of the UCE and the integrity of other undercover investigations will not be compromised without impairing the defendants’ confrontation rights under the Sixth Amendment.
Proposed Measures to Safeguard UCE Identity:
1. The UCE may testify at trial using an undercover pseudonym without publically disclosing his true identity, specifically, the government requests that the UCE testify as “Charles Johnson,” his cover identity.
2. The defense shall be prohibited from asking any questions seeking personal identifying information (to include name, contact information, or date or place of birth) from the UCE.
3. The defense shall be prohibited from asking any questions about other investigations in which the UCE may be involved, including any ongoing investigations.
4. No public disclosure of any audio recording, or similar reproduction of the voices or visual images of the UCE while testifying, shall be permitted.
5. The UCE shall be permitted to use a non-public entrance/exit to the courthouse and the courtroom (outside the presence of the jury).
6. All non-official recording devices shall be prohibited from being in the courtroom in which the UCE testifies, including personal cellular phones.
The govt. maintains that the UCE has a unique role in the NV trial as the lone testifying FBI UCE, and may become a particular target for the defendants’ supporters who have shown they are willing and eager to find law enforcement witnesses names and harass and threaten them according to the 16-page motion. In conclusion, the govt. notes that protecting an undercover’s safety and the integrity of other ongoing investigations are compelling interests that courts have long recognized in crafting security measures for witness testimony.
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