Payne2ndaddendum

Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 1 of 8

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RENE L. VALLADARES Federal Public Defender Nevada State Bar No. 11479 BRENDA WEKSLER Assistant Federal Public Defender Nevada State Bar No. 8124 RYAN NORWOOD Assistant Federal Public Defender 411 E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577/Phone (702) 388-6261/Fax Ryan_Norwood@fd.org

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Attorney for Ryan W. Payne

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA, Plaintiff,

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v.

Case No. 2:16-cr-046-GMN-PAL SECOND ADDENDUM TO MOTION TO CONTINUE TRIAL

RYAN W. PAYNE, Defendant.

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Certification: This Addendum is timely filed.

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NOW COMES the defendant, Ryan Payne, by and through his counsel of record, Brenda

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Weksler and Ryan Norwood, Assistant Federal Public Defenders, and respectfully files this

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Second Addendum to Motion to Continue Trial. This pleading is based on the Points and

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Authorities attached hereto.

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Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 2 of 8

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DATED this 5th day of October, 2017.

RENE L. VALLADARES Federal Public Defender By: /s/ Brenda Weksler BRENDA WEKSLER Assistant Federal Public Defender Attorney for Ryan W. Payne By: /s/ Ryan Norwood RYAN NORWOOD Assistant Federal Public Defender

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Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 3 of 8

MEMORANDUM OF POINTS AND AUTHORITIES

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A. A fair trial cannot begin in Las Vegas on October 10

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Despite the passage of four days, the tragedy of October 1, 2017 remains on the forefront

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of every local resident’s mind. Coverage of the mass shooting dominates the local news, with

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every hour bringing new stories about the investigation and the shooter, profiles of his victims,

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and of the heroes who saved lives. 1 Local residents are still shocked, traumatized, and upset.

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As of this writing, the vast majority of articles on the home page of this community’s largest newspaper, the Las Vegas Review-Journal concern the shooting or its immediate fallout.

A sampling of stories and columns from all sections of the paper includes: “Las Vegas Strip shooter targeted aviation fuel tanks, source says” https://www.reviewjournal.com/local/thestrip/las-vegas-strip-shooter-targeted-aviation-fuel-tanks-source-says/; “MGM Resorts shelve marketing in response to Las Vegas Shooting,” https://www.reviewjournal.com/business/casinos-gaming/mgm-resorts-shelves-marketing-inresponse-to-las-vegas-shooting/, Drug given to Paddock calms some, provokes others, experts say,” https://www.reviewjournal.com/local/the-strip/drug-given-to-paddock-calms-someprovokes-others-experts-say/, “To shield fiancé, woman took bullet in back at Route 91 Harvest Festival, https://www.reviewjournal.com/local/the-strip/to-shield-fiance-woman-took-bulletin-back-at-route-91-harvest-festival/, “Escape from Las Vegas Strip Shooting – RAW VIDEO” https://www.reviewjournal.com/local/the-strip/escape-from-las-vegas-strip-shooting-rawvideo/, “Authorities still not clear on who Stephen Paddock was,” https://www.reviewjournal.com/local/the-strip/authorities-still-not-clear-on-who-stephenpaddock-was/, “Titus, Democrats introduce bill to ban sale of bump stocks,” https://www.reviewjournal.com/news/politics-and-government/titus-democrats-introduce-billto-ban-sale-of-bump-stocks/, “NRA backs bump stock regulation; White House ‘open’ to it,” https://www.reviewjournal.com/news/politics-and-government/nra-backs-bump-stockregulation-white-house-open-to-it/ “Entertainers, chefs join for national fundraiser to benefit victims.https://www.reviewjournal.com/entertainment/entertainment-columns/robinleach/entertainers-chefs-join-for-national-fundraiser-to-benefit-victims/, “’Punisher’ events in Paris, NY canceled after Las Vegas shooting, https://www.reviewjournal.com/entertainment/tv/punisher-events-in-paris-ny-canceled-afterlas-vegas-shooting/, “Incubus postpones Hard Rock residency after Las Vegas shooting,” https://www.reviewjournal.com/entertainment/music/incubus-postpones-hard-rock-residencyafter-las-vegas-shooting/, “Families of mass shooting victims offer solace to Las Vegas, https://www.reviewjournal.com/news/families-of-mass-shooting-victims-offer-solace-to-lasvegas/, “GoFundMe for Las Vegas shooting victims surpasses $9M,” https://www.reviewjournal.com/local/the-strip/gofundme-for-las-vegas-shooting-victimssurpasses-9m/, “Las Vegas dispatch call on Mandalay Bay shooter,” https://www.reviewjournal.com/crime/homicides/las-vegas-police-dispatch-call-on-mandalaybay-shooter/, “The inevitable moment Las Vegas dreaded,” https://www.reviewjournal.com/news/newscolumns/jane-ann-morrison/the-inevitable-moment-las-vegas-dreaded/ The same is true of the Las Vegas Sun, where 9 of the 10 most popular stories this morning concerned the shooting. See also “The frantic bloody hours at Sunrise Hospital as

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Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 4 of 8

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Guns have become a focus of community outrage, with many residents condemning the

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availability of firearms such as those that were obtained (apparently legally) by the shooter, and

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demanding changes to gun laws. 2 The President came to town yesterday, praising the first

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responders in a speech with Sheriff Joe Lombardo – the government’s first witness in the last

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trial -- right next to him. Funerals, memorial services, marches, rallies, and fundraisers will take

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place throughout the weekend and next week.

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Payne cannot receive a fair trial or an impartial jury in Las Vegas next Tuesday. It

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should go without saying that Payne had nothing whatsoever to do with the October 1 shooting.

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However, there is no potential juror in this community who will be able to set aside the images

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of October 1 when asked to consider the evidence in this case. Guns are central to this case.

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The government will repeatedly show the jury pictures of guns, present testimony about guns,

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and present statements from the defendants discussing guns. In particular, the government will

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repeatedly show the jury pictures of men, high above a crowd, pointing rifles in the direction

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of others. The government’s whole case is based upon an allegation that Payne and the other

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defendants were responsible for a threat of mass violence. Payne very much disputes this, but

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in the current environment, this dispute cannot be fairly and impartially decided by a jury drawn

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from the local community.

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Concerns over impartiality in a criminal trial usually involve publicity directly arising

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from outrage over the alleged crime. In those situations, however, there is at least distance of

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doctors rushed to save lives,” https://lasvegassun.com/news/2017/oct/05/the-frantic-bloodyhours-in-a-las-vegas-hospital-a/, “Las Vegas shooting marks the saddest Twitter day on record,” https://lasvegassun.com/news/2017/oct/05/las-vegas-leads-to-the-saddest-twitter-daysurpass/, 2

See “Titus, Democrats introduce bill to ban sale of bump stocks,” https://www.reviewjournal.com/news/politics-and-government/titus-democrats-introduce-billto-ban-sale-of-bump-stocks/. In the current environment, even the NRA is willing to back gun control legislation.

“NRA backs bump stock regulation; White House ‘open’ to it,” https://www.reviewjournal.com/news/politics-and-government/nra-backs-bump-stockregulation-white-house-open-to-it/ 4

Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 5 of 8

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months or (as here) years between the alleged crime and the trial. See e.g. Skilling v. United

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States, 561 U.S. 358, 383 (2010) (noting lack of prejudice when trial happened four years after

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crime, and distinguishing Rideau v. State of Louisiana, 373 U.S. 723 at 724 (1963), where trial

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happened two months after crime, as a case “in which trial swiftly followed a widely reported

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crime.”) In today’s criminal justice system, a trial would never take place one week after a

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horrifying crime that traumatized an entire community. But that’s essentially the problem here.

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This is an extraordinary circumstance and it requires a remedy.

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Payne’s original motion asked for a continuance of at least 2 months. When this request

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was addressed at the last hearing, the Court suggested the other parties should have an

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opportunity to weigh in before Friday’s hearing. Many of the defendants in this trial have been

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locked up for a very long time and have struggled with both the indignities of their incarceration

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and uncertainty about their trial date. In the interests of securing a consensus amongst all parties

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in advance of the Friday hearing, and because a short continuance would be better than no

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continuance, Payne suggested a new trial date of October 30, 2017 in an addendum filed on

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Tuesday. If a new trial date cannot be agreed upon by consensus amongst the parties, however,

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Payne’s counsel will seek a continuance for whatever period is necessary to secure their client’s

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right to a fair trial by an impartial jury.

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B. In the alternative, trial should be moved to the Reno courthouse

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The United States District Court for the District of Nevada has two major courthouses.

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The courthouse in Reno, Nevada, is 450 miles away from Las Vegas. The Reno courthouse is

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as well-equipped to host a large trial as the Las Vegas courthouse. Because the courthouses are

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within the same judicial district, the trial could be held there by order of this Court without

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creating any jurisdictional or venue issues regarding the presiding judge or prosecutors. The

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“Northern” and “Southern” divisions, over which the Reno and Las Vegas courthouses usually

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preside, are the “unofficial” product of Local Rule 6-1. The Court has the complete discretion

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to move the trial from one division to the other. Local Rule 8-1(c).

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Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 6 of 8

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A Reno trial would allow a jury to be drawn from a community on the other side of the

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state that has not been as directly affected by the October 1 tragedy. Obviously, the shooting

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is national news and has affected people across the country, but in Reno, the jury pool will not

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include an overwhelming number of persons who personally know victims or survivors, or who

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had to spend a night worrying about their loved ones, or who had loved ones worrying about

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them – and whom, for all those reasons, will find it impossible to put the events of October 1

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out of their memory any time in the near future.

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C. In the alternative, Payne asks to be severed from any defendants proceeding to trial on October 10

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The Court has an independent duty to ensure that all defendants have a fair trial by an

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impartial jury. Even if some defendant or defendants should insist upon prioritizing expediency

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and going to trial next week, the Court cannot allow that defendant’s waiver of his right to an

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impartial jury to trump Payne’s rights.

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In the event all parties do not consent to a continuance, and in the event the Court will

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not grant a continuance without unanimous consent, Payne asks that he be severed from any

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defendants who will be going to trial. There is nothing sacred about the current grouping of

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defendants in Payne’s tier: it was initially set per the government’s preference, and was already

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altered a month ago to accommodate the desires of defendants in another tier to have a speedy

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trial. There is no reason why the tier cannot be altered again to balance the interests of justice

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and accommodate Payne’s interest in a fair trial.

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CONCLUSION Payne asks that his trial currently set for October 10, 2017 be continued, or for other relief as set forth in this Motion.

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Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 7 of 8

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DATED this 5th day of October, 2017.

Respectfully submitted, RENE L. VALLADARES Federal Public Defender By: /s/ Brenda Weksler BRENDA WEKSLER Assistant Federal Public Defender By: /s/ Ryan Norwood RYAN NORWOOD Assistant Federal Public Defender

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Case 2:16-cr-00046-GMN-PAL Document 2626 Filed 10/05/17 Page 8 of 8

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 serve

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papers.

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That on October 5, 2017, she served an electronic copy of the above and foregoing

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SECOND ADDENDUM TO MOTION TO CONTINUE TRIAL by electronic service

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(ECF) to all parties of record including the persons named below:

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STEVEN W. MYHRE Acting United States Attorney ERIN M. CREEGAN Assistant United States Attorney NADIA JANJUA AHMEN Assistant United States Attorney DAN SCHIESS Assistant United States Attorney 501 Las Vegas Blvd. South Suite 1100 Las Vegas, NV 89101 /s/ Lauren Conklin Employee of the Federal Public Defender

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