9th Circuit stays Judge Carney's bail order for Robert Rundo four hours after request
An emergency motion said the judge 'credited claims that are firmly belied by video recordings, public statements, and private communications.'
An appellate court on Friday stayed a federal judge’s bail order for neo-Nazi Robert Paul Rundo.
A 9th Circuit U.S. Court of Appeals panel issued the order at 2:01 p.m., four hours after prosecutors filed an emergency motion that said Rundo “is a former international fugitive and violent white supremacist who represents an extreme flight risk and danger to the community.”
U.S. District Judge Cormac J. Carney in Santa Ana, California, on Tuesday ordered Rundo released to a Salvation Army shelter as a bail arraignment driven by Carney’s belief that the U.S. Department of Justice is unconstitutionally prosecuting him when “it was Antifa, a far-left extremist group, that posed the insidious threat to democracy.”
The 9th Circuit on March 13 automatically stayed any release orders for Rundo for 96 hours to give prosecutors time to seek a permanent stay. Carney also stayed his order for 96 hours, citing the 9th’s order.
Prosecutors’ motion on Friday said the stay was to expire Saturday at 1 p.m.
The 9th’s new order means Rundo will stay in federal custody while prosecutors appeal Carney’s bail order. It specifies that if Rundo were released prior to the order, “the government may (1) arrest him and return him to custody in the Central District of California and (2) continue to detain him pending this Court’s resolution of the government’s appeal from the district court’s Bail Order.”
Prosecutors’ emergency motion asked the 9th to specify Rundo can be arrested and detained. They made the request amid complaints from Rundo’s public defenders and Judge Carney that the DOJ unlawfully arrested Rundo in February after Carney dismissed his indictment and declined to stay the order pending 9th Circuit review.
The judge wrote in Tuesday’s order: “The government just does not seem to care about the Constitution. Well I do.”
Rundo’s indictment charged him with violating the federal Anti-Riot Act and conspiring to violate it for allegedly inciting violence at pro-Donald Trump political rallies in 2017 as part of his “combat-ready white supremacist group” the Rise Above Movement.
Rundo was first charged in 2018, but Judge Carney dismissed the indictment in 2019 and said the Anti-Riot Act violates the First Amendment. The 9th Circuit overturned him in 2021, and Rundo was arrested last August in Romania. He left custody overnight in February after Carney dismissed the indictment again.
Friday’s 28-page emergency motion said Carney when granting bail “erroneously” assessed Rundo’s community danger and “ignored” Rundo’s previous efforts to avoid arrest when he granted him bail on Tuesday.
“In its determination to blame unidentified Antifa members for the violence perpetrated by Rundo and his militant co-conspirators, the district court credited claims that are firmly belied by video recordings, public statements, and private communications,” according to the motion from Assistant U.S Attorney Bram Alden, chief of the Los Angeles U.S. Attorney’s Office’s Criminal Appeals Section. “Contrary to the court’s account, Rundo and his co-conspirators planned, trained for, carried out, and boasted about their brutal attacks on left- wing demonstrator.”
The motion said Carney’s bail order “contradicted” his prior statement that Rundo and his co-defendants “likely committed violence for which they deserve to be prosecuted.”
It also said Rundo fleeing the country would interfere with prosecutors’ unresolved appeal of Carney’s dismissal order, which said the DOJ is selectively prosecuting Rundo for his political beliefs instead of prosecuting left-wing groups like Antifa that the judge believes instigated the violence.
“That concern is particularly significant in light of the substantial resources the government has already devoted to this prosecution,” prosecutors wrote. “The district court’s repeated dismissals of the indictment and orders of release have resulted in an enormous expenditure of government resources. If defendant evades prosecution, all of the government’s efforts to achieve justice in this case will have been in vain.”
Additionally, the motion says Carney “erred in speculating that Rundo may overserve his anticipated custodial sentence.” Carney said Rundo faces a maximum five years in prison, but prosecutors say it’s actually 10 years.
You can read the full emergency motion here. The 9th Circuit order is from the panel that’s issued the previous orders: Senior Judge Richard A. Paez, Judge Milan D. Smith Jr. and U.S. District Judge Jon S. Tigar, sitting by designation from the Northern District.
The same panel will consider the full appeal of Carney’s bail order, as well as the appeal of his Feb. 21 dismissal order. The judges set an expedited briefing schedule for the dismissal appeal, and prosecutors filed their 76-page opening brief on April 22. Rundo’s lawyer’s opposition is due on May 22, and prosecutors’ optional reply is due June 10. Oral argument is June 18 in Pasadena.
For the bail order appeal, prosecutors’ opening brief is due on May 17.
Carney, who turns 65 next week, plans to retire from the bench completely at the end of May. He will not take senior status.
My article on Tuesday explains the bail order and Tuesday’s hearing. It also includes testimony from two of Rundo’s associates:
Previous coverage:
Feb. 29: 9th Circuit rejects Rundo's release request amid another discharge order from Judge Carney
March 14: 9th Circuit stays future release orders for neo-Nazi Robert Rundo amid dismissal appeal
April 4: Judge cites Antifa when rejecting prison for white supremacist’s former associate
April 16: Ex-Marine who firebombed Planned Parenthood, plotted 'race war' gets 9 years
Live talk: Conception boat captain sentencing
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My article on the sentencing misidentified the prosecutor who argued during the hearing. It was Assistant U.S. Attorney Mark Williams. The article has been updated. I apologize for the mistake!
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