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No. 16-30310

In The United States Court Of Appeals for the Ninth Circuit

United States of America,

Plaintiff-Appellee,

vs.

Nathan Lynn Cloud,

Defendant-Appellant.

On Appeal from the United States District Court for the Eastern District of Washington District Court No. 1:16-cr-2002-LRS-1

The Honorable Judge L

United States District Court Judge

Defendant-Appellant’s Opening Brief

Kimberly Deater 1314 S. Grand Blvd., 2-288

Spokane, Washington 99202 (509) 995-4113

[email protected]

Case: 16-30310, 07/24/2017, ID: 10519331, DktEntry: 10, of 57

TABLE OF CONTENTS

I. ISSUES PRESENTED FOR APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Whether the search and seizure of Cloud was unreasonable under theFourth Amendment to the Constitution and thus requiring suppressionof all resulting evidence, where state agents executed a state arrestwarrant for Cloud, an enrolled member of the Yakima Nation, ontribal lands in violation of tribal procedures . . . . . . . . . . . . . . . . . . . . 1

B. Whether the search and seizure of Cloud was unreasonable under theFourth Amendment and thus requiring suppression of all resultingevidence where Cloud was arrested and searched before state agentsconfirmed the validity of the arrest warrant . . . . . . . . . . . . . . . . . . . . 1

C. Whether the district court misinterpreted the Guidelines as prohibitingCloud from receiving as acceptance of responsibility adjustment . . . 1

II. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Nature of the Case, Statement of Jurisdiction and Bail Status . . . . . . 1B. Proceedings and Disposition in District Court . . . . . . . . . . . . . . . . . . 2

III. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A. Suppression Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. Acceptance of Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A. The Search and Seizure of Cloud was Unreasonable Under the Fourth

Amendment because State Agents Disregarded Tribal Procedureswhen they Executed a State Arrest Warrant for Cloud, an EnrolledMember of the Yakama Nations, while Cloud was on Trust Land andthus all Resulting Evidence Required Suppression . . . . . . . . . . . . . 131. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

a. State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14i. Washington State Assumption Statutes . . . . . . . 14ii. The Matthew Test . . . . . . . . . . . . . . . . . . . . . . . 18iii. Tribal Procedures . . . . . . . . . . . . . . . . . . . . . . . . 22

i


B. The Search and Seizure of Cloud was Unreasonable under the FourthAmendment because Sheriff’s Deputies Arrested Cloud Prior toConfirming the Validity of the Arrest Warrant, thus all ResultingEvidence Required Suppression . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

C. The District Court Misinterpreted the Guidelines as Prohibiting Cloudfrom Receiving an Acceptance or Responsibility . . . . . . . . . . . . . . . 301. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

STATUTORY ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 38

Title V (5) -Uniform Criminal Extradition Act . . . . . . . . . . . . . . . . . . SA 395.01.01: Authority to Yakama Nation Chairman . . . . . . . . . . . . SA 395.01.03: Demand for Extradition -Requirements . . . . . . . . . . . SA 395.01.05: Investigation of Demand-Report . . . . . . . . . . . . . . . . . SA 395.01.07: Return or Surrender of Person Charged in Another

Jursidiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 405.01.09: Surrender of Persons Charged With Crime Committed in

Other than Demanding Jurisdiction . . . . . . . . . . . . . . . SA 405.01.11: Warrant of Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 415.01.13: Authority of Officer or Other Person Under

Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 415.01.15: Authority to Command Assistance . . . . . . . . . . . . . . . . SA 415.01.17: Rights of Person Arrested . . . . . . . . . . . . . . . . . . . . . . SA 415.01.19: Delivery of Person in Violation of Ryc 5.01.17 -

Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 425.01.21: Confinement of Prisoner . . . . . . . . . . . . . . . . . . . . . . . . SA 42

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5.01.23: Charge or Complaint -Warrant of Arrest . . . . . . . . . . . SA 435.01.25: Arrest Without Warrant; Outside of Jurisdiction . . . . . SA 435.01.27: Preliminary Examination -Commitment . . . . . . . . . . . . SA 445.01.29: Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 445.01.31: Failure to Make Timely Arrest or Demand for

Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 445.01.33: Failure to Appear-Bond Forfeiture -Recovery On

Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 455.01.35: Pending Criminal Prosecution . . . . . . . . . . . . . . . . . . . SA 455.01.37: Recall or Reissuance of Warrant . . . . . . . . . . . . . . . . . SA 455.01.39: Demand by Chairman of the Tribe for Extradition-

Warrant -Agent . . . . . . . . . . . . . . . . . . . . . . . . . SA 455.01.41: Application for Requisition for Return of Person-

Contents-Affidavits-Copies . . . . . . . . . . . . . . . . . . . . . SA 465.01.43: Civil Process-Service on Extradited Person . . . . . . . . SA 475.01.15: Waiver of Extradition . . . . . . . . . . . . . . . . . . . . . . . . . SA 475.01.47: Rights, Powers, Privileges or Jurisdiction of Yakama

Nation Not Waived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA 485.01.49: Trial for Other Crimes . . . . . . . . . . . . . . . . . . . . . . SA 48

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iv

TABLE OF AUTHORITIES

FEDERAL CASES

Carpenter v. Shaw, 280 U.S. 363 (1930) ...........................................................................21

Confederated Bands and Tribes of Yakima v. State of Washington, 550 F.2d 443 (9th Cir. 1977) ..............................................................................................................17

McClanahan v. Arizona State Tax Commission, 411 U.S. 164 .........................................21

Murray v. United States, 487 U.S. 533 (1988) ..................................................................26

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ...............................................21

State. Confederated Tribes and Bands of Yakima Nation v. County of Yakima, 903

F.2d 1207 (9th Cir. 1990) ............................................................................................15

United States v. Cantrell, 433 F.3d 1269 (9th Cir. 2006) citing, United States v. Velasco-Medina, 3005 F.3d 839 (9th Cir. 2002) ...................................................31, 33

United States v. Cormier, 220 F.3d 1103 (2000) ...............................................................14

United States v. Cortes, 299 F.3d at 1039..........................................................................33

United States v. Matus-Zayas, 655 F.3d 1092 (9th Cir. 2011) ..........................................26

United States v. Mota, 982 F.2d 1384 (9th Cir. 1993) ...............................13, 14, 26, 27, 28

United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012), citing, United

States v. Rosas, 615 F.3d 1058 (9th Cir. 2010)............................................................30

United States v. Sitton, 968 F.2d 947 (9th Cir. 1992) ........................................................33

United States v. Wheeler, 435 U.S. 313 (1978) .................................................................21

Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) ......................................................................................................14, 15

White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).......................................19

Williams v. Lee, 358 U.S. 217 (1959) ..........................................................................19, 21

Worcester v. Georgia, 6 Pet. 515 (1832) ...........................................................................21


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Yakima Nation, 439 U.S. at 469 (1979) .............................................................................15

Yakima Nation, 439 U.S. at 502-503 .................................................................................21 STATE CASES

978 P.2d 1131, 96 Wn. App. 217 (Wash.App. Div 3 1999) ........................................29, 30

In Re Smith, 161 P.3d 483, 139 Wash. App. 600 (2007) .....................................................3

State v. Clark, 308 P.3d 590, 178 Wn. 2d 19 (Wash. 2013) ..................................18, 19, 22

State v. Cooper, 928 P.2d 406 (Wash. 1996) .....................................................................17

State v. Ellwood, 757 P.2d 547, 52 Wn. App. 70 (Wash.App. Div. 1 1988) ...............28, 29

State v. Matthews, 986 P.2d 323, 133 Idaho 300 (Idaho 1999) ...................................19, 20

State v. Sohappy, 757 P.2d 509, 110 Wn. 2d 907 (1999) ..................................................17

Welsley v Schneckloth, 55 Wash. 2d 90, 346 P.2d 658 (1959) ............................................3 FEDERAL STATUTES

28 U.S.C. § 1291 ..................................................................................................................1

28 U.S.C. § 1294(1) .............................................................................................................1

18 U.S.C. § 3231 ..................................................................................................................1

18 U.S.C. § 3742 ..................................................................................................................1

18 U.S.C. § 922(g)(1) ................................................................................................2, 3, 10 STATE STATUTES

RCW 37.12 ........................................................................................................................15

RCW 37.12.010 ...........................................................................................................16, 18

RCW 37.12.021 .....................................................................................................15, 16, 17

RCW 37.12.060 .................................................................................................................15


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UNITED STATES SENTENCING GUIDELINES

U.S.S.G. §3E1.1 ...............................................................................................12, 31, 32, 33


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I. ISSUES PRESENTED FOR REVIEW

A. Whether the search and seizure of Cloud was unreasonable under the Fourth Amendment to the Constitution and thus requiring suppression of all resulting evidence, where state agents executed a state arrest warrant for Cloud, an enrolled member of the Yakama Nation, on tribal lands in violation of tribal procedures.

B. Whether the search and seizure of Cloud was unreasonable under the Fourth Amendment and thus requiring suppression of all resulting evidence where Cloud was arrested and searched before state agents confirmed the validity of the arrest warrant.

C. Whether the district court misinterpreted the Guidelines as prohibiting Cloud from receiving an acceptance of responsibility adjustment.

II. STATEMENT OF THE CASE

A. Nature of the Case, Statement of Jurisdiction and Bail Status.

Appellant Cloud appeals his conviction by jury trial and subsequent

sentence. The Honorable Lonny R. Suko, United States District Court Judge for the

Eastern District of Washington entered the Judgment on December 19, 2016, after

verdict by jury. The Notice of Appeal was filed on December 22, 2016, within the

fourteen days provided by FRAP 4(b).

The District Court had original jurisdiction pursuant to 18 U.S.C. § 3231.

This Court has jurisdiction over appeals from final judgments under 28 U.S.C. §

1291, 28 U.S.C. § 1294(1), and 18 U.S.C. § 3742. The Judgment and Sentence is a

final decision subject to appeal under 28 U.S.C. § 1291


2

Appellant Cloud is currently in federal custody at Florence FCI. His

projected release date is November 9, 2019, followed by a term of Supervised

Release.

B. Proceedings and Disposition in District Court

On January 12, 2016, Appellant Cloud was indicted for Felon in Possession

of a Firearm in violation of 18 U.S.C. § 922(g)(1). ER 1. Cloud moved the district

court to suppress the evidence of the firearm. ER 25. After an evidentiary hearing,

the district court denied Cloud’s motion. ER 63. Following a three-day trial, he was

found guilty of the charge contained in the indictment. ER 74. Cloud was

subsequently sentenced to a term of 55 months imprisonment to be followed by a

term of three years of supervised release. ER 81.

III. STATEMENT OF FACTS

A. Suppression Hearing

Cloud is an enrolled member of the Yakama Nations. Exh.100. Most of the

Yakima Reservation is geographically located within Yakima County – a political

subdivision of Washington State. Exh.102. On October 18, 2015, Cloud was

arrested on an unconfirmed Washington Department of Corrections (DOC) warrant

by members of the Yakima Sheriff’s Office. ER 120. The warrant was issued on

September 24, 2015, by Community Corrections Officer, Juan Frausto. ER 30-31.


3

CCO Frausto’s office is located in Toppenish, WA, which is also within the

boundaries of the Reservation.1 ER 30-31. The warrant stated, in part: “There is

reasonable cause to believe the above named person, having been convicted of a

felony or misdemeanor in a Superior Court of the state of Washington and

committed to the custody of the Department of Corrections, has violated a

condition of Community Custody.” 2 ER 30. Further, the warrant identified the

underlying cause number and offense for which Cloud was under supervision.

“Cause AD: Possession of a Controlled Substance.” ER 31.

The arrest occurred on trust land within the external boundaries of the

Yakama Reservation. Exh.101. During the search incident to arrest, Deputy Bazan

found a loaded firearm in Cloud’s pocket. ER 171. Cloud, a felon at the time, was

later indicted in the Eastern District of Washington for a violation of 18 U.S.C.

§922(g)(felon in possession of a firearm). ER 1. Appellant Cloud moved the district

court to suppress the evidence obtained at the time of his arrest based on a violation

of his Fourth Amendment Rights. ER 4-9. The following evidence was produced

during the suppression hearing:

1 Toppenish is entirely within the Yakama Indian Reservation. Welsley v

Schneckloth, 55 Wash.2d 90, 91, 346 P.2d 658 (1959). 2 Community Custody refers to that portion of an offender’s sentence of

confinement that is served in the community and subject to controls placed on the offender’s movement and activities by the department of corrections. In Re Smith, 161 P.3d 483, 486, 139 Wash. App. 600 (2007), n.1


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On the Sunday morning of October 18, 2015, after working on a Suburban

most of the night, Cloud stopped at his friend Elias Culps’ house at approximately

9:00 a.m. ER 215. Culps’ home is located within the exterior boundaries of the

Reservation in the town of White Swan. ER 201; Exh.101. Cloud is an enrolled

member of the Yakama Nation. ER 204;Exh. 100. At Culps’ house, Cloud took a

nap in a recliner in the front room of the house, near the door. ER 212. At that

time there were two other people sleeping in the front room, including Culps. ER

208-209.

On that same morning, at about 7:30 a.m., Yakima County Sherriff’s Deputy

McIlrath met with other members of the Sherriff’s Office for coffee and to plan the

day ahead. ER 118. Deputy McIlrath testified that because it was a slow morning,

the deputies decided to do “warrant service.” ER 118. As explained by McIlrath, a

15-year veteran with the Sheriff’s Office, arrest warrants frequently “stack” up at

his office. ER 96. Towards the end of the year, the execution of the “stack of

warrants” becomes an important duty for the deputies for statistical reasons. ER

96.“You have to stay active, or else it doesn’t look good to your supervisor.” ER

96. McIlrath testified that he had the highest rate of warrant service in the

department. ER 119. He testified that he’s usually the lead deputy on warrant

service outings. ER 119. McIlrath liked to keep up with the warrants in his patrol

area. ER 96.


5

He testified that he probably had the “stack” of warrants with him during the

meeting, but couldn’t remember exactly. ER 119. It was possible they were back at

the office. ER 119. He was not sure whether the “stack of warrants” included one

for Cloud. ER 118. He testified that while they are supposed to “try to get them

served” so sometimes the warrants “sit around for a while.” ER 119.

One of the warrants in the stack was for Elias Culps. ER 113. The warrant

indicated that Culps was living at 241 North Second Street in the town of White

Swan. ER 113. McIlrath knew that White Swan was within the boundaries of the

Reservation. ER 113. Based on prior contacts with Culps, the deputy was aware

that he resided at the address in White Swan. ER 136. The deputy had information

that Cloud might be at Culps’ residence. ER 100. The deputy could not recall

whether there was an actual physical warrant for Cloud “in the stack” of warrants.

ER 118. The deputy could not recall whether he even had the warrants with him

when he and the other deputies went to Culps’ residence to effectuate the warrants.

ER 119. McIlrath could not recall if he was in possession of a warrant for Cloud at

the time he was arrested. ER 118. McIlrath knew that “DOC was looking for

[Cloud] on an outstanding warrant.” ER 100. The deputy testified that he ran

Cloud’s name through his computer system at 7:16 that morning. ER 117.

However, he never confirmed the warrant for Cloud until after Cloud was arrested:


6

Q: Is there anything in your report that you indicate was accurate and

complete where it indicates that you confirmed whether or not there was a

warrant outstanding for Nathan Cloud?

A: Did I confirm one? No.

Q: You’re saying you just didn’t confirm one? You didn’t confirm whether

- -

Q: I’m going to start with my original question. Is there anything in your

report that indicates that you confirmed a warrant for Nathan Cloud?

A: No.

Q: And, in fact, you just indicated that you didn’t confirm a warrant for

Nathan Cloud; is that correct?

A: We did after he was arrested.

Q: Yes. Okay. Of course, it was after he was arrested. You wouldn’t have

any reason to confirm after he was arrested if you had done it before,

correct?

A: No. I had no idea he was there, so we didn’t confirm a warrant.

ER 120

McIlrath knew Cloud and Culps from previous contacts and knew that they were

both enrolled Yakama tribal members. ER 131.


7

Upon arrival at Culp’s house, the deputies spread out. ER 104. Deputy

McIlrath went to the side of the house and looked through a window where a

blanket was over an air conditioning unit and covering the window. ER 104.

Through an opening between the air conditioner and the blanket the deputy could

see that the room was dark. ER 105. Using his flashlight, the deputy could see an

individual in a reclining chair. ER 105. He shone his light on the individual and

was able to tell that it was Cloud. ER 126. Cloud was asleep. ER 134. Cloud did

not respond when the light was shone on him. ER 128. Once he had identified

Cloud, he alerted the deputies at the front door that Cloud was inside. ER 129. “I

walked to the side, and Deputy Mallonee was in the back, I believe. Bazan was at

the front door. I yelled over to Mallonee, Nathan Cloud is in there, and he

forwarded that to Mr. Bazan - - or Deputy Bazan.” ER 138. At the time he alerted

them, the deputies were either at the front door or walking up to it. ER 129. After

alerting the other deputies, McIlrath went back to the window and watched. ER

129.

Deputy Mallonee testified that he was next to McIlrath at the window and

that he also looked inside. ER 157. He identified Cloud inside the house and

relayed that information to Deputy Bazan at the front door while he was knocking

on the door. ER 148. Mallonee stated that Deputies Bazan and McIlrath arrived at

Culps’ residence together. Mallonee arrived separately. ER 148.


8

Deputy Bazan testified that on the day he arrested Cloud, he had only been

with the Sheriff’s Office for four months. ER 166. Deputy Bazan testified that he

started his shift that day at 6:00 a.m. and was working with Sergeant Splawn,

Deputy Mallonee, Deputy McIlrath and reserve Deputy Peratrovich. ER 166.

During the morning briefing, he gained information about Cloud and Culps from

the other deputies. ER 166. He received specific information about Cloud and had

the opportunity to review a Department of Licensing photo of Cloud. ER 166. That

morning he also looked at a booking photo of Cloud. ER 167.

After the meeting, the deputies went to Culps’ home. ER 167. At

approximately 0930 hours, Bazan, Mallonee, McIlrath, Sgt. Splawn and reserve

Deputy Petrovich advised [county] dispatch that they were headed to 241 Second

Street in White Swan. ER 177. Once at Culp’s residence, Bazan went to the front

door and knocked. ER 168. He announced that he was with the Yakima County

Sheriff’s Office.3 ER 168. He testified that after he knocked a second time he heard

the sound of a deadbolt unlocking. ER 169 He testified that when he knocked a

third time, the door opened and he saw a male he recognized as Nathan Cloud

sleeping on a recliner chair. ER 169-70. He saw other people also sleeping in the

room. ER 184. He recognized Cloud from the photographs he had previously

3 There was conflicting testimony about whether the deputy announced his

presence after the first or second time he knocked on the door.


9

reviewed. ER 184. He confirmed Cloud’s identity with Mallonee and went to

Cloud, woke him up, handcuffed him and took him outside. ER 170.

Once outside Bazan told Cloud he was under arrest. P.81. Bazan informed

Cloud that Bazan had a warrant for Cloud’s arrest for “Escape community

custody.” ER 170. Cloud testified that the deputies did not show him a warrant at

the time he was arrested. ER 213. Cloud testified that he “…asked [Bazan] where

the Tribal Police were, I thought they were supposed to have a Tribal escort, and I

asked him if he could take me to go sign a waiver or see a Tribal judge.” ER 213.

Bazan testified that he did not recall whether Cloud had asked him these questions.

ER 194. Cloud was asked on cross-examination if he ever made this request of

other deputies. ER 218. Cloud responded that the other deputies were arresting

other people and he raised the issue with Bazan because he was “my arresting

officer.” ER 218. He also testified that, “I said - - asked him for a Tribal, for a

Tribal escort, that I wanted to be taken to the Tribal, Tribal facility, like they were

supposed to do.” ER 218.

There is a certified agreement between the Yakama Nation and the Yakima

County Sheriff’s Office regarding arrest procedures for enrolled Yakama tribal

members. Exh. 102. This agreement is known as the “Memorandum of

Understanding” or MOU. The agreement states, in part, that when a Yakima

County deputy sheriff knowingly enters Trust lands for the purpose of serving a


10

state court arrest warrant on an enrolled member of the Yakama Nation…the

deputy sheriff will, except in the event of exigent circumstances, first contact the

Yakama Nation police dispatch.” Exh. 102. The agreement further provides that

the arrestees are to be taken to the Yakama Nation jail pending extradition. Id.

Deputy Bazan testified that, at the time of Cloud’s arrest, he was unaware of

the MOU and its procedures. Exh.102. Deputy McIlrath, however, was aware of

the agreement:

Q: Okay. And you mentioned that part of your duties are effectuating warrant services in your area. Were you aware of a Memorandum of Understanding that was in place at the time of this incident? A: Yes, ma'am.

Q: And who was that memorandum between?

A: Between Yakima County and Tribal Police. Q: And what did that memorandum advise deputies who were effectuating warrant service to do?

…

A: They want us to advise the Yakama Nation Police if we go onto trust land to arrest an enrolled Native American. Q: Okay. And at the time that you went forward with warrant service on October 18th of 2015, and you went into the residence at 241 Second Street, were you aware of whether or not that was trust land? A No. Q: And what is the difficulty with knowing whether or not


11

property in that area is trust land or is potentially fee land? A The problem with the Lower Valley is – MR. SMITH: Again, Your Honor, it's irrelevant. A -- it's broke – THE COURT: Overruled. A: The problem with working on the reservation is it's broken up like a checkerboard, where you have one piece that's deeded land, and one piece that's trust land. There's areas that I know for sure because they're housing areas, such as a place called Apis Goudy and Adams view. Every other place there's -- I have no idea. Q: (By Ms. Holland) And in those areas that you just reference that you know are certainly trust land, do you go forward and call Tribal Police prior to effectuating warrants for a registered member of the Yakama Nation tribe on that property? A: We try to, best that we can. It doesn't all -- yeah, we try. ER 105-108.

McIlrath testified that prior to the warrant service on Culps and Cloud, he

never made any attempts to call either the Yakama Nation Police or the Yakama

Nation dispatch. ER 131.

Once Bazan had taken Cloud outside, he advised Cloud he was under arrest.

ER 170. He then conducted a search of Cloud’s person incident to arrest. ER 170.

While checking Cloud’s outer front pocket, the deputy felt, what he believed was


12

the muzzle of a gun. ER 171. He asked Cloud if he had any weapons on his person

and Cloud said, “No.” ER 171. Bazan reached into the pocket and pulled out a

loaded .22 caliber revolver. ER 171. Bazan testified that Cloud said he did not

know the gun was in his pocket. ER 171. Bazan took then took Cloud to the

Yakima County Jail. ER 171-72. Bazan booked the evidence at the main office. ER

172. The deputy testified that he did not confirm the warrant until after Cloud’s

arrest and search incident to arrest. ER 172.

The district court denied Cloud’s suppression motion and the case proceeded

to trial. Cloud was found guilty of the offense.

B. Acceptance of Responsibility

At sentencing, Cloud objected to the Presentence Investigation Report’s

(PSR) sentencing calculation because it failed to calculate the two-level acceptance

of responsibility adjustment pursuant to U.S.S.G. §3E1.1. The district court

overruled Cloud’s objection:

This adjustment would be applicable in a case where the defendant takes responsibility for the activity which is before the court. In this case there was a plea of not guilty. The matter went to trial. I would note that the comment that’s found in the sentencing guidelines is to the effect that, quote, this adjustment, that is, a two-level reduction for acceptance of responsibility, is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is thereafter convicted, and only then admits guilt and expresses remorse. It seems to me this case was contested all the way through, understandably. With that in mind, I don’t believe there’s a basis to allow a two-level reduction for acceptance of responsibility.


13

ER 257.

The district court went on to note that Cloud’s position was that the

government would prove its case beyond a reasonable doubt, that the government

had the burden to show that there is jurisdiction, and that there was no authority to

proceed in Federal District Court on this kind of charge, that the rulings would

presumably be subject to later review. ER 294. In its comments, the Court seemed

to equate the fact that Cloud contested the legality of his arrest and proceeded to

trial as precluding acceptance of responsibility.

Cloud stated, “I only want to say I only took it to trial this far because I think

they done wrong when they didn’t take me to tribal jail. I never signed an

extradition to—that they had between the Tribe and the sheriff’s office.” ER 289.

IV. ARGUMENT

A. The Search and Seizure of Cloud was Unreasonable Under the Fourth Amendment because State Agents Disregarded Tribal Procedures when they Executed a State Arrest Warrant for Cloud, an Enrolled Member of the Yakama Nation, while Cloud was on Trust Land and thus all Resulting Evidence Required Suppression.

1. Standard of Review.

“In appraising the validity of search incident to arrest, we review de novo

the application of established facts to legal standards.” United States v. Mota, 982

F.2d 1384, 1386 (9th Cir. 1993)(internal citations omitted).


14

2. Argument

In general, evidence will only be excluded in federal court when it violates

federal protections, and not in cases where it is tainted solely under state law.

United States v. Cormier, 220 F.3d 1103, 111 (2000). However, this Court has

ruled that there are two exceptions to the general rule and one of these exceptions

arises in searches incident to arrest. Id. This is because “federal courts must

determine the reasonableness of the arrest in reference to the state law governing

the arrest.” Id., (citing United States v. Mota, 982 F.2d 1384, 1388 (9th Cir. 1993)).

In this case, the evidence Cloud sought to suppress resulted from the search

incident to his arrest by the county deputies. Therefore, upon a finding that the

arrest was unreasonable pursuant to Washington State law, the evidence required

suppression.

a. State Law

i. Washington State Assumption Statutes

The Confederated Bands and Tribes of the Yakama Indian Nation “comprise

14 originally distinct Indian tribes that joined together in the middle of the 19th

century for purposes of their relationships with the United States.” Washington v.

Confederated Bands and Tribes of the Yakima Indian Nation, 439 US 463, 469

(1979); (herein after cited as Yakima Nation). The Yakamas and the United States

signed a treaty in 1855 recognizing the Yakamas as “one nation” and setting aside


15

lands in the Territory of Washington for the Tribes’ exclusive use. Id. Since then,

the Yakamas have “without interruption” maintained their tribal identity. Id.

The Reservation consists of approximately 1,300,000 acres of land located

almost entirely in Yakima County in the eastern part of Washington State.

Confederated Tribes and Bands of Yakima Nation v. County of Yakima, 903 F.2d

1207, 1208 (9th Cir. 1990). Approximately 80% of the land within the exterior

boundaries is held in trust by the United States for the Yakama Nation or

individual members of the Tribe. Yakima Nation, 439 US at 469 (1979). The

remaining parcels of land are held in fee by Indian and non-Indian owners. Id.

The State of Washington asserts jurisdiction over the Yakima Reservation

pursuant to Public Law 280. Id. P.Law 280, enacted by Congress in 1953, granted

individual states the authority to assert jurisdiction over criminal offenses and civil

causes of action in Indian country. Yakima Nation, 439 U.S. at 471-473. Under the

law, Washington State was given the option to assume this jurisdiction without

consulting with or securing the consent of the tribes that would be affected. Id.

473-474.

Washington’s first assumption laws offered state jurisdiction over Indian

country only upon request from the affected tribe. 1957 Wash. Sess. Laws 941, ch.

240.4 In 1963, the Legislature amended RCW 37.12, thereby asserting

4 1957 Wash. Sess. Laws 941, ch. 240. The operative section of that statute was


16

nonconsensual civil and criminal jurisdiction over all Indian country with certain

exceptions.

The State of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with [Public Law 280], but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 have been invoked, except for the following: (1) Compulsory school attendance; (2) Public assistance; (3) Domestic relations; (4) Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent children; and (8) Operation of motor vehicles upon the public streets, alleys, roads and highways.... 1963 Wash. Sess. Laws 346, ch. 36 (codified at RCW § 37.12.010)(herein after cited as RCW 37.12.010)(emphasis added).

carried forward at RCW 37.12.021: Whenever the governor of this state shall receive from the majority of any tribe or the tribal council or other governing body, duly recognized by the Bureau of Indian Affairs, of any Indian tribe, community, band, or group in this state a resolution expressing its desire that its people and lands be subject to the criminal or civil jurisdiction of the state of Washington to the full extent authorized by federal law, he or she shall issue within sixty days a proclamation to the effect that such jurisdiction shall apply to all Indians and all Indian territory, reservations, country, and lands of the Indian body involved to the same extent that this state exercises civil and criminal jurisdiction or both elsewhere within the state: PROVIDED, That jurisdiction assumed pursuant to this section shall nevertheless be subject to the limitations set forth in RCW 37.12.060.


17

RCW 37.12.021 authorized full state jurisdiction for tribes that so requested.

Therefore, Washington State, through the 1963 amendments, divided its

jurisdiction into two broad categories: (1) jurisdiction assumed with the consent of

the affected tribes; (2) jurisdiction assumed without tribal consent. Confederated

Bands and Tribes of Yakima v. State of Washington, 550 F.2d 443, 450 (9th Cir.

1977)(en banc). In the first category, upon tribal resolution and gubernatorial

proclamation, the State would assume jurisdiction over “all Indians and all Indian

territory, reservation, country, and lands of the Indian body involved to the same

extent that the state exercises civil and criminal jurisdiction or both elsewhere

within the state. Id., (citing RCW 37.12.020, recodified as RCW 37.12.021,

Wash.Laws 1963, ch. 36).

For non-consenting tribes, the State assumed jurisdiction to the fullest extent

permissible under PL-280 with respect to fee land, but assumed jurisdiction as to

non-fee land only within the eight categories of subject matter noted supra. 5 Id.

Criminal jurisdiction was not included in the eight enumerated categories. State v.

Cooper, 928 P.2d 406, 408 (Wash. 1996). The Yakama Nation is a non-consenting

Tribe. State v Sohappy, 757 P.2d 509, 110 Wn.2d 907, 909 (1999). Therefore,

5 Non fee land is described as “tribal lands or allotted lands within an

established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States.


18

pursuant to RCW 37.12.010, the State, lacks geographical and subject matter

jurisdiction over tribal members on trust land within the Yakama Reservation, the

eight subject matter exceptions notwithstanding.6

ii. The Matthews Test

Appellant Cloud, an enrolled tribal member, was on trust land within the

reservation when he was arrested. There is no provision in the assumption statutes

to permit deputies to enter trust lands to effectuate Cloud’s arrest on a state DOC

warrant. See RCW 37.12.010. Even where the state had jurisdiction over Cloud

because he was still under the terms of DOC Community Custody, the assumption

statute does not provide for the execution of the state warrant on tribal lands. Id.

In State v. Clark, 308 P.3d 590, 178 Wn.2d 19 (Wash. 2013), the

Washington State Supreme Court was faced with a similar, although not

completely analogous, issue. The defendant, Clark, was an enrolled member of the

Coleville Tribe who was believed to have committed a break-in and theft on fee

land within the Coleville Reservation, over which the State had jurisdiction. Id. at

22. An investigating detective sought a warrant to search Clark’s home for

6 In 2016 the Yakama’s won retrocession from the State on various civil and

criminal jurisdictional areas, however, because Cloud was arrested prior to the retrocession’s implementation, the statutes that applied at the time of his arrest are used in this analysis. www.indianaffairs.gov/cs/groups/public/documents/test/idc1-031964.


19

evidence of the break-in. Id. Clark’s home was on trust land. Id. However, instead

of applying for the warrant through the tribal court, the detective went to the

Okanogan County District Court (OCDC). Id. OCDC issued the warrant, a search

was conducted and evidence was obtained that led to Clark’s conviction. Id. at 23.

Clark appealed his conviction arguing that the evidence obtained at his home

should have been suppressed by the lower court because the State’s assumption

statutes provided no state authority to search tribal lands. Id.

The Clark Court, in a review of Supreme Court precedent, recognized that

the State had the power to exert its authority on reservation lands, even without

statutory authorization, but subject to limitations. Id. at 26 (citing White Mountain

Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980)). States may exert their

authority over reservation lands only where doing so does not undermine tribal

self-governance by “infringing on the right of the reservation Indians to make their

own laws and be ruled by them.” Id. (citing Williams v. Lee, 358 U.S. 217, 220

(1959)).

The Clark Court was ultimately persuaded by the test set forth in the Idaho

State Supreme Court decision of State v. Matthews, 986 P.2d 323, 133 Idaho 300

(Idaho 1999). In balancing the interests of the State with tribal sovereignty, the

Matthews test measured the infringement of tribal sovereignty by looking to

whether the State ignored governing tribal procedures while serving criminal


20

process. Id. at 30-31 (citing Matthews, 133 Idaho 300, 986 (1999)). Adopting the

Matthews test, the Washington Supreme Court held, “the State does not infringe

tribal sovereignty by searching reservation lands unless it disregards tribal

procedures governing the execution of state criminal process.” Id. at 31.

The facts in Clark are distinguishable from the case here. The Clark Court

determined the service of criminal process question based upon facts that 1) a

crime had been committed and, 2) the crime had been committed on fee land

within the reservation. Here those facts are not in the record. The warrant for

Cloud’s arrest came from the Washington Department of Corrections office in

Toppenish, WA. ER 30-31. As noted supra, the town of Toppenish is within the

boundaries of the Yakama Reservation. The warrant was issued based on the

allegation that Cloud had violated terms of his community custody but is silent as

to the specifics of the violation and whether the violation even constituted a crime

Id. The only evidence in the record regarding the violation is Bazan’s testimony

that the warrant was for, “Escaping Community Custody.” ER 170. But the warrant

states no such offense. ER 30-31. Under these circumstances, regardless of tribal

procedures, the Statute and the holding in Clark, do not give the deputies the

authority to enter trust lands to serve the warrant.

For over 140 years, the Court has resolved ambiguities in statutes, documents, and treaties that affect retained tribal sovereignty in favor of the Indians. This interpretive principle is a response to the unique relationship between the Federal Government and the Indian people, "who are the wards


21

of the nation, dependent upon its protection and good faith." Carpenter v. Shaw, 280 U. S. 363, 367 (1930). More fundamentally, the principle is a doctrinal embodiment of "the right of [Indian nations] to make their own laws and be ruled by them," Williams v. Lee, 358 U. S. 217, 220 (1959), a right emphatically reaffirmed last Term in United States v. Wheeler, 435 U. S. 313, 322-330 (1978). Although retained tribal sovereignty "exists only at the sufferance of Congress," id., at 323, the States may not encroach upon an Indian nation's internal self-government until Congress has unequivocally sanctioned their presence within a reservation. See ibid.; McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 168-169, 172-173); Worcester v. Georgia, 6 Pet. 515, 554, 557, 561 (1832); see also Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 212 (1978) (MARSHALL, J., dissenting).

Yakima Nation, 439 US at 502-503.

Therefore, Cloud’s arrest was unlawful and the evidence from the resulting

search required suppression.

However, even under an analysis that assumes Cloud’s violation was a crime

committed on fee land, the arrest was still unlawful. Although there are facts in

Clark that are distinguishable from the circumstances in this case, there are salient

facts that are analogous: State law enforcement officers entered tribal lands with

warrants relating to the service of criminal process where the State court had

subject matter jurisdiction and where the officers effectuated the warrant without

contacting tribal authorities. Therefore, under this analysis, the issue turns on

whether or not the Yakama Nation had procedures in place governing the process

and if so, whether County Sherriff’s deputies disregarded those procedures.


22

iii. Tribal Procedures

In 1977, the Tribe adopted the Uniform Extradition Act, codified as Title V

of the Revised Code of the Yakama Nation. See Statutory Addendum. Title V sets

forth detailed procedure requirements for the extradition of tribal members.

Paragraph 3 specifically provides for the service of warrants for persons who have

been alleged to have “escaped from confinement or broken the terms of his bail,

probation or parole.” Addendum, 5.01.03 Revised YN Law and Order Codes, Title

V (2016).

In 2013, the Yakama Nation entered into a written agreement with Yakima

County regarding the arrest of individuals on the Reservation. Exh. 102. The MOU

recognized the gap in Washington’s assumption statute regarding the service of

arrest warrants.7 “In light of this statutory scheme, Yakima County has law

enforcement responsibilities on the Yakama Reservation involving both members

of the Yakama Nation and non-members.” Exh. 102. Recognizing that the County

has “need to serve warrants issued by Washington State courts on members of the

Yakama Nation … who may be found on Yakama Nation trust lands,” the MOU

reduced to writing the discussions between the County and the Nation as how to

7 The agreement was finalized about a month before the Washington State

Court’s decision in State v. Clark, 178 Wn.2d 19 (2013).


23

“best effectuate the Yakima County Sheriff’s responsibilities to serve such

warrants.” Exh. 102. In pertinent part the procedures agreed upon are as follows:

3. EXECUTION OF WARRANTS OF ARREST. When a Yakima County deputy sheriff knowingly enters Trust lands for the purpose of serving a state court arrest warrant on an enrolled member of the Yakama Nation or another federally-recognized Indian Tribe:

(a) The deputy sheriff will, except in the event of exigent circumstances, first contact the Yakama National police dispatch. Should the Yakama Nation police elect to cooperate in the execution of the arrest warrant, the deputy sheriff shall not frustrate such cooperation by any dispatched Yakama Nation police officer. (b) Following the service of the warrant, the deputy sheriff may, in the company of any dispatched Yakama Nation police officer should the Yakama Nation police elect to cooperate, take custody of the defendant for booking into the Yakama Nation jail pending extradition.

Exh. 102.

The agreement goes on to outline the extradition process and specifically

recognizes that the negotiated MOU creates a variance from the Nation’s Uniform

Criminal Extradition Act. Exh. 102. The variance provided in the MOU lessens the

burden on the Sheriff’s Deputies by minimizing the extradition procedures.

Under Title V, law enforcement are required to make the demand for

extradition in writing and then present a list of supporting documentation.

Addendum, 5.01.03, Title V. Further, once the demand is made, the Chairman of

the Tribal Council will conduct an investigation to determine whether the “person

so demanded…ought to be surrendered.” Addendum, 5.01.05, Title V. If the

Chairman determines the person should be surrendered to the demanding


24

jurisdiction, he will issue a warrant of arrest that will be directed to any Law

Enforcement Officer for execution. Addendum, 5.01.11, Title V .

Under the terms of the negotiated MOU, Sheriff’s Deputies only need make

a phone call or radio Yakama Nation police dispatch to determine if the Yakama

Nation police elect to cooperate. Whether or not Yakama police elect to cooperate,

the defendant will be taken to the Yakama Nation jail and then the warrants are to

be presented to the Trial Court Judge, who will “promptly” hold a hearing to

determine whether the warrant is facially valid per state law and whether the

person in custody is the same person charged on the face of the warrant. Exh. 102.

The Sheriff’s deputies, by their own admission, completely disregarded the

terms of this agreement. McIlrath testified that he knew both Culps and Cloud

were enrolled Yakama Tribal members. ER 131. He also knew that he was entering

the boundaries of the reservation in order to serve the warrants. ER 113. McIlrath

was a 15-year veteran of the Sheriff’s Office in a county where the Reservation

constituted 80 percent of the county’s geography. ER 94. McIlrath bragged that he

had the highest number of warrant arrests in the Sheriff’s office. ER 119. McIlrath

was familiar with the MOU and knew that it required him to contact Yakama

Nation police dispatch before attempting to arrest either Culps or Cloud if they

were on trust land. ER 105-108. McIlrath testified that even though he knew the


25

MOU requirements, he did not always abide by them, but said rather, “we try.” ER

108.

On direct examination the deputy testified that he was not aware of whether

or not Culps’ residence was actually located on trust land. ER 107. However, by

virtue of his answer, he was aware of the real possibility that it could be on trust

land, which in fact it was. He had also been to this residence before in prior

contacts with Culps. He should have known the residence was on trust land. If he

did know it was situated on trust land, then McIlrath lied on the stand. ER 107. If

he actually was ignorant regarding the issue, then his ignorance was purposeful in

that he chose not to be informed. Either way, he acted in disregard of tribal policies

where he knew he had an obligation to contact the Yakama Nation police dispatch

before effectuating an arrest of tribal members on trust land.

In denying Cloud’s suppression motion, the district court mistakenly found

that pursuant to Public Law 280, that state had assumed full criminal jurisdiction

over tribal members in Indian country and that this included the Yakama Nation.

ER 55. The district court’s entire analysis was based upon this erroneous

foundation. The district court found that the MOU could not bind the State to cede

its’ jurisdiction over Indians in Indian country because the agreement itself stated,

“Nothing in this memorandum shall be construed to cede any jurisdiction of either

party…” ER 56. However, this assumed that the State had jurisdiction to cede,


26

when in fact, it was the Yakama Nation that was making concessions in order to

cooperate with Yakima County. However, the district court’s errors are not

essential to the determination of Cloud’s appeal on this issue because the standard

of review is de novo. Mota, 982 F.2d at 1386.

Cloud’s substantial rights under the Fourth Amendment of the United States

Constitution, to be free from unreasonable search and seizure, were violated by the

Sheriff’s deputies. U.S. CONST. amend IV. Pursuant to State law, Cloud’s arrest

was unreasonable and therefore unlawful, when deputies effectuated the arrest

warrant in complete disregard for the tribal procedures clearly set forth in Title V

and MOU. Because the arrest was unlawful, all evidence obtained as a result of

the arrest required suppression. United States v. Mota, 982 F.2d 1384, 1388 (9th

Cir. 1993); Murray v. United States, 487 U.S. 533, 536 (1988).

B. The Search and Seizure of Cloud was Unreasonable under the Fourth Amendment because Sheriff’s Deputies Arrested Cloud Prior to Confirming the Validity of the Arrest Warrant, thus all Resulting Evidence Required Suppression 1. Standard of Review

The issue was not raised in the district court. Issues raised for the first time

on appeal are reviewed for plain error. United States v. Matus-Zayas, 655 F.3d

1092, 1098 (9th Cir. 2011)(citations omitted). Plain error is (1) error, (2) that is

plain, and (3) affects substantial rights. Id.


27

2. Argument

As noted supra, in analyzing whether evidence from a search was obtained

pursuant to an unlawful arrest by state agents, “federal courts must determine the

reasonableness of the arrest in reference to the state law governing the arrest.”

United States v. Mota, 982 F.2d 1384, 1388 (9th Cir. 1993).

In this case, evidence was obtained by Deputy Bazan during a search

incident to Cloud’s arrest. ER 170-71. However, the validity of the warrant, upon

which the deputy based his authority to arrest Cloud, was not confirmed prior to

Cloud’s arrest. ER 120. This fact was absent from the deputies’ incident reports

and made known for the first time during testimony elicited at the suppression

hearing. ER 120.

Deputy Bazan testified that it was not until after he arrested Cloud that he

confirmed the warrant. ER 172. Deputy McIlrath also testified that he never

confirmed the warrant at anytime before Cloud’s arrest. ER 120. Deputy McIlrath

testified that he failed to confirm the warrant prior to its execution because, he had

“no idea” Cloud would be at the residence. ER 120. However, according to

McIlrath’s own testimony, radio logs and Bazan’s testimony, this was not true.

During the morning meeting, Cloud was discussed as possibly being at

Culps’ home. ER 166-67. McIlrath testified that he had information Cloud may be

at Culps’ home. ER 117. McIlrath ran Cloud’s name at 7:16 a.m., more than two


28

hours before Cloud’s arrest. Id. Moreover, Bazan testified that he had received

information from the other deputies that morning about Cloud. ER 166-167. In

preparation for the arrest, Bazan took the time to review Cloud’s DOL and booking

photos. Id. Therefore, Deputy McIlrath’s claim of surprise is disingenuous.

Based on the deputies’ testimony that they met sometime around 7:00 a.m.

and arrived at Culps’ at about 9:30 a.m., there was a span of well over two hours

within which to confirm the warrant, yet they chose not to do so.

Washington State Courts have held that the arrest of an individual, before

confirmation of the warrant upon which the arrest is predicated, is unlawful. In

State v. Ellwood, 757 P.2d 547, 52 Wn.App. 70, (Wash.App. Div. 1 1988), the

defendant was detained for the sole purpose of determining whether there were

outstanding warrants for his arrest. Ellwood did indeed have an outstanding

warrant so the officer placed him in cuffs and searched him. Id at 548. Ellwood had

drugs and measuring scales in his pockets. Id. The State argued that the officer had

lawfully requested Ellwood’s name prior to the unlawful detention and therefore

the evidence seized during the arrest was not tainted by his illegal detention. Id. at

550. The appellate court responded:

Officer Deckard was able to seize the cocaine and measuring scale during the course of Ellwood’s arrest only because he had improperly detained Ellwood. One can only speculate as to whether Ellwood would still have had the drugs in his possession had Detective Deckard allowed him to leave, and then, upon learning of the outstanding warrant, found and arrested him. If so, Detective Deckard could legally have seized the evidence as


29

incident to the arrest. Here, instead, the connection between Detective Deckard’s illegal seizure of Ellwood and seizure of the cocaine and measuring scale was not sufficiently attenuated to dissipate the taint….Thus, the evidence gathered as a result of Ellwood’s illegal detention is inadmissible.

Id. at 550.

In Ellwood, even though the search was not conducted until after the warrant

was confirmed, the Washington Court of Appeals held that the search was too

close in time to the unlawful seizure to dissipate the taint. Id. Here, the deputies

not only arrested Cloud before confirming the warrant, but they conducted the

search before the warrant was confirmed. Accordingly, the resulting evidence is

the fruit of an unlawful arrest and requires suppression.

In State v Barnes, Officer Moran knew Barnes because he had arrested him

10 to 20 times before. 978 P.2d 1131, 96 Wn.App. 217 (Wash.App. Div 3 1999).

Moran saw Barnes walking in his (Barnes’) neighborhood. Id. at 1133. Moran had

seen an arrest warrant for Barnes two weeks prior. Id. Moran approached and

questioned Barnes and asked about the outstanding warrant. Id. Barnes stated that

the warrant had been cleared. Id. Moran asked Barnes if he “would be willing to

stick around while I check on it.” Barnes felt compelled to oblige the officer. Id. at

1134. Based on this encounter, the Washington Court of Appeals determined that

Barnes had been detained and that the detention amounted to an unlawful arrest. Id.

at 1136. Although, the warrant had been cleared, Barnes was subsequently


30

arrested for obstruction and drugs were found in his pocket. Id. The Barnes Court

held that based on the initial unlawful detention, the evidence required suppression.

Id.

Arresting an individual solely based on a warrant, where the warrant has not

been confirmed, is unlawful under Washington State law. The reasoning is obvious

in that officers do not know whether they have lawful authority to arrest someone

until after a warrant is confirmed. Id.

Therefore, the evidence against Cloud requires suppression because he was

arrested and searched based solely on an unconfirmed warrant. According to

Ellwood, the fact that the warrant was confirmed after his arrest is immaterial to

the analysis. The evidence requires suppression, even under a plain error review,

because the error was plain and it affected Cloud’s substantial rights to be free

from unlawful searches and seizures under the Fourth Amendment.

C. The District Court Misinterpreted the Guidelines as Prohibiting Cloud from Receiving an Acceptance of Responsibility.

1. Standard of Review

This Court will review de novo the district court’s interpretations of the

Sentencing Guidelines. United States v. Ramos-Medina, 706 F.3d 932, 936 (9th

Cir. 2012), citing, United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010). On

appeal, this Court will review for clear error the district court’s finding that a

defendant did not accept responsibility. Id. “A district court’s decision about


31

whether a defendant has accepted responsibility is a factual determination

reviewed for clear error.” United States v. Cantrell, 433 F.3d 1269, 1284 (9th Cir.

2006) citing, United States v. Velasco-Medina, 3005 F.3d 839, 853 (9th Cir. 2002).

“ ‘The determination of the sentencing judge is entitled to great deference on

review’ because ‘the sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility.’” Id., and U.S.S.G. §3E1.1, cmt. n.5.

2. Argument

The district court did not grant Cloud the acceptance of responsibility

adjustment because the “case was contested all the way through”. ER 257. Given

the district court’s reasoning for denying Clouds’ request, it appears the court felt

constrained by the Guidelines:

This adjustment would be applicable in a case where the defendant takes responsibility for the activity which is before the court. In this case there was a plea of not guilty. The matter went to trial. I would note that the comment that’s found in the sentencing guidelines is to the effect that, quote, this adjustment, that is, a two-level reduction for acceptance of responsibility, is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is thereafter convicted, and only then admits guilt and expresses remorse. It seems to me this case was contested all the way through, understandably. With that in mind, I don’t believe there’s a basis to allow a two-level reduction for acceptance of responsibility.

ER 257

Acceptance of Responsibility is set forth in U.S.S.G. §3E1.1 and states “If

the defendant clearly demonstrated acceptance of responsibility for his offense,


32

decrease the offense level by 2 levels.” Several application notes shed light on this

section’s application. Application Note one sets forth a list of several non-

exhaustive factors a district court can consider in determining whether a defendant

qualifies under subsection (a).

Application Note two notes:

Conviction by trial does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g. to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pretrial statements and conduct.

U.S.S.G. §3E1.1, cmt. n. 2.

Here, Cloud clearly sought to preserve the suppression issues related to his

Fourth Amendment rights, an exception enumerated in the Guideline supra. “I

only want to say I only took it to trial this far because I think they done wrong

when they didn’t take me to tribal jail. I never signed an extradition to—that they

had between the Tribe and the sheriff’s office.” ER 289.

Even if Cloud had only gone to trial contest factual guilt, the Guideline still

does not summarily prohibit the 2-level adjustment. In Cortes, this Court noted that

on the record presented before the Court, it was unclear whether the district court


33

assumed that an acceptance of responsibility reduction was unavailable to Cortes

because he went to trial to contest an issue related to factual guilt. Id., at 1039.

The Ninth Circuit went on to note that the district court:

[S]poke nary another word about Cortes’s acceptance of responsibility. It made no specific findings concerning Cortes’s remorse or contrition, and it did not consider on the record the applicable Guideline factors. It appears the district court may have believed, as a matter of law, that Cortes was ineligible for the reduction. Employing that type of per se bar to the acceptance of responsibility reduction would have impermissibly penalized Cortes for exercising his constitutional right.

United States v. Cortes, 299 F.3d at 1039. The Cortes Court went on to state that

it was possible the district court did consider the issue however the record was

insufficient to determine. Id., (citing United States v. Sitton, 968 F.2d 947, 962 (9th

Cir. 1992)(remanding where it was unclear if the district court denied an

acceptance of responsibility reduction based on defendant’s exercise of a

constitutional right to suppress evidence).

Here the Court noted at the end of the hearing that Cloud had argued that the

law precluded the legality of arrest and had put the government to its burden of

proving the case beyond a reasonable doubt, and that unless there was something

different before the court, the court was not in a position to say that the defendant

admitted the acts and should get the benefit of accepting responsibility. ER 294.

It is unclear whether the district court considered the whole of Cloud’s

conduct when it denied acceptance of responsibility under U.S.S.G. §3E1.1. It is


34

clear, however, that the district court identified only that Cloud had contested the

case as a basis for denying the adjustment. In so doing, the district court committed

clear error and the sentence should be vacated and remanded.

V. CONCLUSION

The evidence resulting from Cloud’s illegal arrest and subsequent search

required suppression. Additionally, the district court erred in its’ denial of the 2-

level reduction for acceptance of responsibility based upon Cloud’s invocation of

his right to preserve the constitutional issues associated with the denial of his

suppression motion. Therefore, in the event this Court does not reverse Cloud’s

conviction based upon the errors set forth supra, a sentencing remand is required.

DATED: July 24, 2017 Respectfully submitted,

By:

/s/Kimberly Deater Kimberly Deater 1314 S. Grand Blvd, 2-288 Spokane, WA 99202 509-995-4113 [email protected] Attorney for Appellant Cloud


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STATEMENT OF RELATED CASES

Counsel for Nathan Lynn Cloud, U.S.C.A. No. 16-30310, hereby certifies

that I am not aware of any related cases within the meaning of Circuit Rule 28-2.6.

DATED: July 24, 2017

/s/Kimberly Deater Kimberly Deater


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CERTIFICATE OF SERVICE

I, Kimberly Deater, a member of the Bar of this Court, hereby certify that, on

July 24, 2017, I caused to be electronically filed the foregoing “Defendant-

Appellant’s Opening Brief” with the Clerk of Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate NextGen CM/ECF system. I

certify that all participants in the case are registered NextGen CM/ECF users and

that service will be accomplished by the appellate NextGen CM/ECF system.

/s/Kimberly Deater Kimberly Deater


Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief iswords or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2(a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2(c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Unrepresented Litigant

("s/" plus typed name is acceptable for electronically-filed documents)

Date

(Rev.12/1/16)

16-30310

8325

s/Kimberly Deater 07/24/2017

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TITLE V (5) -UNIFORM CRIMINAL EXTRADITION ACT

5.01.01: AUTHORITY TO YAKAMA NATION CHAIRMAN .................... 1

5.01.03: DEMAND FOR EXTRADITION -REQUIREMENTS . . . . . . . . . . . . . . . . . . . 1

5.01.05: INVESTIGATION OF DEMAND-REPORT........................... 1

5.01.07: RETURN OR SURRENDER OF PERSON CHARGED IN ANOTHER

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5.01.09: SURRENDER OF PERSONS CHARGED WITH CRIME COMMITTED

IN OTHER THAN DEMANDING JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 2

5.01.1 1: WARRA.NT OF ARREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5.01.1 3: AUTHORITY OF OFFICER OR OTHER PERSON UNDER WARRA.NT . . 3

5.01.1 5: AUTHORITY TO COMMAND ASSISTANCE . . . . . . . . . . . . . . . . . . . . . . . . . 3

5.01.17: RIGHTS OF PERSON ARRESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . 3

5.01.1 9: DELIVERY OF PERSON IN VIOLATION OF RYC 5.01.17

- PENAL TY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5.01.21: CONFINEMENT OF PRISONER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5.01.23: CHARGE OR COMPLAINT -WARRANT OF ARREST . . . . . . . . . • . . . . . . 5

5.01.25: ARREST WITHOUT W ARRA.NT; OUTSIDE OF JURISDICTION . • . . . . . . 5

5.01.27: PRELIMINARY EXAMINATION -COMMITMENT . . . . . . . . . . . . • . . . . . . 6

5.01.29: BAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5.01.3 1: FAILURE TO MAKE TIMELY ARREST OR DEMAND FOR

EXTRADITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5.01.3 3: FAILURE TO APPEAR-BOND FORFEITURE -RECOVERY

ON BOND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5.01.3 5: PENDING CRIMINAL PROSECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5.01.37: RECALL OR REISSUANCE OF WARRA.NT . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5.01.3 9: DEMAND BY CHAIRMAN OF THE TRIBE FOR EXTRADITION -

W ARRA.NT -AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Revised YN Law and Order Codes (06.2016) TITLE V (5) - UNIFORM CRIMINAL EXTRADITION ACT

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in the united states court plaintiff-appellee, nathan lynn ... · pdf filestatement of related...

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