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, Page 1 of 57
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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
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
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
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
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
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
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
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
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.
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
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.
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.
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
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.
“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
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
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
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
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,
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
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
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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)