United States v. Cleveland

Decision Date21 November 2018
Docket NumberNo. CR 17-0965 JB,CR 17-0965 JB
Citation356 F.Supp.3d 1215
Parties UNITED STATES of America, Plaintiff, v. Kirby CLEVELAND, Defendant.
CourtU.S. District Court — District of New Mexico

John C. Anderson, United States Attorney, Novaline D. Wilson, Jennifer M. Rozzoni, Niki Tapia-Brito, Letitia Carroll Simms, Michael D. Murphy, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Donald F. Kochersberger, III, Business Law Southwest, L.L.C., Albuquerque, New Mexico, Theresa M. Duncan, Duncan Earnest Attorneys at Law, Albuquerque, New Mexico, Attorneys for the Defendant.



THIS MATTER comes before the Court on the Defendant's Motion to Dismiss Counts 1 and 5 of the Indictment, filed September 24, 2018 (Doc. 72)("Motion"). The primary issues are whether: (i) a Navajo Nation Department of Public Safety ("NDPS") officer, Houston Largo, was a federal officer for purposes of 18 U.S.C. § 1114 -- "Protection of Officers and Employees of the United States" -- when the Bureau of Indian Affairs ("BIA")1 has, with the Navajo Nation, entered a Self-Determination Contract, filed September 24, 2018 (Doc. 72-2)("Self-Determination Contract"), also known as a 638 contract,2 granting the Navajo Nation authority to enforce United States and Tribal laws; and (ii) Largo, when responding to a domestic violence call in the Navajo Nation, was performing a federal employee's "official duties," 18 U.S.C. § 1114. Based on a plain meaning of the Indian Law Enforcement Reform Act, 25 U.S.C. §§ 2801 - 14 ("ILERA"), and United States Court of Appeals for the Tenth Circuit precedent, the Court concludes that, based on the record before the Court,3 unless additional evidence reveals that the Navajo Nation waived its inherent criminal jurisdiction or authorized the BIA to enforce Tribal law, officers without Special Law Enforcement Commissions ("SLEC") like Largo, are not federal employees for 18 U.S.C. § 1114's purposes. Because the Court does not have sufficient evidence to definitively make this determination at this time, the Court requests additional information regarding whether the Navajo Nation waived its inherent criminal jurisdiction or authorized the BIA to enforce its laws. If there is no more evidence regarding the Navajo Nation's authority to enforce Tribal laws, the Court will grant Cleveland's Motion.


In its Memorandum Opinion and Order, No. CR 17-0965 JB, 2018 WL 4759889, filed October 2, 2018 (Doc. 82)("MOO"), the Court summarized the factual background and early procedural history. See MOO at 1-2; 2018 WL 4759889, at *1-2.

The Court draws its facts about the offense at issue from the Indictment, filed April 12, 2017 (Doc. 20)("Indictment"). The Court recognizes that the Indictment largely represents Plaintiff United States of America's version of events and that Cleveland is presumed innocent.
On July 18, 2013, Cleveland pled guilty to violations of 18 U.S.C. § 1153 and 18 U.S.C. § 113(a)(6), for an assault on Jane Doe resulting in serious bodily injury. SeeUnited States v. Cleveland, No. CR. 12-2062 MCA, Judgment at 1, filed November 27, 2013 (Doc. 102)("Judgment"). The Honorable M. Christina Armijo, then-Chief United States District Judge for the District of New Mexico, sentenced Cleveland to 24 months in prison and three years of supervised release. See Judgment at 1. Cleveland entered supervision on April 7, 2014, but after absconding from supervision, he was remanded to custody on July 14, 2016, for lying to the probation officer, violating the probation officer's instructions, using alcohol and other intoxicants, and not completing a substance abuse treatment program. SeeUnited States v. Cleveland, No. CR. 12-2062 MCA, Petition for Revocation of Supervised Release at 1, filed July 17, 2015 (Doc. 109); Judgment at 1-2, filed August 8, 2016 (Doc. 121); Second Petition for Revocation of Supervised Release at 1, filed February 27, 2017 (Doc. 122). Cleveland returned to supervision on September 6, 2016, with the supervision set to end on September 5, 2018. SeeUnited States v. Cleveland, No. CR. 12-2062 MCA, Second Petition for Revocation of Supervised Release at 1. Before completing his supervised release, around February 26, 2017, to March 11, 2017, Cleveland escaped "from Diersen Residential Reentry Center in Albuquerque," New Mexico. Indictment at 2....

See MOO at 1-2; 2018 WL 4759889, at *1-2. While responding to a domestic violence call and in uniform, see United States' Response to Defendant Kirby Cleveland's Motion to Dismiss Counts 1 and 5 of the Indictment at 2, filed November 2, 2018 (Doc. 94)("Response"); Motion at 2, Largo stopped Cleveland's vehicle within the Navajo Nation while Cleveland was driving under the influence, see Motion at 2; Response at 1-2. During the stop, Cleveland shot and killed Largo. See Indictment at 2; Response at 2.

The NDPS employed Largo. See Response at 2-3. The BIA did not employ Largo, and Largo did not have a BIA SLEC. See Motion at 2; Response at 2. The Navajo Nation has a Self-Determination Contract with the BIA; the Self-Determination Contract provides for "the provision of law enforcement" by the Navajo Nation, and incorporates the Annual Funding Agreement (executed December 28, 2016), filed September 24, 2018 (Doc. 72-3), and the Statement of Work, filed September 24, 2018 (Doc. 72-4), which conditions federal funds on the provision of law enforcement services pursuant to ILERA. Motion at 5. The Self-Determination Contract states:

Each provision of the Indian Self-Determination and Education Assistance Act ... and each provision of this Contract shall be liberally construed for the benefit of the Contractor to transfer the funding and the following related functions, services, activities and programs (or portions thereof), that are otherwise contractible under Section 102(a) of such Act, including all related administrative functions, from the Federal Government to the Contractor: Law Enforcement-Patrol Services.

Self-Determination Contract ¶ 2, at 1 (emphasis in original). The Funding Agreement states: "The Navajo Nation agrees to administer and perform those portions of the Bureau of Indian Affairs' ... Law Enforcement-Patrol Services identified in the Scope of Work...." Annual Funding Agreement ¶ A(1), at 1 (emphasis in original). The Statement of Work describes that the Navajo Nation will maintain "law enforcement and crime prevention services," Statement of Work ¶ 101(A), at 1, enforce "Navajo Nation and federal laws and ordinances," Statement of Work ¶ 101(B), at 1, protect "private, public and government property" within the Navajo Nation, Statement of Work ¶ 101(C), at 1, respond to "citizen's [sic] complaints or other request [sic] for law enforcement services," Statement of Work ¶ 101(F), at 1, patrol the roadways within the Navajo Nation, see Statement of Work ¶ 101(G), at 1, and engage in other law enforcement activities, see Statement of Work ¶ 101(E), (H)-(M), at 1-2. The Statement of Work further provides: "The Bureau may commission any law enforcement officer as a Federal Law Officer as set out in Attachment A-B." Statement of Work ¶ 104, at 6. The Deputation Agreement (executed March 13, 2013), filed September 24, 2018 (Doc. 72-5), states its intent to

provide for the deputation of law enforcement officers employed by the [NDPS] ... so that the [NDPS] law enforcement officers will be authorized to assist the BIA in its duties to provide law enforcement services and to make lawful arrests in Indian country within the jurisdiction of the Tribe or as described in section 5.

Deputation Agreement at 1. The Deputation Agreement explains the purpose for deputizing NDPS officers:

Both parties to this Agreement recognize that when law enforcement officers arrest a criminal suspect, the officers may not know whether the suspect or the victim is an Indian or a non-Indian, or whether the arrest or the suspected crime has occurred in Indian country ... and that therefore there is great difficulty in determining immediately the proper jurisdiction for the filing of charges.

Deputation Agreement at 2. The Deputation Agreement provides for the BIA to issue SLECs to NDPS officers. See Deputation Agreement ¶ 2(A), at 3. NDPS officers with SLECs have authority to enforce "[a]ll Federal laws applicable within Indian country, and specifically the Navajo Nation's Indian country, including the General Crimes Act, 18 U.S.C. § 1152, and the Major Crimes Act, 18 U.S.C. § 1153...." Deputation Agreement ¶ 3(A), at 4. The Deputation Agreement does not change judicial jurisdictions. See Deputation Agreement ¶ 3(C), at 4. "Officers holding SLECs are treated as BIA police officers for enforcing Federal laws." Deputation Agreement ¶ 6(A), at 5. Under the Deputation Agreement:

[A]ny Navajo Nation Division of Public Safety Law Enforcement Officer who is deputized by the Bureau of Indian Affairs Special Law Enforcement Commission will only be deemed an employee of the Department of the Interior for the Purposes of the Federal Tort Claims Act[, 28 USCA §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671 to 2680, ("FTCA"),] while carrying out those laws applicable in Indian country.... Therefore, such officer will not be deemed a federal employee under 25 U.S.C. § 2804(f), or for purposes of the Federal Tort Claims Act with respect to the enforcement of any other law except those applicable in Indian country....

Deputation Agreement ¶ 8(b), at 7.


"A federal Grand Jury indicted Cleveland in the current case on April 12, 2017.

See Indictment at 1." MOO at 2; 2018 WL 4759889, at *2. The Grand Jury indicted Cleveland on eight counts: (i) killing a federal officer in violation of 18 U.S.C. § 1111 and 18 U.S.C. § 1114 ; (ii) felony murder in violation of 18 U.S.C. § 1111 ; (iii) killing Largo with a firearm in violation of 18 U.S.C. § 1153 and 18...

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