United States v. Cleveland
Decision Date | 21 November 2018 |
Docket Number | No. CR 17-0965 JB,CR 17-0965 JB |
Citation | 356 F.Supp.3d 1215 |
Parties | UNITED STATES of America, Plaintiff, v. Kirby CLEVELAND, Defendant. |
Court | U.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.
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:
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.
PROCEDURAL BACKGROUND
"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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