United States v. Percy

Decision Date11 May 2001
Citation250 F.3d 720
CourtU.S. Court of Appeals — Ninth Circuit

Bram Jacobson, Assistant Federal Public Defender, Phoenix, Arizona, for the defendant-appellant.

Joseph C. Welty, Assistant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona Robert

C. Broomfield, District Judge, Presiding. D.C. No. CR-98-00873-RCB

Before: Ruggero J. Aldisert,1 Susan P. Graber and Raymond C. Fisher, Circuit Judges.


Fisher, Circuit Judge

In this appeal, we are called upon to determine whether a federal agent's interrogation of Shawn Percy violated his Sixth Amendment right to counsel because the interrogation occurred in the absence of counsel, but after Percy's tribal arraignment on charges stemming from the same incident. We hold that the interrogation was proper because, even if Percy's Sixth Amendment right to counsel attached at his tribal arraignment, Percy executed a valid waiver of that right before submitting to questioning by federal agents. We also conclude that Percy's other claims of trial error do not warrant reversal. Accordingly, we affirm the convictions.


Shawn Percy shot and killed a man in Indian country. He then fled to Arizona, but within days was arrested by Sergeant Stephanie Nelson of the Gila River Tribal Police Department who was accompanied by three other tribal officers and three Maricopa County Sheriff's Deputies. Although Sgt. Nelson was cross-certified to act as an agent of both the Bureau of Indian Affairs and Maricopa County, she arrested Percy pursuant to a tribal arrest warrant. Almost immediately after the arrest, however, one of the deputies informed Sgt. Nelson of the existence of a federal warrant for Percy's arrest on a murder charge arising out of the same incident.

Upon learning of the federal warrant, Sgt. Nelson called a tribal prosecutor and asked for advice. The prosecutor informed her that she could bring Percy to the border of the Gila River Tribal Community, where he could be taken into custody on the tribal warrant. Next, Sgt. Nelson contacted FBI Special Agent Kevin Killegrew, who had sworn out the federal criminal complaint against Percy. Agent Killegrew told Sgt. Nelson that she had the choice of either taking Percy to tribal court pursuant to the tribal warrant or arresting him on the federal warrant.

Sgt. Nelson chose to act pursuant to the tribal warrant. She took Percy to the border of the Gila River Tribal Community and turned him over to another Gila River police officer, who executed the tribal arrest warrant and transported Percy to jail. However, despite Sgt. Nelson's apparent efforts to serve both tribal and federal interests faithfully, her actions failed to comply with the statutory mechanism for apprehending and extraditing an individual who is located outside the boundaries of Indian country. Had the proper procedure been followed, Sgt. Nelson, as an Maricopa county official, would have held Percy in custody until the tribe initiated extradition procedures. In this case, the tribe undertook no extradition procedure. Tribal jurisdiction, however, was not compromised by Sgt. Nelson's failure properly to extradite Percy. Once Percy was within the territorial jurisdiction of the Gila River Tribal Court, that court could legally exercise its jurisdiction. See United States v. Alvarez-Machain, 504 U.S. 660, 664 (1992) (noting the longstanding rule that a court may exercise jurisdiction even when a defendant's presence is the result of forcible abduction). Therefore, Percy's detention by the Gila River Tribal Community was legal.

Percy was arraigned in tribal court and entered a plea of not guilty to the killing and a related weapons charge. Percy was not represented by counsel at the proceedings. Tribal law does not require appointment of counsel at arraignment, and Percy did not retain private counsel.2

On December 23, 1998, 17 days after Percy was taken into tribal custody, Agent Killegrew visited the tribal jail to interview Percy. Percy still had not taken steps to retain counsel, nor had he expressed a desire for the assistance of counsel. Before the interview, Killegrew orally advised Percy of his Miranda rights. Specifically, Killegrew testified that he told Percy he had a right to a lawyer, free of charge; that a lawyer could be appointed for him prior to questioning; and that at any point Percy could stop the interview and Killegrew would obtain a lawyer for him. Percy indicated that he understood his rights, but nonetheless waived them. Percy also executed a written waiver of his Miranda rights on an"advice of rights" form in the presence of both Killegrew and Gila River tribal detective Tim Prawdzik. Percy then proceeded to tell Killegrew his version of the events on the night of the killing and revealed to Killegrew the location of the murder weapon. At no time during the interview did Percy request the assistance of counsel.

Percy was transferred to federal custody the next day, December 24, 1998. That same day, he was arraigned in federal court and entered a plea of not guilty to the charges of first degree murder and use of a firearm in a crime of violence.

On March 24, 1999, Percy filed a motion to suppress the statements he made to Killegrew during the interview in tribal jail, as well as the physical evidence collected as a result of those statements. At the resultant hearing, Percy's court-appointed lawyer told the court that Percy did not dispute that he had waived his Miranda rights or that his statement was made voluntarily. After hearing testimony, the district court concluded that "[Percy] did receive his Miranda rights from Special Agent Killegrew, and that his statement was knowingly, voluntarily and intelligently made for Fifth Amendment purposes." The district court also concluded that Percy's Sixth Amendment right had not attached at the time of the interview because Percy had not yet been arraigned on federal charges. Accordingly, the district court denied Percy's motion to suppress his December 23 statement to Killegrew.

Percy was tried before a jury. In its case-in-chief, the government called Killegrew to testify about what Percy had told him during the interview in tribal jail. The murder weapon, which had been located as a result of statements made during the interview, was admitted into evidence. Percy took the stand in his own defense. He admitted to the shooting, but claimed he had acted in self-defense and that he had not intended to fire the gun. In response to questions on cross-examination about why he possessed a loaded, sawed-off rifle, Percy testified that he feared for his safety because of a prior incident. When Percy's counsel attempted to elicit the details of the prior incident on redirect, the district court sustained the government's objection to the testimony on the basis of relevance.

At the end of a three day trial, the jury found Percy guilty of second degree murder and use of a firearm in a crime of violence. Percy is serving a term of 280 months in federal prison, to be followed by 60 months of supervised release. Percy now challenges his conviction on three separate grounds. We examine each of them in turn and find none meritorious.


We review de novo a district court's denial of a motion to suppress. United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000). A district court's factual findings are reviewed for clear error. United States v. Mattarolo, 209 F.3d 1153, 1155-56 (9th Cir. 2000). Its evidentiary rulings during trial are reviewed for an abuse of discretion. United States v. Ramirez, 176 F.3d 1179, 1182 (9th Cir. 1999). When a defendant raises an issue on appeal that was not raised before the district court, we review only for plain error. Fed. R. Crim. P. 52(b); United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999). Whether a waiver of the Sixth Amendment right to counsel was made knowingly and intelligently is a mixed question of law and fact that is reviewed de novo. Lopez v. Thompson , 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc).

I. Right to Counsel
A. Sixth Amendment

Percy first argues that the uncounseled statements he made to Agent Killegrew while in tribal jail were obtained in violation of his Sixth Amendment right to counsel. The Sixth Amendment guarantees a criminal defendant "the right . . . to have the Assistance of Counsel for his defence," U.S. const. amend. VI, the right to such counsel attaching "at or after the initiation of adversary judicial criminal proceedings --whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion). This Circuit adheres to the bright-line rule that the Sixth Amendment's right to counsel attaches upon the initiation of formal charges. See United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000) (en banc).

At the time of his interview with Agent Killegrew, however, Percy had not been arraigned in federal court. Rather, he had been arraigned only in tribal court. It is well established that tribal proceedings do not afford criminal defendants the same protections as do federal proceedings. The protections of the United States Constitution are generally inapplicable to Indian tribes, Indian courts and Indians on the reservation. See Talton v. Mayes, 163 U.S. 376, 381-82 (1896); Tom v. Sutton, 533 F.2d 1101, 1102-3 (9th Cir. 1976). The underlying rationale is that Indian tribes are quasi-sovereign nations. McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164, 172-73 (1973). This Circuit has held the Sixth Amendment right to counsel does not apply in tribal court criminal...

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