UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PAUL CURTIS PEMBERTON, Defendant - Appellant.
No. 22-7028
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
March 4, 2024
Appellate Case: 22-7028 Document: 010111008999 PUBLISH FILED Christopher M. Wolpert Clerk of Court
Timothy C. Kingston, Law Office of Tim Kingston, Foley, Alabama (Paul T. Lund, Burleson, Pate & Gibson, Dallas, Texas, with him on the briefs), for Defendant-Appellant.
James R.W. Braun, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), United States Attorney’s Office, Muskogee, Oklahoma, for Plaintiff-Appellee.
Before TYMKOVICH, BRISCOE, and MORITZ, Circuit Judges.
TYMKOVICH, Circuit Judge.
This appeal requires that we consider the ongoing ramifications of the United States Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). In that case, the Court ruled that the Muscogee (Creek) Nation Reservation covered a larger area of eastern Oklahoma than previously acknowledged by both the state and federal governments. As a result, many crimes that had been committed in what was previously believed to be outside of tribal jurisdictions were actually committed within tribal jurisdictions—meaning that for many decades state criminal cases were prosecuted in the wrong jurisdiction.
Paul Pemberton falls within this class of defendants. In 2004, he was convicted of a murder committed in McIntosh County, Oklahoma. Following the McGirt decision and related decisions in Oklahoma, McIntosh County has been determined to straddle the Creek Nation and the Cherokee Nation reservations. As we explain in greater detail below, the murder, certain parts of the investigation, and Mr. Pemberton’s
After the McGirt decision in 2020 confirmed that longstanding assumptions about the scope of reservation boundaries were incorrect, many state inmates who are enrolled members of Indian tribes sought to challenge their convictions. Mr. Pemberton, an enrolled member of the Creek Nation, chose to do so. He applied for post-conviction relief in Oklahoma state court, contending that his conviction was invalid. Mr. Pemberton argued that the State of Oklahoma lacked jurisdiction over the crime since it occurred in Indian Country and because he was an enrolled member of the Creek Nation at the time.1
The Oklahoma state court denied Mr. Pemberton’s request to void his final state conviction, relying largely on the Oklahoma Court of Criminal Appeals’ holding in State ex rel. Matloff v. Wallace, 2021 OK CR 21, 497 P.3d 686. See Pemberton v. Oklahoma, CF-2004-57, Doc. #CC21110300000018 (Dist. Ct., McIntosh Cnty. Nov. 3, 2021).2 The Oklahoma Court of Criminal Appeals affirmed that denial. See Pemberton v. Oklahoma, No. PC-2021-1396 (Okla. Crim. App. 2022).3
As state habeas proceedings were pending, a federal grand jury indicted Mr. Pemberton for the 2004 murder—perhaps a proactive measure in anticipation of the post-McGirt jurisdictional vulnerabilities. R. Vol. 1 at 15-16. Before the federal trial court, Mr. Pemberton moved to suppress all evidence gathered and statements obtained during the 2004 state investigation. R. Vol. 1 at 41. He argued that “neither McIntosh County nor the state of Oklahoma had jurisdiction to investigate, arrest or interrogate Indian persons on Indian Country” because “under the Major Crimes Act, the federal government had exclusive jurisdiction over [the] crime.” R. Vol. 1 at 45.
The district court denied Mr. Pemberton’s suppression motion, and a federal jury convicted him on all counts. At sentencing, Mr. Pemberton asked to proceed
Mr. Pemberton appeals both denials. Exercising jurisdiction under
I. Background
We start with Mr. Pemberton’s arrest in 2004. Donald Pemberton called 911, stating that his son—Paul Curtis Pemberton—shot his wife—DeAnna Pemberton—at their home in Checotah, Oklahoma. Dispatch contacted McIntosh County Deputy Dewayne Hall, and Deputy Hall drove to the residence in his personal truck. R. Vol. 1 at 137. Deputy Hall was the first law enforcement officer to arrive at the scene. Id. Upon arrival, Deputy Hall noticed Mr. Pemberton sitting atop a truck’s tailgate. Deputy Hall exited his patrol car, drew his weapon, and ordered Mr. Pemberton to the ground. After that, Deputy Hall handcuffed Mr. Pemberton and searched him. Id. Three Checotah Police Department deputies and McIntosh County Sheriff’s Office deputies arrived next on the scene. R. Vol. 1 at 62; R. Vol. 2 at 904.
McIntosh County Sheriff Jeff Coleman, who lived three miles down the road, responded next. R. Vol. 1 at 280. Once he arrived, he approached an already handcuffed Mr. Pemberton, who was lying face down on the ground. As Sherriff Coleman drew near, Mr. Pemberton looked up at him and said that the victim—his stepmother, DeAnna—“drove [him] crazy” and that he “w[ould] not talk to anyone but [Sheriff Coleman].” R. Vol. 1 at 74. Sheriff Coleman then escorted Mr. Pemberton to his patrol car and read him his Miranda warning. Id. Sheriff Coleman asked Mr. Pemberton whether he understood each right, and Mr. Pemberton acknowledged that he did. Id. Mr. Pemberton then admitted to the murder and was transported to McIntosh County jail—located within the Muscogee (Creek) Nation Reservation. R. Vol. 1 at 231
Once at the county jail, Oklahoma State Bureau of Investigation (OSBI) agent John Jones interviewed Mr. Pemberton—who again confessed to shooting his stepmother. Later, an Oklahoma state judge authorized a warrant to search Mr. Pemberton’s truck parked outside the Pemberton home. State officials executed the warrant, finding in Mr. Pemberton’s truck .22 caliber ammunition and a Wal-Mart receipt for ammunition. Mr. Pemberton was later charged with first-degree murder and possessing a firearm as a felon. A jury found him guilty on both counts, and he was sentenced to life without parole.
He challenges his federal conviction and sentencing on direct appeal.
II. Discussion
Mr. Pemberton argues that the district court made two distinct errors at two different stages of his federal case. First, he contends the district court erred at trial by declining to suppress the evidence obtained during the 2004 investigation into the murder. Second, he contends the district court erred at sentencing by denying him the constitutional right to represent himself.
We discuss each in turn.
Mr. Pemberton first argues that McIntosh County law enforcement lacked jurisdiction to investigate the crime, arrest him, or interrogate him because he was an enrolled tribal member on what McGirt subsequently determined to be a reservation. As a result, the district court should have suppressed all evidence flowing from his arrest, interrogation, and property searches. The district court rejected Mr. Pemberton’s suppression arguments, applying the good-faith exception to the search warrant, arrest, and investigation to prevent the application of the
While recognized now under McGirt as legally erroneous, Oklahoma state courts have “entertained prosecutions for major crimes by Indians on Indian allotments”—including in McIntosh County—“for decades[.]” McGirt, 140 S. Ct. at 2470–71. As the Oklahoma Supreme Court put it long ago, “Congress had not intended to ‘except out of [Oklahoma] an Indian reservation.’” Id. at 2497 (Roberts, C.J., dissenting) (quoting Higgins v. Brown, 20 Okla. 355, 419 (1908)). Indeed, “at statehood, Oklahoma immediately began prosecuting serious crimes committed by Indians in the new state courts, and the federal government immediately ceased prosecuting such crimes in federal court.” Id. at 2496 (emphasis added).
But more than a century later, the Oklahoma Supreme Court’s articulation of state court jurisdiction proved incorrect. On July 9, 2020, the Supreme Court decided McGirt v. Oklahoma, holding that—contrary to decades-long understanding and prevailing practice—Congress did except the Creek Reservation out of Oklahoma. See McGirt, 140 S. Ct. at 2482; contra Higgins v. Brown, 20 Okla. 355 at 419. Having done so, and because Congress never properly disestablished the Creek Nation’s reservation, much of eastern Oklahoma had been, and remained, Indian country. This misunderstanding implicated many parts of Oklahoma, including portions of the Cherokee Nation in McIntosh County where the murder here occurred.4
Perhaps recognizing the potential jurisdictional problem with Mr. Pemberton’s state court conviction, a federal grand jury indicted him on February 23, 2021, for the same crimes—this time in federal court. At trial, federal prosecutors relied on the same evidence developed in 2004 by state law enforcement officers.
1. Legal Framework—Good Faith
The government all but concedes that McGirt settled the question of whether McIntosh County officers and OSBI agents acted outside of their jurisdiction. Accordingly, we deal only with the appropriate remedy to be applied to that “concededly unconstitutional” police conduct. United States v. Leon, 468 U.S. 897, 915 n.13 (1984).
To remedy
It follows that applying the rule “must alter” either the “behaviors of individual law enforcement officers” or “the policies of their departments” responsible for the misconduct. Leon, 468 U.S. at 918. See also Arizona v. Evans, 514 U.S. 1, 10 (1995) (noting that exclusionary rule safeguards against future violations of
Keeping these principles in mind, we evaluate both the search warrant and the arrest.
a. The Search Warrant
Mr. Pemberton argues that McIntosh County officers unreasonably obtained a search warrant from a state court judge who had no jurisdiction to issue the search warrant in the first place. The question is whether we can attribute the jurisdictionally invalid warrant to the officers’ mistakes or solely the state court judge’s legal error. We hold the latter.
Leon generally requires we presume officers acted in good-faith reliance on a “warrant issued by a magistrate.” United States v. Pacheco, 884 F.3d 1031, 1045 (10th Cir. 2018). Indeed, the Leon exception may apply even if the judge had
Here, the record does not support a conclusion that well-trained officers in McIntosh County “could not have harbored an objectively reasonable belief” in their ability to seek a warrant, or “could not have harbored an objectively reasonable belief” in the warrant’s jurisdictional validity. Leon, 468 U.S. at 926.5 As chronicled by Chief Justice Roberts in his dissenting opinion, the historical record provides evidence that government officials from the Creek, the State of Oklahoma, and the United States held and expressed the belief that the Creek reservation did not continue to exist after Oklahoma became a state. McGirt, 140 S. Ct. at 2502. Even though Congress never “terminat[ed]” the Creek Nation’s reservation as a condition of statehood in 1907, see McGirt, 140 S. Ct. at 2464, it did eliminate the tribal courts in Creek Nation in 1898, id. at 2465 (citing
Under the objective circumstances presented to the officers, they “act[ed] with an objectively reasonable good-faith belief that their conduct [was] lawful.” Workman, 863 F.3d at 1317 (quoting Davis v. United States, 564 U.S. 229, 238 (2011)). Accordingly, after their objectively reasonable choice to apply for a warrant issued by a state court judge, the police officers could reasonably rely on the judge’s authority to issue the warrant.7 Because officers acted with an “objectively reasonable good-faith belief” in their “objectively reasonable law enforcement activity,” Leon, 486 U.S. at 919, any resulting evidence was properly introduced at trial and should not have been excluded.
But that rationale would not apply here. McIntosh County officers did not seek and execute a state warrant “in the face of clearly established law recognizing that such a warrant would be beyond the jurisdiction of the state court.” United States v. Baker, 894 F.2d 1144, 1149-50 (10th Cir. 1990). McGirt did not come along for sixteen more years. See also State of Okla. ex rel. Oklahoma Tax Comm’n, 829 F.2d 967, 975 (10th Cir. 1987) (declining to “decide whether the exterior boundaries of the 1866 Creek Nation have been disestablished” and “express[ing] no opinion regarding jurisdiction on allotted Creek lands or on other lands located within the 1866 reservation boundaries.”); accord Murphy v. State, 2005 OK CR 25, ¶¶ 51-52, 124 P.3d 1198, 1207-08 (“[T]he Tenth Circuit declined to answer the question of whether the exterior boundaries of the 1866 Creek Nation have been disestablished and expressly refused to express an opinion in that regard concerning allotted Creek lands. If the federal courts remain undecided on this particular issue, we refuse to step in and make such a finding here.”) (citing Indian Country, U.S.A., Inc. v. State of Oklahoma, 829 F.2d at 975 n. 3, 980 n. 5). In light of Oklahoma’s history, nothing suggests the officers should have known that the Major Crimes Act clearly prohibited a judge in McIntosh County from issuing a warrant to search and seize property located in McIntosh County.
Yet Mr. Pemberton contends that a well-trained McIntosh County police officer should have known that the law surrounding Native American reservations was “clearly established.” Aplt. Br. at 13. He argues that a well-trained McIntosh County police officer would have been “aware of [the] test” articulated in Solem v. Bartlett for determining whether a Native American reservation had been disestablished. Aplt. Br. at 12. (citing 465 U.S. 463 (1984)). Mr. Pemberton asserts that after unilaterally applying that test, an McIntosh County police officer would have concluded that “he had no ability to operate within the confines of an established Native American reservation like the one at issue here.” Aplt. Br. at 12.
This argument defeats itself. True, the Supreme Court had established the Solem test. But determining whether Native American reservations, like the ones here, had been disestablished was neither entirely obvious nor necessarily deducible. It certainly was not as straightforward
In sum, the good faith exception to the exclusionary rule applies to the evidence discovered pursuant to the search warrant.
b. The Warrantless Arrest
For similar reasons, Mr. Pemberton’s argument to suppress evidence obtained from the warrantless arrest also fails.
Mr. Pemberton asks us to reject this proposition since we have not applied the good-faith exception in the context of a warrantless arrest. To be sure, we have determined that the good-faith exception to the exclusionary rule “generally applies only narrowly outside the context of a warrant.” Herrera, 444 F.3d at 1251. And we recently recognized in our decision in United States v. Patterson, that this Circuit “has not squarely addressed” whether “the good-faith exception should apply to evidence collected from a warrantless arrest.” No. 21-7053, 2022 WL 17685602, at *8 (10th Cir. Dec. 15, 2022) (unpublished).
But we see no reason not to extend the good-faith exception to the warrantless arrest here. This is especially true in this unique situation, where: (1) the police and prosecutorial practices were consistent with the state’s traditional exercise of jurisdictional authority, thus providing an objectively reasonable basis to conclude that state officials reasonably believed that they acted within the boundaries of the law; (2) there was no clear legal precedent from the Supreme Court or the Tenth Circuit expressly contradicting the presumption of legitimacy of those practices; and (3) applying the good-faith exception does not undermine the deterrence principles underlying the exclusionary rule. Moreover, “[i]n the context of warrantless arrests, the
Resisting this conclusion, Mr. Pemberton points to our opinion in Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990) which, according
In Ross, we recognized that a “warrantless arrest executed outside of the arresting officer’s jurisdiction is analogous to a warrantless arrest without probable cause” and is therefore “presumptively unreasonable” absent “exigent circumstances.” Ross, 905 F.2d at 1354. But we subsequently limited Ross “no further than the unique factual circumstances that spawned it: that is, a warrantless arrest by state police on federal tribal land.” United States v. Jones, 701 F.3d 1300, 1312 (10th Cir. 2012). Despite appearing to be implicated based on these facts, Ross is inapplicable here for at least two reasons.8
First, we have declined to read Ross to require us to presume that a
Second, a Supreme Court decision after McGirt confirms that the mere fact that McIntosh officers and OSBI operated without jurisdiction in Indian lands does not preclude the good-faith exception—much less require the exclusionary rule. “[A]s a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” Oklahoma v. Castro-Huerta, 597 U.S. 629, 636 (2022). Indeed, “the Constitution allows a State to exercise jurisdiction
For these reasons, the district court did not err in denying Mr. Pemberton’s motion to suppress stemming from his arrest.
B. Self-Representation at Sentencing
Mr. Pemberton next argues that the district court violated his constitutionally-guaranteed right to represent himself at sentencing. Mr. Pemberton contends the district court erred in denying, without a formal hearing, Pemberton’s request to represent himself at sentencing. Reviewing for abuse of discretion the district court’s decision to deny Mr. Pemberton’s request to represent himself at sentencing, see United States v. Piette, 45 F.4th 1142, 1164 (10th Cir. 2022), we affirm.10
But in applying Faretta, we have held that the “hearing is only a means to an end of ensuring a voluntary and intelligent waiver, and the absence of that means is not error as a matter of law.” Id. “In other words, a contemporaneous and comprehensive Faretta hearing is generally a sufficient condition to a knowing waiver, but it is not a necessary one.” United States v. Hansen, 929 F.3d 1238, 1251 (10th Cir. 2019) (cleaned up) (emphasis in original). A criminal defendant has a right to represent himself, Faretta, 422 U.S. at 807, but that right is “not absolute.” Akers, 215 F.3d at 1097.
To proceed pro se, a defendant must meet four requirements. First, the defendant must “clearly and unequivocally” inform the district court of his intention to represent himself. Second, the request must be timely and not for the purpose of delay. Third, the court must conduct a comprehensive formal inquiry to ensure that the defendant’s waiver of the right to counsel is “knowingly and intelligently” made. Fourth, the defendant “must be able and willing to abide by rules of procedure and courtroom protocol.” United States v. Simpson, 845 F.3d 1039, 1046 (10th Cir. 2017) (citation and internal quotation marks omitted).
The district court faithfully applied that test. The district court first found that Mr. Pemberton “clearly and unequivocally” informed the court of his desire to represent himself at the sentencing hearing, thus satisfying the first requirement. R. Vol. 5 at 30. But the court also found that “the underlying purpose for [Mr. Pemberton’s] request to proceed pro se cuts against the other three conditions.” Id. “Consistent with the Court’s approach[,] which eschews formalism in favor of pragmatism,” Hansen, 929 F.3d at 1251, the district court gave its reasons that informed his determinations regarding the timeliness and purpose of Mr. Pemberton’s request:
Defendant’s pro se motion for leave to represent himself pro se was filed one week prior to the scheduled sentencing hearing and filed only after the Court denied Defendant’s pro se motion for leave to file a motion for judgment of
acquittal in excess of page limitations and Defendant’s pro se motion for extension of time to file a motion for judgment of acquittal. In these pro se motions, Defendant sets forth arguments related to his request for acquittal, accusations of ineffective assistance of counsel at the trial stage, and various other alleged evidentiary issues at trial. Defendant’s present Motion explains that Defendant wishes to proceed pro se because he and his counsel ‘have a disagreement about the appropriateness and timing of certain arguments that the Defendant wants raised at this juncture after trial but prior to a direct appeal.’ In yet another pro se filing, Defendant complains that Mr. Lund ‘should have reviewed these issues already and attempted a reservation of trial error, yet, he has focused on the sentencing hearing[.]’
R., Vol. 5 at 30-31 (citations and footnote omitted). The district court therefore found that Mr. Pemberton’s request was “untimely.” Id. at 31. In addition, the district court determined that Mr. Pemberton’s desire to proceed pro se was “not related to the sentencing hearing” but instead “to raise issues and address arguments that would not properly be before the Court at the time of sentencing.” Id. After noting examples of Mr. Pemberton’s “inability and unwillingness to abide by rules of procedure and courtroom,” id. at 31 n.2, the district court ultimately found that Mr. Pemberton’s request to proceed pro se was “made for the purpose of delay.” Id. at 31.
The district court’s unambiguous findings that Mr. Pemberton’s request to proceed pro se was “untimely” and “made for the purpose of delay[ing]” sentencing suffice to foreclose the matter. “A motion for self-representation is untimely when the defendant is attempting to delay the proceeding.” Simpson, 845 F.3d at 1053. And a finding that a defendant requests to proceed pro se merely to delay the proceeding permits the district court to properly deny that request. Cf. Akers, 215 F.3d at 1097 (A “district court properly denies a request for self-representation where it finds the request was made to delay the trial.”).
In sum, the district court determined that Mr. Pemberton focused on issues unrelated to sentencing, waited until one week before the sentencing hearing, and continuously ignored court procedures on filing motions. We conclude that these determinations amply support the finding that Mr. Pemberton’s request to proceed pro se was “untimely” and “made for the purpose of delay[ing]” sentencing.
Consequently, the district court did not violate Mr. Pemberton’s constitutionally-guaranteed right to represent himself when it denied his request to proceed pro se.11
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