Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 4, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-7028
PAUL CURTIS PEMBERTON,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-0012-JFH-1) _________________________________
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 Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 2
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 arrest occurred within these reservations. And Mr. Pemberton was
prosecuted and convicted for the murder in an Oklahoma state court. The problem
arises because the Major Crimes Act confers exclusive federal jurisdiction over any
Indian who commits murder within Indian country. 18 U.S.C. § 1153. This implies
that the federal government should have investigated the crime, and Mr. Pemberton
should have been prosecuted in federal court.
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
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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
1 Mr. Pemberton’s application for post-conviction relief was filed on July 8, 2020—a day before the Supreme Court decided McGirt on July 9, 2020. See Application for Post-Conviction Relief Part A (Doc. #CC20070900000025). On July 27, 2020, he requested the Oklahoma state court to take judicial notice of the law and adjudicative facts of McGirt. See Petitioner’s Motion for the Court to Take Judicial Notice of New Authority. (Doc. #CC20072700000399). As stated, the Oklahoma state court ultimately denied Mr. Pemberton’s application on November 3, 2021, see Pemberton v. Oklahoma, CF-2004-57, Doc. #CC21110300000018 (Dist. Ct., McIntosh Cnty. Nov. 3, 2021), and the Oklahoma Court of Criminal Appeals affirmed. See Pemberton v. Oklahoma, No. PC-2021-1396 (Okla. Crim. App. 2022) (unpublished). 2 The Matloff court concluded that McGirt announced a new procedural rule, but it declined to apply that newly-created procedural rule retroactively to void state convictions that were final before McGirt. See State ex rel. Matloff v. Wallace, 2021 OK CR 21, ¶ 40, 497 P.3d 686, 688. 3 On August 16, 2022, Mr. Pemberton moved to extend the time to petition for a writ of certiorari from September 1, 2022, to October 31, 2022. See Petitioner’s Motion for Extension of Time to File Petition for Certiorari, Paul Curtis Pemberton, Applicant v. Oklahoma, No. 22-A168. Justice Gorsuch granted the motion, extending Mr. Pemberton’s time to petition for a writ of certiorari until October 31, 2022. To date, however, Mr. Pemberton does not appear to have petitioned the Supreme Court for a writ of certiorari. 3 Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 4
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
without a lawyer—a right protected by the Sixth Amendment. The district court
denied that request, allowing appointed counsel to continue to represent Mr.
Pemberton throughout the sentencing phase.
Mr. Pemberton appeals both denials. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm. We conclude that state investigatory officers acted consistently
with the prevailing factual and legal landscape at the time, and thus acted in good
faith. The district court did not err in declining to suppress the evidence developed in
the investigation. We also conclude the district court did not err by allowing
appointed counsel to represent Mr. Pemberton in the sentencing proceedings.
I. Background
We start with Mr. Pemberton’s arrest in 2004.
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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
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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.
A. Suppression of Evidence
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.
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Pemberton’s suppression arguments, applying the good-faith exception to the search
warrant, arrest, and investigation to prevent the application of the Fourth
Amendment’s exclusionary remedy. That brings us to McGirt. It is undisputed that
Mr. Pemberton’s crime, arrest, and investigation occurred on what has retroactively
been determined to be outside Oklahoma’s jurisdiction. The question, therefore, is
whether the officers were objectively reasonable in believing that they had
jurisdiction. Historical context informs that inquiry.
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
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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 Fourth Amendment violations, federal courts ordinarily invoke and
apply the exclusionary rule, precluding the government from introducing at trial
unlawfully seized evidence. See United States v. Herrera, 444 F.3d 1238, 1248 (10th
4 The McGirt holding applied only to the Creek Reservation. See McGirt,140 S. Ct. at 2459. But during oral argument, Mr. Pemberton’s counsel conceded that the reasoning in McGirt applied equally to the Cherokee Nation lands at issue in this case. And Oklahoma has since applied the reasoning in McGirt to the Cherokee Reservation. See Hogner v. State, 500 P.3d 629, 635 (Okla. Crim. App. 2021) (applying McGirt to the Cherokee Reservation and holding that the Cherokee Reservation has never been disestablished and remains Indian Country), overruled on other grounds by Deo v. Par., 2023 OK CR 20, ¶ 18. 8 Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 9
Cir. 2006). Yet a Fourth Amendment violation does not automatically require the
application of the exclusionary rule; indeed, applying the exclusionary rule may not
always be the appropriate remedy for a Fourth Amendment violation in a particular
case. See Leon, 468 U.S. at 906-07 (“[W]hether the exclusionary sanction is
appropriately imposed in a particular case” is “an issue separate from the question
whether the Fourth Amendment rights of the party seeking to invoke the rule were
violated by police conduct.”) (citation omitted). Because “the exclusionary rule is
designed to deter police misconduct,” id. at 918, the appropriateness of applying the
exclusionary rule “turns to a great extent on whose mistake produces the Fourth
Amendment violation.” Herrera, 444 F.3d. at 1250.
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 Fourth Amendment rights through its “general deterrent effect”). It
similarly follows that exclusion “cannot be expected, and should not be applied, to
deter objectively reasonable law enforcement activity.” Id. at 919; Herrera, 444 F.3d
at 1249 (“We will ordinarily not deter, nor do we want to deter, objectively
reasonable police conduct.”). Thus, courts should not exclude evidence where an
officer conducting “objectively reasonable law enforcement activity,” Leon, 468 U.S.
at 918, “relies, in an objectively reasonable manner, on a mistake made by someone
other than the officer.” Herrera, 444 F.3d at 1249. Absent evidence of “deliberate,
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reckless, or grossly negligent disregard for Fourth Amendment rights,” Davis, 564
U.S. at 256-57, the deterrence rationale of the exclusionary rule no longer applies. In
those situations, officers act with an “objectively reasonable good-faith belief that
their conduct is lawful,” Davis, 564 U.S. at 257, precluding the application of the
exclusionary remedy. See, e.g., Leon, 468 U.S. 897 (1984) (magistrate’s legal error);
Illinois v. Krull, 480 U.S. 340 (1987) (legislature’s unconstitutional law); Arizona v.
Evans, 514 U.S. 1 (1995) (county clerk’s erroneous computer record); Davis v.
United States, 564 U.S. 229 (2011) (appellate judges’ legal error).
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
“exceeded geographic constraints in issuing the warrant,” United States v. Workman,
863 F.3d 1313, 1318 (10th Cir. 2017), because penalizing police officers for a
judge’s error, rather than police errors, “cannot logically contribute to the deterrence
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of Fourth Amendment violations.” See Leon, 468 U.S. at 921. Of course, courts may
properly suppress evidence acquired in violation of the Fourth Amendment where
“good faith is absent.” United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.
1985). But good faith is absent “only when an officer’s reliance on that warrant is
‘wholly unwarranted.’” Pacheco, 884 F.3d at 1045 (emphasis added).
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 Curtis Act of 1898, § 28, 30 Stat. 504–
505), and “transferred all pending civil and criminal cases” to the federal
government. Id.; see United States v. Sands, 968 F.2d 1058, 1061 (10th Cir. 1992)
(“The [federal] government contends that criminal jurisdiction was conferred on
Oklahoma in 1906 when cases of a local nature arising in Indian Territory were
5 Oklahoma judges “must issue a search warrant” if “satisfied of the existence of grounds of the application.” Okla. Stat. tit. 22 § 1225(A). 11 Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 12
transferred to the State and the laws of Oklahoma were extended to Indian
Territory.”). At Oklahoma’s statehood, “the federal government immediately ceased
prosecuting [serious crimes committed by Indians] in federal court.” Id. at 2496
(Roberts, C.J., dissenting). And Oklahoma immediately began prosecuting those
crimes in state court. Id. at 2496-97 (collecting cases). 6
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.
Mr. Pemberton attempts to rebut this conclusion, pointing to our decision in
United States v. Krueger, 809 F.3d 1109 (10th Cir. 2015). In that case, we affirmed a
6 In fact, the McIntosh County Sheriff’s Department itself is located within the Creek Nation’s Reservation. See R. Vol. 1 at 231. 7 It would have been strange—if not objectively unreasonable—for police officers in McIntosh County to assume they lacked jurisdiction in the area they had been policing for a century. After all, the McIntosh County Sheriff’s Department is located within the Creek Nation’s Reservation—in McIntosh County. It is unclear why, sixteen years before the McGirt ruling, McIntosh County police officers would not have been considered derelict in their duty to McIntosh County residents if they failed to assist McIntosh County residents when requested. 12 Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 13
defendant’s motion to suppress evidence obtained via a search warrant issued in
Kansas to search for and seize property in Oklahoma. But Krueger is readily
distinguishable. There, we concluded the issuing judge “clearly lacked ... authority”
to issue that warrant” because Rule 41 clearly prohibits a Kansas magistrate judge
from issuing a warrant to search and seize property or persons in Oklahoma. Id. at
1116; see Fed. R. Crim. P. 41. (authorizing magistrates to issue warrants only to
search for and seize a person or property located within the district). That the
officers, in seeking and obtaining the warrant, were conducting what was otherwise
“objectively reasonable law enforcement activity,” Leon, 468 U.S. at 918, did not
exonerate them from failing to comply with Rule 41 in the first instance: Rule 41
clearly and obviously prohibited the magistrate judge from issuing the warrant. See
Krueger, 809 F.3d at 1116-17. Suppression, therefore, furthered the purpose of the
exclusionary rule by deterring law enforcement officers from seeking and obtaining
warrants “clearly violat[ing]” Rule 41’s “clear and obvious” command. Id.
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
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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.
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It certainly was not as straightforward as determining that the magistrate judge in
Krueger lacked jurisdiction under Fed. R. Crim. P. 41. To be clear, the Solem test
considers “statutory language” paramount, but it also considers “events surrounding
the passage of a surplus land act.” Solem v. Bartlett, 465 U.S. 463, 471 (1984).
When those events “unequivocally reveal a widely-held, contemporaneous
understanding that the affected reservation would shrink as a result of the proposed
legislation,” the Supreme Court permits an inference that “Congress shared the
understanding that its action would diminish the reservation, notwithstanding the
presence of statutory language that would otherwise suggest reservation boundaries
remained unchanged.” Id. (emphasis added). Mr. Pemberton does not provide a
convincing argument to support why the police officers applying this test in 2004
could reach only one determination: that “unbeknownst to anyone for the past
century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which
the State may not prosecute serious crimes committed by Indians like [Mr.
Pemberton].” McGirt, 140 S. Ct. at 2482 (Roberts, C.J., dissenting). Instead, his
argument relies on the fact that the Supreme Court in 2020 did not issue a 5-4
decision in the opposite direction.
In sum, the good faith exception to the exclusionary rule applies to the
evidence discovered pursuant to the search warrant.
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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 Fourth Amendment requires only that the arresting officers have probable cause
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to believe that the person to be arrested has committed a crime and that the arresting
officers make the arrest within their jurisdiction or under exigent circumstances.”
United States v. Green, 178 F.3d 1099, 1107 (10th Cir. 1999) (internal citations
omitted). Because it is uncontested that the officers had probable cause to believe
that Mr. Pemberton committed murder, and the officers acted with an objectively
reasonable good-faith belief that they lawfully exercised jurisdiction over that felony,
suppression is unwarranted.
Resisting this conclusion, Mr. Pemberton points to our opinion in Ross v. Neff,
905 F.2d 1349 (10th Cir. 1990) which, according to Mr. Pemberton, clearly
established both that officers could not make a warrantless arrest outside of their
jurisdiction and that Oklahoma law enforcement knew their jurisdiction did not
extend to tribal lands.
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.” 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
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(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 Fourth
Amendment violation occurred just because one sovereign operated within the
8 Ross is a qualified immunity case and is distinguishable for reasons unfavorable to Mr. Pemberton. A comparison of the tribal trust lands at issue in Adair County to those in McIntosh County sufficiently explains the differences. In Ross, a lone Adair County Sheriff’s Department police officer sought to make an arrest for public intoxication at a park located on Cherokee Indian Tribal Trust land in Adair County, Oklahoma. See 905 F.2d at 1351-52. That land was “under a five-year lease,” which had been “approved by the local office of the Bureau of Indian Affairs, to the South Greasy Community Park Association.” Id. at 1351. We recognized that “Indian country is subject to exclusive federal or tribal criminal jurisdiction except as otherwise expressly provided by law” but that “no such provision has been made for Oklahoma.” Id. 1352. From there, we concluded that “Oklahoma [had] neither received by express grant nor acted pursuant to congressional authorization to assume criminal jurisdiction over this Indian country, Adair County[.]” Id. Thus, a violation occurred.
Interestingly enough—and most relevant here—even in Ross we held that as a matter of law “a reasonable county officer, executing the law at the time,” “would not have known that he was prohibited from making an arrest in the Greasy Ballpark” because “[b]road language in Supreme Court opinions” “gave the appearance of allowing state intervention when it was determined that such intervention would not compromise tribal or federal interests.” Ross, 905 F.2d at 1354.
We see no reason why the jurisdictional mistake made here cannot be deemed objectively reasonable under the same rationale articulated in Ross. Consider the circumstances. The 1980s five-year lease that established Cherokee Indian Tribal Trust land explicitly instituted federal jurisdiction over the area in Adair County. At that point, the Major Crimes Act would have clearly precluded Oklahoma from exercising criminal jurisdiction over that area. But “the appearance of allowing state intervention” under certain situations made the mistaken state intervention a reasonable one. Here, McIntosh County’s Indian allotments were believed for over a century to be disestablished as a condition of Oklahoma’s statehood and, therefore, not subject to the Major Crimes Act at any point.
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jurisdiction of another sovereign’s territory. See, e.g., Jones, 701 F.3d at 1312
(rejecting argument that Missouri officers automatically violated the Fourth
Amendment by unknowingly traveling into Kansas and, without securing the proper
authority to operate within Kansas, conducting an unauthorized criminal
investigation there). Even if Ross controlled, it does not compel the per se result Mr.
Pemberton seeks.
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 in Indian country”
because “Indian country is part of the State, not separate from the State.” Id. As
discussed above, whether federal law—the Major Crimes Act—preempted
Oklahoma’s jurisdiction in McIntosh County turned on whether the Creek Nation’s
Reservation—contrary to decades-long understanding and prevailing practices—had
actually never been disestablished and remained Indian Country. The answer to that
question was not yet pronounced when the police and prosecutorial practices here
took place. Since traditional notions of state sovereignty typically would validate the
police practices here, and the police conduct did not deviate from a state’s usual
constitutional exercise of jurisdictional authority, an objectively reasonable basis
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exists to conclude that state officials acted with a good faith belief in the lawfulness
of their conduct. 9
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
The Supreme Court has held that “a defendant in a state criminal trial has a
constitutional right to proceed without counsel when he voluntarily and intelligently
9 Although this case turned on the existence of probable cause and the officers’ good faith belief in their jurisdiction, the warrantless arrest and extra-jurisdictional investigation may have complied with the Fourth Amendment if probable cause existed and exigent circumstances were present. See Green, 178 F.3d at 1107 (permitting warrantless arrests with probable cause and exigent circumstances to satisfy Fourth Amendment); see also United States v. Johnson, 43 F.4th 1100, 1110 (10th Cir. 2022 (“[T]he Fourth Amendment requires only reasonableness[.]”) (citation omitted). “Exigent circumstances exist when the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and the manner and scope of the search is reasonable.” United States v. Banks, 884 F.3d 998, 1012 (10th Cir. 2018). 10 Both Mr. Pemberton’s and the Government’s briefs advocate a de novo standard of review. See, e.g., Aplt. Br. at 15 (advocating de novo review of whether a constitutional violation occurred and clear error review of factual findings underlying the district court’s decision to deny the request) (citing United States v. Tucker, 451 20 Appellate Case: 22-7028 Document: 010111008999 Date Filed: 03/04/2024 Page: 21
elects to do so.” Faretta v. California, 422 U.S. 806, 807 (1975). Ordinarily, a court
faced with a motion to proceed pro se conducts an evidentiary hearing to explore
whether the defendant understands his right to counsel and what it means to waive
that right. A Faretta hearing involves “a thorough and comprehensive formal inquiry
F.3d 1176, 1180 (10th Cir. 2006)); Aple. Br. at 25 (same) (citing United States v. Akers, 215 F.3d 1089, 1097 (10th Cir. 2000)). Yet we have recently concluded that this “ignores the distinction we draw between requests for self-representation made before trial, reviewed de novo, and requests made after trial, reviewed for abuse of discretion.” United States v. Piette, 45 F.4th 1142, 1164, n.6 (10th Cir. 2022) (emphasis added); United States v. Estrada, 25 F. App’x 814, 820 (10th Cir. 2002) (collecting cases). Indeed, relevant decisions pertain to requests made before trial. See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975) (“weeks before trial”); Akers, 215 F.3d at 1097 (“more than one month prior to trial”); United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006) (“during voir dire.”).
Because Mr. Pemberton’s request to proceed pro se occurred post-trial, our precedents require that we review the district court’s decision to deny it for abuse of discretion. See Piette, 45 F.4th at 1164. To be clear, we have stated that “[a]t any phase of the judicial proceedings, a defendant is permitted to represent himself as a matter of right.” United States v. Vann, 776 F.3d 746, 762 (10th Cir. 2015). But “the right to self-representation is unqualified only if demanded before trial.” United States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999) (emphasis in original). Our precedents suggest that “[w]hen [a] defendant does not assert this right before trial,” we may “review the district court’s decision whether to allow [a] defendant to proceed pro se for an abuse of discretion.” Id. (citing United States v. Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995) (emphasis added)). Here, Mr. Pemberton’s request came about nine months after his trial opened and closed. See R. Vol. 5 at 29. If a defendant requests to represent himself long after the trial, the timing of that request may raise different concerns about the district court’s ability to ensure fairness to the defendant. Therefore, it is not unreasonable to review the district court’s decision under a different standard of review. See United States v. Martin, 203 F.3d 836 (10th Cir. 2000) (reviewing under an abuse of discretion standard the denial of a self- representation request made at the sentencing hearing) (table opinion). Be that as it may, to the extent that the standards differ, we would reach the same conclusion under either standard.
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of the defendant on the record to demonstrate that the defendant is aware of the
nature of the charges, the range of allowable punishments and possible defenses, and
is fully informed of the risks of proceeding pro se.” United States v. Vann, 776 F.3d
746, 763 (10th Cir. 2015). This hearing ensures the defendant is “not unwittingly or
impulsively disposing of his constitutional right to counsel.” Id.
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
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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
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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.
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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
* * *
Accordingly, we AFFIRM the denial of Mr. Pemberton’s motion to suppress
and AFFIRM the denial of Mr. Pemberton’s request to represent himself at
sentencing.
11 Though represented by counsel, Mr. Pemberton submitted several pro se filings to this court after counsel filed the opening brief. “It is our policy on direct appeals such as this only to address issues raised by counsel, who have been trained and in many cases appointed for that very purpose[.]” United States v. Coleman, 9 F.3d 1480, 1487 (10th Cir. 1993).
We accordingly invoke our policy of addressing on direct appeal only those issues raised by counsel, and we decline to address the issues raised in Mr. Pemberton’s proffered pro se documents—including his ineffective assistance of counsel claims. To the extent that Mr. Pemberton claims ineffective assistance of counsel, those claims are appropriately pressed on a collateral attack under 28 U.S.C. § 2255. See, e.g., United States v. Grigsby, 749 F.3d 908, 911 n.6 (10th Cir. 2014) (declining to address pro se filing claim of ineffective assistance of counsel on direct appeal because such a claim is properly brought on collateral attack under 28 U.S.C. § 2255).