United States v. Pemberton

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
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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.
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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.
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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).
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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.
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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
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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).

25