[00:00:00] Speaker 00:
with 24-2156, United States versus Peshlaki.

[00:00:09] Speaker 04:
Good morning and may it please the court and counsel.

[00:00:14] Speaker 04:
My name is Deborah Roden.

[00:00:15] Speaker 04:
I represent the appellant Mr. Peshlaki.

[00:00:18] Speaker 04:
I am with the law firm of Woodhouse, Roden Ames and Brennan in Cheyenne, Wyoming.

[00:00:23] Speaker 04:
This morning, I would like to focus my comments on one of the issues raised in this brief, which is the issue as to the jurisdiction of the FBI to arrest Mr. Peshlaki.

[00:00:37] Speaker 04:
In this matter, the underlying facts were largely undisputed, and the facts found by the district court are also not in dispute or raised on appeal.

[00:00:47] Speaker 04:
The issue is really the legal conclusion that comes from those facts.

[00:00:52] Speaker 02:
Is the district court's conclusion that Mr. Peshlekai was arrested for a federal offense a factual finding?

[00:00:59] Speaker 04:
I think the district court's conclusion that Mr. Peshlekai was arrested is a factual finding.

[00:01:04] Speaker 02:
For a federal offense?

[00:01:06] Speaker 04:
I think that's maybe where I would depart.

[00:01:08] Speaker 04:
I think the finding about it being for either a federal offense or for a Navajo Nation offense.

[00:01:14] Speaker 02:
What about the court's conclusion that he wasn't held by the Navajo Department of Corrections?

[00:01:19] Speaker 02:
Is that a factual finding?

[00:01:20] Speaker 04:
I think that's accurate if you're talking about the Department of Corrections.

[00:01:25] Speaker 04:
Where that becomes important or disputed is the Navajo Nation code references custody largely in the statutes.

[00:01:34] Speaker 04:
It doesn't in those portions specify that it means custody of the Department of Corrections.

[00:01:39] Speaker 04:
It's just talking about custody by the Navajo Nation.

[00:01:45] Speaker 04:
In this case, I would agree that Mr. Peshlaki was never actually in custody of the Department of Corrections.

[00:01:53] Speaker 04:
He wasn't actually booked in and taken to the jail or what have you.

[00:01:59] Speaker 04:
But I would argue that he was, in fact, in custody of the Navajo Nation and its law enforcement.

[00:02:06] Speaker 04:
And that's why I believe that that triggers those protections and those provisions.

[00:02:11] Speaker 00:
Well, to Judge Rossman's point about whether it's a factual finding that he was arrested for a federal offense, what basis would there be to say that that's clearly erroneous?

[00:02:22] Speaker 04:
So it's our position that the Navajo Nation can only, excuse me, Navajo Nation law enforcement can only arrest for a Navajo Nation violation based on the Navajo Code.

[00:02:38] Speaker 04:
They can arrest for a federal violation if there is an agreement, if there's an agreement between the United States and the Navajo Nation.

[00:02:46] Speaker 04:
The record is absolutely silent as to whether or not such an agreement exists.

[00:02:53] Speaker 04:
Neither party discussed that, neither did the court.

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But it is our position that absent such an agreement and or establishment of such an agreement, then

[00:03:04] Speaker 04:
the Navajo Nation can only arrest for a violation of the Navajo Code, in which case that person is then in the custody of the Navajo Nation.

[00:03:15] Speaker 03:
They do have the authority, don't they, the Navajo Nation to

[00:03:23] Speaker 03:
take someone into, to detain someone temporarily, to take them into custody, to have them basically await a federal investigator.

[00:03:33] Speaker 03:
So what happened in the Cooley case?

[00:03:35] Speaker 03:
I'm not sure if you're familiar with that.

[00:03:37] Speaker 03:
Can you say the case?

[00:03:38] Speaker 03:
Is that what happened in the Cooley case?

[00:03:40] Speaker 03:
I am not aware of the Cooley case.

[00:03:42] Speaker 03:
I apologize.

[00:03:43] Speaker 03:
You didn't cite it, but I would seem to suggest that they do have that authority to detain

[00:03:49] Speaker 03:
for a federal offense, essentially, or to detain for a federal investigation.

[00:03:55] Speaker 03:
And in that case, of course, it was a non-Indian, I will tell you that, but they took that non-Indian to the station to await a federal investigation.

[00:04:07] Speaker 04:
So my reading of the Navajo Code and the extradition pieces are that

[00:04:13] Speaker 04:
They can do that if there is an agreement in place to do that and as I stated earlier the record is simply silent as to whether or not that exists in this case that statute that you're referring to and I'm not pulling it up right now but indicate that they have to have an agreement in order to detain someone.

[00:04:35] Speaker 04:
So that would be found not necessarily in the Navajo Nation code.

[00:04:40] Speaker 04:
It is more specifically found in, let me grab the name of it here, the Tribal Law and Order Act of 2010.

[00:04:51] Speaker 04:
So that is where, let me pull that up for you.

[00:05:13] Speaker 03:
Are you talking about the cooperative agreements?

[00:05:16] Speaker 03:
Correct.

[00:05:17] Speaker 03:
25 USA, 2815, where they can enter into cooperative agreements?

[00:05:22] Speaker 03:
Correct.

[00:05:23] Speaker 04:
Yes.

[00:05:24] Speaker 04:
So that's the premise under which I argue that there has to be a cooperative agreement.

[00:05:31] Speaker 03:
Otherwise... Where does that statute indicate that there has to be a cooperative agreement for the Navajo to detain

[00:05:39] Speaker 03:
someone for a federal investigation.

[00:05:42] Speaker 04:
So what I can answer for you, Judge Moritz, is I'm combining the authority from the Navajo Nation Code and its extradition statutes along with this United States Code statute and sort of saying that, which this statute says the attorney general may provide assistance to tribal governments that enter into cooperative agreements.

[00:06:07] Speaker 04:
So in order for the federal government to provide this assistance, they need to enter into these agreements.

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And again, the record is simply silent as to whether or not that exists in this case.

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And the overarching question really is how can these two sovereigns lawfully interact?

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How do they cooperate and what are the procedures that are required in order for them to cooperate?

[00:06:31] Speaker 02:
Can I ask you a question that

[00:06:34] Speaker 02:
assumes the detainer statute applies and was violated.

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Why is suppression a proper remedy here?

[00:06:41] Speaker 02:
And if you can answer that and also sort of help me better understand if your argument is rooted in the Fourth Amendment or in due process.

[00:06:51] Speaker 02:
Certainly.

[00:06:53] Speaker 04:
So I asked myself that same question as I was preparing for this.

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And I would point the court to two places.

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One would be the case of Ross versus Neff

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which is a 10th Circuit case, not identical facts, certainly.

[00:07:08] Speaker 02:
Haven't we limited Ross to its facts?

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Haven't we limited Ross to its facts?

[00:07:16] Speaker 04:
I don't think so.

[00:07:17] Speaker 04:
So if I read Ross versus Neff, the language of it says, we have implied that an arrest made outside of the arresting officer's jurisdiction violates the Fourth Amendment.

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and so on.

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And then the next sentence is, we now so hold expressly.

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So I think the holding is that an arrest made outside of the officer's jurisdiction is a violation of the Fourth Amendment.

[00:07:42] Speaker 00:
But the arresting officers in Ross v. Neff were state officials.

[00:07:47] Speaker 00:
I mean, we don't have that situation here.

[00:07:49] Speaker 00:
I mean, it would seem to me Ross actually cuts against you because it says unequivocally that the federal government can arrest for federal offenses.

[00:07:57] Speaker 00:
I mean, and so the FBI has statutory jurisdiction to arrest for federal offenses.

[00:08:02] Speaker 00:
And so how does Ross help you?

[00:08:05] Speaker 00:
I mean, it may establish at an overarching level a potential Fourth Amendment violation in some other case where there's a state official, but that's not this case.

[00:08:15] Speaker 04:
So I agree with you that Ross didn't involve federal officials.

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And I absolutely agree with you that federal officials can arrest for a federal offense, undoubtedly.

[00:08:24] Speaker 04:
The complicating factor and complicating facts in this case are that

[00:08:30] Speaker 04:
The district court specifically found that Mr. Peshlaki had been arrested by the Navajo Nation.

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And it's our position that once you're arrested by the Navajo Nation, and that in our estimation means that you're in custody of the Navajo Nation, that then the protections triggered by the extradition statute start or begin.

[00:08:55] Speaker 00:
I'm sorry, go ahead.

[00:08:57] Speaker 04:
No, that's okay.

[00:08:58] Speaker 00:
Let's assume a tsunami of violations here.

[00:09:02] Speaker 00:
Navajo shouldn't have arrested him because they didn't have a Navajo offense.

[00:09:07] Speaker 00:
The detainer statute applies in this situation.

[00:09:10] Speaker 00:
And then the FBI comes in and they swoop in and they arrest him for a federal offense.

[00:09:19] Speaker 00:
What about that?

[00:09:21] Speaker 00:
tsunami strips the FBI of jurisdiction to do what they did.

[00:09:27] Speaker 00:
And more to the point, why should that result in suppression?

[00:09:30] Speaker 00:
My point being that ultimately it seems to me it really doesn't matter whether all of these violations occurred

[00:09:38] Speaker 00:
If the FBI has independent statutory authority, and a case I'm thinking about is like Fox, where the court speaks to the idea of the FBI being able to enforce 922G in these situations.

[00:09:55] Speaker 00:
So what difference does it make?

[00:09:57] Speaker 00:
Unless you have authority that says the FBI is stripped of their jurisdiction by virtue of any violation antecedent that took place,

[00:10:07] Speaker 00:
And it seems to me you have a problem.

[00:10:09] Speaker 04:
And your point is well taken, Judge Holmes.

[00:10:12] Speaker 04:
The piece that I think is missing in that analysis is the FBI does have jurisdiction.

[00:10:18] Speaker 04:
However, because Mr. Peshlaki was already in the custody of the Navajo Nation, the law requires that then

[00:10:28] Speaker 04:
They follow these due process procedures.

[00:10:30] Speaker 00:
What law?

[00:10:31] Speaker 00:
The Navajo law?

[00:10:32] Speaker 04:
Correct.

[00:10:33] Speaker 00:
And in my tsunami, I'm contemplating the FBI said, pound sand Navajo law.

[00:10:39] Speaker 00:
We don't care.

[00:10:39] Speaker 00:
We're arresting him.

[00:10:41] Speaker 00:
And the Navajo nation presented him to be arrested.

[00:10:45] Speaker 00:
And in that scenario,

[00:10:46] Speaker 00:
I don't see any stripping of jurisdiction, nor do I see a grounds for any sort of suppression of evidence.

[00:10:53] Speaker 00:
Whether Mr. Peshlaki has some other remedy and some other way to vindicate his concerns or not, that's another matter for another day.

[00:11:01] Speaker 00:
But the question is whether they had an independent statutory authority to go in and do their job, and if there was anything that went on in this scenario, particularly Navajo law,

[00:11:15] Speaker 00:
stripping that independent federal authority to arrest him.

[00:11:21] Speaker 00:
So is there any authority that would support the notion that Navajo law could strip the FBI of jurisdiction to arrest him?

[00:11:29] Speaker 04:
I don't believe it strips him of jurisdiction to arrest.

[00:11:32] Speaker 00:
I thought that's your whole point.

[00:11:33] Speaker 00:
They don't have jurisdiction.

[00:11:36] Speaker 04:
They do have jurisdiction once they follow the procedures is our position.

[00:11:40] Speaker 00:
Why do they have to follow the procedures is what I'm asking.

[00:11:43] Speaker 04:
Because the Navajo Nation and the federal government are two sovereigns.

[00:11:48] Speaker 04:
And that's the critical piece.

[00:11:49] Speaker 04:
We've got to remember that they are both sovereigns.

[00:11:51] Speaker 00:
And the Indian tribes are dependent sovereigns.

[00:11:55] Speaker 00:
They are dependent sovereigns vis-a-vis the federal government.

[00:11:58] Speaker 00:
And so the federal government determines the breadth of their sovereignty.

[00:12:03] Speaker 00:
And if the federal government decides they're going to come in and they're going to arrest somebody,

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And note, I'm not talking about whether there was a violation.

[00:12:11] Speaker 00:
I'm not talking about whether they should have done X, Y, and Z. That's not what I'm talking about.

[00:12:16] Speaker 00:
I'm talking about what would be the consequences of them not doing X, Y, and Z vis-a-vis the jurisdiction of the FBI.

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And as far as I could see, there is nothing that would prevent the FBI from doing

[00:12:30] Speaker 00:
you know, from coming in, and particularly if they had a cooperative, it's not like the Navas were trying to fight them to take custody of Mr. Peshlaka.

[00:12:37] Speaker 00:
Well, they came in and they took him.

[00:12:39] Speaker 00:
So what is there that would stop that jurisdictional hook is what I'm asking you.

[00:12:44] Speaker 04:
What comes to my mind, Judge Holmes, is let's say an individual is in state custody, right, in a State Department of Corrections.

[00:12:55] Speaker 04:
There are procedures where obviously the federal government can then extradite them or

[00:13:00] Speaker 04:
put a detainer on them and pull them back into federal custody.

[00:13:04] Speaker 04:
And it's our position that the same procedures have to occur when someone is arrested for a Navajo Nation violation as well.

[00:13:14] Speaker 04:
Otherwise, I don't know why you would have any Navajo Nation code or even Navajo law enforcement.

[00:13:21] Speaker 04:
If the FBI or the federal government could do anything they wanted to on any tribal lands, then that would make

[00:13:27] Speaker 04:
A lot of these laws superfluous.

[00:13:29] Speaker 04:
There would be no need for them.

[00:13:31] Speaker 00:
I'm not saying what is optimal.

[00:13:33] Speaker 00:
And your analogy of states, states are independent sovereigns vis-a-vis the federal government.

[00:13:39] Speaker 00:
At least as I understand the law, that's not the way it works vis-a-vis Indian tribes and the federal government.

[00:13:45] Speaker 00:
You know, states can be stripped of their sovereignty by the federal government in the same way that Indian tribes can be.

[00:13:50] Speaker 00:
And so my question to you is simply, is the entire

[00:13:56] Speaker 00:
essence of your argument that because the FBI did not have jurisdiction to arrest Mr. Peshwa Kai, or when it arrested him, it didn't have jurisdiction, then the Fourth Amendment consequences found in Ross v. Nath are true.

[00:14:14] Speaker 04:
Can you say that one more time?

[00:14:18] Speaker 00:
Is the essence of your argument that because the FBI acted without jurisdiction, the implications of Ross versus Neff come into play in the sense that their entire investigation then is tainted from a Fourth Amendment violation point of view?

[00:14:34] Speaker 04:
That's correct.

[00:14:34] Speaker 04:
And that's certainly what was raised below by defense counsel.

[00:14:38] Speaker 04:
That's the exact argument that

[00:14:41] Speaker 04:
An arrest outside of jurisdiction then triggers the Fourth Amendment protections and requested suppression of everything that occurred thereafter, which was an interview of Mr. Peshlaki taking up his phone and downloading those contents.

[00:14:56] Speaker 02:
Are you raising an independent due process argument, or is your argument grounded in the Fourth Amendment and trying to get in under Ross?

[00:15:06] Speaker 04:
I don't really have an independent one outside of

[00:15:11] Speaker 04:
the jurisdiction of the arrest and the procedures.

[00:15:14] Speaker 04:
It's not that they can't arrest.

[00:15:16] Speaker 04:
It's that they need to follow these procedures.

[00:15:18] Speaker 04:
I see I'm almost out of time.

[00:15:19] Speaker 03:
Well, I have a question.

[00:15:21] Speaker 00:
Yes, of course.

[00:15:24] Speaker 03:
I guess what I hear you saying is that you're focused, again, on the federal detainer statute that's in the Navajo Code.

[00:15:32] Speaker 03:
But that statute, according to the policy statement behind it, which is section 1962,

[00:15:38] Speaker 03:
It's pretty clear that that only applies when there's concurrent jurisdiction, essentially when you have a tribal member arrested by the Navajo for a crime for which there is concurrent federal and Navajo jurisdiction.

[00:15:56] Speaker 03:
They are in the custody of the Department of Corrections.

[00:16:00] Speaker 03:
And when the United States wants to come in and prosecute for that same crime,

[00:16:04] Speaker 03:
for which they also have jurisdiction, they, according to this, have got to follow, the Navajo also have to follow this extradition procedure because that person is already in custody.

[00:16:16] Speaker 03:
And so that's how the United States, with concurrent jurisdiction over someone already in custody, pulls that person out and is able to exercise their own jurisdiction.

[00:16:29] Speaker 03:
But that's not what happened here.

[00:16:30] Speaker 03:
We definitely don't have a situation, whatever it was, we don't have a situation where this individual was arrested for a crime for which there was concurrent Navajo and United States jurisdiction and was in the custody of the Department of Corrections.

[00:16:45] Speaker 03:
And in order for the United States to charge him, they needed to pull him out.

[00:16:49] Speaker 03:
So we don't have that situation here, which is what the policy statement indicates the detainer statute is all about.

[00:16:57] Speaker 04:
I would disagree on one point, which is that I don't think they have to be prosecuted for the exact same crime.

[00:17:03] Speaker 03:
I think the detainer statute applies when there are a violation of a Navajo... It applies when there are certain crimes that can be prosecuted concurrently under Navajo Nation law and under 18 U.S.C.

[00:17:19] Speaker 03:
1151 and 52 and other federal laws concerning generally applicable federal offenses.

[00:17:25] Speaker 04:
I understand that and I agree.

[00:17:28] Speaker 03:
What do we have here that is a crime that can be prosecuted concurrently under Navajo Nation law?

[00:17:35] Speaker 03:
And that's just assuming that he's in custody as is anticipated by the statute.

[00:17:41] Speaker 04:
What comes to mind that he could be prosecuted for under Navajo law, obviously there is the domestic dispute, the kidnapping piece is correct.

[00:17:50] Speaker 04:
The federal piece, you've got the firearms offense, the 922

[00:17:54] Speaker 04:
So they are slightly different, but I would submit that because he did violate Navajo Nation law and was arrested by Navajo Nation law enforcement and in their custody, that then all of these detainer procedures are triggered in order for the federal government to come take him and take custody of him.

[00:18:17] Speaker 04:
Thank you so much.

[00:18:18] Speaker 00:
Thank you.

[00:18:24] Speaker 01:
May it please the court.

[00:18:26] Speaker 01:
Good morning.

[00:18:27] Speaker 01:
My name is Kimberly Bell.

[00:18:28] Speaker 01:
I'm an Assistant United States Attorney on behalf of the United States.

[00:18:32] Speaker 01:
The FBI did have jurisdiction to arrest Mr. Peshlaki on that day, and there was no pending Navajo Nation charge at the time of the federal arrest.

[00:18:46] Speaker 01:
Navajo Nation had taken Mr. Peshlekai into custody following a series of events where the Navajo Nation had requested the FBI's assistance.

[00:18:55] Speaker 01:
The day prior to the arrest, the Navajo Nation police had requested the assistance of the FBI.

[00:19:03] Speaker 01:
How should we be thinking about that fact?

[00:19:05] Speaker 01:
What legal significance does that have?

[00:19:06] Speaker 01:
I think that to the extent that the court has any concern about whether there was a dispute between these two sovereigns about who had the authority to make the arrest or who should do what, I think that that puts that to rest.

[00:19:22] Speaker 01:
This wasn't the FBI swooping in to something that was contained within the Navajo Nation's criminal procedure and code.

[00:19:31] Speaker 01:
but rather something where the FBI had been called in.

[00:19:34] Speaker 01:
And in fact, the FBI agent at issue who had made the federal arrest had been at the Navajo Nation police station the night before and spoken with Mr. Peshlekai by phone and made this agreement that Mr. Peshlekai would come in to be arrested.

[00:19:49] Speaker 01:
In other words, he said he would turn himself in.

[00:19:51] Speaker 01:
That was what the phone conversation the night prior to the arrest

[00:19:56] Speaker 01:
had resulted in.

[00:19:57] Speaker 00:
Well, did the Navajo Nation arrest, going back to the initial question that began us down this road, did the Navajo Nation arrest Mr. Peshlekai for a Navajo Nation offense?

[00:20:10] Speaker 01:
They did not, Your Honor.

[00:20:11] Speaker 00:
So what did they do?

[00:20:13] Speaker 00:
I mean, how was he held then?

[00:20:15] Speaker 00:
And this goes to the detainer, a detaining question that Judge Moritz asked.

[00:20:20] Speaker 00:
I mean, was he detained?

[00:20:21] Speaker 00:
Was he arrested?

[00:20:22] Speaker 00:
What was he before the FBI showed up to get him?

[00:20:26] Speaker 01:
Your Honor, based on what we have in the record, I think the closest thing we have is an arrest for investigative purposes, or detained, rather.

[00:20:34] Speaker 01:
I think I understand that the district court opinion referred to it as an arrest.

[00:20:39] Speaker 01:
But in considering the totality of the facts that occurred, the Navajo Nation police knew that Mr. Peshlaki was coming and that he was coming to the station that day.

[00:20:54] Speaker 01:
The real reason we know that this was not an arrest on any sort of Navajo charge was that the record shows us that Mr. Peshlekai was put in handcuffs and taken into the booking area for a COVID test, but then purposefully was taken out of that area and taken to another part of the building.

[00:21:11] Speaker 02:
You're not asking us to disagree with the district court that he was arrested, right?

[00:21:15] Speaker 02:
No, I am not.

[00:21:17] Speaker 01:
So what was he arrested for?

[00:21:20] Speaker 01:
Well, I mean, I think that

[00:21:24] Speaker 01:
I think that the word arrest in this, you know, I mean, he is prevented from doing anything.

[00:21:30] Speaker 01:
He is in the custody of the Navajo Nation police.

[00:21:33] Speaker 01:
I think the dividing line is that the sequence of events factually that we have is that he was not charged with anything.

[00:21:39] Speaker 01:
He was not booked on any Navajo charge.

[00:21:42] Speaker 01:
And all indications from the record are that he was

[00:21:45] Speaker 01:
arrested to assist the federal investigation in anticipation of a federal arrest.

[00:21:50] Speaker 02:
The district court said he was arrested for a federal offense.

[00:21:53] Speaker 02:
That's right.

[00:21:54] Speaker 02:
Is that the government's position that we should begin and end our factual concerns about the arrest with the district court's finding because it was not challenged as clearly erroneous?

[00:22:05] Speaker 01:
Yes, Your Honor, and for the reason you just outlined and also because there is nothing in the record to show any sort of arrest for any sort of Navajo charge.

[00:22:15] Speaker 03:
What?

[00:22:16] Speaker 03:
Oh, okay.

[00:22:18] Speaker 03:
What if we just assume that they did arrest him for federal offense and it was not, obviously, within their jurisdiction to do so.

[00:22:28] Speaker 03:
So let's assume it was an unlawful arrest by the Navajo.

[00:22:34] Speaker 03:
Does that make any difference in terms of requiring the federal detainer statute to somehow apply if he was

[00:22:43] Speaker 03:
I mean, if he was unlawfully arrested, isn't it still possible for the feds to come in and exercise their own jurisdiction in this case?

[00:22:54] Speaker 01:
Yes, Your Honor, precisely.

[00:22:55] Speaker 01:
Even if it was improper, if anything that the Navajo Nation police did between the time that Mr. Peshlaki turned himself into the station and the time that the federal agent arrived, that has no bearing.

[00:23:10] Speaker 01:
on the detainer statute, which is the focus of the appeal and what's before this court today.

[00:23:15] Speaker 03:
What would make it have bearing on the detainer statute?

[00:23:18] Speaker 03:
What would have had to happen to require the detainer before he would be turned over to the feds instead of being voluntarily turned over as he was?

[00:23:28] Speaker 01:
What would have had to happen, Your Honor, is that the Navajo Nation would have had to arrest him on a Navajo charge, a violation of Navajo code or Navajo

[00:23:37] Speaker 03:
Would it have to have been a concurrent prosecution, as the policy statement indicates?

[00:23:48] Speaker 01:
Your Honor, I appreciate the language that was pointed out during the argument previously, and I think if you take that on its face, that it does suggest a concurrent offense.

[00:24:03] Speaker 01:
But even if, for all practical purposes, this was a very dynamic situation.

[00:24:07] Speaker 01:
And even if these two entities are not entirely set on what their charges are going to be, and it ends up being that the Navajo nation had an arrest for the domestic violence incident the day before, I can see where that actually might

[00:24:28] Speaker 01:
cause a question about the detainer statute because of the procedural concerns that the detainer statute, the detainer part of the Navajo Code is trying to address, which is primarily to make sure, based on a reading of the Navajo Nation Code and its detainer statute, to make sure that we have the right person, that the federal agent who's shown up to take the individual into federal custody

[00:24:53] Speaker 01:
Has the the right individual that all the idea all of the identifiers excuse me are there?

[00:24:58] Speaker 01:
and that the the charge is clear and that you know to be quite frank that everybody understands what's happening here and That we're we've taken the right person for the right reason Well, it's about effectuating a transfer.

[00:25:13] Speaker 01:
That's right.

[00:25:14] Speaker 03:
All right.

[00:25:14] Speaker 01:
I mean that's what it's about right fundamentally what it is and I think also it

[00:25:20] Speaker 01:
the detainer statute in the Navajo Nation code can be read in contrast to its extradition statute, which is in a different section and which addresses situations where somebody's being arrested by a state entity or a... What interpretive principles should we be invoking when we're looking at Navajo statutes here, when we're looking at the detainer statute federal or Navajo interpretive principles?

[00:25:44] Speaker 01:
I think for purposes of the case before you, I think

[00:25:48] Speaker 01:
I think the federal principle should apply because it is the federal arrest that's being challenged here and what occurred leading up to that federal arrest.

[00:25:59] Speaker 01:
And your authority for that is what?

[00:26:01] Speaker 01:
I'm unable to give you an authority off the top of my head, but based on the circumstances before the court.

[00:26:11] Speaker 00:
Would you react to the statement I made that

[00:26:17] Speaker 00:
essentially no matter what happens here.

[00:26:20] Speaker 00:
in terms of any, you know, procedural mess up, anything that should have happened that didn't happen in terms of the FBI violated the detainer statute by picking him up, the Navajos shouldn't have arrested him.

[00:26:35] Speaker 00:
All of that stuff, no matter whether that happened or not, as long as the FBI was not stripped of jurisdiction to make the arrest by virtue of that prior

[00:26:48] Speaker 00:
misconduct, well, misconduct is probably a strong word, but prior violations, the case is, then they lose, right?

[00:27:01] Speaker 01:
Your Honor, I think that's correct.

[00:27:03] Speaker 01:
I think even if, as Your Honor pointed out, that the detainer statute was violated, that what the Navajo Nation police did was improper, what the FBI did

[00:27:16] Speaker 01:
in not seeking the detainer was improper.

[00:27:19] Speaker 01:
Nevertheless, what's completely absent from what we have here is any nexus between that violation and evidence that is subject to suppression and any due process violation that resulted from the failure to follow the Navajo Nation's detainer procedure.

[00:27:41] Speaker 01:
without those two things, without any clear violation or any evidence that is clearly subject to suppression due to the circumstances that transpired, then I think that regardless of whether the detainer statute was followed or not.

[00:27:59] Speaker 02:
Your argument seems to assume that suppression is an appropriate remedy here.

[00:28:02] Speaker 02:
Is that the government's position?

[00:28:03] Speaker 01:
No.

[00:28:04] Speaker 01:
And I apologize if I left that impression.

[00:28:07] Speaker 01:
My argument is the opposite.

[00:28:09] Speaker 01:
that suppression is not the appropriate remedy here because there needs to be some sort of nexus or some reason that the failure to follow the detainer statute specifically results in a Fourth Amendment violation or suppression.

[00:28:24] Speaker 01:
Is there a basis for a due process claim and remedy?

[00:28:28] Speaker 01:
There is not and none has been argued.

[00:28:32] Speaker 01:
I mean, there's nothing in the record and there's nothing in the arguments before the court.

[00:28:35] Speaker 01:
that outlines a clear due process violation where suppression would be warranted.

[00:28:41] Speaker 00:
If I understood you correctly, when you reference Nexus, you have potential violation of the detainer statute and you have a Fourth Amendment violation and your argument was there's nothing that brings those two together, right?

[00:28:58] Speaker 00:
That's exactly right, Your Honor.

[00:28:59] Speaker 00:
Well, what I understand

[00:29:02] Speaker 00:
the defendant to be saying is what would bring those two together is if a violation of the detainer statute had the effect of stripping the FBI of jurisdiction so that the analogy of Ross versus Neff would mean that the FBI committed a Fourth Amendment violation.

[00:29:24] Speaker 00:
And so perhaps inartfully, but what I was trying to get at with you earlier is

[00:29:28] Speaker 00:
even if there was a violation of the detainer statute, the NAVO detainer statute, there's still no jurisdiction stripping on this end, right?

[00:29:40] Speaker 01:
That's right, Your Honor.

[00:29:41] Speaker 01:
And I hope I'm understanding Your Honor's question correctly.

[00:29:46] Speaker 01:
But with respect to the nexus issue, what happens in this case is when the federal agent shows up,

[00:29:56] Speaker 01:
Mr. Peshlekhai makes a knowing and voluntary Miranda waiver that has not been challenged.

[00:30:02] Speaker 01:
And he speaks with the officer just as he had done the night before for a period of time.

[00:30:06] Speaker 01:
And following that conversation, the arrest occurs.

[00:30:10] Speaker 01:
And that is the point at which even if Mr. Peshlekhai had been facing some sort of Navajo charge and was in Navajo custody, that's where the detainer would have had to have

[00:30:26] Speaker 01:
That's where the detainer would have had to have been completed.

[00:30:29] Speaker 01:
That process should have been completed.

[00:30:32] Speaker 01:
So there's no evidence that flows from the failure to take that step that should be suppressed.

[00:30:40] Speaker 01:
And I also just, Ross versus Neff, as the court has already noted, is a situation where it's a state official who inadvertently comes onto tribal land.

[00:30:51] Speaker 01:
to effectuate an arrest, and that creates a jurisdiction question.

[00:30:54] Speaker 01:
But there is no jurisdictional issue here.

[00:30:57] Speaker 01:
This is a probable cause arrest by the FBI agent that was completely within the jurisdiction of the United States and the FBI and a proper arrest for the agent to have made.

[00:31:09] Speaker 00:
So if I understand you correctly, what you're saying is that the federal, the Ednavo detainer statute would have been triggered only at the time

[00:31:21] Speaker 00:
that the FBI, after interviewing him, having Mirandized him, decided to arrest him, right?

[00:31:29] Speaker 01:
That's right, Your Honor, because at that point he would have been taken from the Navajo Nation.

[00:31:34] Speaker 00:
Okay.

[00:31:36] Speaker 00:
I at least understood the argument of the defendant in part to be broader than that in the sense that the investigation itself

[00:31:48] Speaker 00:
was tainted because the FBI basically had no basis to, since he had been arrested by the Navajos, he was being detained by the Navajos, the FBI had no basis to go in and interview him to begin with.

[00:32:04] Speaker 00:
In other words, Miranda implies custody.

[00:32:07] Speaker 00:
The point would be he's in the Navajo custody, he's not in the FBI's custody.

[00:32:11] Speaker 00:
Therefore, they didn't have any basis to interview him to begin with.

[00:32:16] Speaker 00:
You don't read their argument as being that?

[00:32:18] Speaker 01:
I don't, Your Honor, to be honest.

[00:32:20] Speaker 01:
I think that there was, at the district court level, some discussion, as I recall, about the propriety of the Navajo arrest to begin with.

[00:32:33] Speaker 01:
In other words, when he's placed in handcuffs, when he presents himself at the station, and whether

[00:32:40] Speaker 01:
The court views this as a situation where it's a continuous action that he was in the custody of the Navajo Nation police and that, whether that period of custody is broken by the arrival of the FBI officer or not, what I don't see and what we don't have in the record is a straightforward challenge

[00:33:06] Speaker 01:
of the Navajo arrest, I would point out that the record is clear that when the FBI agent arrived, he was, the FBI agent uncuffed Mr. Peshlaki, which would indicate that there was a transfer at that point, that now he's, and I see my time is up.

[00:33:24] Speaker 01:
May I continue?

[00:33:25] Speaker 01:
Yes, please finish your thought.

[00:33:28] Speaker 01:
That at that point, there is a transfer that now he's with the FBI,

[00:33:34] Speaker 01:
And he's having this interview, and that's where there's a Miranda reading of rights and waiver.

[00:33:43] Speaker 00:
Thank you very much, counsel.

[00:33:44] Speaker 00:
Thank you, your honor.

[00:33:45] Speaker 00:
The case is submitted.