TENTH CIRCUIT NO. 12-2047 UNITED STATES OF AMERICA ... · Aguilar’s sister, Imogene Aguilar. II...

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NO. 12-2047

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

vs.

MARTIN AGUILAR,

Defendant/Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICO

DISTRICT COURT NO. 10-CR-3101 MCATHE HONORABLE M. CHRISTINA ARMIJO,

UNITED STATES DISTRICT JUDGE

APPELLEE'S ANSWER BRIEF – NO ATTACHMENTS

ORAL ARGUMENT IS REQUESTED

KENNETH J. GONZALESUnited States Attorney

FRED J. FEDERICIAssistant United States AttorneyPost Office Box 607Albuquerque, NM 87103(505) 346-7274Attorneys for Appellee

August 2012

Appellate Case: 12-2047 Document: 01018897936 Date Filed: 08/15/2012 Page: 1

TABLE OF CONTENTS

PAGE

TABLE OF CASES AND OTHER AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iii

PRIOR OR RELATED APPEALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF ISSUE PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Facts Presented at the Hearing on Aguilar’s Motions. . . . . . . . . 2

B. The Evolution of Aguilar’s Argument for Suppressing the Bald Eagle Feathers Retrieved From his Home. . . . . . . . . . . . . . 12

C. The District Court’s Denial of Aguilar’s Motion to Suppress. . . . . . 16

D. The District Court’s Denial of Aguilar’s Motion to Dismiss theIndictment Under RFRA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. THE DISTRICT COURT CORRECTLY DENIED AGUILAR’S MOTION TO SUPPRESS. . . . . . . . . . . . . . . . . . . . . . 21

A. Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Recent Supreme Court rulings control the outcome in this case. . . . . . . . . . . . . . . . . . . . . . . . . 23

i


2. The cases upon which Aguilar relies are neither binding nor persuasive.. . . . . . . . . . . . . . . . . . . 27

3. The district court correctly held in the alternative thatAguilar’s subjective reason for agreeing to meet with the agents at the Sam’s Club ultimately had noimpact on the voluntariness of his cooperation with the agents... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

II. THE DISTRICT COURT CORRECTLY DENIED AGUILAR’SMOTION TO DISMISS THE INDICTMENT.. . . . . . . . . . . . . . . . . 45

A. Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

C. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CONCLUSION AND STATEMENT CONCERNING ORAL ARGUMENT. . . 54

BRIEF FORMAT CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION. . . . . . . . . . . . . . 56

ii


TABLE OF CASES AND OTHER AUTHORITIES

TABLE OF CASES

PAGEColorado v. Connelly,

479 U.S. 157 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 29, 35

Davis v. United States, 131 S.Ct. 2419 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26, 35

Florida v. Bostick, 501 U.S. 429 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Herring v. United States, 555 U.S. 135 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 35

Hudson v. Michigan, 547 U.S. 586 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Lopera v. Town of Coventry, 640 F.3d 388 (1st Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Tukes v. Dugger, 911 F.3d 508 (11th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Analla, 975 F.2d 119 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Cedano-Medina, 366 F.3d 682 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Elrod, 441 F.2d 353 (5th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

iii


United States v. Friday, 525 F.3d 938 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . 20, 45-47, 49-51, 53

United States v. Gay, 774 F.2d 368 (10th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Gordon, 895 F.2d 932 (4th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Grap, 403 F.3d 439 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34

United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50

United States v. Harrison, 639 F.3d 1273 (10th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Iribe, 11 F.3d 1553 (10 Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 44th

United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Montgomery, 621 F.3d 568 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Pikyavit, 527 F.3d 1126 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 31

United States v. Quaintance, 608 F.3d 717 (10th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49

United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iv


United States v. Sanchez-Valderuten, 11 F.3d 985 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

United States v. Sims, 428 F.3d 945 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Strache, 202 F.3d 980 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 20, 47, 50, 52

United States v. Zapata, 997 F.2d 751 (10 Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 30-32, 44th

TABLE OF OTHER AUTHORITIES

PAGE

16 U.S.C. § 668. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 48

42 U.S.C. § 20000bb-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19, 20, 46, 50

50 C.F.R. 22.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

PRIOR OR RELATED APPEALS

There are no prior or related appeals.

v


STATEMENT OF ISSUE PRESENTED FOR REVIEW

1. Whether, in the absence of any police misconduct, the district court erred inholding that the defendant’s claimed subjective reason for consenting to apolice search was either (1) irrelevant under an objective test forascertaining consent or (2) in the alternative, a factor under the totality ofthe circumstances that did not change the voluntariness of the defendant’sconsent to search?

2. Whether the district court erred in denying the defendant’s claim that hisprosecution under the Bald and Golden Eagle Protection Act, 16 U.S.C. §668 (“BGEPA”), ran afoul of the Religious Freedom Restoration Act of1993, 42 U.S.C. § 20000bb-1 (“RFRA”), when the defendant failed to showthat BGEPA’s permit process substantially burdened his exercise ofreligion, and BGEPA’s permit scheme continues to be the least restrictivemeans of advancing the government’s compelling interest in preserving thebald eagle for future generations?

STATEMENT OF THE CASE

Defendant-Appellant Martin Aguilar (“Aguilar”) was indicted on November

10, 2010, in the District of New Mexico for two violations of the BGEPA. I-1

ROA at 2-3. Aguilar filed a motion to dismiss the indictment on grounds that his2

indictment under the BGEPA burdened his exercise of religion in violation of

RFRA. Id. at 31-51. Aguilar also filed a motion to suppress the evidence of the

Aguilar was indicted for other crimes as well, but those charges are not1

part of this appeal.

Citations to “ROA” refer to the record on appeal, which is contained in2

five volumes, including two supplemental volumes of the ROA. By way ofillustration, citations in the format “I-ROA” refer to volume I of the ROA.

1


bald eagle feathers that led to his indictment. Id. at 7-20. Following a hearing, the

district court issued written orders in which it denied both of Aguilar’s motions.

Id. at 150-77. Aguilar subsequently entered conditional guilty pleas in which he

reserved the right to appeal the district court’s denial of his two pre-trial motions.

Id. at 178-89. Aguilar was sentenced to a two-year term of probation on each

count of conviction, to be served concurrently. Id. at 227-30. Judgment was

entered on March 19, 2012. Id. This timely appeal followed.

STATEMENT OF THE FACTS

A. The Facts Presented at the Hearing on Aguilar’s Motions

On February 10, 2010, United States Fish and Wildlife Service (USFWS)

Special Agent Russell Stanford received an anonymous tip that an individual

named Martin Aguilar had killed some eagles on the Kewa Pueblo over the past

weekend. II Supp-ROA at 47. In response to the tip, during the early morning3

hours of February 11 and 12, 2012, USFWS Special Agents Stanford and Jason

Riley conducted surveillance along the Rio Grande river on the pueblo. Id.; III-

ROA at 9, 50, 101. The morning of February 12, 2012, the agents also made a

courtesy visit to the tribal Governor, Tony Tortalita, and several other tribal

The Kewa Pueblo, located in New Mexico, was formerly known as the3

Santo Domingo Pueblo.

2


officials. Id. II Supp-ROA at 47; III-ROA at 33, 53-54, 98-99. The agents

explained that they were investigating the illegal killing of eagles, and asked if the

officials had any idea who might have been responsible for killing eagles on the

pueblo. II Supp-ROA at 47-48; III-ROA at 56-57. The officials told the agents

that on February 10, 2012, they had met with a tribal member who had been

cutting wood along the Rio Grande, but they refused to reveal the tribal member’s

identity. Id. The officials stated that they did not have any information regarding

the killing of eagles on the pueblo. II Supp-ROA at 48. The officials indicated

that they were grateful that the special agents had taken the time to keep them

involved with the investigation, id.; III-ROA at 55, and asked the agents to check

in with them when they left the pueblo to give them an update. II Supp-ROA at

48.

The agents were not aware of any pueblo rules that required outsiders to be

accompanied by a tribal official when on the pueblo, which was only stated or

implied to the agents at a later meeting. III-ROA at 33, 96-97.

At approximately 10:00 am, unaccompanied by any tribal officials, the

agents located Aguilar’s home in the main village of the pueblo, and spoke with

Aguilar’s sister, Imogene Aguilar. II Supp-ROA at 48, 151; III-ROA at 9-10, 60,

65. Agent Stanford identified himself as a special agent, and presented his

3


credentials and badge. III-ROA at 11. The agents were dressed in plain clothes

and carried sidearms (under Agent Stanford’s shirt and under Agent Riley’s vest).

Id. at 60-64, 102. Ms. Aguilar never saw the sidearms. Id. at 115. Ms. Aguilar

told Agent Stanford that Aguilar was not home, II Supp-ROA at 48, and that she

did not know when he would be back. III-ROA at 66, 111. The conversation took

place at the doorway to Aguilar’s home, with the agents standing just outside the

door. Id. at 10. The agents were courteous and professional. Id. at 11.

The agents left the pueblo to get some refreshments, then returned and

parked outside Aguilar’s house. Id. at 12-13, 67. They sat in their unmarked

pickup truck, with Mexican plates on it, waiting for Aguilar to return. Id. at 67,4

111. At about 11:00 a.m., the agents again knocked on the front door to Aguilar’s

house. Id.; II Supp-ROA at 48. Ms. Aguilar answered. III-ROA at 67, 111.

Agent Stanford asked Ms. Aguilar if she knew Aguilar’s whereabouts. Id. at 13.

He also asked if she knew anything about Aguilar being involved in killing eagles.

Id. at 13-14. Ms. Aguilar responded that she had nothing to do with eagles and

that she knew nothing about her brother and eagles. Id. at 13-14, 111. She stated

The truck had Mexican plates on it because the agents recently had been4

working on a case near the Mexican border. III-ROA at 65.

4


that she did not know when her brother would be back. Id. at 14. The agents did

not enter Aguilar’s home at any time during this encounter. Id. at 14, 112.

Outside of the front door of Aguilar’s home, Agent Riley observed a dead

hawk in a plastic bag that was in plain view. Id. at 20, 105; II Supp-ROA at 48.

The agents photographed the dead hawk and returned to their truck to wait for

Aguilar. Id. at 68, 105.

About half an hour later, Ms. Aguilar opened the front door and gestured for

the agents to come to the house. Id. at 15, 69, 106. Aguilar had called home to get

a telephone number, and during the conversation Ms. Aguilar told her brother that

“two new [sic] guys are here to talk to you.” Id. at 113, 203. She explained that

Aguilar was on the telephone and wanted to speak to them. Id. at 16. She made a

gesture, which Agent Stanford understood to be an invitation to enter the house.

Id. at 16-17, 71-72. Ms. Aguilar led Agent Stanford to the kitchen where the5

dock to the cordless telephone was located. Id. Ms. Aguilar returned to the front

room. Id. at 107-08. As a precaution, Agent Riley kept her under observation,

At the motions hearing, Ms. Aguilar denied that she had ever invited the5

agents into her home, and claimed that the agents simply walked past her andstarted searching her house with foot-long, black flashlights. III-ROA at 113-15,117-18, 142-44. For a host of reasons, Ms. Aguilar was not a credible witness. See, e.g., I-ROA at 9-10; III-ROA at 139-42. The district court specifically foundMs. Aguilar’s testimony about the agents’ alleged flashlight search not to becredible. I-ROA at 153 n.2.

5


and made some small talk about a bear hide and a mounted deer that were in the

front room. Id. Meanwhile, Agent Stanford spoke to Aguilar on the telephone,

identified himself as a federal agent, and explained that he had some questions

about eagle feathers. Id. at 18, 211, 216.

Aguilar told Agent Stanford that he was at a the Sam’s Club in

Albuquerque. Id. at 18. Agent Stanford asked whether Aguilar would wait for the

agents to meet him at the Sam’s Club. Id. at 18-19. Agent Stanford asked Aguilar

to wait. Id. He did not order Aguilar to wait. Id. Aguilar agreed to wait for

Agent Stanford at the food court of the Sam’s Club. Id. at 18-19. Agent Stanford

turned off the telephone, thanked Ms. Aguilar, and he and Agent Riley left. Id. at

19. The agents did not see or collect any evidence while they were in the house.

Id. at 19.

It took the agents about twenty to twenty-five minutes to reach the Sam’s

Club. Id. at 20. They arrived about noon. Id. Aguilar was in the food court,

sitting with a woman at a picnic-style table. Id. at 20-21. Aguilar did not feel that

he had been forced to wait for Agent Stanford. Id. at 213-25. The agents

introduced themselves, and showed their credentials and their badges. Id. at 21,

216. The woman left to go shopping. Id. at 5. The agents sat down across the

6


table from Aguilar. Id. at 21. At no time did they represent to Aguilar that they

were acting on behalf of the tribal government. Id. at 22-23, 211.

Aguilar perceived the agents to be professional, polite and courteous. Id. at

216. The agents explained to Aguilar that they had information that he had shot

two eagles the previous weekend. Id. at 22, 217. Agent Stanford explained to

Aguilar that he was not under arrest and that he did not have to speak to the agents

and could leave. Id. at 75, 217. Aguilar understood that he was not under arrest.

Id. at 217. At the motions hearing, Aguilar agreed that he had understood that he

did not have to talk to the agents, but that he had chosen to do so as a “free man”

and “voluntarily.” Id. at 217-18. Aguilar also explained that he had “to talk to

them, see what – what’s going on.” Id. at 217.

Aguilar was very cooperative. Id. at 72. He freely admitted that the

previous weekend, while chopping wood along the river on the pueblo, he had

shot one eagle and his son had shot another, using Aguilar’s .22 magnum rifle. Id.

at 22, 218; II Supp-ROA at 48. Aguilar said that he was a medicine man and that

he killed the eagles for their feathers. III-ROA at 22. He claimed a dog had

brought the hawk the agents saw to his house. II Supp-ROA at 49. Aguilar stated

that he had picked the hawk up and put it in a bag. Id.

7


Agent Stanford asked Aguilar how many eagles he had killed in his life. Id.

Aguilar stated that he had killed five eagles since 1992. Id. Agent Riley asked

Aguilar why he did not use the National Eagle Repository (the “Repository”) in

Denver, Colorado. Id. Aguilar responded that he has never used the Repository to

obtain eagle feathers. Id.

Agent Stanford asked if he could see the feathers that Aguilar had. III-ROA

at 24, 80, 222-23. Aguilar told the agents that he had the feathers in a basket in a

workshop behind his house. Id. at 23, 219. Aguilar also told the agents that he

had traded some jewelry for another set of eagle wings the year before. Id.; III-

ROA at 220-21, 227.

Aguilar stated that he had been brought to the Governor’s office on

February 10, 2010 and had been asked about killing eagles. Id. at 25, 227.

Aguilar stated that he had admitted to the Governor that he had killed two eagles.

Id. The Governor had told Aguilar to stop killing eagles. Id.

Agent Stanford asked Aguilar whether he would give a written statement.

Id. at 24. Aguilar dictated a statement which Agent Stanford read back to him. Id.

at 24-25. Aguilar signed the statement. Id. at 24-25, 224, 227; IISupp-ROA at 49,

56-57. In his written statement, Aguilar generally admitted everything he had told

8


the agents verbally. Id. The meeting between Aguilar and the agents lasted about

an hour. III-ROA at 79.

Aguilar invited the agents to his house to see the feathers he had, and they

agreed to meet at Aguilar’s house at 4:00 pm. Id. at 24, 80-81, 223-24. Agent

Stanford thanked Aguilar for his time, and he and Agent Riley left. Id. at 25-26.

The agents returned to the pueblo, arriving at Aguilar’s house at about 3:00

pm. Id. at 26, 81. Aguilar had arrived home before the agents. Id. at 26, 81, 229-

30. Aguilar already had moved the eagle feathers and wings from his shed into his

house. Id. at 27, 29-30, 148, 229-30. Someone, either Aguilar or Ms. Aguilar,

telephoned the Governor’s office to inform tribal officials that two federal agents

were at the Aguilars’ house. Id. at 28, 168, 182, 234, 236. Aguilar gestured to the

agents to come over to his house. He then led them inside. Id. at 26-27, 230. At

the evidentiary hearing on his motion to suppress, Aguilar admitted that he freely

and voluntarily invited the agents into his home to see the feathers. Id. at 230.

Aguilar also acknowledged that when the agents came into his house, he knew that

the agents did not have the Governor’s permission to be there. Id. at 240.

The agents saw a basket and a plastic bag containing loose bald eagle

feathers and two pieces of cardboard on which two golden eagle wings were

mounted. Id. at 27-28. The agents asked whether they could look inside the shed

where Aguilar kept the feathers. Id. at 29, 30, 231. Aguilar responded “no.” Id.

9


At the hearing on the motion to suppress, Aguilar acknowledged that it was his

decision, not the Governor’s decision, to forbid the agents from looking in his

shed at his house that day. Id. at 241-42.

Tribal police officer Kerwin Tenorio arrived at Aguilar’s house about three

minutes after Aguilar told the agents that he had called the tribal officials. Id. at

28-29, 82. Officer Tenorio seemed to be in “a raised state of awareness,” and at

some point, told Agent Stanford that the agents had been driving too fast on the

pueblo. Id. at 83-84. Officer Tenorio told the agents that the Governor wanted to

see them. Id. at 82-84. The agents responded that they would meet at the

Governor’s office after they had completed their official business with Aguilar.

Id. at 84. II Supp-ROA at 50.

At some point, Aguilar produced his .22 magnum rifle. Id. at 209. Agent

Stanford told Aguilar that they were going to seize the eagle feathers, the mounted

eagle wings, the hawk carcass, and the rifle. Id. at 86-87, 209. Agent Riley filled

out a USFWS Abandonment of Property form listing the loose bald eagle feathers,

the mounted eagle wings, the hawk carcass and the rifle. II Supp-ROA at 50.

Agent Stanford explained the form to Aguilar, who signed it. III-ROA at 31-32,

86. The agents asked Aguilar whether they could use the basket where he kept the

feathers, but he refused to let them use the basket. Id. at 208-09, 235. The agents

then placed the feathers into plastic evidence bags, and took the remaining seized

10


items to their vehicle. Id. at 84-85, 235; II Supp-ROA at 50. The agents then left

Aguilar’s residence, explaining that they would be in touch with him regarding the

items that they had seized. II Supp-ROA at 50.

The agents then went to the Governor’s office, and met with the Governor

and other tribal officials they had met earlier that morning. Id. The Governor

asked the agents what was going on with the investigation inside the pueblo. Id.

They explained that they had conducted some interviews and found that Aguilar

had recently killed two eagles. Id. The Governor told the agents that he thought

that the agents were going to be driving along the river looking for eagles. Id. at

70. Agent Riley told the Governor that the agents had told the tribal officials

earlier that day that the agents would be in the pueblo and along the river. Id.

The tribal officials wanted the agents to tell them who had contacted them

about the eagle killings. Id. Agent Stanford explained that an anonymous citizen

had called. Id. The officials informed the agents that they knew such calls were

recorded and asked for a copy of the recording. Id. at 50-51. Agent Stanford

explained that no such recordings existed. Id. at 51. The tribal officials stated that

they thought the agents were being untruthful about the recordings. Id. at 51.

Agent Stanford responded that Aguilar had told the agents that Aguilar had been

called into the tribal office on February 10, 2010, and that he had admitted to the

Governor and other tribal officials to killing eagles during that meeting. Id.

11


Agent Stanford indicated that he did not appreciate that the tribal officials had

withheld that information earlier that morning. Id. A tribal official told the6

agents that he did not think the agents had the authority to conduct an

investigation on the pueblo. Id. The agents responded that they did have such

authority. Id. After some more discussion, the tribal officials asked whether they

could see the seized items. Id. Agent Stanford showed them the eagle feathers in

the truck. Id.

The tribal officials thanked the special agents for the work they had done

on the pueblo, and for being courteous with them. Id. After looking at the

feathers, Governor Tortalita told Agent Stanford that it was not customary for his

people to shoot eagles, and that it was a “shame” that Aguilar had shot them. Id.

B. The Evolution of Aguilar’s Argument for Suppressing the Bald EagleFeathers Retrieved From his Home

On January 17, 2011, Aguilar filed a motion seeking to suppress all of the

evidence seized from his home “as well as all of the incriminating statements made

At the hearing on Aguilar’s motion to suppress, Governor Tortalita6

testified that he did not know Aguilar, and that he had never spoken with anyoneabout the killing of eagles. III-ROA at 159. At the same hearing, after initiallydenying that he had spoken to the Governor about eagle feathers, Aguilar testifiedthat he and Governor Tortalita did have such a conversation. Id. at 211-13.

12


by Mr. Aguilar following the unlawful seizure of evidence.” I-ROA at 6. The8

thrust of his motion was that the agents had “deliberately acted in excess of their

jurisdiction, ignored the sovereignty of the Pueblo of Santo Domingo, and pursued

a course of conduct which was unreasonable under the Fourth Amendment.” Id. at

6-7. At that time, Aguilar’s argument centered upon notions of the Tribe’s

sovereign authority and a March 2009 “Confidential and Proprietary Information

Agreement” (hereinafter referred to as the “Agreement”) between the Tribe and

the USFWS. Id. at 7-9, 15-19. Aguilar argued that the agents lacked jurisdiction

to conduct an investigation upon tribal lands without permission from the Tribe,

and that they had violated the terms of the Agreement by doing so. Id. at 8, 17.

Aguilar characterized the agents’ actions as “flagrant violations” of tribal

sovereignty and the Agreement. Id. at 8.

Aguilar argued that because the agents lacked jurisdiction to conduct their

investigation on tribal lands, the investigation was “illegal,” which “taint[ed]” all

the evidence they had obtained. Id. at 18. Within the overarching framework of

this basic argument, Aguilar also claimed that when he spoke to the agent on the

telephone, he had been under the “mistaken impression” that the agents had the

In Aguilar’s original motion, he apparently did not seek to suppress the8

full confession he made at the Sam’s Club before he invited the agents back to hishome to see the feathers they seized.

13


Governor’s permission to be on the pueblo, which had made him think he was

obligated to cooperate with them. Id. at 11.

The United States responded to the defendant’s motion by pointing out that

the USFWS had statutory authority to enforce the BGEPA on tribal lands,

notwithstanding tribal sovereignty or the Agreement. Id. at 23. The United States

also explained that in any event the Agreement did not apply to agents conducting

criminal investigations, and that even if it did, Aguilar lacked standing to rely on

the Agreement to challenge the agents’ conduct. Id.

In reply, Aguilar expanded upon his argument to claim that the agents had

“arrested” him “in an area outside of their jurisdiction.” Id. at 57-58. He

summarized his motion to suppress as resting “on the simple and irrefutable

proposition that a warrantless arrest executed outside of the arresting officer’s

jurisdiction is presumptively unreasonable.” Id. at 57.

On March 22, 2011, the Court convened a hearing on Aguilar’s pending

motions. I Supp-ROA at 92. The hearing was continued shortly after it began. Id.

at 113. Before the hearing ended for the day, however, the Court explained how,

based on the filings, it viewed “the real issue” of Aguilar’s motion as a “legal

question as to what affect” the Agreement had “on what happened here.” Id. at

103. The government agreed with the Court’s analysis and proffered several

14


exhibits to debunk Aguilar’s claim that the agents somehow lacked authority to

conduct a criminal investigation on tribal lands without the permission of tribal

officials, or that the Agreement somehow precluded the agents from conducting a

criminal investigation on the pueblo. Id. at 107-11; I-ROA at 36, 42; II Supp-

ROA at 1-55. Aguilar responded that the Agreement was only “part” of his8

argument – the other part being that the agents had elicited statements from

Aguilar “under the false pretense that . . . they stood in the Governor’s shoes.” I-

ROA-Supp. at 103-04.

Days after the government filed its exhibits addressing the non-applicability

of the Agreement to the agents’ investigation, Aguilar filed “supplemental

briefing” in which he now focused most of his argument on the claim “that any

purported consent in this case was coerced, obtained by deceit, false pretenses and

trickery[.]” I-ROA at 96. Aguilar accused the agents of having entered the home

he shares with his sister without an invitation, conducting a search, and finding

The exhibits included a letter (with a receipt stamp of July 30, 2010) from8

the tribal Governor to the USFWS, in which the Governor sought to amend theAgreement to include the type of restrictions upon USFWS special agents thatAguilar claimed already applied to the agents. II Supp-ROA at 43-45. The districtcourt later found that this letter meant that the even the Tribe recognized that,absent the requested modifications to the Agreement, the USFWS was notrequired to obtain prior authorization from tribal officials to conductinvestigations on tribal lands. I-ROA at 160.

15


eagle feathers before they ever even met with him at the Sam’s Club. Id. at 97-98.

Aguilar characterized the agents’ actions as “over-reaching,” id. at 96, “heavy

handed,” id. at 102, “purposeful and flagrant.” Id. at 104.

On June 23 and 24, 2011, the district court held an evidentiary hearing on

Aguilar’s motion to suppress. III-ROA at 1-2. Several witness testified, including

the two agents, Aguilar, Ms. Aguilar, Governor Tortalita and two tribal officials.

Id. At the conclusion of the evidence, the Court invited the parties to submit

simultaneous “closing argument” to the Court. III-ROA at 252. In the “Proposed

Findings of Fact and Conclusions of Law” that Aguilar later submitted, Aguilar

significantly tempered his claims about the alleged flagrant nature of the agents’

conduct. In its repackaged and final form, Aguilar argued instead that the agents

had “unintentionally portrayed themselves to Mr. Aguilar and his family in a false

light and unknowingly took advantage of Pueblo traditions to dupe Mr. Aguilar

and his family into cooperating with their investigation under the mistaken belief

that the investigation was authorized by the Governor.” I-ROA at 131, 123-24.

C. The District Court’s Denial of Aguilar’s Motion to Suppress

On June 28, 2012, the district court entered a written order denying

Aguilar’s motion to suppress evidence. After making extensive factual findings, I-

RAO at 150-57, the district quickly dispatched with Aguilar’s original argument,

16


based on tribal sovereignty and the Agreement, that the agents lacked authority to

conduct an investigation on pueblo lands without first obtaining permission from

tribal officials. Id. at 158-61. The district court next ruled that Aguilar’s sister

freely and intelligently had consented to the agents’ initial entry into their home,

rejecting Aguilar’s factual claim that his sister had believed the agents were acting

under the Governor’s authority when they appeared at her home. Id. at 161-62.

The district court then noted that Aguilar had “conceded in his testimony at the

evidentiary hearing that the special agent he spoke to over the phone did not

represent he was there with the Governor’s authority.” Id. at 163. The district

court subsequently found that when Aguilar agreed to meet the agents at the Sam’s

Club, he was “unsure” whether the agents’ investigation was being conducted with

the Governor’s approval, and that this uncertainty “contributed” to Aguilar’s

initial decision to meet with the agents at the Sam’s Club. Id. Finding no

evidence that the agents ever were aware of Aguilar’s concern that the Governor

had authorized the agents to investigate his eagle hunting, however, the district

court ruled that Aguilar’s subjective state of mind was ultimately “irrelevant” to

the question of whether the agents had “seized” him by interviewing him at the

Sam’s Club. Citing United States v. Zapata, 997 F.2d 751, 757 (10 Cir. 1993),th

the district court applied an objective, totality of the circumstances test, and held

17


that Aguilar’s encounter with the agents at the Sam’s Club “was at all times

consensual” and not a seizure of his person. Id. at 164.

The district court next turned to the sole suppression issue that Aguilar has

raised on appeal: whether he voluntarily consented to the agents viewing the eagle

feathers in his home. The district court ruled that under the totality of the

circumstances, Aguilar’s “words and conduct conveyed to an objective observer

that he freely and intelligently gave his unequivocal consent to the special agents’

entry into his home and to their examination of the eagle feathers.” Id. at 165.

The district court found no “suggestion of implied or express duress or coercion

on the part of the special agents,” and “expressly reject[ed]” Aguilar’s suggestion

that the agents had questioned him in a confrontational manner when they met him

at his home after leaving the Sam’s Club. Id. The district court went on to

describe a split among the circuits, and a lack of clear guidance from this Court, as

to whether a defendant’s subjective reasons for giving consent, that are unknown

to the police at the time of consent, should be factored into the totality of the

circumstances in consent search cases. Id. at 165-68. In light of a legal landscape

that the district court believed was uncertain, the district court issued two

alternative holdings, as follows:

18


The Court concludes that if the voluntariness of Defendant’s consentis measured by an objective standard limited to what the specialagents knew or should have known about Defendant’s state of mind,Defendant’s subjective concern that he might be acting contrary to theGovernor’s will if he declined to cooperate is irrelevant to thevoluntariness inquiry due to the absence of evidence that the specialagents knew or had reason to know of Defendant’s state of mind. Alternatively, the Court concludes that if Defendant’s unexpressedsubjective concern is part of the “totality of the circumstances,” itshould not be given significant weight, United States v. Iribe, 11 F.3d1553, 1557 (10 Cir. 1993), and that due to the absence of evidenceth

of coercion or duress on the part of the special agents, Defendant’ssubjective concern that a failure to cooperate with the special agentsmight be viewed as disrespect for the Governor is insufficient torender his consent involuntary.

Id. at 168.

The district court continued by ruling that, because the agents told Aguilar

that they were going to seize the bald eagle feathers and other evidence before

Aguilar consented to the seizure of those items, the agents could not rely upon

Aguilar’s consent to the seizure of those items. Id. at 169. The district court held

that the agents’ seizure of the evidence was nonetheless valid under the plain view

doctrine. Id. at 169-70.

D. The District Court’s Denial of Aguilar’s Motion to Dismiss theIndictment Under RFRA

In a separate order, the district court also denied Aguilar’s motion to dismiss

the indictment. I-ROA at 171-74. Aguilar claimed that his prosecution under the

19


BGEPA violated his rights under RFRA. I-ROA at 35-40. Aguilar contended that

because the bald eagle population has recovered to the point that it has been

delisted as a threatened species, the government’s eagle permitting system is no

longer the least restrictive means of advancing its still-compelling interest in

protecting bald eagles. Id. Aguilar argued that legitimate practitioners of Native

American religions should instead be altogether exempted from any regulatory

burdens. Id. at 40-41.

The district court denied Aguilar’s motion, recognizing that the outcome of

the motion was “largely controlled by United States v. Friday, 525 F.3d 938 (10th

Cir. 2008),” a case which predates the delisting of bald eagles. I-ROA at 172.

The district court explained that in delisting the bald eagle, the USFWS “did not

intend to declare an open season on eagles.” I-ROA at 173. Citing United States

v. Wilgus, 638 F.3d 1274, 1282 (10th Cir. 2011), the district court noted that

“[e]agles are particularly vulnerable to hunting, and small changes in the number

of breeding adults can have drastic impacts on the overall health of the species.”

Hence, the decision to delist the bald eagle was made with a recognition that the

BGEPA’s permitting process was still in place to protect eagles. Id. The district

court then outlined the variety of ways in which the permitting process remains no

20


less important today than it was prior to the delisting of bald eagles. Id. at 173-74.

ARGUMENT

I. THE DISTRICT COURT CORRECTLY DENIED AGUILAR’S MOTIONTO SUPPRESS

A. Summary of the Argument

The agents did nothing wrong in this case. They did not overreach or

coerce Aguilar into letting them see the eagle feathers he had in his home. The

Supreme Court has recently reaffirmed that in the absence of police misconduct,

the exclusionary rule simply does not apply. Any rule that fails to reflect this

bedrock proposition, as Aguilar’s proposed defendant-oriented test fails to do,

must be rejected. The law has no reason to punish the police if a defendant is

inspired to cooperate based on a guilty conscience, a desire to do the right thing,

or out of a sense of respect for himself, his victim, the police, his rabbi, his priest,

or his tribal Governor. Having the exclusionary rule turn on a defendant’s

inherently ineffable, subjective feelings, rather than on police conduct, would not

only pervert the very reason for the exclusionary rule’s existence, but also burden

the courts with a test that would often be impossible to administer.

But even if this Court was somehow free to disregard controlling Supreme

Court authority, the district court was correct in its alternative holding that

21


Aguilar’s claimed subjective assumption that the agents were acting with the

permission of the tribal Governor, which allegedly caused him to cooperate with

the agents, was not sufficient to render his consent involuntary. First, Aguilar

testified that by the time he invited the agents into his home to look at the feathers

– which is the only aspect of the encounter Aguilar has challenged on appeal – he

did not believe that they were still acting under the Governor’s authority. Yet he

still agreed to some of their requests. Second, the overall record is not clear as to

how much influence the tribal Governor actually has over pueblo members with

respect to cooperating in criminal investigations. Aguilar’s own testimony is not

particularly illuminating as to how or why his initial assumption that the agents

had possibly contacted him with the Governor’s permission had anything more

than a negligible effect on any of his later decisions to agree with, and sometimes

not agree with, the agents’ various requests of him. Under the totality of these

circumstances, the district court was correct to find that Aguilar’s subjective

reasons for cooperating ultimately had no decisive impact on whether his consent

to search was voluntary.

B. Standard of Review

“Where a defendant raises a Fourth Amendment challenge to a search by

police, [this Court] review[s] the district court’s factual findings for clear error,

22


and the ultimate reasonableness of the search de novo.” United States v. Pikyavit,

527 F.3d 1126, 1129 (10th Cir. 2008). The facts are further viewed “in the light

most favorable to the prevailing party below.” Id. at 1130.

C. Discussion

1. Recent Supreme Court rulings control the outcome in this case.

The sole suppression claim that Aguilar raises on appeal is that the district

court erred in finding that his consent to allow the agents into his home to view the

bald eagle feathers was voluntary. Aplt’s Brf. at 24-36. Aguilar no longer claims

that the agents illegally “seized” him to obtain the statements he made at the Sam’s

Club. Nor does he dispute the district court’s ruling that once the agents were

inside of his house, the feathers were in plain view, which permitted the agents to

seize them.

Aguilar instead argues that, in Fourth Amendment consent search cases, this

Court is bound by prior decisions to “consider the vulnerable subjective state of a

person who consents as part of the totality of the circumstances that determine

whether the consent is voluntary, even if the officers seeking consent are unaware

of the person’s subjective state.” Aplt’s Brf. at 25, 28, 32 (emphasis added).

Applying that rule, Aguilar further challenges the district court’s alternative

holding by arguing that his subjective reasons for why he consented to show the

23


agents the feathers should have been given dispositive weight, as opposed to the

district court’s conclusion that Aguilar’s feelings ultimately made no difference to

the final outcome even if they did have to be counted among the totality of the

circumstances. Aplt’s Brf. at 33-36.

The most consequential aspect of Aguilar’s argument is that, at this

juncture, not even he appears to ascribe any overreaching or wrongdoing on the

part of the agents with respect to the consent search. “This ... absence of police

culpability dooms” Aguilar’s claim. Davis v. United States, 131 S.Ct. 2419

(2011).

Aguilar’s claim is doomed because his reading of the law altogether

overlooks the Supreme Court’s recent admonitions that the exclusionary rule only

comes into play when the police have done something wrong:

To trigger the exclusionary rule, police conduct must be sufficientlydeliberate that exclusion can meaningfully deter it, and sufficientlyculpable that such deterrence is worth the price paid by the justicesystem. As laid out in our cases, the exclusionary rule serves to deterdeliberate, reckless, or grossly negligent conduct, or in somecircumstances recurring or systemic negligence.

Herring v. United States, 555 U.S. 135, 144 (2009). Thus, “[r]eal deterrent value

is a necessary condition for exclusion,” though not even real deterrence is

sufficient by itself to force society to swallow the “bitter pill” of suppressing the

truth. Davis, 131 S. Ct. at 2427 citing Hudson v. Michigan, 547 U.S. 586, 596

24


(2006) (emphasis added). While the Court in Davis admitted that “there was a

time when our exclusionary-rule cases were not nearly so discriminating in their

approach to the [exclusionary rule] doctrine,” it is abundantly clear today that the

Court has recently and firmly “recalibrated” its “cost-benefit analysis in exclusion

cases to focus on ‘the flagrancy of the police misconduct at issue.’” Davis, 131 S.

Ct. at 2427 (quoting United States v. Leon, 468 U.S. 897, 909, 911 (1984)).

In Davis, the police conducted a search in objectively reasonable reliance on

binding appellate precedent that was later overturned. Because the police had

done nothing “wrongful” in following the law, the Court held that the exclusionary

rule had “no application” to the case. Davis, 131 S. Ct. at 2428. In so doing, the

Court rejected any notion that the exclusionary rule should “become a strict-

liability regime” for officers who had done nothing wrong, and “reaffirmed” “that

the harsh sanction of exclusion ‘should not be applied to deter objectively

reasonable law enforcement activity.’” Id. at 2428-29 (quoting Leon, 468 U.S. at

919).

The Court in Colorado v. Connelly, 479 U.S. 157 (1986), also underscored

that police overreaching was “a crucial” or “integral” element of its jurisprudence

under the Due Process Clause. Connelly, 479 U.S. at 520-21. In Connelly, a

defendant approached a police officer on the street, stated that he had murdered

25


someone and wanted to talk to about it, and was advised of his Miranda rights. Id.

at 160. The defendant subsequently confessed to murder at police headquarters.

Id. Even though the trial court found that the police had done nothing wrong in

securing the confession, it suppressed the confession on grounds that the

defendant only confessed because he was in a psychotic state at the time, unable to

make rational choices, and believed he was following the “voice of God.” Id. at

160-62. The Supreme Court ruled that “coercive police activity is a necessary

predicate” to finding that a confession is not “voluntary” under the Due Process

Clause of the Fourteenth Amendment. Id. at 522 (emphasis added). In making its

ruling, the Supreme Court simultaneously renounced the idea of drawing district

judges into “sweeping inquiries into the state of mind of a criminal defendant . . .

quite divorced from any coercion brought to bear . . . by the State.” Id. at 166-67.

Because Davis, Herring and Connelly so firmly clarify that the only reason

the exclusionary rule exists is to deter unreasonable police conduct, it seems

inconceivable for Aguilar, or any court, to conclude that the Supreme Court would

somehow embrace an approach to voluntariness in consent search cases under the

Fourth Amendment that it so thoroughly repudiated in Connelly under the Due

Process Clause. Indeed, when the Supreme Court explained in Davis, Herring and

Connelly how there must first be police overreaching to trigger the exclusionary

26


rule, its touchstone in all three instances was the intrinsic nature and origin of the

exclusionary rule itself, which remains unchanged regardless of the individual

right to which it is applied.

2. The cases upon which Aguilar relies are neither binding norpersuasive.

No case on which Aguilar relies compels this Court to conclude that the

exclusionary rule somehow works differently under the Fourth Amendment than it

does under the Due Process Clause. For example, in Schneckloth v. Bustamonte,

412 U.S. 218 (1973), a case which predates Davis, Herring and Connelly, the

Supreme Court was presented with the question of whether the police are required

to inform a person of his or her right to refuse to consent to a search in order for

the consent to be voluntary. Schneckloth, 412 U.S. at 219-22. The Court resolved

that question by adopting a totality of the circumstances test, in which the police

informing a person of the right to refuse consent was one factor to consider, but

not a prerequisite, for valid consent. Id. at 227. Notably, in deciding the meaning

of “voluntariness” under the Fourth Amendment, the Schneckloth Court first

looked to the meaning of “voluntariness” under the Due Process Clause. Id. at

223-27. While Aguilar now reads Schneckloth as suggesting that the Supreme

Court somehow endorsed a rule requiring police officers to divine an individual’s

subjective state of mind or motives for a consent search for the consent to be valid,

27


Aplt’s Brf. at 25, 28-30, that issue simply was not present in Schneckloth.

In fact, none of the cases upon which Aguilar relies lend any substantial

support to his position. All of the Tenth Circuit cases upon which Aguilar

primarily relies, Aplt. Brf. at 28-32, with the exception of United States v.

Harrison, 639 F.3d 1273 (10th Cir. 2011), predate Davis and Herring, and

Harrison is not closely on point.

In Harrison, This Court affirming the trial court’s finding upheld the

suppression of a firearm found during a search of a suspect’s apartment after that

agents had coerced a suspect into consenting to a search of his apartment by lying

and telling him that they had reports that there was a bomb in his apartment.

Harrison, 639 F.3d at 1275-78. The only discussion of the defendant’s subjective

state in Harrison was very brief, and hardly on point: merely because the record

contained little objective evidence that the suspect actually felt in danger by the

agents’ ruse was not enough to convince this Court to reverse the trial court’s

ruling. Id. at 1280-81.

In United States v. Gay, 774 F.2d 368 (10th Cir. 1985), which Aguilar also

cites, this Court admittedly cast the issue presented in terms of whether the

defendant “was so intoxicated that his consent to search was not the product of a

rational intellect and a free will.” Gay, 774 F.2d at 377. But this Court

28


nonetheless resolved that question against the defendant by relying exclusively

upon objective factors that were readily observable to the state troopers during

their encounter with the defendant. Id. And perhaps most importantly, when

framing the issue in Gay, this Court did not have the benefit of either of the

Supreme Court’s decisions in Davis or Herring, or the Court’s illuminating

commentary in Connelly, which explained that “notions of ‘free will’ . . . have no

place” in assessing voluntariness under the Due Process Clause, as the privilege is

not concerned with psychological pressures emanating from sources other than

official coercion. Connelly, 474 U.S. at 523.

Aguilar also relies upon a snippet of commentary from another older

opinion, United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985). Aplt’s Brf. at

29-30. In Recalde, the defendant, the subject of a roadside stop, already had been

detained illegally for some time before the officers asked for his consent to search

while at the station house, as they had no grounds for an investigative detention,

and they had never returned his driver’s license, car registration and other papers.

Recalde, 761 F.2d 1452-57. In light of the above facts, this Court’s fleeting

observation that it was relevant to coercion that the defendant’s upbringing in

Argentina had instilled in him an acquiescence to police authority, id. at 1454,

seems barely germane to the outcome of the case.

29


Aguilar also relies upon United States v. Sims, 428 F.3d 945 (10th Cir.

2005). In Sims, the defendant challenged the voluntariness of his consent on

grounds that he was suffering from dementia at the time of his consent, which was

unapparent to the officers who arrested him. Sims, 428 F.2d at 951-53. In a

footnote, this Court cited Connelly and noted that coercive police activity was a

necessary predicate to a finding that a confession was not voluntary under the Due

Process Clause, but stated that such a “police-perspective test” had “not yet been

applied directly to a consent to search in any published circuit case.” Id. at 953

n.2. Because this Court concluded that the defendant’s consent was voluntary

despite his brain disorder, however, it declined to decide whether an individual’s

vulnerable subjective state was relevant only insofar as the police knowingly took

advantage of it in eliciting a consent to search. Id. After Davis and Herring,

however, there seems little chance that this Court would again have reason to

query whether a “police-perspective test” applies with the same force in consent

search cases as it does in confession cases.

Aguilar also seeks to downplay the import of United States v. Zapata, 997

F.2d 751 (10th Cir. 1993). In Zapata, the defendant agreed that an agent could

search his luggage, during an encounter on a train. Zapata, 997 F.2d at 753-54.

The trial judge granted the defendant’s motion to suppress the drugs found in the

30


luggage, finding, among other things, that because of the defendant’s background

in Mexico, he believed that he had to acquiesce to all police requests or suffer

possible physical harm. Id. at 755. This Court reversed. This Court first

expressed doubt on whether a person’s subjective characteristics could ever be

considered relevant to the voluntariness of a person’s consent. Id. at 759. “But

even assuming some subjective characteristics are relevant . . . to consent,” this

Court rejected the notion “that [the defendant’s] attitude toward police, from

whatever source, can constitute such a relevant subjective characteristic.” Id. at

759. The panel in Zapata acknowledged its disagreement with the panel in

Recalde, but still expressed confidence that even Recalde did not require a

defendant’s attitude toward authority to be accorded any significant weight. Id. at

759 n.6.

In his brief, Aguilar makes no mention of United States v. Pikyavit, 527

F.3d 1126 (10th Cir. 2008), a case addressing the closely related issue of the scope

of consent, in which this Court applied an objective standard and concluded that a

consenting party’s “subjective motivations are irrelevant.” Pikyavit, 527 F.3d at

1131-32. This Court, of course, should apply the same standard for ascertaining

the existence of consent that it applies for ascertaining how far that consent

extends. Yet Aguilar fails to address why this Court should adopt a conflicting

31


standard. Nor does Aguilar draw this Court’s attention to the line of cases

following Florida v. Bostick, 501 U.S. 429 (1991), in which this Court and others

have applied an objective criteria test for assessing whether an individual has

consented to speak to the police. Zapata, 997 F.2d at 757. Again, it only makes9

sense to employ objective tests both for assessing consent to speak and for

assessing consent to search.

Contrary to Aguilar’s claim, after Davis and Herring (and perhaps before),

there is simply no binding Tenth Circuit authority that requires this Court to

consider a person’s “subjective vulnerable state” as part of the totality of the

circumstances in consent search cases if that person’s subjective state is unknown

to the police. As outlined above, the Supreme Court in recent years could not

have been more forceful in explaining that the only purpose of the exclusionary

rule is to deter unreasonable law enforcement conduct. This inexorably leads to

the conclusion that officers do not violate the Fourth Amendment when they

reasonably believe that they have been granted voluntary consent to search.

See also United States v. Analla, 975 F.2d 119 (4th Cir. 1992) (applying9

reasonable person test to reject claim that a police encounter was not consensualbecause the defendant was from Morocco where officers were notorious fortorturing those who refuse to cooperate); United States v. Gordon, 895 F.2d 932(4th Cir. 1990) (applying reasonable person test to reject defendant’s claim that hedid not feel free to leave due in part to the fact that his father was a former policeofficer who taught him to respect and obey law enforcement personnel).

32


Hence, contrary to Aguilar’s position, it is abundantly clear that the Fifth

Circuit in United States v. Elrod, 441 F.2d 353, 356 (5th Cir. 1971) simply got it

wrong, while the Seventh Circuit in United States v. Grap, 403 F.3d 439, 444-45

(7th Cir. 2005), and the Eighth Circuit in United States v. Cedano-Medina, 366

F.3d 682 (8th Cir. 2004), got it right.

In Elrod, the police obtained consent to search from a defendant with a

history of mental illness. The Fifth Circuit resolved the consent issue against the

government, ruling that “[n]o matter how genuine the belief of the officers is that

the consenter is apparently of sound mind and deliberately acting, the search

depending on his consent fails if it is judicially determined that he lacked mental

capacity.” Elrod, 441 F.2d at 356.

Even before Davis and Herring, both the Seventh and Eighth Circuits had

rejected the Elrod approach. In Cedano-Medina, the Eighth Circuit ruled that “a

person can render a search legal by behaving in a way that would cause a

reasonable person to believe that he or she has knowingly and voluntarily

consented, whether or not the person actually intends to consent.” Cedano-

Medina, 366 F.3d at 684-85. Thus, a defendant’s “actual subjective state of mind

at the time that he allegedly gave his consent is not determinative; our focus,

rather, is on how a reasonable person could have perceived his state of mind at

33


that time.” Id. at 685. Anticipating Davis and Herring, the Seventh Circuit in

Grap also rejected the Elrod approach, by contrasting it to an earlier Seventh

Circuit decision, United States v. Strache, 202 F.3d 980 (7th Cir. 2000), as

follows:

Crucially, the apparent difference between the approaches tovoluntary consent in Strache and Elrod stems from the weight to beaccorded the evidence presented to a reasonable officer asking forconsent as opposed to some other facts, unknown to the officer, butlater argued to the reviewing court. There may be an inference inElrod that this after-presented evidence is strongly relevant, but in theStrache approach, it would be relevant only to impeach the credibilityof the officer or to shed any light on what was reasonably apparent tohim when he obtained consent. The standard of what is reasonablyapparent to a reasonable inquiring officer, with its emphasis on thedeterrence rationale of the exclusionary rule, is the correct approach. The purpose of suppression of evidence obtained in an unreasonablesearch is to deter violations of the Fourth Amendment. Obviously,they cannot be deterred by circumstances that are unknown to them,like the psychiatric history of the person consenting to a search. Thus, the exclusionary rule should not be applied when its applicationwill not result in appreciable deterrence.

Grap, 403 F.3d at 444-45 (internal quotation marks and citations omitted).

Aguilar also relies on three more recent, out-of-circuit cases: Lopera v.

Town of Coventry, 640 F.3d 388 (1st Cir. 2011); United States v. Montgomery,

621 F.3d 568 (6th Cir. 2010) and Tukes v. Dugger, 911 F.3d 508 (11th Cir. 1990).

None of these cases are persuasive. Although both Lopera and Montgomery

postdate Herring, they do not postdate Davis. And Tukes, like Elrod, predates

34


both Supreme Court cases. While all three of these cases do contain language to

the effect that coercive police conduct is not a necessary predicate to application

of the exclusionary rule in consent search cases, that conclusion is fatally

undermined by these courts’ uniform failure to recognize the limits the Supreme

Court recently has reimposed upon the exclusionary rule. Not a single case upon

which Aguilar relies so much as mentions Davis or Herring, much less seeks to

distinguish them or the rationale underlying them. By overlooking binding

Supreme Court authority, the decisions upon which Aguilar relies can carry no

persuasive weight.

In sum, in Davis, Herring and Connelly, the Supreme Court loudly and

clearly announced what it had said before: that the exclusionary rule is a remedial

measure aimed solely at regulating and deterring unreasonable police conduct. In

cases where there is no police conduct to deter, the exclusionary rule simply does

not apply. It is for that reason that Aguilar’s claims in the instant case have no

merit.

3. The district court correctly held in the alternative thatAguilar’s subjective reason for agreeing to meet with theagents at the Sam’s Club ultimately had no impact on thevoluntariness of his cooperation with the agents.

Even assuming, arguendo, that this Court could somehow disregard the

Supreme Court’s recent rulings and adopt Aguilar’s proposed rule in consent

35


search cases, Aguilar’s claim still fails. In its alternative holding, the district court

correctly held that, even if it had to consider them, Aguilar’s subjective

motivations for meeting the agents at the Sam’s Club were not weighty enough to

render his consent involuntary. To fully appreciate why the district court correctly

took such a dim view of Aguilar’s claim first requires a closer examination of the

record.

In its order, the district court stated that it was “persuaded by the testimony

of various members of the Kewa Pueblo that among members of the Kewa Pueblo

there is an established custom or tradition of deference to the Governor, and that if

Defendant believed that the special agents had been sent to his house at the

direction of the Governor, Defendant would have felt obligated to cooperate with

the agents.” Doc. 58 at 13-14 (emphasis in original). The district court then

decided that, as a result of Aguilar’s prior discussion with the Governor, when

Aguilar agreed to meet with the agents at the Sam’s Club, he was actually

“unsure” whether the investigation was being conducted at the direction or

approval of the Governor. Id. at 14. In that light, the district court found that

Aguilar’s “subjective concern that the special agents might be acting at the

Governor’s direction or with his consent contributed to Defendant’s decision to

meet with the special agents [at the Sam’s Club].” Id. (emphasis added) The

36


district court made no findings about Aguilar’s subjective concerns having any

effect on his later decision to allow the agents to view the feathers in his home

after he had invited them there from the Sam’s Club. The narrow scope of the

district court’s finding is important, because the only aspect of Aguilar’s

encounter with the agents that Aguilar challenges in his appeal relates to the

consent he gave to the agents to look at the feathers inside of his home.

Before addressing this issue, however, the district court’s findings about

Aguilar’s subjective concerns have to be understood within the context of the

actual testimony elicited during the motions hearing. For example, the testimony

from tribal members at the suppression hearing gives a different impression of the

tribal Governor’s alleged all-encompassing influence among tribal members than

one might envisage simply from reading Aguilar’s opening brief. For instance,

Aguilar describes the tribal Governor as the “absolute ruler” of the pueblo in his

opening brief, Aplt. Brf. at 9, 24, but the characterization of the Governor as some

sort of dictator does not appear to be based on any tribal member’s testimony. 10

Rather, that characterization appears to be drawn from the defense10

attorney’s cross examination of Agent Stanford who, in response to a questionasking him to compare how the role of a tribal governor may differ from the roleof a state governor, haltingly replied that he had “come to understand that – thatthey – they have more of an absolute rule as opposed to maybe some othergovernor that we would – we would know.” III-ROA at 40, 52-53. Notsurprisingly, the agent was unable to answer the defense attorney’s more pertinent,

37


Aguilar also states in his brief that the Governor controls access to the pueblo

under both tribal custom and “law,” Aplt’s Brf. at 9, 21, 24, but Aguilar never

presented the district court with any tribal ordinance or statute that established the

actual parameters of such a tribal law.

A tribal official did testify that the tribe has a tradition of having outsiders

provide “courtesy notice” by reporting to the Governor’s office before

approaching the pueblo. III-ROA at 162. But that same official acknowledged

that if an outsider saw a sign along the highway advertising Indian jewelry or

pottery for sale in the pueblo village, that person would be permitted to go to a

pueblo member’s house or residence to purchase the items without first stopping at

the Governor’s office to get permission. Id. at 184-85. The pueblo also hosts an

annual arts and crafts fair at which visitors are permitted to enter the pueblo

without obtaining any permission. Id. at 185. In addition, if a tribal member

invited a friend to his or her house, the friend could come over without asking the

Governor’s permission to do so. Id. at 188.

If an outsider obtains the Governor’s permission to approach the pueblo, the

outsider will be given an escort. Id. at 165. Even though the tribal police

follow up questions about how much power a tribal governor would have to ordera tribal member to cooperate in a criminal investigation. Id. at 40.

38


apparently have no law enforcement training, id. at 187, the purported reason for

the escort is for the safety of the outsider and the tribal member. Id. at 43-44, 196.

If an outsider has an escort, then pueblo members are expected to “cooperate” with

the outsider. Id. at 165. But there is a disconnect between suggestions made in

Aguilar’s appeal brief about the Governor’s alleged absolute control, see e.g.,

Aplt’s Brf at 9-10, 24-25, 33, 35-36, and the actual testimonial record as to

precisely what cooperation means in the context of a criminal investigation. In

fact, the record as to how far a pueblo member’s “cooperation” would be expected

to extend in a criminal investigation, including whether any cooperation would be

expected at all, is simply unclear. For example, when defense counsel asked

Aguilar’s sister whether she would have to answer the questions of someone that

the Governor had sent to her house, she did not reply in the affirmative, but

tellingly demurred, stating only, “Well, they have to be escorted, and let us know

what they’re there for.” III-ROA at 117. A tribal official also explained that if,

for example, a tribal member refused to turn over a car to an outsider who was in

the car repossession business even though that person was accompanied by a tribal

escort, the tribal member would not be perceived as “disrespecting” the Governor.

39


Tr. at 176. The record is also silent as to the amount of “cooperation” that would11

be owed to the Governor from tribal members who were confronted with outsiders

on the pueblo who were not accompanied by any tribal official, as occurred in the

instant case.

In his opening brief, Aguilar argues that “the powerful effect” of the agents’

initial arrival at his home gave him “good reason” to believe that the agents were

acting with the Governor’s approval. Aplt’s Brf. at 24. Yet the testimony at the

hearing established that such an effect was not so “powerful” as to be universally

understood. Thus, despite Aguilar’s original claim that his sister, Ms. Aguilar,

only cooperated with the agents because she too assumed that they had the

Governor’s approval to be at her home, I-ROA at 10, 64, the district court found

that, in fact, Ms. Aguilar cooperated with the agents even though she did not

believe that they were present at her home with the Governor’s approval. Id. at

162.

Indeed, Aguilar testified that when he first spoke to them on the telephone,

the agents identified themselves as federal agents. III-ROA at 211, 215-16. He

also acknowledged that the agents never told him that they were acting under the

After then explaining that “[t]hat’s more likely up to their decision[,]” the11

tribal official suddenly added, “No comment on that. I just don’t understand thequestion.” III-ROA at 176.

40


tribal Governor’s authority. Id. at 211. Still, Aguilar testified that when he spoke

to the agents on the telephone, he assumed they had the Governor’s “permission,”

so he waited for them at the Sam’s Club. Id. at 204. But at the motions hearing,

Aguilar himself actually never fully explained exactly what led him to believe that

the agents were acting under the Governor’s authority, id. at 204, 206, 211-12,

other than stating that he thought they had “permission ’cause they say there was

anonymous tip.” Id. at 206. Though Aguilar anchors his suppression argument 12

entirely upon the alleged depth of his subjective feelings toward the Governor,

Aguilar himself also never explained why his initial belief that the agents had the

Governor’s permission to speak to him actually mattered to him, or exactly how

that belief affected or motivated him. 13

Aguilar’s attorney states in Aguilar’s opening brief that his belief was12

based on the agents’ presence at his home, and his prior talk with the Governor,Aplt’s Brf. at 24, but the record does not appear to reflect that Aguilar everactually testified to either of those reasons at the hearing. In fact, during crossexamination of Aguilar, when the prosecutor suggested that the reason Aguilarthought the agents were acting under the Governor’s authority was because of hisprior meeting with the Governor, Aguilar initially denied that any such meetinghad ever even taken place. III-ROA at 211-12.

In his brief, Aguilar at times implies that the issue was one of Aguilar’s13

fear of “a very real authority that ran his small village as an absolute ruler,” Aplt’sBrf. at 24, and at other times, Aguilar suggests that it was a matter of honor. I-ROA at 64. But at the actual hearing, Aguilar himself provided no explanation.

41


In any event, Aguilar acknowledged that he “willingly and voluntarily”

stayed at the Sam’s Club to meet with the agents. Id. at 213. He also

acknowledged that he was “a free man on that day[,]” and that nobody forced or

threatened him to stay at the Sam’s Club and wait for the agents, or to talk to them

on the telephone. Id. at 214-25. At one point, Aguilar also testified that he could

have left the Sam’s Club, but he just wanted to see who the agents were, id. at 214,

or to “see what – what’s going on.” Id. at 217.

Aguilar met the agents at the Sam’s Club in a public place (the food court).

Id. at 216. The agents introduced themselves, showed their badges, were

“professional,” “polite and courteous” and did not threaten him. Id. Aguilar

admitted that it was his decision to answer the agents’ questions at the Sam’s

Club, which he also acknowledged doing “voluntarily” and as “a free man.” Id. at

218.

Aguilar made his verbal and written statements to the agents, id. at 218-22,

224-28, then invited them back to his home to see the feathers. Id. at 224. Aguilar

again agreed that he invited the agents into his house “freely and voluntarily,” and

that the agents did not threaten him. Id. at 230. Aguilar agreed that the agents

remained “polite and professional.” Id. at 238. At about the point that Aguilar

invited the agents into his home, he asked his sister to call the tribal officials to

42


alert the officials that the agents had returned. Id. at 236. Aguilar’s apparent

motivation to call the tribal officials, at least in part, was to learn who the agents’

anonymous source had been, and who had told the agents where he lived. Id. at

207, 239. Most importantly, Aguilar admitted that, at that point in his encounter

with the agents, he did not believe that the agents were at his home with the

Governor’s permission or authority. Nonetheless, he still agreed to the agents’

requests. Id. at 240-41. Aguilar showed the agents the feathers, and they asked if

they could take them. Aguilar responded, “Okay. If you want to take it, that is

fine.” Id. at 231. By contrast, when the agents asked Aguilar whether they could

look in his shed for more feathers, he denied their request. Id. at 231, 241.

Aguilar also denied the agents’ request to take the basket where he kept the

feathers. Id. at 235. At the motions hearing, Aguilar agreed that he was the

person making the decisions in his house that day, not the Governor. Id. at 241-

42.

Under the above circumstances, even assuming that the district court was

required to take into account Aguilar’s subjective reasons for cooperating with the

agents which the agents knew nothing about, the district court was correct in

holding that those concerns did not invalidate the consent Aguilar had given the

agents to see the feathers in his home. For Aguilar’s consent to have been

43


involuntary, his initial, uncertain belief on the telephone that the agents were

acting with the Governor’s “permission” would somehow have to have “tainted”

his subsequent consent for the agents to view the feathers in his home. But by

Aguilar’s own admission, by the time he invited the agents into his house, he no

longer believed that they were acting with the Governor’s permission. At that

critical juncture, therefore, any lingering “taint” had completely dissipated. When

Aguilar decided to show the agents the feathers in his home, he was acting

completely of his own volition.

In the past, this Court has assigned only token weight to an individual’s

subjective attitude toward authority as a factor in consent search cases. See, e.g.,

United States v. Iribe, 11 F.3d 1553,1557 (10th Cir. 1993) (opting not to give

intangible characteristic significant weight); United States v. Sanchez-Valderuten,

11 F.3d 985, 990 (10th Cir. 1993) (concluding that fact that defendant was from a

third world police state was not required to be given “great weight”); Zapata, 997

F.2d at 759 (finding generalities about attitudes toward the police to be

“vaporous” and not entitled to significant weight). In this case, Aguilar’s

testimony about what originally motivated him to meet with the agents at the

Sam’s Club actually seemed to be a mix of factors, including the possibility (1)

that the Governor may have been the source of the anonymous tip to the agents, or

44


(2) that by talking to the agents, he could find out “what’s going on.” III-ROA at

206, 214, 217. Overall, Aguilar’s testimony about what motivated him to

cooperate was fleeting, vague and inconclusive. Nothing about Aguilar’s

testimony suggested anything about his personal feelings that would have vitiated

his consent to search. The district court therefore was correct in following this

Court’s lead by according Aguilar’s claimed subjective beliefs only negligible

weight. This Court should affirm the district court’s denial of Aguilar’s motion to

suppress evidence.

II. THE DISTRICT COURT CORRECTLY DENIED AGUILAR’S MOTIONTO DISMISS THE INDICTMENT

A. Summary of Argument

The district court also correctly denied Aguilar’s motion to dismiss the

indictment under RFRA. This Court’s decision in Friday is fatal to Aguilar’s

RFRA claims because Aguilar failed to show that requiring him to obtain a permit

to obtain an eagle would substantially burden his exercise of religion. Friday, 525

F.3d at 947-48. Moreover, similar to the situation presented to this Court in

Wilgus, Aguilar has failed to present a viable alternative to the USFWS permit

system. Thus, even with a healthy population of bald eagles, the government’s

eagle permitting process continues to be the least restrictive means of advancing

45


the government’s compelling interest in protecting the bald eagle population for

all future generations of Americans, including Native Americans.

B. Standard of Review

Basic historic facts upon which a RFRA claim is founded are subject to a

clearly erroneous standard of review. Friday, 525 F.3d at 950. A district court’s

conclusions as to whether a governmental interest under RFRA is compelling, as

well as whether the government has chosen the least restrictive means of

advancing that compelling interest, are both subject to de novo review. Id. at 949.

46


C. Discussion

Aguilar argues that the district court should have dismissed his indictment

under the BGEPA because his prosecution violated RFRA. The district court

correctly denied Aguilar’s motion.

Under RFRA, the government cannot “substantially burden a person’s

exercise of religion” unless application of the burden to the person is (1) “in

furtherance of a compelling government interest” and (2) is the “least restrictive

means of furthering that compelling governmental interest.” 42 U.S.C. §

20000bb-1. Before a court may require the government to establish a sufficiently

compelling interest achieved by the least restrictive means, a defendant first must

show that applying a statute to him substantially burdens his exercise of religion.

Friday, 525 F.3d at 946. Aguilar has failed to make such a showing here.

The BGEPA “is one of the cornerstones of our nation’s efforts to protect

and preserve the bald eagle.” Wilgus, 638 F.3d at 1279. The statute consequently

bans and criminalizes such conduct as “taking” or possessing bald or golden14

eagles. 16 U.S.C. § 668(a). In recognition of the importance of eagles and their

feathers in many Native American religions, however, the BGEPA contains an

The term “taking” under the BGEPA includes killing the animal. United14

States v. Friday, 525 F.3d at 943 n.1.

47


exception to this ban “for the religious purposes of Indian tribes.” Id. Under

regulations prescribed by the Secretary of Interior, members of federally-

recognized tribes may apply for and obtain permits to take, possess, or transport

eagles, eagle parts and eagle feathers. 50 C.F.R. 22.22; Wilgus, 638 F.3d at 1278.

The USFWS maintains the Repository where eagle carcasses recovered by

USFWS agents or the public at large are sent. Id. at 1278-79. Native American

religious practitioners may apply to the Secretary of the Interior to obtain an eagle

or its parts and feathers from the Repository. Id. “The Repository sends out 1700-

1800 shipments a year, receives few complaints, and has approximately 4000

requests outstanding.” Friday, 525 F.3d at 944. “Native Americans whose needs

cannot be satisfied by the Repository may also apply for a permit to ‘take’ a live

eagle.” Id. Permits for the taking of a live eagle are infrequent. The USFWS

prefers not to decrease the eagle population. Id.

In his opening brief, Aguilar cites United States v. Quaintance, 608 F.3d

717, 719 (10th Cir. 2010) for the proposition that the government imposed a

substantial burden on his religion by virtue of the fact that the BGEPA criminally

punishes conduct that he performs for religious reasons. Aplt’s Brf. at 43.

Aguilar’s newfound reliance on the Quintance case is misplaced, however, just as

his similar reliance below upon United States v. Hardman, 297 F.3d 1116, 1126-

48


27 (10th Cir. 2002) (en banc), was misplaced. I-ROA at 37. Unlike Aguilar, the

defendants in Hardman were practitioners of Native American religions who were

not members of any federally recognized tribe. Consequently, the defendants in

Hardman were barred altogether from obtaining eagle feathers for religious

purposes under the BGEPA. Because of this absolute ban, this Court concluded

that the BGEPA imposed a substantial burden on the defendants’ exercise of

religion. Id. at 1126-27. In Quintance, the defendants were indicted for

conspiracy and possession with intent to distribute marijuana and claimed that

they were the founding members of a church in which marijuana was a deity and

sacrament. Quintance, 608 F.3d at 717. In Quintance, just as in Hardman, the

defendants had no permit system available that allowed them to exercise their

claimed religion. It was because of this complete ban that the government in

Quintance did not dispute that criminal punishment would constitute a substantial

burden on the defendants’ claimed religious beliefs. This led the government to

instead challenge the religiosity and sincerity of those beliefs. Quintance, 608

F.3d at 720.

As a member of a federally-recognized tribe, Aplt’s Brf. at 40, the question

in Aguilar’s case is whether it substantially burdened his religion to require him to

obtain a permit to either obtain an eagle from the Repository or to take a live

49


eagle. Friday, 525 F.3d at 947. This Court resolved that question in Friday, by15

concluding that the “bare requirement” of applying for a permit could not be

regarded as a substantial burden under RFRA. Id. at 947-48. Therefore, because16

Aguilar has failed to show that merely being required to apply for a permit

substantially burdened his exercise of religion, his RFRA claim should fail.17

Aguilar intimates in his opening brief that, like the defendant in Friday,15

he had to kill a “pure” eagle to satisfy his religious needs, and not merely receivean eagle from the Repository. Aplt’s Brf. at 41. Aguilar specifically asserts that“the Repository does not satisfy the needs of . . . the medicine men of the KewaPueblo, who must acquire the eagles in a traditional way that is incompatible withacquiring them through a permit process.” Id. In fact, unlike the defendant inFriday, Aguilar presented no evidence at the motions hearing to support this claimabout his alleged religious need for a “pure” eagle. The only record support thatAguilar cites in his opening brief for this argument came after all the evidence waspresented when his attorney suggested in argument that acquiring an eagle fromthe Repository was “inconsistent” with Aguilar’s “traditional practice,” arguingthat the Repository was not “as effective,” “as efficient” or “as sacred” as “thetraditional way.” III-ROA at 257-58. In fact, the actual evidence that seems totouch most directly on Aguilar’s claim about tribal tradition was GovernorTortalita’s comment to Agent Stanford that it was not customary for the Kewapeople to shoot eagles, and that it was a “shame” that Aguilar had done so. IISupp-ROA at 51. In his statement to the agents at the Sam’s Club, Aguilar alsostated that Governor Tortalita previously had told Aguilar “not to kill any moreeagles.” III-ROA at 227.

In support of its view, this Court noted that many “religious activities,16

from building a church to homeschooling a child to obtaining peyote for a NativeAmerican Church ceremonial, require some form of advance authorization fromthe State.” Friday, 525 F.3d at 947.

While Aguilar complains about the USFWS’s administration of the17

permitting process, Aguilar, unlike the defendant in Friday, does not claim that itwould have been futile for him to have applied for such a permit. Aplt’s Brf. at

50


But even assuming, arguendo, that Aguilar had made his required showing

under RFRA, he still could not prevail on his RFRA claim. This Court has

previously held – and Aguilar does not appear to dispute, I-ROA at 36 – that the

government has “a compelling interest in protecting the bald eagle as our national

symbol . . . ‘whether there [are] 100 eagles or 100,000 eagles.’” Wilgus, 638 F.3d

at 1285 (quoting Hardman, 297 F.3d at 1128). The crux of Aguilar’s argument is

that the government’s permitting system is not the least restrictive means of

achieving its compelling interest. Aguilar specifically contends that, because the

bald eagle population has recovered to the point where the USFWS delisted it as a

threatened species, the least restrictive means to protect bald eagles would be to

allow those Native Americans who legitimately take bald eagles for religious

purposes to kill the eagles without applying for permits. Aplt’s Brf. at 39. As

Aguilar acknowledges, id. at 47, this Court rejected a similar claim in Friday, 525

F.3d at 956. Indeed, while a more robust eagle population might one day affect

the least restrictive means calculus, the district court was correct in noting that18

40-42. Because Aguilar never applied for a permit, he cannot bring any as-appliedchallenges to the permit process. Friday, 525 F.3d at 950-51.

For example, the district court suggested that a thriving eagle population18

might permit the USFWS to consider more freely granting takings permits to thosewho apply for them. I-ROA at 174.

51


the USFWS did not intend “to declare an open season on eagles” when it delisted

the bald eagle. I-ROA at 173. Rather, the protections of BGEPA – including the

permit system at issue here – were factored into the decision to delist the bald

eagle. Id. As a consequence, the district court correctly found that delisting has

not significantly reduced the importance of the permit process. “A permitting

process is still necessary to keep track of takings; to influence the number, species,

and age of eagles taken and the season and geographic area from which eagles are

to be taken; to equitably allocate takings if demand exceeds supply; and to insure

that individuals invoking the exception for the religious purposes of Indian tribes

actually are tribe members and that the eagles are being taken and used for Native

American religious purposes.” Id. at 173-74 (citing Friday, 525 F.3d at 955).

Aguilar also offers no viable alternative to the current permit system. To

show that the regulatory scheme is the least restrictive, the United States need not

“refute each and every conceivable alternative regulation scheme,” but must

simply “support its choice of regulation [and] refute the alternative schemes

offered by the challenger.” Wilgus, 638 F.3d at 1289. Aguilar’s alternative – that

anyone with a legitimate religious need may kill an eagle at anytime, with no

restrictions or tracking of killed eagles – would eliminate the important

protections provided by the permit system. Moreover, it would create substantial

52


enforcement difficulties. As the Wilgus court explained in rejecting an alternative

to the current permit system that would have allowed “any sincere follower of

Native American religion” to obtain eagle feathers, “[t]his option has the

additional disadvantage of presenting significantly greater enforcement problems

than the current regulatory scheme.” Id. at 1293. Under such a scheme, a suspect

could simply “claim” to be a sincere follower of Native American religion, leaving

the “unlucky FWS agent … in the role of ‘religion cop,’ … forced to decide

whether the suspect is being truthful about his religious beliefs, or is in fact a

black marketer using Native American religion as a smokescreen.” Id. Similarly,

here, if anyone caught violating the BGEPA by killing an eagle could simply

assert that it was done for a religious purpose, that would create enforcement

difficulties by imposing “a religious litmus test that it is highly unlikely rational

FWS agents would even attempt to apply.” Id.

Without the current permit system, the country, or at least some parts of it,

could one day again reach the point of “catastrophic declines” in the eagle

population “without us ever knowing we were getting close.” Friday, 525 F.3d at

956. Aguilar’s proposal of abandoning the permit system for Native Americans

who kill eagles for religious purposes not only could threaten the extinction of our

national symbol, but also threaten the availability of bald eagles for Native

53


American religious purposes. This Court should therefore affirm the district

court’s denial of Aguilar’s motion to dismiss the indictment.

54


CONCLUSION AND STATEMENT CONCERNING ORAL ARGUMENT

For the reasons above, this Court should affirm both the district court’s

orders.

Oral argument is requested to address any issues this Court may have

regarding the potential split of opinion among the circuits in consent search cases.

Respectfully submitted,

KENNETH J. GONZALESUnited States Attorney

s\ Fred J. Federici FRED J. FEDERICIAssistant United States AttorneyNM Bar No. 7902Post Office Box 607Albuquerque, NM 87103(505) [email protected] for Appellee

55


BRIEF FORMAT CERTIFICATION

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that

this brief is proportionately spaced, has a typeface of 14 points or more, and

contains 13,106 words.

I relied on my word processor to obtain the count. My wordprocessor

software is Corel WordPerfect X4.

I certify that the information on this form is true and correct to the best of

my knowledge and belief formed after reasonable inquiry.

DATED this 15th day of August, 2012.

s\ Fred J. Federici FRED J. FEDERICIAssistant United States Attorney

56


CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION

I HEREBY CERTIFY that the foregoing Answer Brief was filed with the

Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by

using the appellate CM/ECF system on this 15th day of August, 2012, and seven

photocopies of Appellee's Answer Brief will be sent by Federal Express to the

United States Court of Appeals for the Tenth Circuit, Office of the Clerk, located

at the Byron White United States Courthouse, 1823 Stout Street, Denver, Colorado

80257, within two business days of the electronic filing.

I ALSO CERTIFY that Brian A. Pori, attorney for Defendant-Appellant

Martin Aguilar, is a registered CM/ECF user and that service will be accomplished

by the appellate CM/ECF system.

I ALSO CERTIFY that all required privacy redactions have been made, and

the copy of this document filed using the CM/ECF system is an exact copy of the

hard copies filed with the Clerk.

57


I ALSO CERTIFY that the digital submission of this document has been

scanned for viruses with scanning program Trend Micro OfficeScan Client

10.5.1997, most recently updated August 14, 2012, and, according to the program,

the file is free of viruses.

s\ Fred J. Federici FRED J. FEDERICIAssistant United States AttorneyNM Bar No. 7902P.O. Box 607Albuquerque, NM 87103(505) [email protected]

58


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