MANUEL VALENCIA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

No. CIV 15-1003 JB/CG
No. CR 12-3182 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings and Recommended Disposition, filed June 8, 2016 (CIV Doc. 13)(“PFRD”). In the PFRD, the Honorable Carmen E. Garza, United States Magistrate Judge, concludes that Petitioner Manuel Valencia fails to demonstrate that he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the Constitution of the United States of America, and recommends that the Court dismiss his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, November 4, 2015 (CIV Doc. 1)(“Petition”), with prejudice.¹

Judge Garza notified the parties that written objections to the PFRD were due within fourteen days. See PFRD at 19. Valencia filed Petitioner’s Objections to Proposed Findings and Recommended Disposition, filed June 27, 2016 (CIV Doc. 14)(“Objections”), and a Supplement to Petitioner’s Objections to Proposed Findings and Recommended Disposition, filed June 29, 2016 (CIV Doc 15). After a de novo review of the record and the PFRD, the Court adopts Judge

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Garza’s PFRD.

FACTUAL BACKGROUND

Valencia is incarcerated at the Santa Fe County Correctional Facility in Santa Fe, New Mexico. See Petition at 2. On January 20, 2015, Valencia pled guilty to conspiracy to distribute cocaine pursuant to a plea agreement. See Plea Agreement, filed January 20, 2015 (CR Doc. 742). On April 21, 2015, Valencia was sentenced to twenty-seven months imprisonment. See Petition at 5.

Valencia requests habeas review of his conviction pursuant to 28 U.S.C. § 2255, asking the Court to resentence him because his attorney, Ashli Summer McKeivier, was constitutionally ineffective. See Pretrial Memorandum, filed January 2, 2016 (CIV Doc. 6). The Court referred this matter to Judge Garza to conduct analysis, and to make findings of fact and recommend a disposition. See Order Referring Case, filed November 5, 2015 (CIV Doc. 2). Judge Garza concluded that the Court should dismiss Valencia’s claim with prejudice, because Valencia fails to demonstrate that he was denied effective assistance of counsel in violation of his Sixth Amendment rights.

1. Objections.

Pursuant to rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a pretrial dispositive motion to a Magistrate Judge for proposed findings of fact and recommendations for disposition. Within fourteen days of being served, a party may file objections to this recommendation. See Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A party may respond to another party’s objections within fourteen days of being served with a copy; the

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rule does not provide for a reply. See Fed. R. Civ. P. 72(b).²

When resolving objections to a Magistrate Judge’s recommendation, the district judge must make a de novo determination regarding any part of the recommendation to which a party has properly objected. See 28 U.S.C. § 636(b)(1)(C). Filing objections that address the primary issues in the case “advances the interests that underlie the Magistrate’s Act,[³] including judicial efficiency.” United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel“). Objections must be timely and specific to preserve an issue for de novo review by the district court or for appellate review. One Parcel, 73 F.3d at 1060. Additionally, issues “raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In this circuit, theories raised for the first time in objections to the magistrate judge’s report are deemed waived.”).

In this case, Valencia requests habeas review of his conviction pursuant to 28 U.S.C. § 2255, alleging that he was denied effective assistance of counsel because his attorney did not (i) provide Valencia with a hard copy of his Presentence Report; (ii) seek a downward departure pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 5K2.12 for coercion or duress; (iii) object to the Presentence Report referring to Valencia as a “distributor” of cocaine rather than a “courier,” in support of a minor or minimal role adjustment; (iv) request a 2-level reduction for safety valve pursuant to U.S.S.G. §§ 5C1.2, 2D1.1(17); (v) argue that the quality

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issues with the cocaine served as a mitigating factor pursuant to U.S.S.G. § 2D1.1; (vi) request a “split sentence,” with home confinement; (vii) ask the Court to include a recommendation for a nearby Federal Correctional Institution (“FCI”) including FCI Phoenix; (viii) ask the Court to recommend that the Valencia participate in the Bureau of Prisons’ Residential Drug Abuse Program (“RDAP”); (ix) “remind” the Court that he complied with his conditions of release; (x) tell the Court that he voluntarily forfeited his right to his motorcycle; (xi) object to the fine amount; and (xii) present the Court with family hardships and character letters submitted on Valencia’s behalf. See Pretrial Memorandum, filed January 2, 2016 (CIV Doc. 6).

After considering all of the evidence in the record, Judge Garza determined that Valencia had not demonstrated that his attorney provided ineffective assistance of counsel. See PFRD at 19. Accordingly, Judge Garza recommends that the Court dismiss all of Valencia’s claims for habeas relief with prejudice. See PFRD at 19.

Valencia has now filed Objections and Supplemental Objections. In these Objections, Valencia reiterates all of the points he previously made. In addition, Valencia provides further facts regarding his attorney’s decision not to request a safety valve reduction for Valencia. See Supplemental Objections at 2. Valencia suggests that this new evidence indicates that his attorney’s decision was neither a strategic decision nor a reasonable decision. See Supplemental Objections at 2. Additionally, Valencia raises, for the first time, the argument that his attorney failed to advise him about his sentence. See Objections at 3, 8, 9, 15. Finally, Valencia requests the Court hold an evidentiary hearing based on the Motions, files, and records. See Objections at 1. The United States of America has not responded to Valencia’s Objections.

Law Regarding Ineffective Assistance of Counsel

In the PFRD, Judge Garza explains that, to establish ineffective assistance of counsel,

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Valencia must show that counsel’s performance was deficient because it fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Valencia must satisfy both prongs outlined in Strickland v. United States to demonstrate that counsel was ineffective. Strickland v. Washington, 466 U.S. at 687. Accordingly, the Court does not need to address both prongs if Valencia makes an insufficient showing on one. See United States v. Dowell, No. 10-1084, 388 Fed. Appx. 781, 783 (10th Cir. July 21, 2010)(unpublished)(citing Strickland v. Washington, 466 U.S. at 697).

In determining whether counsel’s performance falls below an objective standard of reasonableness, “counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” United States v. Rushin, 642 F.3d 1299, 1307 (10th Cir. 2011)(internal citations and quotations omitted). Indeed, “[s]trategic or tactical decisions on the part of counsel are presumed correct, unless they were completely unreasonable, not merely wrong, so that they bear no relationship to a possible defense strategy.” United States v. Jordan, No. 13-3033, 516 Fed. Appx. 681, 682 (10th Cir. June 5, 2013)(unpublished)(citing Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001)).

To establish prejudice, Valencia must show “that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 688. In connection with a plea agreement, Valencia must demonstrate that, “but for counsel’s errors, he would not have pled guilty but rather would have gone to trial.” Neef v. Heredia, No. 09-2200, 2010 WL 286562, at *2 (10th Cir. Jan. 26, 2010)(unpublished)(citing Hill v. Lockhart, 474 U.S. 52, 56-59 (1985)). See United States v. Abston, No. 10-5091, 401 Fed. Appx. 357, 362

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(10th Cir. Nov. 5, 2010)(unpublished).

ANALYSIS

1. TRIAL COUNSEL’S PERFORMANCE.

Upon review of the record, Judge Garza concludes that, while Valencia alleges his attorney failed to argue certain issues to the Court, Valencia does not demonstrate that his attorney’s choices were objectively unreasonable. In addition, Judge Garza concludes that Valencia did not argue that his attorney’s decisions prejudiced him. As a result, Judge Garza concludes that Valencia fails to demonstrate that counsel was ineffective.

The Court agrees with Judge Garza’s analysis. In his Objections, Valencia continues to question his attorney’s decisions, but he does not provide any facts that suggest his attorney’s decisions prejudiced him. As Judge Garza stated in the PFRD, if Valencia alleges ineffective assistance of counsel in connection to a plea agreement, Valencia must demonstrate that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial. See Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001)(citing Hill v. Lockhart, 474 U.S. at 52, 59). In both his Petition and his Objections, Valencia continues to maintain that his attorney failed to provide him with his Presentence Report and did not advocate positions with the Court as Valencia requests. Valencia does not allege, however, in his Petition or his Objections that his attorney’s decisions prejudiced him or that he would not have pled guilty. The Court therefore finds that Valencia has failed to meet his burden to demonstrate that his attorney’s performance was constitutionally deficient. Because Valencia reiterates the same arguments in his Objections, the Court will address only the safety-valve reduction argument, as Valencia argues that he has new evidence.

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1. TRIAL COUNSEL’S FAILURE TO REQUEST A SAFETY VALVE REDUCTION.

Valencia continues to argue that his attorney was constitutionally ineffective because she did not advocate for a safety-valve reduction. See Objections at 5-6, 13-14. In his Supplemental Objections, Valencia alleges additional facts to support his claim. See Supplemental Objections at 1-2. Valencia’s additional factual allegations, however, do not convince this Court to overrule Judge Garza. Valencia provides the Court with what he states is the transcript of a voicemail that his attorney left Valencia, in which she says “I need to talk to you[,] we need to discuss this safety valve [proffer] so that we could get those two points[.]” See Supplemental Objections at 2. Valencia contends that this voicemail proves that his attorney did not make a strategic decision in failing to ask for the safety-valve reduction and that it was unreasonable not to ask the Court for the reduction. See Objections at 4. Even assuming this decision was objectively unreasonable, Valencia does not argue that the decision prejudiced him, or that he would have decided to plead not guilty and go to trial if he had known that his attorney was not seeking a safety-valve reduction. Because the test for ineffective assistance of counsel is a two part test and Valencia does not address the prejudice prong of the test, the Court also finds that Valencia has failed to meet his burden to demonstrate that his attorney’s performance was constitutionally deficient.

In addition to these new facts Valencia states that Judge Garza “fails to analyze whether Valencia is in fact eligible for a safety-valve reduction.” Objections at 13. However, in its Response in Opposition to Motion to Vacate Sentence, filed February 29, 2016 (CIV Doc. 11), the United States of America stated that Valencia was not eligible for the safety-valve reduction under U.S.S.G. § 5C1.2 because, Valencia was not truthful to the United States during his debriefing. See Response in Opposition to Motion to Vacate Sentence at 13-14. Judge Garza

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explained in the PFRD that, to qualify for the safety valve reduction, Valencia must “truthfully provide[ ] to the Government all information and evidence [Valencia] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” U.S.S.G § 5C1.2(a)(5). Based on the United States’ representations to his attorney that Valencia was not honest, the Court agrees with Judge Garza that his attorney made a reasonable strategic decision not to seek a safety valve reduction. Because the strategy was reasonable under the circumstances and because Valencia does not allege prejudice, the Court agrees that Valencia has not shown that his attorney was ineffective.

1. TRIAL COUNSEL’S SENTENCE ESTIMATION.

In his Objections, Valencia alleges for the first time that his attorney assured him that he would receive probation in this case if he pled guilty. See Objections at 3, 8, 9, 15. Claims that Valencia did not raise before the Magistrate Judge are deemed waived. Garfinkle v. United States, 261 F.3d at 1031. The Court will therefore not address this argument.

1. EVIDENTIARY HEARING.

Finally, Valencia asks that the Court hold a hearing on the Petition. See Objections at 1, 19. Judge Garza concluded that “the pleadings, files, and records conclusively show that Valencia is not entitled to any relief,” and therefore Judge Garza determined that she did not need to hold a hearing. PFRD at 19. A court must hold an evidentiary hearing on a § 2255 petition unless the motions, files, and records conclusively show that the prisoner is not entitled to any relief. See 28 U.S.C. § 2255(b). The Court also finds that the existing record clearly shows that Valencia is not entitled to relief; consequently, the Court will not hold a hearing on the Petition.

In sum, the Court concludes that Valencia has not met his burden to show that counsel’s

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performance prejudiced him. The Court thus agrees with Judge Garza’s conclusions that Valencia has not demonstrated that he received ineffective assistance of counsel, and that the Court should dismiss the Petition with prejudice.

The Court concludes that Judge Garza conducted the proper analysis and correctly concluded that the Court should dismiss Valencia’s claims with prejudice. The Court overrules Valencia’s objections.

IT IS ORDERED that: (i) Judge Garza’s Proposed Findings and Recommended Disposition, filed June 8, 2016 (CIV Doc. 13) are adopted; and (ii) the Court will dismiss Valencia’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, November 4, 2015 (Doc. 1), with prejudice.

/s/_________
UNITED STATES DISTRICT JUDGE

Counsel:

Stephen D. Aarons
Aarons Law Firm, PC
Santa Fe, New Mexico

Attorney for the Petitioner

Damon P. Martinez
United States Attorney
Shana B. Long
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico

Attorneys for the Respondent

——–

Footnotes:

1. Documents referenced as “CIV Doc. ___” are from No. CIV 15-1003 JB\CG. Documents referenced “CR Doc. ___” are from No. CR 12-3182 JB.
2. The Federal Rules of Civil Procedure may be applied to the extent that they are not inconsistent with any statutory provisions or the Rules Governing Section 2255 Proceedings. See rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
3. 28 U.S.C. §§ 631-39.

——–

UNITED STATES of America, Plaintiff–Appellee, v. John GOULD, Defendant–Appellant. No. 11–2057. United States Court of Appeals, Tenth Circuit.

Summaries: Source: Justia A New Mexico jury convicted former prison guard Defendant-Appellant John Gould of two counts of depriving an inmate of his rights under color of law, and two counts of filing a false report. The convictions arose out of Defendant’s use of excessive force against two inmates in two different detention centers and his filing of false reports to cover the incidents up. On appeal, Defendant sought reversal of all the charges against him, arguing that the delay between his conviction and the entry of the final judgment violated his Sixth Amendment rights, and that the district court erred in excluding certain evidence. Finding no violation of Defendant’s constitutional rights, and finding that if there was an error in excluding the evidence, it was harmless, the Tenth Circuit affirmed the district court’s decisions. [672 F.3d 933]

Stephen D. Aarons of Aarons Law Firm PC, Santa Fe, NM, for Defendant–Appellant. Lisa J. Stark, Attorney, (Thomas E. Perez, Assistant Attorney General; Jessica Dunsay Silver, Principal Deputy Chief, with her on the brief), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, BALDOCK and TYMKOVICH, Circuit Judges.
BRISCOE, Chief Judge.
A New Mexico jury convicted John Gould, a former prison guard, of two counts of
depriving an inmate of his rights under color of law, in violation of 18 U.S.C. § 242, and two
counts of filing a false report, in violation of 18 U.S.C. § 1512(b)(3). These convictions arose
out of Gould’s use of excessive force against two inmates in two different detention centers,
and his subsequent filing of false reports to cover up the incidents. Gould seeks reversal of
his convictions and dismissal of all charges against him, arguing 1) that the delay between his
conviction and the entry of final judgment violated his Sixth Amendment right to a speedy
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-2-
trial; and 2) that the district court erred in excluding from evidence three memoranda he
wrote. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I
In 2002, Gould was employed as a lieutenant and shift leader at the Doña Ana County
Detention Center in New Mexico. On October 16, 2002, Gould asked two officers to move an
inmate from one cell to another, and they radioed back that the inmate was resisting. Gould
told the officers to standby and wait for him, but they continued to try to move the inmate.
Two other officers began to assist them, and then the four officers began assaulting the
inmate. Another officer who saw the fight sent out an “officer down” radio call to all the
officers in the facility. This officer also joined the assault. Gould responded and arrived to
find four or five officers on top of the inmate, with another forty-five officers looking on.
Gould twice pepper sprayed the inmate in the face and then assaulted him. The inmate was
badly injured, suffering three fractured ribs, a broken elbow, a fractured shoulder, bleeding
in the eye, and myriad bruises and abrasions. The following morning, Gould filed a false
report about the incident.
In August 2004, a grand jury returned an indictment charging Gould with deprivation of
rights under color of law and filing a false report. Five other officers also filed false reports
and were charged, but they ultimately entered into plea agreements and testified against
Gould.
The August 2004 indictment also contained two additional charges which arose out of a
separate incident that occurred at the Cibola County Detention Center. There, Gould shot
twelve rounds of nonlethal projectiles at a prisoner from close range, causing deep bruising
and an infected wound. As a result of the Cibola County incident, Gould was convicted of
deprivation of rights under color of law and filing a false report, but he does not raise any
evidentiary challenges regarding those convictions. But he does argue with respect to all four
convictions that the delay between his conviction and sentencing and
[672 F.3d 934]
the final entry of judgment violated his Sixth Amendment right to a speedy trial.1
A. District court proceedings
We relate the tortured procedural history of this case, which is punctuated by long,
inexplicable periods of delay. After a nine-day jury trial, the jury convicted Gould on all four
counts on April 2, 2007. Eight days later, on April 10, 2007, Gould filed a motion for a new
trial based on alleged Brady violations stemming from the government’s failure to produce
documents from 2003 regarding the Doña Ana County victim’s psychological state. The
district court denied the motion on January 2, 2008. Both parties filed several motions to
continue sentencing thereafter. On April 16, 2008, the government filed a motion to continue
and a motion to disclose to defense counsel a 2005 competency report which again pertained
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-3-
to the same Doña Ana County victim. On March 25, 2009, the court granted the motion to
disclose the 2005 competency report. On May 6, 2009, more than one year after his
conviction, the district court sentenced Gould to ninety-seven months on each count, with
the sentences to run concurrently. On that same date, May 6, 2009, Gould filed a renewed
motion for a new trial, which referred to the 2005 competency report. On November 18,
2010, Gould moved for reconsideration of his sentence, based on the delay between his
conviction and his sentencing and on the continuing delay between his sentencing and the
entry of final judgment. The district court entered the final judgment on January 19, 2011,
623 days after his sentencing and 1388 days after his conviction. The district court denied
Gould’s motion for reconsideration on February 23, 2011 and his renewed motion for a new
trial on March 16, 2011. Thereafter, Gould filed a timely notice of appeal.
Throughout the period that elapsed from his conviction until entry of final judgment,
Gould was held in administrative segregation. He was placed in administrative segregation
for his own protection because of his past employment as a prison guard. Gould was housed
in a single cell for twenty-three hours each day, removed only for exercise or showers. Gould
maintains that, had the final judgment been entered earlier, he would have been transferred
to a Bureau of Prisons facility where only inmates with law enforcement backgrounds are
held, and he would have been allowed to move from administrative segregation to general
population. Indeed, since entry of judgment, he has been transferred to such a facility and
placed into the general population. He has also advanced to trustee status, a designation that
offers an inmate some additional freedoms.
II
Gould raises two issues. First, he seeks “appropriate relief” 2 on the grounds
[672 F.3d 935]
that the trial court violated his Sixth Amendment right to a speedy trial by delaying
imposition of his sentence. 3 Second, he seeks reversal of his convictions on the grounds that
the district court erred in excluding as hearsay several memoranda Gould had written.
A. The district court did not violate Gould’s Sixth Amendment right to a speedy
trial.
1. Standard of review
We review Gould’s Sixth Amendment claim de novo, but accept the district court’s
factual determinations unless clear error is shown. United States v. Seltzer, 595 F.3d 1170,
1175 (10th Cir.2010); United States v. Lampley, 127 F.3d 1231, 1239 (10th Cir.1997). A
district court’s factual finding is clear error only if it “is simply not plausible or permissible in
light of the entire record on appeal.” United States v. Garcia, 635 F.3d 472, 478 (10th
Cir.2011).
2. The Period of delay
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-4-
The parties disagree about how we should calculate the period of delay, and whether all
or part of the period from conviction to the entry of final judgment should be considered.
Gould argues that the delay totals 1,388 days, which includes the period from his conviction
on April 2, 2007, until the court entered judgment on January 19, 2011. Aplt. Br. at 8. The
government argues that the delay totals only 765 days, which includes the period from
Gould’s conviction until his sentencing on May 6, 2009. The government suggests that we
not consider the delay between sentencing and entry of the final judgment. Aplee. Supp. Br.
at 42. In support of this view, the government relies on our statement in United States v.
Yehling that “[t]he Sixth Amendment guarantees all criminal defendants the right to a
speedy trial; we have applied this right from arrest through sentencing” as the basis for its
argument that the Sixth Amendment only requires a speedy trial through sentencing. Id. at
31 (citing United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir.2006)). However, Yehling
went on to apply the Sixth Amendment to a period after sentencing, which included
consideration of a motion for a new trial. Moreover, Yehling recognized the need to prevent
“unreasonable delay from arrest through sentencing and throughout the appellate
[672 F.3d 936]
process.” 456 F.3d at 1243. The defendant in Yehling also asserted a Fifth Amendment due
process claim, and the opinion could be read as relying on the Fifth Amendment for the
extension of the right to a speedy trial to any post-sentencing period. Id. We have not
explicitly addressed whether the right to a speedy trial includes the right to a timely entry of
judgment. As regards the present case, we will assume without deciding that the right to a
speedy trial extends to the entry of final judgment. See Dickey v. Florida, 398 U.S. 30, 44, 90
S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring) (“This Court has assumed,
arguendo, but has not decided, that the interval between judgment and sentencing is
governed by the [speedy trial] clause.”). Thus, in determining whether the delay violated
Gould’s Sixth Amendment right, we consider the entire 1,388 day period that elapsed from
Gould’s conviction until the entry of final judgment.4
In conducting our speedy trial analysis, we must first address whether we consider the
period as a whole, or as two periods: the period between Gould’s conviction and sentencing,
and the period from sentencing to entry of final judgment. The government and the district
court both break the delay into two periods. The district court first looked at the delay from
conviction to sentencing, and then separately considered the delay from sentencing to the
entry of final judgment. Gould does not explicitly contest the district court’s approach, but
his arguments address the period as a whole, and not as two separate periods. Aplt. Br. at 14.
We conclude that it is appropriate to consider the period of delay as a whole. The right to
a speedy trial is enumerated in the Sixth Amendment. The Sixth Amendment guarantees a
speedy trial, which requires the entire trial, start to finish, be speedy. As we are assuming
here that the right to a speedy trial extends to the entry of final judgment, we will consider
the entire period from conviction to entry of final judgment as a whole, and not on a
piecemeal basis.
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-5-
3. The delay did not violate Gould’s right to a speedy trial
To determine whether a particular delay violates a defendant’s right to a speedy trial, we
apply the four-factor test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972):
(1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his
right; and (4) prejudice to the defendant. None of the factors are necessary or sufficient;
rather, the factors are related and should be considered together with other relevant
circumstances.
Yehling, 456 F.3d at 1243 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182) (internal citations
omitted).
a. Length of delay
“The first factor, length of delay, functions as a ‘triggering mechanism.’ ” Id. (citing
Barker, 407 U.S. at 530, 92 S.Ct. 2182). The remaining factors are examined only if the delay
is first determined to be long enough to be presumptively prejudicial. Id. Here, both parties
agree that the length of delay is sufficient to trigger the remaining Barker factors. Aplee.
Supp. Br. at 42; Aplt. Br. at 8, 14.
[672 F.3d 937]
b. Reason for delay
We next assess the reason for the delay in this case. As a preliminary matter, we must
first determine what portion of the delay resulted from the defendant’s actions—a “[d]elay[ ]
attributable to the defendant do [es] not weigh against the government.” United States v.
Abdush–Shakur, 465 F.3d 458, 465 (10th Cir.2006). “[T]he reason for the delay[ ] ‘weighs
against the government in proportion to the degree to which the government caused the
delay.’ ” Yehling, 456 F.3d at 1244 (quoting United States v. Batie, 433 F.3d 1287, 1291 (10th
Cir.2006)).
The district court determined that Gould bore responsibility for 481 of the 764 days of
delay between conviction and sentencing because he had filed three motions for continuance
and also delayed his filing of a promised renewed motion for new trial for eleven months.
Although the district court noted that the government also filed three unopposed motions for
continuance, the district court noted the government’s April 16, 2008, motion to continue,
which resulted in 343 days of the 481 day delay, was sought to provide Gould time to file the
promised renewed motion for new trial. ROA, Vol. 1 at 781. Thus, the district court allotted
this period of delay to Gould. Id. In its April 16 motion to continue, however, the government
noted that Gould planned to file a renewed motion for new trial upon receiving a mental
health evaluation for the Doña Ana County victim. Id. at 649. The government filed a motion
to disclose that mental health evaluation on April 16, 2008, concurrent with its motion to
continue. Id. at 653. The district court failed to rule on the motion to disclose the mental
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-6-
health evaluation until March 25, 2009. Id. at 664. Therefore, attributing all of the 343 days
that elapsed after the government’s motion to continue to Gould was clear error, as it
appears that the district court’s delay in ordering disclosure of the 2005 report prevented
Gould from filing his renewed motion for new trial. Id. at 649, 658; Garcia, 635 F.3d at 478.
In light of the district court’s delay, we determine that the government bears responsibility
for the period of delay from April 16, 2008, to March 25, 2009. Gould then bears
responsibility for only 138 days of the 764 days of delay between conviction and sentencing.
The district court also found that the remaining delay of 623 days, between sentencing
and the entry of the final judgment, was the result of the court’s clerical error and thereby
attributable to the government. ROA, Vol. 1 at 797. Thus, in total, Gould bears responsibility
for roughly ten percent of the delay, while the government bears responsibility for the
remaining ninety percent. Because the government is responsible for the bulk of the delay,
this factor weighs against the government.
However, in determining how heavily the delay weighs against the government, we must
also assess the cause of the delay. Purposeful delay or delay to gain advantage weighs heavily
against the government, while “[a] more neutral reason such as negligence or overcrowded
courts [is] weighted less heavily.” Barker, 407 U.S. at 531, 92 S.Ct. 2182. Before the district
court, Gould expressly declined to allege that the government purposely delayed the
proceedings, stating that “this was not purposeful delay or purposeful delay to achieve some
sort of a benefit. This is just simple inadvertence and crowded calendars.” ROA, Vol. 3 at
281–82; see also id., Vol. 1 at 794 (trial court noting that Gould “[d]oes not assert intentional
delay”). Immediately after Gould made this statement, however, the prosecutor told the
court that she made periodic telephone inquires about the status of the
[672 F.3d 938]
final judgment, but did not file any motion seeking resolution of the matter, because, “as far
as filing anything on the record, frankly, Your Honor, my fear would be to induce exactly
what we’ve got here, to induce [Gould’s lawyer] to file a motion saying that there had been
some sort of delay that would necessitate further proceedings on this.” Id., Vol. 3 at 299.
Now, on appeal, Gould points to this statement to argue that the prosecutor may have been
purposefully complicit in the delay.
Given the arguments presented before the district court, Gould is now precluded from
arguing that the government’s delay was attributable to anything other than negligence or
inadvertence. After hearing the prosecutor’s statement, the district court provided Gould an
opportunity for further argument, but Gould did not avail himself of that opportunity.
“[F]ailure to raise an argument before the district court generally results in forfeiture on
appeal.” United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir.2007). “Nevertheless, this
court has recognized an exception where the argument involves a pure matter of law and the
proper resolution of the issue is certain.” Id. at 1202. The question Gould now presents is a
fact question regarding the government’s motivation in allowing the delay and/or
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-7-
purposefully refraining from filing a motion seeking entry of the final judgment, and
therefore does not fall within the issue-of-law exception.
While the government caused a majority of the delay in this case, we do not deem the
delay purposeful. This factor weighs in Gould’s favor, but not heavily.
c. Defendant’s assertion of his right
The defendant’s assertion of his right is “[p]erhaps [the] most important” of the four
Barker factors. Batie, 433 F.3d at 1291. “[T]he defendant’s assertion of the speedy trial right
is entitled to strong evidentiary weight in determining whether the defendant is being
deprived of the right.” United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.1994) (citations
and quotations omitted). While a defendant who fails to demand a speedy trial does not
inherently waive that right, “[w]e emphasize that failure to assert the right will make it
difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 532,
92 S.Ct. 2182. And the defendant’s burden of showing he desired a speedy trial “is not
satisfied merely by moving to dismiss after the delay has already occurred.” Batie, 433 F.3d
at 1291. Thus, if the defendant fails to demand a speedy trial, moves for many continuances,
or otherwise indicates that he is not pursuing a swift resolution of his case, this factor weighs
heavily against the defendant.
In the present case, the district court found that this factor weighed against Gould
because Gould made no effort to contact the court for eighteen months after the sentencing
on May 6, 2009, until he filed a motion for reconsideration of his sentence on November 18,
2010. ROA, Vol. 1 at 799. This eighteen-month period constitutes the great majority of the
twenty-month delay between sentencing and entry of judgment. Moreover, the November
2010 motion, which was filed more than forty-three months after his conviction, was the first
time Gould asserted his right to a speedy trial. Id. at 783. Gould’s counsel admitted that
Gould had not appropriately asserted his right: “I understand that there’s some concern that
the defendant didn’t [assert] his right as much as he should have, and I think that’s a fair
finding by the court.” Id. at 799. As a result of Gould’s long delay in asserting
[672 F.3d 939]
his right, this factor weighs heavily against him.
d. Prejudice to the defendant
“[A] showing of prejudice may not be absolutely necessary in order to find a Sixth
Amendment violation, [but] we have great reluctance to find a speedy trial deprivation where
there is no prejudice.” Perez v. Sullivan, 793 F.2d 249, 256 (10th Cir.1986). “In fact, it might
be said that once a defendant has been convicted it would be the rarest of circumstances in
which the right to a speedy trial could be infringed without a showing of prejudice.” Id.
“Prejudice is assessed in light of the interests the speedy trial and due process rights
were designed to protect: preventing oppressive incarceration, minimizing anxiety and
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-8-
concern of the defendant, and limiting the possibility that the defense will be impaired.”
Yehling, 456 F.3d at 1244–1245 (quotations and citations omitted). But the prejudice
calculus changes once a defendant has been convicted: “once a defendant has been convicted,
the rights of society increase in proportion to the rights of the defendant. Post-conviction
prejudice therefore must be substantial and demonstrable.” Id. (quotations and citations
omitted).
When addressing the potential for prejudice to the defendant, the possibility that the
defense will be impaired “is the most serious ‘because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system.’ ” Dirden, 38 F.3d at 1138 (citing
Barker, 407 U.S. at 532, 92 S.Ct. 2182). We have also given some weight to the anxiety and
concern of the defendant, but our cases suggest that we require the defendant to show some
“special harm suffered which distinguishes his case.” Id. Further, “the anxiety of an accused
is not to be equated for constitutional purposes with anxiety suffered by one who is
convicted, in jail, unquestionably going to serve a sentence, and only waiting to learn how
long that sentence will be.” Perez, 793 F.2d at 257.
Finally, once a defendant had been convicted, we have not considered conditions of
incarceration when determining prejudice, where a defendant claims that the conditions
would have been different after sentencing:
The benefits arguably available to defendant in [a different] penitentiary are entirely
speculative not only concerning whether he would have qualified, but also concerning the
extent to which he would have participated or benefited…. We decline to attach Sixth
Amendment speedy trial dimensions to amenities and benefits a convicted felon might
receive in one prison but not another.
Id. (footnote and citations omitted). Thus, the prejudice prong of the Barker test presents a
high bar for a defendant who has been convicted, and, as previously stated, failure to show
prejudice is nearly fatal to a speedy trial claim. Id. at 256.
In the present case, the district court found Gould failed to show that he was prejudiced
by the delay in his sentencing and the entry of judgment. Gould did not argue that the delay
impaired his defense, relying instead on allegations of psychological harm resulting from his
oppressive confinement and the oppressive confinement itself. ROA, Vol. 1 at 784, 789, Vol. 3
at 289–90. This alleged prejudice is foreclosed by our decision in Perez. In that case, as here,
the defendant claimed prejudice due to the conditions he encountered in one prison as
opposed to the conditions he expected to encounter in another, and we declined to extend
speedy trial protection for such speculative claims.
[672 F.3d 940]
Perez, 793 F.2d at 257. Moreover, an inmate has other avenues available to challenge
conditions of confinement, which counsels against our extending Sixth Amendment
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-9-
protection to this type of claim. Thus, Gould does not show that he was prejudiced from the
delay, which weighs heavily against him.
e. Assessing the four factors
On the whole, the four factors favor denial of Gould’s Sixth Amendment speedy trial
claim. While the length of the delay suffices to trigger a Barker analysis, and the reason for
the delay weighs lightly in Gould’s favor, his failure to adequately assert his speedy trial
rights and his inability to show prejudice weigh heavily against him. In particular, because
“we have great reluctance to find a speedy trial deprivation where there is no prejudice,” his
failure to show prejudice alone is nearly fatal to his claim. Id. at 256. Balancing these factors,
we must conclude that Gould has not established a Sixth Amendment speedy trial violation.
While this result is troubling given the lengthy delay from conviction to the entry of final
judgment, a delay which certainly exceeded the norm of timely criminal case processing, it
does not rise to the level of a constitutional speedy trial violation.
B. Any district court error in excluding the memoranda was harmless.
Gould argues the district court erred in excluding three memoranda he wrote and sent
to Major Barela, his supervising officer: (1) a memorandum expressing Gould’s concern over
pranks by other officers (the prank memorandum), (2) a memorandum stating Gould’s belief
that the officers who attempted to extract the prisoner may have been lying to him about
what happened before he arrived (the lying memorandum), and (3) a memorandum asking
for a state police investigation of the altercation with the prisoner (the investigation
memorandum). In response to objections raised by the government, the district court held
that all three documents were hearsay, offered for the truth of the matter asserted in the
documents, and excluded them. However, the district court did allow Gould to testify as to
his writing of the memoranda, as well as their contents.
Gould made no argument for admission of the first report over the government’s
objection, but did argue that the second and third documents should have been admitted
under Federal Rule of Evidence (FRE) 106: “[i]f a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought to be considered at
the same time.” Gould sought to admit the documents to provide context for reports offered
by the government that contained Gould’s false statements about the altercation. On appeal,
Gould reasserts his FRE 106 argument, and also argues for the first time that the memoranda
should also have been admitted for non-hearsay purposes, to show that Gould had accused
other officers of misconduct and called for an investigation. Although Gould also argues that
the government objected to the memoranda on relevance grounds, we need not address this
argument as we note from the trial transcript only hearsay objections were raised. ROA, Vol.
4, Trial Vol. 7 at 252–54, 287–89, 294–95.
United States v. Gould, 672 F.3d 930 (10th Cir., 2012)
-10-
The prank memorandum describes Gould’s concern over a series of pranks in 2001 that
involved Officers Tagert, Fraembs, and Gonzales, Sergeant Freeland, and Lieutenant
Schlender. As a result of the memorandum, Lieutenant
[672 F.3d 941]
Schlender ultimately resigned. Officers Tagert, Fraembs, and Gonzales and Sergeant
Freeland all testified against Gould at trial, although Gould only questioned Sergeant
Freeland about the prank memorandum. She stated that she believed Gould was not an
honest person, based largely on her belief that his statements in the prank memorandum
were dishonest. Sergeant Lopez, who also testified against Gould, stated that she had heard
about the memorandum and Lieutenant Schlender’s subsequent resignation, and testified
that she was intimidated by Gould. During his own testimony, Gould sought to introduce the prank memorandum after testifying as to its contents. After the government’s hearsay objection, Gould did not counter the objection but simply moved on. On appeal, Gould argues that the prank memorandum should have been admitted to show that he had reported the officers’ prior alleged misbehavior, which would suggest that they had a reason to dislike and testify against him.
The lying memorandum expresses Gould’s concern that the officers who were already
fighting with the inmate when Gould arrived may have lied to him about events leading up to the altercation. Hoping to show his good intentions and to counter the false report charges, Gould sought to admit the memorandum to show that he expressed his misgivings about the incident almost immediately after it ended. When the government objected on hearsay
grounds, Gould argued first that the document went to his state of mind and then that the document should be allowed in under FRE 106.
The investigation memorandum apparently indicates that Gould wanted an outside
investigation of the altercation, and Gould sought to offer it to show that he wanted a
thorough investigation, not a coverup. Although we granted Gould’s motion to supplement the record on appeal with the three excluded memoranda, only two of the excluded memoranda have been provided. An unrelated memorandum on guard training methods was submitted instead of the investigation memorandum.5 Supp. ROA at 2. Although our review of the investigation memorandum’s exclusion would have been facilitated by its inclusion in the record on appeal, the trial transcripts contain sufficient information about the contents of the memorandum for us to consider the issue. Even if we were to assume that the exclusion of all three memoranda was error, the error was harmless. “A non-constitutional error, such as the admission or exclusion of impeachment evidence, is subject to harmless error analysis.” United States v. Clifton,  F.3d 1173, 1179 (10th Cir.2005). “[A] non-constitutional error is harmless unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” Id. (quoting United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir.2004)). The court allowed Gould to testify in detail as to the contents of all three memoranda. Further, the United States v. Gould, 672 F.3d 930 (10th Cir., 2012) -11- contents of the memoranda were not disputed; the government’s witnesses ratified Gould’s testimony about the memoranda. For example, Sergeant Lopez testified that Gould [672 F.3d 942] repeatedly stated his belief that the officers who had been instructed to move the prisoner were not telling Gould the truth about their actions leading up to the altercation, and officers involved in the beating testified that Gould instigated the investigation against them. The exclusion of evidence is harmless when the substance of the excluded evidence comes before the court through other means. United States v. Bowling, 619 F.3d 1175, 1184 (10th Cir.2010) (holding exclusion of evidence was harmless error when the evidence was at most cumulative).
III
The judgment of the district court is AFFIRMED.
——–
Notes:
1. The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
2. Gould does not specify the “appropriate relief” he seeks. Gould first raised his speedy
trial claim in a motion for reconsideration, and the district court correctly concluded that it lacked the power to modify his sentence. See United States v. Mendoza, 118 F.3d 707, 709 (10th Cir.1997) (“A district court does not have the inherent power to modify a previously imposed sentence; it may do so only pursuant to statutory authority.”); 18 U.S.C. 3582(c) (giving district courts authority to modify a sentence in three circumstances: upon motion of the Director of the Bureau of Prisons, under Rule 35 or other Federal Rules of Criminal Procedure, or where the Sentencing Commission has lowered the sentencing range). Courts may reduce a prisoner’s sentence for a Sixth Amendment violation, but only when the prisoner seeks the reduction under a statute granting the court such authority. For example, a prisoner may seek resentencing in a habeas petition based on a Sixth Amendment violation. See, e.g., Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir.1991). In the present procedural setting, our power is limited; the only relief we could possibly grant would be to dismiss the charges against him, and given that the delay here is post-conviction, even that is questionable. United States v. Seltzer, 595 F.3d 1170, 1181 (10th Cir.2010) (affirming district United States v. Gould, 672 F.3d 930 (10th Cir., 2012) [12] court’s dismissal with prejudice of charges against a defendant due to a two-year preconviction delay).
3. Gould includes the phrase “due process” in his statement of issues on appeal, but then
only cites the Sixth Amendment in support of his argument. The Sixth Amendment does not offer due process protection, and Gould does not make any the Fifth Amendment due
process arguments. Accordingly, we do not address any due process claims. See Fed. R.App. P. 28(a)(9)(A) (“[T]he argument … must contain … appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”)
4. As this court has noted, however, “the extension of Sixth Amendment speedy trial
safeguards past the transition from accused to convict will not be entirely free of doubt until the Court directly examines and resolves the question.” Perez v. Sullivan, 793 F.2d 249, 253 n. 2 (10th Cir.1986).
5. Gould refers to the guard training memorandum and discusses its content in his brief.
Aplt. Br. at 2. He then references the investigation memorandum, as if the investigation
memorandum were the memorandum he had just discussed. Id. The two memoranda are
clearly different, however, and the guard training memorandum does not appear to have
been an issue in the trial. The government pointed out Gould’s error, but Gould failed to file any reply brief or otherwise respond in any way to this apparent record mixup.

103 F.3d 936, 97 CJ C.A.R. 10

PUEBLO OF SAN ILDEFONSO, Plaintiff-Appellant,
v.
Daniel RIDLON and Regents of the University of California,
Defendants-Appellees.

No. 95-2197 United States Court of Appeals, Tenth Circuit. Dec. 24, 1996.

Page 937

Peter C. Chestnut, Albuquerque, New Mexico, for Plaintiff-Appellant.

 Stephen D. Aarons, Santa Fe, New Mexico, for Defendants-Appellees.

Before TACHA, Circuit Judge, and GODBOLD ^* and HOLLOWAY, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge:

Appellant Pueblo of San Ildefonso (“Pueblo”), a federally recognized Indian tribe, filed an action under 25 U.S.C. § 3001-3013, the Native American Graves Protection and Repatriation Act (“NAGPRA”), to secure the return of a piece of Native American pottery from Appellees Daniel Ridlon and the Regents of the University of California. On cross-motions for summary judgment the District Court construed Ridlon’s motion as a motion to dismiss for want of subject matter jurisdiction and dismissed the Pueblo’s action pursuant to F.R.C.P. 12(b)(1). We vacate the judgment of the district court..

1. Factual Background

In 1978 twelve-year old Daniel Ridlon discovered a piece of Native American pottery while hiking on property owned by Los Alamos County, New Mexico. The pottery consists of two ancient bowls sealed together that contain a bundle of macaw feathers tied with yucca twine. Shortly after his discovery Ridlon turned the pottery over to the Bradbury Museum, a federally-funded museum operated by the Regents of the University of California. The Museum has continually possessed and displayed the pottery since shortly after its discovery in 1978.

In 1988 the Museum refused Ridlon’s demands for return of the pottery and Ridlon successfully sued the Museum and Los Alamos County in New Mexico state court for conversion. See Opinion of the Federal District Court, No. 93-1467, at 2 (D.N.M. Sept. 14, 1995). However, the state court vacated its judgment and allowed the Pueblo to intervene asserting a right to repatriation of the pottery under NAGPRA. Id. Los Alamos County subsequently assigned its rights in the pottery to the Pueblo. The state court concluded that it lacked jurisdiction over the

Page 938

NAGPRA claim and dismissed the action without prejudice. Id.

Thereafter the Pueblo filed the present action seeking repatriation under NAGPRA, protection of its property interest under the Treaty of Guadalupe-Hidalgo, and declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. The U.S. District Court, D.N.M., dismissed the action, finding that neither NAGPRA nor the treaty provided an adequate basis for federal subject matter jurisdiction. Id. at 4. The court also declined to exercise supplemental jurisdiction over the parties’ state law ownership claims. Id. at 6. Because resolution of the NAGPRA issue is determinative of this matter, we do not reach the Pueblo’s other grounds for appeal.

We exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1291 and NAGPRA’s jurisdictional and repatriation provisions, 25 U.S.C. §§ 3013 and 3005(a) respectively. Section 3013 vests federal courts with jurisdiction over “any action brought by any person alleging a violation of this chapter.” The Pueblo claims a violation of NAGPRA’s repatriation provision, § 3005(a), which applies to “Native American human remains and objects possessed or controlled by Federal agencies and museums.” Since the Bradbury Museum is a “museum” as defined by NAGPRA ¹ and has possessed and controlled the pottery since shortly after its discovery, the district court has a basis for subject matter jurisdiction over the Pueblo’s repatriation claim.

1. Native American Graves Protection & Repatriation Act

Enacted in 1990, NAGPRA safeguards the rights of Native Americans by protecting tribal burial sites and rights to items of cultural significance to Native Americans. See 43 C.F.R. § 10.1 (1995). Cultural items protected under NAGPRA include Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. ² 25 U.S.C. § 3001(3)(1990). The Pueblo asserts that the pottery is an object of cultural patrimony and that the Regents had no right to possession of the pottery under NAGPRA. Brief of the Pueblo at 6.

NAGPRA has two distinct schemes governing the return of Native American cultural items to tribes, with the analysis turning upon whether the item is presently held by a federal agency or museum or is discovered on federal lands after November 16, 1990, NAGPRA’s effective date. First, the Act addresses items excavated on federal lands after November 16, 1990 and enables Native American groups affiliated with those items to claim ownership. See 43 C.F.R. § 10.1 (1995); H.R.Rep. No. 101-877, 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 4367, 4368. Second, NAGPRA provides for repatriation of cultural items currently held by federal agencies, including federally-funded museums. Id.

The parties dispute the applicability of NAGPRA. The district court found that the Pueblo’s claim fell short of providing an adequate basis of subject matter jurisdiction. Op. of the Dist. Ct. at 4. The court relied upon NAGPRA’s ownership provision which limits the effect of that section to “… Native American cultural items which are excavated or discovered on Federal or tribal lands after November 16, 1990 …” Id. (citing 25 U.S.C. § 3002(a)). Since “[t]he pottery at issue was discovered prior to the enactment of the NAGPRA on land owned by a county, not the federal government or an Indian tribe,” the district court held that it lacked jurisdiction and dismissed the case. Id.

Page 939

On appeal the Pueblo contends that the district court’s reliance on the ownership provision was misplaced because the Pueblo brought its claim under NAGPRA’s repatriation provisions, 25 U.S.C. §§ 3004 and 3005, which are not limited to items found on federal lands after November 16, 1990. Brief of the Pueblo at 7. NAGPRA requires repatriation of items of cultural patrimony that are presently in the possession or control of federally-funded museums provided other requirements of repatriation are met. See 25 U.S.C. §§ 3004, 3005 (1990).

The Pueblo asserts that NAGPRA’s express statutory language, administrative regulations and legislative history support the conclusion that the Pueblo’s claim for repatriation of the pottery falls within the purview of NAGPRA and does provide a basis for federal subject matter jurisdiction. We agree and, therefore, vacate the judgment of the district court.

1. Statutory Language

As a preliminary matter, we note that by § 3013, NAGPRA explicitly vests jurisdiction in federal courts:

The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter [NAGPRA] and shall have the authority to issue such orders as maybe necessary to enforce the provisions of this chapter.

25 U.S.C. § 3013 (1990).

The Pueblo sought repatriation of the pottery pursuant to 25 U.S.C. §§ 3004 and 3005, which address repatriation of objects presently in the possession or control of federal agencies, including federally-funded museums like the Bradbury Museum. Nothing in the express language of these sections indicates that repatriation is limited by when or where the object subject to repatriation was found. Where statutory language is clear and unambiguous, that language is controlling and courts should not add to that language. U.S. v. Thompson, 941 F.2d 1074, 1077 (10th Cir.1991); Aulston v. U.S., 915 F.2d 584 (10th Cir.1990), cert. denied, 500 U.S. 916, 111 S.Ct. 2011, 114 L.Ed.2d 98 (1991). The language of the repatriation section supports federal subject matter jurisdiction in this case.

First, 25 U.S.C. § 3005(a) entitled “Repatriation of Native American human remains and objects possessed or controlled by Federal agencies and museums,” provides

If, pursuant to § 3004 of this title, the cultural affiliation with a particular Indian tribe … is shown with respect to … objects of cultural patrimony, then the Federal agency or museum, upon the request of the Indian tribe … and pursuant to subsections (b), (c), and (e) of this section, shall expeditiously return such objects.

25 U.S.C. § 3005(a)(2) (1990). As the title of § 3005 indicates, repatriation applies to items presently in possession of federally-funded museums, including items possessed on November 16, 1990, NAGPRA’s effective date. Unlike the restrictive ownership provision, nowhere does the language of this section suggest that repatriation is limited to post-November 16, 1990 excavations on federal lands. Although the district court correctly concluded that NAGPRA’s ownership provision only applies to items found after November 16, 1990 on federal lands, the court should not have imposed date and location restrictions on repatriation where nothing in NAGPRA’s statutory scheme or language requires such limitations.

Second, the only section of the Act that expressly contains a limiting date is the ownership section, § 3002, which relates only to items excavated or discovered on federal lands after November 16, 1990. The district court concluded that, because the pottery was discovered in 1978 on non-federal land, the ownership provision did not apply to the pottery. However, the Pueblo did not sue under the ownership section. The Pueblo sued under § 3005, claiming a right of repatriation of the pottery. Because NAGPRA’s express language does not limit repatriation to items found after November 16, 1990,

Page 940

NAGPRA applies to the Pueblo’s repatriation claim as a matter of law.

1. Administrative Interpretations

Administrative interpretations support the Pueblo’s contention that repatriation is not limited by when a Native American object was found. First, regulations issued to carry out the provisions of NAGPRA distinguish between ownership and repatriation. “An administrative agency’s interpretation of a statute which the agency is entrusted to administer is entitled to considerable deference by a reviewing court.” Bernstein v. Sullivan, 914 F.2d 1395, 1400 (10th Cir.1990).

NAGPRA Regulations are subdivided into two distinct subparts that separately address repatriation and ownership. Subpart B concerns the disposition of Native American items discovered or excavated, either inadvertently or intentionally, on federal lands after November 16, 1990. 43 C.F.R. §§ 10.3(a) & 10.4(a) (1995). Subpart C addresses repatriation of Native American objects in possession of federal agencies and museums. 43 C.F.R. §§ 10.8–10.10 (1995). Regulations concerning repatriation do not contain a limiting date and, therefore, support the conclusion that the Pueblo stated a claim under NAGPRA to establish federal subject matter jurisdiction.

III. Conclusion

We VACATE the district court’s judgment and REMAND for further proceedings consistent with this opinion.

—————

* The Honorable John C. Godbold, Senior United States Circuit Judge for the Eleventh Circuit Court of Appeals, sitting by designation.

1 Section 3001(8) defines “museum” as “any institution or State or local government agency (including any institution of higher learning) that receives federal funds and has possession of, or control over, Native American cultural items.” 25 U.S.C. § 3001(8)(1990).

2 An item of cultural patrimony is “an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group.” 25 U.S.C. § 3001(3)(D).