3 NICS App. 273, Lummi Nation v. Johnnie (February 1994)

IN THE LUMMI TRIBAL COURT OF APPEALS

LUMMI INDIAN RESERVATION

BELLINGHAM, WASHINGTON

Lummi Indian Nation v. Johnnie

No. 92.11.CA3839 (February 8, 1994)

SUMMARY

Appeal of Trial Court decision denying Appellant Tribe's motion to seize real property owned by Respondent under "Forfeiture of Property" section of Controlled Substance Ordinance, following Respondent's conviction in Federal District Court for distribution of cocaine.

Appellate Court reviewed written evidence (recorded transcripts) de novo, as it is not a finding of fact based on oral testimony and does not involve observing the conduct, misdemeanor, or veracity of witness.

On review of written evidence, Appellate Court reversed the Trial Court decision, finding that Appellant had proven by a preponderance of the evidence that Respondent knew or should have known that drug activity was occurring on the premises.

FULL TEXT

Before:            Chief Justice Marguerite Edwards, Associate Justice Rose Purser and Associate Justice Mary Wynne

Appearances:   Iris Shue, for Appellant, Lummi Indian Nation; Michael John Wardell, for Respondent, Henry Johnnie.

NATURE OF THE ACTION

Appellant Lummi Nation and the F.B.I. conducted a sting-operation which led to the arrest and conviction in Federal Court of Respondent, his mother and his sister. Respondent's sister was living in Respondent's trailer at the time of both arrest and conviction. Appellant then sought forfeiture of Respondent's trailer, pursuant to the Tribe's civil forfeiture of property ordinance.

The Trial Court found that Appellant had failed to show by a preponderance of the evidence that Respondent knew or should have known that his trailer was being used in violation of the ordinance. Appellant appeals the Trial Court judgment.

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 274

EDWARDS, Chief Justice:

APPEAL BEFORE THE COURT

THIS MATTER comes before the Appellate Court of the Lummi Indian Nation this 25th day of October, 1993, on the written appeal filed by the Lummi Tribe, by and through it's prosecutor Iris Shue. The Tribe appeals the Judicial Decision entered by the Honorable Christopher Williams and filed with the Lummi Court on April 9, 1993.

The appeal is properly and timely filed, meeting all requirements of the Lummi Tribe's Rules of Appellate Proceedings, section 1.8. The Appellant having met all procedural requirements, the Court looks to the substantive issues of appeal.

I. BACKGROUND

The Lummi Nation, in cooperation with the Federal Bureau of Investigations, conducted a nine-month sting operation which ultimately led to the arrest and conviction in Federal Court of the Respondent, Henry Johnnie; his mother, Kay Commodore; and sister, Patricia Fulton. Patricia Fulton was living in Henry Johnnie's trailer at the time of the sting operation and subsequent arrests and convictions.

The Lummi Nation brought civil action for forfeiture of the trailer owned by Henry Johnnie, pursuant to the Lummi Tribe's Civil Forfeiture of Property Used in Controlled Substance Violations Ordinance, Chapter 5.9(B).

The Trial Court found that the Lummi Nation had failed to show by a preponderance of the evidence that Henry Johnnie knew, or should have known, that his trailer was being used in violation of the Ordinance.

II.

STIPULATION OF THE PARTIES TO WAIVE THE RIGHT TO A DE NOVO APPEALS HEARING AND APPELLATE COURT STANDARD OF REVIEW

Henry Johnnie, the Respondent, is incarcerated in federal prison, serving a sentence for the conviction arising from a sting operation. Because of the difficulty of assuring his appearance at a de novo trial, a difficulty due largely to the cost associated with transporting Henry Johnnie to Lummi Court, the parties stipulated to a waiver of the right to an entirely new trial, that is a de novo hearing, before the Court of Appeals.

The parties also stipulated to waive their right to a hearing within the forty-five (45) days provided by the Appellate Code, in order to allow time needed for preparation of briefs and

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 275

completion of the trial court transcripts. The parties' stipulation providing for these waivers was formalized and submitted to the Appellate Court on May 13, 1993.

The Lummi Tribal Code provides that a new trial be conducted at appeal. The opportunity for a new trial was waived by stipulation of both parties to the Appellate Court. Accordingly, the Appellate Court, in reviewing the Trial Court's decision in this matter, gives due deference to the Trial Court's trier of fact, since the trier of fact is the one able to view the witnesses as they are giving testimony. The Appellate Court makes no attempt to retry the case or substitute its own findings of fact, but will consider the record, evidence, and transcripts of the Trial Court, parties' briefs, and oral argument at appeal hearing, in rendering a decision in the matter.

The Appellate Court is still free, pursuant to the Lummi Law and Order Code, to fully consider and enter findings de novo on all evidence not submitted orally at trial.

III.

DID THE TRIAL COURT ERR IN NOT HEARING AND DECIDING PRETRIAL MOTIONS?

The Trial Court had before it two dispositive pre-trial motions that it heard in open court but did not rule on before commencing with trial; nor did the Trial Court rule on the Motions in its final written order. Although the final ruling contains some advisory language on the issues raised, no conclusion or binding order was entered. Because those issues could have been dispositive, they merit some discussion.

A. Motion to Suppress

The Defendant, Henry Johnnie, entered on the record a Motion to Limit Evidence, specifically asking the Court to exclude admission of Federal Bureau of Investigations transcripts of recordings of conversations between Henry Johnnie, Kay Commodore, and Patricia Fulton with an F.B.I. confidential informant. The Trial Court reserved judgment on the matter. (Trial Transcript at page 18.)

The Defendant filed a Motion to Dismiss based on constitutional arguments that the Lummi Tribe's forfeiture laws were not effective law based on constitutional language requiring Secretary of the Interior's approval of laws enacted by the Lummi Tribe. The Trial Judge ordered additional briefs on the matter to be delivered to the Northwest Intertribal Court System, whereupon he would make a decision on the motion. (Trial transcript at page 25.)

No decision was entered in open court by the Trial Judge, nor was a ruling made in the written decision on the issues addressed in the motions.

The Appellate Court finds that admission of the Federal Bureau of Investigation transcripts of conversations between Henry Johnnie and the confidential informant go to the core

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 276

of the Tribe's case presented at trial, making a decision on the admissability of the transcripts at trial critical to a fair and just decision. A ruling should have been made, with a statement as to grounds for the decision. This would have provided an adequate record for appellate review.

The Trial Court erred in its failure to decide the Motion to Suppress Evidence before trial, and later, when it failed to rule on the motion in its written decision. Once an Appellate Court has found an error committed by the Trial Court, the next issue is whether this is an error which merits reversal of the decision entered by the Trial Court. In this case, the error does not constitute reversible error since the Lummi Court of Appeals will apply the usual rule in all cases when a motion to suppress has been filed and not ruled upon; any motion filed but not ruled upon is deemed denied unless the record shows otherwise. The Court of Appeals will assume the Trial Court denied the motion to suppress and that the moving party simply failed to get a statement of the ruling into the record from the Trial Court.

B. Motion to Dismiss

The Appellate Court finds that the Motion to Dismiss based on the constitutionality of the Civil Forfeiture Statute, or rather, the question remaining as to whether the Lummi Tribal Forfeiture Law had ever been duly authorized and enacted, goes directly to the Tribal Court's basis for jurisdiction over the subject matter and/or person, Henry Johnnie. In light of the overwhelming evidence supporting the Tribe's case, the Trial Court erred in failing to make a ruling as promised, either in a separate order, or as part of the judicial opinion rendered after trial was concluded. Certainly, if the evidence presented by the Tribe supports the forfeiture requested, a ruling on the constitutional issue raised by Henry Johnnie is required.

IV. DID THE TRIAL COURT ERR IN ITS FINDING REGARDING THE WEIGHT OF THE TRIBE'S EVIDENCE?

The Trial Court addressed at length the evidence entitled Federal Bureau of Investigations Transcript of electronic surveillance of a conversation which took place on July 19, 1992, between a Cooperating Witness, Henry Johnnie, and an unknown female (pages 26, 27, 28 and 29.) The Trial Court, based on it's interpretation of the transcripts, found the following:

. . . Review of this recording is somewhat persuasive that Henry Johnnie knew or should have known that there was drug activity on the premises. From this transcript, by a preponderance of the evidence that Henry Johnnie knew in fact, or has reason to believe that there was drug activity, sales or storage on the premises. It is clear that they went down there to look for Mr Johnnie's mother to attempt to find some "eight-balls", a slang term for an amount of cocaine.

Crucially, however, the Plaintiff does not meet the burden of proof (5.9B03) "no liability for a civil offense under this chapter shall be found unless each element of the offense is proved by a preponderance of the evidence". Here, the burden of proof simply has not been met.

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 277

Evidence indicated that there were two drug "busts" on the premises and that Henry Johnnie went to look or his mother who may have been carrying an amount of cocaine or that she could, at a minimum, provide the confidential informant with cocaine. But there is no clear evidence to show that Henry Johnnie knew or should have known that the property had been used to unlawfully store or transport or sell controlled substances.

This Court, after careful reflection and review of the evidence can certainly ascertain that there was some drug activity at the property. Whether Henry Johnnie knew that has simply not been proved by the preponderance of the evidence.

Judicial Decision at Page 3 and 4.

The record is clear that the Trial Court's conclusion that "there is no clear evidence to show that Henry Johnnie knew or should have known that the property has been used to unlawfully store or transport or sell controlled substances", is a conclusion based upon the contents of this recorded conversation. It was not a finding of fact entered based upon oral testimony given by live witnesses before the Trial Judge. As such, there was no opportunity for the Trial Judge to observe the conduct and demeanor of a live witness on this issue. Accordingly, the Appellate Court reviews the issue de novo.

To determine whether the Trial Court erred in concluding that the Tribe has not proven by a preponderance of the evidence that Henry Johnnie knew or should have know that the property has been used to unlawfully store or transport or sell controlled substances, the Appellate Court thoughtfully and carefully reviewed the pertinent pages of the transcripts of July 19, 1992, which are as follows:

Cooperating        Parkin' right here on the corner.

Witness (CW):    (Pause)

CW:            Jeez, he's back already.

        (car door opens.)

CW:            God, that was too fast.

H. Johnnie:    Huh?

CW:            That was too fast (unintelligible)

H. Johnnie:    Nah, there was nobody home.

CW:            Oh, where 'd they go?

H. Johnnie:    They went to the movies.

CW:            When they comin' back?

H. Johnnie:    I don't know. They went to the drive-in. My mom went to (unintelligible) They won't be back for a while. Two o'clock.

CW:            Two o'clock?

H. Johnnie:    Yeah.

CW:            Well, I guess I have to go without it. (Laughs)

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 278

H. Johnnie:    (Coughs)

CW:            What time should I stop by tomorrow?

H. Johnnie:    I don't know. Ah, want to check Patty's (phonetic)?

CW:            Well, you want to run in and get me one?

H. Johnnie:    Okay, I'll run in and get you one. You can't go there?

CW:            No. I just don't want to. Hah.

H. Johnnie:    You could drop me off at the bridge and, ah...

CW:            I can go in there, I...

H. Johnnie:    Oh, okay.

CW:            But you can probably get it you can get somethin' better for me there, huh?

H. Johnnie:    Yeah. Ah, we had some, little bit of her stuff last night.

CW:            Did ya?

H. Johnnie:    (Unintelligible)

CW:            Aw, shit, I won... year, I wonder if that would work.

H. Johnnie:    (Unintelligible)

CW:            Uh, okay, we'll go, we'll go try it. (Drives away)

Yeah, that'll work (unintelligible)

H. Johnnie:    Yeah, that'll work.

CW:            Yeah. She might, she might be mad at me cause I won't throw the beef to 'er.

        (Laughs)

H. Johnnie:    (Laughs) Oh, fuckin', CW. Yeah.

CW:            (Laughs)

H. Johnnie:    Throw the beef to her.

CW:            Yeah.

H. Johnnie:    Shit.

H. Johnnie;    Yeah. For Bernice was asking me. Remember I was telling ya she was asking me who it was for and I said a guy in Ferndale.

CW:            Oh, year?

H. Johnnie:    Yeah Remember that?

CW:            Yeah.

H. Johnnie:    Yeah. (unintelligible)

CW:            Do you think Patty has any?

H. Johnnie:    Well, she had some this morning.

CW:            Eight balls?

H. Johnnie:    Yeah. Maybe. I don't know. (Unintelligible)

CW:            Yeah?

H. Johnnie:    Yeah.

CW:            Buy it all. (Laughs)

        (pause)

CW:            Got that money. God, it looks like hm, a McDonald's up here sometimes, the lights.

H. Johnnie:    What?

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 279

CW:            Her house looks like that McDonalds, cars pullin in     and out all night long.

        (laughs)

H. Johnnie:    Yeah.

CW:            (Unintelligible) Sure.

H. Johnnie:    Maybe my mom's got some.

CW:            Go back and try it again, huh?..."

Transcripts of July 19, 1992, FBI electronic recording, pages 26-29.

The Trial Court interpreted the above passages to mean that Henry Johnnie and the informant were looking for Kay Commodore at Patricia Fulton's trailer to by drugs from Kay Commodore, and not Patricia Fulton. The Trial Court found that this evidence proves some drug activity took place at the property, but does not prove that Henry Johnnie knew of the drug activity.

A careful review of the transcript compels the conclusion that the Trial Court's interpretation is incorrect, no matter how the evidence is viewed. In viewing the transcripts it is clear that Mr. Johnnie and the informant went to Mr. Johnnie's mother's home, (Kay Commodore) seeking drugs. No one was home. Mr. Johnnie then suggested that they go to his sister's home, the trailer owned by Mr. Johnnie and of which the tribe seeks forfeiture, because he had done some of her drugs with her the night before. Mr. Johnnie further said, obviously in support of his suggestion that they go to his sister's home and the trailer that he owns, that his sister still had some eight balls that morning.

The only reasonable interpretation of the statements made by Henry Johnnie in these transcripts is that drugs were in Patricia Fulton's possession and could be obtained from her, and that Henry Johnnie expected to find Patricia at her home, the trailer that he owned. Mr. Johnnie was, therefore, pursuing drugs at Patricia Fulton's trailer, not Kay Commodore, as the trial court has interpreted. Nothing in the transcript supports a finding to the contrary.

V. IN LIGHT OF THE APPELLATE COURT'S INTERPRETATION OF THE EVIDENCE, IS THE BURDEN OF PROOF MET?

The trial court erred in its interpretation of the evidence of July 19, 1992. In doing so, it found that the Complainant, Lummi Indian Nation, did not meet its burden of proof by a preponderance of the evidence.

In light of the Appellate Court's interpretation of the evidence, the burden is met. Mr. Johnnie knew, or should have known, that drugs were being sold, stored or used in his trailer, occupied by his sister, Patricia Fulton.

3 NICS App. 273, Lummi Nation v. Johnnie (February 1994) p. 280

VI. APPELLATE ORDER

1. The Motion to Dismiss is REMANDED to the Trial Court for further hearing and final ruling.

2. The Trial Court's decision in this matter is REVERSED.

PURSER and WYNNE, Associate Justices, concur.