No. CA-14-001 PASCUA YAQUI TRIBE

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COURT OF APPEALS

Pascua Yaqui Court of Appeals

MAY 1 3 2014

ISSUED

Pascua Yaqui Tribe, Appellant, CLERK OF COURT

VS.

Escamilla, Manuel, Appellee,

Interlocutory Appeal of a Tribal Court Order Granting Motion to Compel Disclosure in Case No.

CR-14-144, the Honorable Melvin Stoof presiding.

G. Allen Osburn, Office of the Prosccutor of the Pascua Yaqui Tribe, 7777 Camino Huivisim,

Tucson, AZ for the Appellant.

Melissa Acosta, Pascua Yaqui Public Defender, 7474 S. Camino de Oeste, Tucson AZ 85757 for

the Appellee.

FOR RR ORR kk

Opinion Denying Petition to Reconsider

Appellant filed an interlocutory appeal secking review of a Tribal Court order compelling

Appellant to disclose records of a physical examination completed by the fire department as well

as the issuance of a suspended $100.00 sanction against Appellant for a discovery violation.

This Court found that the Tribal Court judge did not abuse his discretion in compelling

disclosure of the fire department reports or by imposing the suspended fine against Appellant.

See Pascua Yaqui Court of Appcals opinion, 4/2/14.

Appellant then filed a Petition for Reconsideration alleging: 1) the Tribal Court abused its

discretion in ordering the Tribe to disclose the Fire Department report, 2) the Tribal Court erred

by extending 3 PYTC § 2-2-380(D) to the Pascua Yaqui Fire Departrient, and 3) the Tribal

Court was without jurisdiction to impose a fine against the Tribe without a waiver of the Tribe’s

sovereign immunity. Appellee filed a Motion to Dismiss citing 3 PYTC § 2-3-210(D)(3) and 3

PYTC § 2-3-210(B). Appellant responded by filing a Motion for Leave to File Petition for

Reconsideration.

The Pascua Yaqui Tribal Code provides, “A petition for reconsideration and supporting

memorandum shall be directed solely to discussion of those ‘pect points or matters of law in

Which it is claimed the appellate court erred.” See 3 PYTC § 2-3-210(B) (emphasis added).

The Code offers parties an opportunity to request that this Court reconsider its own decision in

the event that a mistake as a matter of law occurred. In this case, Appellant's Petition for

Reconsideration discusses the points in which the Tribal Court erred in determining facts or law.

The Petition also re-urges the arguments initially raised in the interlocutory appeal. Appellant

does not present specific points or matters of law in which this Court erred. This Court alre: idy

held that the Tribal Court judge did not abuse his discretion and there is no evidence in the

Petition lor Reconsideration or otherwise that this Court erred as a matter of Jaw in our finding.

For the foregoing reasons, this Petition for Reconsideration is denied.

So ORDERED this 13" day of May 2014

pba

James C. flopkins, Chief hades

Office of the Tribal Prosecutor

7777 S Camino Huivisim, Bldg. A

Tucson, AZ 85757

(520) 879-6251 Telephone

(520) 879-6260 Facsimile

By Frederick Lomayesva

Deputy Prosecutor

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE ) Case No. CA-14-001

)

Appellant, )

)

Vv. ) MOTION FOR LEAVE TO

) FILE PETITION FOR

ESCAMILLA, MANUEL, ) RECONSIDERATION

)

Defendant. )

The Pascua Yaqui Tribe moves for leave to file a petition for reconsideration

of this court’s April 2, 2014, order. The interlocutory appeal raises issues of law as

to the trial court’s jurisdiction. Issues of the court’s jurisdiction can be raised at

any time including upon appeal. Additionally, this court entered its order without

briefing on the issue of whether the trial court abused its discretion in ordering the

tribe to produce a copy of the Pascua Yaqui Fire Department Report. If the court

of appeals had the benefit of briefing, it may have held that the trial court abused

its discretion.

WHEREFORE, the Pascua Yaqui Tribe requests that it be granted to leave

to file a petition for reconsideration. The Tribe requests that the petition for

reconsideration previously filed in this matter be permitted to stand and be

considered as its petition for reconsideration.

Respectfully Submitted this 24 day of April, 2014.

oA nV

By Frederick Lomayesva for

G. Allen Osburn,

Deputy Prosecutors

A copy of the foregoing was delivered

This day of April, 2014, to:

Melissa Acosta,

Office of the Public Defenders

Attorneys for the Defendant

PASCUA YAQUI TRIBE

COURT OF APPEALS

PASCUA YAQUI PUBLIC DEFENDER

7474 S. Camino de Oeste

Tucson, Arizona 85757 APR 2.3 2014

Melissa L. Acosta ISSU ED

PYT Bar No. 10185 CLERK OF COURT

COUNSEL FOR: Appellee

IN THE PASCUA YAQUI TRIBE COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE,

CA-14-001

Appellant,

vs.

MOTION TO DISMISS APPELLANT’S

ESCAMILLA, MANUEL, PETITION FOR RECONSIDERATION

Appellee.

Appellee Manuel Escamilla, through counsel, moves this Court to dismiss Appellant’s Petition for

Reconsideration. In its Petition for Reconsideration, hereinafter “Petition”, the Tribe submits that the

Court of Appeals has jurisdiction over the Petition pursuant to 3 PYTC § 2-3-210. Perhaps the Tribe did

not read 3 PYTC § 2-3-210 in its entirety. The Petition in this case is clearly precluded by 3 PYTC § 2-3-

210(D)(3) which states:

(D) Petitions not permitted. Unless permitted by specific order of the appellate court, no party shall

file a petition for reconsideration of:

(3) a decision denying an appeal

The opinion issued by the Court of Appeals on April 2, 2014 denying the Tribe’s appeal qualifies as a

“decision” for purposes of 3 PYTC § 2-3-210(D)(3) because a “decision” as defined in 3 PYTC § 2-3-40(B)

is “a written disposition of an appeal, including a disposition by opinion...” (emphasis added). The Tribe is

simply not permitted to petition the Court of Appeals to reconsider its decision to deny the appeal. As a

result, the Court of Appeals does not have jurisdiction over the Petition for Reconsideration and it must be

dismissed.

Furthermore, even if the Court of Appeals found that it did have proper jurisdiction over the

Petition, the form of the Petition does not comply with the Appellate Rules of Procedure. According to 3

PYTC § 2-3-210(B), “A petition for reconsideration and supporting memorandum shall be directed solely to

discussion of those specific points or matters of law in which it is claimed the appellate court erred.” In its

Petition, the Tribe fails to discuss any specific points or matters of law concerning the Court of Appeals

Opinion. In fact, the Tribe’s Petition, particularly in form, appears to be an attempt to force the Court of

Appeals to view what would have been its Appellate Brief, had the Court of Appeals found one necessary

ptior to issuing its Opinion.

For the foregoing reasons, the Appellee moves to dismiss the Appellant’s Petition for

. . 1

Reconsideration ,.

DATED this 23" day of April 2014.

PASCUA YAQUI PUBLIC DEFENDER

a a

Melissa L. Acosta

Chief Public Defender

" Because the Appellee’s position is that the Petition for Reconsideration is not properly before the Court of Appeals,

the Appellee has not substantively responded to the Petition. Should this Court disagree, and find that the Petition

for Reconsideration can proceed, the Appellee is prepared to respond to the substance of the Petition. As a result, the

Appellee requests the Court stay the time for Appellee to respond to the Petition pending the Court’s decision on this

Motion.

///

CERTIFICATE OF SERVICE

A copy of the foregoing was delivered this ZS day of April, 2014 to:

G. Allen Osburn

Office of the PYT Prosecutor

—_

DATED this 2-9" day of April, 2014.

PASCUA YAQUI PUBLIC DEFENDER

CC x J

Melissa L. Acosta

Chief Public Defender

PASCUA YAQUI TRIBE

COURT OF APPEALS

APR 22 2014

LLATEICOURT ISSUED

-LERK OF COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) Case No. CA-14-001

)

Appellant, )

)

V. )

)

ESCAMILLA, MANUEL )

)

Defendant. )

)

PETITION FOR RECONSIDERATION

Office of the Tribal Prosecutor

7777 S Camino Huivisim, Bldg. A

Tucson, AZ 95757

(520) 879-5257 Telephone

(520) 879-6260 Facsimile

By G. Allen Osburn,

Deputy Prosecutor

DI Ao

By G. Allen Osbiirn |

Deputy Prosecutor

TABLE OF CONTENTS

Table of Contents

List of Citations

Statement of the Case

Statement of Facts

Issues Presented for Review

Argument

Conclusion

Certificate of Service

LIST OF CITATIONS

Kiowa Tribe of Oklahoma v. Mfg.

Technologies, Inc., 523 U.S. 751, 754,

118 S. Ct. 1700, 1702-03, 140 L. Ed. 2d 981 (1998)

Three Affiliated Tribes of Fort Berthold

Reservation v. Wold Engineering, 476 U.S. 877, 890,

106 S.Ct. 2305, 2312-2313, 90 L.Ed.2d 881 (1986)

Santa Clara Pueblo v. Martinez, 436 U.S. 49,

58-59, 98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106 (1978)

Puyallup Tribe, Inc. v. Washington Dept.

of Game, 433 U.S. 165, 172-173,

97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977)

United States v. Testan, 424 U.S. 392, 399,

96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976),

United States v. King, 395 U.S. 1, 4,

89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969)

United States v. United States Fidelity &

Guaranty Co., 309 U.S. 506, 512-513,

60 S.Ct. 653, 656, 84 L.Ed. 894 (1940)

Turner v. United States, 248 U.S. 354, 358,

39 S.Ct. 109, 110, 63 L.Ed. 291 (1919)

Orff v. United States, 358 F.3d 1137, 1142,

(9" Cir., 2004)

Ruben M. v. Arizona Department of Economic

Security, 230 Ariz. 236, 239, 282 P.3d 437, 440

(Ariz. App., 2012)

Walsh v. Walsh, 230 Ariz. 486, 490,

286 P.3d 644 1099 (Ariz. App., 2012)

Romer-Pollis v. Ada, 223 Ariz. 300, 303,

222 P.2d 916, 919 (Ariz. App., 2009)

United Imports and Exports v. Superior Court,

134 Ariz. 43, 46, 53 P.2d 691, 694 (Ariz., 1982)

Grant v. Arizona Public Service, 133 Ariz. 434,

652 P.2d 507 (1982)

In Re. Pascua Yaqui Tribe, CA-13-005 (2014)

3 PYTC §2-2-380(A)(1)

3 PYTC §2-2-380(A)(6)

3 PYTC §2-2-380(D)

3 PYTC §2-3-210

2 PYTC §2-16-40.

2 PYTC §2-16-50 (E)

2 PYTC §2-16-90

8, 11

STATEMENT OF THE CASE

On or about January 1, 2014, the Defendant, Manuel Escamilla,

allegedly came home intoxicated. He argued, then fought his step-son, Isaiah

Gutierrez. In the course of the escalated argument, the defendant struck his stepson with a closed fist. When his son, Vicente Escamilla, attempted to stop the

fight, the defendant attacked the other son. ROA 16 The police responded and the

defendant was arrested.

A Criminal Complaint was filed on January 2, 2014, and an initial hearing

was held on the same date. ROA 15 The defendant appeared with counsel and was

released. ROA 13 The arraignment was set for January 10, 2014. On January 13,

2014, the defendant appeared for his arraignment with counsel. He entered a

denial and trial was set for April 7, 2014. ROA 11

On January 23, 2014, the Tribe filed its Notice of Witnesses and Disclosure.

ROA 10 Within the notice the Tribe listed its witnesses and potential exhibits.

Seven days later, the defendant filed his Request for Disclosure. ROA 08 The

tribe filed its response on February 10, 2014. ROA 07 Defendant filed his reply on

February 12, 2014, and requested a hearing on the motion. ROA 06 The hearing

was set for March 12, 2014. ROA 05

At the hearing the parties presented oral arguments on defendant’s request

for disclosure. The Tribe presented the testimony of Patty Ramirez, the

Communication Technician for the Police. The court entered its orders on the

motion on March 12, 2014. ROA 04

The Tribe filed an interlocutory appeal from a tribal court order entered on

March 12, 2014. The Appellate Court has proper jurisdiction to hear an

interlocutory appeal pursuant to its decision In Re. Pascua Yaqui Tribe, CA-13-005

(2014). The Appellate Court issued its order without briefing on April 2, 2014,

affirming the trial court’s order. This court has jurisdiction to hear this Petition for

Reconsideration pursuant to 3 PYTC §2-3-210.

STATEMENT OF FACTS

On or about January |, 2014, the defendant, Manuel Escamilla, came home

intoxicated. He allegedly argued, then struck his step-son, Isaiah Gutierrez. When

his son, Vicente Escamilla, attempted to stop the fight, the defendant attacked the

other son. ROA 16

He was arrested on January |, 2014, and charged the next day. ROA 15 On

January 23, 2014, the Tribe filed its Notice of Witnesses and Disclosure. The

Tribe listed three witnesses; Officer Eutimio Molina, Isaiah Guiterrez, and Vicente

Escamilla. ROA 10 A police report was disclosed to the defendant at the same

time. The Tribe asserted it may use photographs. No photographs were disclosed

on January 23, 2014.

On January 30, 2014, the defendant filed his Request for Disclosure. He

specifically requested photographs that may have been taken in this case and a

“copy of any and all reports made in the investigation of this case...” ROA 08 On

February 10, 2014, the Tribe responded. ROA 07 The Tribe stated that there were

no other reports other than Officer’s Molina and Officer’s Wells report. Further,

the Tribe asserted that photographs are in process and will be disclosed upon

receipt. ROA 07

On February 12, 2014, the defendant replied. ROA 06 He asserted that

there was a fire department report mentioned in the disclosed police report.

Defendant demanded immediate disclosure of the photographs. Defendant

demanded the court impose sanctions upon the Tribe. ROA 06

On March 12, 2014, the Tribe disclosed eight photographs to the defendant.

At the hearing, defendant again demanded the court sanction the Tribe for failure

to disclose the photographs prior to March 12, 2014, and demanded an order from

the court requiring the Tribe to produce the fire department report. The Tribe

responded to the defendant’s demands that the photographs were not released to

the Office of the Prosecutor by the police until March 12, 2014, and they were

disclosed immediately upon receipt of the photographs.

The Tribe objected to defendant’s demand to produce the fire department

report. The Tribe pointed out that the fire department is not part of the

prosecutorial team and the defendant had equal access to the report. Further, the

Tribe had not intended to use the report in its case against the defendant.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

l. Did the court abuse its discretion in finding that the fire department was

under the control of the Tribal Prosecutor’s Office without any evidence to support

the finding?

2. Did the court err as a matter of law by extending 3 PYTC §2-2-380(D) to

governmental departments who has no role in the prosecution of tribal crimes.

3. Did the court err as a matter of law in imposing a fine against the Office of

the Tribal Prosecutor in the absence of an express waiver of sovereign immunity?

ARGUMENT

A. THE COURT ABUSED ITS DISCRETION IN ORDERING THE TRIBE

TO DISCLOSE THE FIRE DEPARTMENT REPORT.

1. The Tribe had no obligation to disclose a statement whose author was

not named as a witness.

The defendant demanded that the court enter an order ordering the Tribe

disclose the report made by the Fire Department. The Fire Department’s report

memorialized their emergency response on January 1, 2014, to treat potential

injuries sustained by the defendant’s attack. The Tribe had never intended to use

the report in its case against the defendant nor did the Tribe list any member of the

Fire Department as a witness. The Tribe has a duty to disclose all statements made

by witnesses it intends to call. See 3 PYTC §2-2-380(A)(1). As the tribe never

intended to call the author of the report as a witness, there was no obligation to

disclose the report (a witness statement) pursuant to 3 PYTC §2-2-380(A)(1).

There was no legal basis for the defendant’s request pursuant to this section of the

code.

2. The Tribe had no duty to disclose a statement of a separate agency

that was not under its control and did not participate in the investigation of

the criminal charge.

The Tribe has a duty to disclose “all material or information which tends to

mitigate or negate the defendant’s guilt as to the offense charged or which would

tend to reduce his or her punishment...” 3 PYTC §2-2-380(A)(6). When the

demand was made, the Tribe did not have a copy of the report. The Tribe did not

have a copy of the report on the date of March 12, 2014, hearing. As this was not a

police report, the Police Department did not have a copy of the report. As the

Prosecutor did not have the report (nor did the Prosecutor have the report indirectly

through the Police Department), it had complied with 3 PYTC §2-2-380(A)(6) by

turning over all information its possession that may mitigate guilt or reduce

punishment within its possession.

The defendant argued that the Prosecutor should turn over the Fire

Department Report because the Fire Department participated in the investigation of

the case and is under the control of the prosecutor.

Extent of the prosecutor’s duty to obtain information. The

prosecutor’s obligation under this Section extends to material and

information in the possession or control of members of his or her staff

and of any other persons who have participated in the investigation of

the case and who are under the prosecutor’s control.

See 3 PYTC §2-2-380(D). The Tribe objected to the disclosure as the Fire

Department did not participate in the prosecutorial investigation and was not under

the control of the prosecutor. Whether the Fire Department participated in the

investigation of the case and was under the control of the prosecutor were issues of

fact and law.

The court’s finding that the Fire Department participated in the investigation

of the case and was under the control of the prosecution is an abuse of discretion

where there was no evidence to support the finding. “A discretionary finding of

fact based on no evidence is arbitrary and an abuse of discretion. See Grant v.

Arizona Public Service, 133 Ariz. 434, 652 P.2d 507 (1982).” United Imports and

Exports v. Superior Court, 134 Ariz. 43, 46, 53 P.2d 691, 694 (Ariz., 1982) See

also Walsh v. Walsh, 230 Ariz. 486, 490, 286 P.3d 644 1099 (Ariz. App., 2012)

(A court abuses its discretion if ... the record fails to provide substantial evidence

to support the trial court’s finding.”) In this case, the court held an evidentiary

hearing on March 12, 2014.'

However, the defendant did not introduce any evidence (witnesses or

exhibits) in support of his Request to Disclose. Nor did the defendant introduce

any evidence that the Fire Department participated in the investigation of the

criminal charges against the defendant.’ Nor did the defendant introduce any

evidence that the prosecutor was in superior position to obtain the report.’ The

The prosecutor presented evidence in the form of witness testimony of Isabel Quintero. She testified solely

on the issue of the defendant’s request for 911 and dispatch communications.

‘ There was no evidence that the Fire Department report contained photographs. There was no evidence that

report investigated any matter related to the defendant’s guilt or innocence.

: The prosecutor avowed during the hearing that he contacted the Fire Department and was told he would be

required to complete a form for review by the Fire Department to determine whether they would release it to the

prosecutor. When asked whether they would release it to the defendant, the prosecutor was informed the defendant

defendant did not even reveal whether he or his counsel had attempted to acquire

the report, but were denied. Despite being an evidentiary hearing on defendant’s

motion, defendant introduced no evidence! Thus, the court had no evidence upon

which to support its findings that the prosecutor owed a duty to disclose the report

pursuant to 3 PYTC §2-2-380(D) and 3 PYTC §2-2-380(A)(1). The failure of the

record to support the court’s finding is an abuse of discretion.

The lack of evidence to support its findings suggests that the court found that

Fire Department was under the control of the prosecution and participated in the

investigation against the defendant as a matter of law.” A court abuses it

discretion when it misapplies the law. See Ruben M. v. Arizona Department of

Economic Security, 230 Ariz. 236, 239, 282 P.3d 437, 440 (Ariz. App., 2012) “A

court abuses its discretion if it commits an error of law in reaching a discretionary

conclusion...” Walsh v. Walsh, 230 Ariz. 486, 490, 286 P.3d 644 1099 (Ariz.

App., 2012), Romer-Pollis v. Ada, 223 Ariz. 300, 303, 222 P.2d 916,919 (Ariz.

App., 2009) The Code provides no evidence that the Fire Department is under the

control of the Prosecutor’s Office or the Police Department.

would also have to complete a request form implying both parties had an equal opportunity to acquire the report.

Defense counsel offered no evidence that she had tried to obtain the report but was denied. This suggests a failure to

the defendant to comply with 3 PYTC §2-2-380(E) prior to asking for a court order. That section requires the

defendant to make a showing that he is unable to obtain the report without incurring undue hardship. Here there is

no showing that he even tried to obtain the report.

‘ Issues of law are review de novo in the court of appeals and the rulings by the trial court have no binding

affect.

The Fire Department has no function to investigate crime. The Fire

Department is an executive division department. The head of the Fire Department

is supervised by the Chairman of the Pascua Yaqui Tribe. 2 PYTC §2-16-50 (E).

The Fire Chief is not supervised by the Chief Prosecutor or the Chief of Police nor

is the Fire Chief required to coordinate or share information with the Chief

Prosecutor or Chief of Police. The mission of the Fire Department is “to provide

quality service as it pertains to fire suppression, prevention, education, and

emergency medical services...” 2 PYTC §2-16-40. Its programs do not include

any component to investigate crime. See 2 PYTC §2-16-90. Thus, there is no

basis to argue under the code that the Fire Department is under the control of the

prosecutor or participated in the investigation.

The Court abused its discretion in ordering the Tribe to disclose the Fire

Department report where there was no evidence or law to support its finding that

the Fire Department was under the control of the Prosecutor’s Office and

participated in the investigation of the criminal matter.

B. The Court was without jurisdiction to impose a monetary fine against

the Tribe without a waiver of the Tribe’s sovereign immunity.

The court sanctioned the Tribe (the Pascua Yaqui Tribe) $100 for the delay

in disclosing photographs. The court did not make a finding that the Tribe waived

its sovereign immunity.

Indian tribes have long been recognized as possessing the commonlaw immunity from suit traditionally enjoyed by sovereign powers.

Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63

L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940);

Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165,

172-173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977). This

aspect of tribal sovereignty, like all others, is subject to the superior

and plenary control of Congress. But “without congressional

authorization,” the “Indian Nations are exempt from suit.” United

States v. United States Fidelity & Guaranty Co., supra, 309 U.S., at

512, 60 S.Ct. at 656.

It is settled that a waiver of sovereign immunity “ ‘cannot be implied

but must be unequivocally expressed.’ ” United States v. Testan, 424

U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting,

United *59 States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23

L.Ed.2d 52 (1969). Nothing on the face of Title I of the ICRA

purports to subject tribes to the jurisdiction of the federal courts in

civil actions for injunctive or declaratory relief. Moreover, since the

respondent in a habeas corpus action is the individual custodian of the

prisoner, see, e. g., 28 U.S.C. § 2243, the provisions of § 1303 can

hardly be read as a general waiver of the tribe's sovereign immunity.

In the absence here of any unequivocal expression of contrary

legislative intent, we conclude that suits against the tribe under the

ICRA are barred by its sovereign immunity from suit.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S. Ct. 1670, 1677, 56 L.

Ed. 2d 106 (1978) “Asa matter of federal law, an Indian tribe is subject to suit

only where Congress has authorized the suit or the tribe has waived its immunity.

See Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476

U.S. 877, 890, 106 S.Ct. 2305, 2312-2313, 90 L.Ed.2d 881 (1986); Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676-1677, 56 L.Ed.2d 106

(1978); **1703 United States v. United States Fidelity & Guaranty Co., 309 U.S.

506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940) (USF & G).” Kiowa Tribe of

Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 1702-

03, 140 L. Ed. 2d 981 (1998) Sovereign immunity presents a question of law that is

reviewed de novo. Orff v. United States, 358 F.3d 1137, 1142, cg" Cir., 2004). In

this case, there is no expressed waiver of the Tribe’s sovereign immunity, the court

is without jurisdiction to impose a fine upon the tribe.

CONCLUSION

The Court of Appeals found that the trial court had not abused its discretion

in ordering the Tribe to produce and disclose a report issued by the Pascua Yaqui

Fire Department. However, the Opinion was issued without briefing. The issue of

law and fact presented to the court was whether 3 PYTC §2-2-380(D) required the

Tribe to do so. It is clear that the trial court did not base its decision upon any

evidence presented by the defendant. In fact, the defendant did not produce or

introduce any evidence at the evidentiary hearing (that he requested) to support his

Request for Disclosure. The court found that the Tribe was obligated to disclose

the report. The court’s finding and order lacks evidentiary support in the record. It

was an abuse of discretion for the court to have ordered the disclosure. It is

therefore submitted to this Court that it should reconsider its prior ruling.

Additionally, jurisdiction can be raised at any time in a proceeding. The

court fined the Tribe $100. The Pascua Yaqui Tribe is a tribal government. As a

tribal government, it has sovereign immunity. That immunity must be waived by

the tribe to allow it to be subject to suit. The court did not fine that the Tribe had

waived its sovereign immunity. The court’s ruling is contrary to law and an abuse

of discretion.

Wherefore, the Tribe respectfully requests that this court reconsider its prior

ruling in this appeal, and find that the Court’s rulings were an abuse of discretion

and vacate those portions of the trial court’s order inconsistent with the law.

RESPECTFULLY SUBMITTED this BW day of April, 2014.

By G. Allen Osbft Hin, |

Deputy Prosecut

CERTIFICATE OF SERVICE

I certify that the above Petition for Reconsideration was delivered this ZL day

of April, 2014, to:

Melissa Acosta

Office of the Public Defender

Attorneys for the Defendant

PASCUA YAQUI TRIBE

No. CA-14-001 COURT OF APPEALS

Pascua Yaqui Court of Appeals

q RE APR 02 2014

ISSUED

Pascua Yaqui Tribe, Appellant, CLERK OF COURT

VS.

Escamilla, Manuel, Appellee,

Interlocutory Appeal of a Tribal Court Order Granting Motion to Compel Disclosure in Case No.

CR-14-144, the Honorable Melvin Stoof presiding.

G. Allen Osburn, Office of the Prosecutor of the Pascua Yaqui Tribe, 7777 Camino Huivisim,

Tucson, AZ for the Appellant.

Melissa Acosta, Pascua Yaqui Public Defender, 7474 S. Camino de Oeste, Tucson AZ 85757 for

the Appellee.

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I. Opinion

The Tribe seeks review of the Tribal Court’s order compelling the Tribe to disclose fire

department reports as well as a $100.00 sanction against the Tribe for producing photographs

nearly two months after the disclosure request. The fine is suspended as long as the Tribe

complies with ongoing court orders. The scope of discovery is within the discretion of the lower

court and therefore is reviewed for abuse of discretion. We find that the Tribal Court judge did

not abuse his discretion in compelling disclosure of fire department reports or in the imposition

of a suspended fine against the Tribe.

The main issue is whether the Tribal Judge abused his discretion regarding the scope of

discovery in the ongoing criminal case. The scope of discovery is within the discretion of the

lower court. We view the Tribal Court’s discovery ruling for abuse of discretion. U.S. v.

Williams, 791 F.2d 1383 (9th Cir. 1986) (Citing U.S. v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984).

There is no general federal constitutional right to discovery in a criminal case. Weatherford v.

Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977). “However, the Constitution

does impose on the prosecution a due process obligation to disclose exculpatory evidence that is

material on the issue of guilt or punishment.” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). There is a duty to disclose regardless of whether the accused has requested

the material. United States v. Agurs,427 U.S. 97 (1976).

The statement of probable cause indicates that Appellee stated he had been physically

assaulted by his two sons. Appellee received medical attention for his injuries. Photographs

were taken of Appellee’s injuries and his son’s injuries and submitted into evidence. The Tribal

judge stated that the fire department records, including photographs “may have been part of the

basis of the officer’s probable cause statement, and the reports may contain information that is

exculpatory,... .” Thus, the court found it was improper for the Tribe to fail to disclose “such

possibly exculpatory evidence.”

The Tribal judge did not abuse his discretion in compelling disclosure of fire department

reports or in the imposition of the suspended fine. This Court affirms the Tribal Court’s ruling

granting the motion to compel and upholds the imposition of the fine, which has been suspended

unless the Tribe fails to comply with the Tribal Court’s order.

For the foregoing reasons, the Tribal Court’s judgment is affirmed.

So ordered on this 2nd day of April 2014.

Chief Justice, James Hopkins

Office of the Tribal Prosecutor

7777 S Camino Huivisim, Bldg. A

Tucson, AZ 85757

(520) 879-5257 Telephone

(520) 879-6260 Facsimile

By G. Allen Osburn, and

Frederick Lomayesva

Deputy Prosecutors

IN THE PASCUA YAQUI TRIBAL COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, )

)

Plaintiff, )

)

V. )

)

ESCAMILLA, MANUEL, )

)

Defendant. )

App. Case No. CA-14-001

(CR-14-144 Below)

AMENDED

NOTICE OF APPEAL

(INTERLOCUTORY)

Assigned to J. Stoof

COMES NOW the Plaintiff and gives notice of its filing an /nterlocutory

Appeal of a tribal court order filed on March 12, 2014, pursuant to Rules of

Appellate Procedure (3 PYTC §2-3-10 et.seg.) and In Re. Pascua Yaqui Tribe,

CA-13-005 (2014).

The Plaintiff below is designated as the “Appellant” and the Defendant

below is designated as the “Appellee.”

Page 1 of 2

The order appealed from is the tribal court’s Order Granting Motion to

Compel Disclosure signed March 12, 2014. A copy of the order is attached to this

notice and by this reference is made a part of this notice.

The Plaintiff (Appellant) designates the following parts of the order as being

appealed:

1. The part of the order compelling the disclosure of the fire department

report.

De The part of the order sanctioning the tribe $100 suspended.

This matter is set for a trial on April 07, 2014, it is respectfully requested that an

accelerated briefing schedule be set.

RESPECTFULLY SUBMITTED this ZS day of March, 2014.

fj ~ )}~_

By G. Allen Osburfl,

Deputy Prosecut

CERTIFICATE OF SERVICE

A copy of the foregoing was delivered this 25 day of March, 2014, to:

Melissa Acosta, Esq.

Office of the Tribal Public Defender

Attorneys for the Defendant

Clerk of the Tribal Court

By: 7) “\

Page 2 of 2

IN THE PASCUA YAQUI TRIBAL COURT

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) CASE NO. CR-14-144

PLAINTIFF, )

VS. ) ORDER GRANTING MOTION TO

ESCAMILLA, MANUEL, ) COMPEL DISCLOUSRE

DEFENDANT. )

)

On March 12, 2014, the defendant’s counsel, Melissa Acosta, made a request for a

ruling on disclosure request. G. Allen Osburn appeared for the Tribe.

The Tribe provided its disclosure to the defendant on J anuary 23, 2014, and on January

30, 2014, the defendant requested copies of any and all reports by officers Tapia. On February

1, 2014, the Tribe filed its response:

(1) The police report(s) of Ofc. Eutemio Molina and Kevin Wells has/have been

previously disclosed; upon information and belief, no other reports exists.

Tribe’s Response to Disclosure Request, page 1, par. 2.

The Tribe’s response is a responsive one to the defendant’s request, because it does include a

specific response to the specific request for officer Tapia’s report, that it does not exist.

The Tribe also answered the defendant’s request for 911 tapes and evidence that the

Tribe intends to introduce at trial, with the response:

The requested 91 1/dispatch recordings do not exist.

Pat Ramirez, for the Pascua Yaqui Police department testified that the 911 recording system

was down for a period from December 26, 2013 through February 20, 2014, and that the

department could not retrieve any recordings for that time frame because there were none.

The court finds that the Tribe’s failure to produce a 911 tape was not caused by any

intentional act on behalf of the police, but rather, it was due to a defect in the recording

system.

As to retrieval of Fire Department records of the incident, the court finds that the Tribe

is under an obligation to provide the names of the responders and any investigative report in

their possession, in light of the defense counsel’s comment that there were photographs

showing injuries to the defendant from the alleged victim, who has been named as a defendant

in case no. CR-14-143, and that such reports may provide exculpatory information. The Tribe

objected that they have no control over the fire department in its investigative role in criminal

matters. Under Pascua Yaqui law, the Tribe’s prosecutor, as an officer of the court, is subject

to the American Bar Association (ABA) standards of conduct:

Dignity & ethics. Any attorney practicing in the Pascua Yaqui Courts shall

conform to the usual standards and conduct of the American Bar Association in

the performance of their duties. 3 PYTC § 1-4-40. (emphasis added).

Although the “standards” of the ABA are rules of practice that have been developed to assist

practitioners who specialize in certain areas of practice, the Court has interpreted the above

provision to include a lawyer’s duty to follow both the ABA Model Rules of Professional

Conduct. (emphasis added), and the “standards,” also formerly, in prior ABA drafts, referred

to as “guidelines.” The American Bar Association, Criminal Justice Section Standards,

Prosecution Function, Standard 3-1.1, the Function of the Standards, provides in pertinent

part, as follows:

These standards are intended to be used as a guide to professional conduct and

performance. (emphasis added).

The ABA Model Rules of Professional Conduct provides:

A lawyer shall act with reasonable diligence and promptness in representing a

client. Rule 1.3 Diligence.

As to a prosecutor’s duties, the ABA provides for standards of practice, including a rule for

Prompt Disposition of Criminal Charges:

(a) A prosecutor should avoid unnecessary delay in the disposition of cases.

A prosecutor’should not fail to act with reasonable diligence and promptness

in prosecuting an accused.

(b) A prosecutor should not intentionally use procedural devices for delay for which

there is no legitimate basis.

facilities to enable it to dispose of all criminal charges promptly. The prosecutor

should be punctual in attendance in court and in the submission of all motions,

briefs, and other papers. The prosecutor should emphasize to all witness the

importance of punctuality in court.

(d) A prosecutor should not intentionally misrepresent facts or otherwise mislead the

court in order to obtain a continuance.

ABA Standard 3-2.9 Prompt Disposition of Criminal Charges, ABA Criminal Justice Section.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.