# IN THE PASCUA YAQUI COURT OF APPEALS

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Apascua_yaqui%3Aed5ff734b033e2c4

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

IN THE PASCUA YAQUI COURT OF APPEALS

) Case No: CA-06-010
)
PASCUA YAQUI TRIBE, )
)
Plaintiff/Appellant )
)
V. ) OPINION
)
ALMA SOTO, )
)
Defendant/Appellee )
)
)

Appeal from a decision of the Pascua Yaqui Tribal Court, Docket Number CR-06-116, the
Honorable Melvin R. Stoof presiding.

Yancy A. Jencsok, Esq., Office of the Prosecutor, Pascua Yaqui Tribe, Tucson, Arizona, for
the Plaintiff/Appellant.

Nicholas A. Fontana, Esq., Office of the Public Defender, Pascua Yaqui Tribe, Tucson,
Arizona, for the Defendant/Appellee.
Per curiam.

We decide three issues in this case: 1) Should we grant the motion to dismiss the
appeal due to the Plaintiff/Appellant Tribe’s (Tribe) failure to file a transcript within thirty
days of filing its notice of appeal; or alternatively, due to the Tribe’s failure to file the trial
court record with this Court?; 2) Did the trial court err as a matter of law in ruling that the
Tribe has an affirmative, statutory duty to disclose relevant documents and information to a
criminal defendant within ten days of arraignment pursuant to 3 PYT R. Crim. P. 38
(Criminal Rule 38)?; and 3) Did the trial court abuse its discretion when it dismissed with
prejudice the charges against Defendant/Appellee Alma Soto (Soto) due to the Tribe’s
failure to timely disclose documents and information?

Soto was arrested on January 27, 2006 and charged the next day with two counts of

narcotics possession and three counts of possession of drug paraphernalia. Soto’s
arraignment was held on February 7, 2006. The Public Defender filed with the trial court a
notice of appearance on behalf of Soto and a request for disclosure on March 10, 2006.
The parties do not list the documents and information that were covered by the disclosure
request, but they are probably the items listed at 10 PYTC § 5.1 (current version at 3 PYT R.
Crim. P. 38)(hereafter Criminal Rule 38). Criminal Rule 38 provides that no later than ten
days after the arraignment, the prosecutor shall make available to the defendant the names
and addresses of all witnesses the prosecutor intends to call, all statements of defendant,
names and addresses of experts, a list of all papers, documents, and other tangible objects
that the prosecutor intends to use at trial, a list of all prior convictions that the prosecutor
will use at trial, and all material or information that tends to mitigate or negate the
defendant's guilt. At the March 13, 2006 pretrial conference, the trial court determined that
the Tribe was statutorily obligated to disclose by February 17, 2006, but nonetheless
ordered the Tribe to respond to Soto’s request for disclosure by March 17, 2006. The
Tribe provided Soto with police reports on March 13, 2006 and filed notice of full
disclosure on March 14, 2006. Soto filed notice of disclosure on March 16, 2006.

On March 23, 2006, Soto filed a motion to dismiss alleging that the Tribe had not
timely met its statutory duty to disclose. On April 4, 2006, the trial court found that the
Tribe had not timely met its affirmative, statutory duty under Criminal Rule 38 to provide
Soto with all disclosable materials and information in its possession so that she may prepare
her case. As a sanction for the Tribe’s violation of Criminal Rule 38, the trial court
dismissed the case with prejudice citing 10 PYTC § 5.5 (current version at 3 PYT R. Crim.
P. 42)(hereafter Criminal Rule 42), which provides a non-exclusive list of sanctions for
failing to comply with discovery rules.

The Tribe filed a notice of appeal on April 7, 2006, claiming that the trial court
misinterpreted Criminal Rule 38 and the sanction of dismissal with prejudice under
Criminal Rule 42 was overly harsh. On August 1, 2006, Soto filed a motion to dismiss the

appeal on two grounds: 1) The Tribe failed to file a transcript; and 2) The Tribe failed in its
duty to make sure the trial court record was filed with this Court within thirty days of filing
its notice of appeal. PYTRAP Rules 9 and 10 (current versions at 3 PYTC § 2-3-9 and 3
PYTC § 2-3-10)(hereafter PYTRAP Rule 9 and PYTRAP Rule 10). We address Soto’s

motion to dismiss the appeal first and then follow with a decision on the merits of the

appeal.

I
A. Failure to file the transcript

Soto argues that the appeal should be dismissed because the Tribe did not file a
transcript pursuant to PYTRAP Rule 9. Soto asserts that the Tribe has a duty to file a
transcript within thirty days from the date it filed the notice of appeal, PYTRAP Rule
9(B)(4), and its failure to do so invites summary dismissal of the appeal, PYTRAP Rule
10(B). The Tribe argues that a complete transcript is not required in every appeal. Only
“such parts of the proceedings necessary for inclusion in the record” are required,
PYTRAP Rule 9(B)(1), and as no hearing was held in this case, no transcript is required.

The applicable appellate rule states as follows: “The appellant shall file the original
transcript with the appellate court clerk and serve a copy on each party to the appeal no later
than thirty (30) days from the date the notice of appeal is filed.” PYTRAP Rule 9(B)(4).
When interpreting court rules, if the language of the rule is plain and unambiguous, we will
apply it as written. In this case, PYTRAP Rule 9(B)(4) uses the mandatory word “shall,”
thereby placing a duty on an appellant to file an original transcript with the appellate court
clerk no later than thirty days after the notice of appeal is filed. The rule is plain and
unambiguous so there is no need to resort to outside sources. The record shows that the
notice of appeal was filed on April 7, 2006. Therefore, the Tribe had 30 days from April 7,
2006 or until May 6, 2006 to file the transcript so it could be included in the trial court
record. No transcript was filed by the Tribe.

The Tribe, nonetheless, argues that a transcript is not required in every appeal and that
no transcript is required in this case because no hearing was held. Several provisions of
PYTRAP Rule 9 decide this issue. As stated above, PYTRAP Rule 9(B)(4) imposes a duty
on the Tribe to file a transcript, but the transcript need not be an entire transcript, as
PYTRAP Rule 9(B)(1) allows for a partial transcript of those “parts of the proceedings”
the appellant deems “necessary for inclusion in the record.” PYTRAP Rule 9(B)(2) also
implicitly allows for a partial transcript stating that “unless the entire transcript is to be
included, the appellant shall . . . file with the appellate court clerk a description of the parts
of the transcript which he intends to include in the record . . . [and] if the appellant refuses
to order such parts he shall, within five (5) days, notify the appellee in writing of such
refusal.” PYTRAP Rule 9(B)(1) requires an appellant to order a transcript, “if any” part is
necessary, within ten days of filing the notice of appeal and PYTRAP Rule 9(D) allows for
an agreed statement in lieu of a transcript. Rule 9(B)(1) and Rule 9(D), when read together,
provides the appellant an option not to file a transcript at all. A transcript may not be
necessary in an appeal that presents a pure question of law. We also agree with the Tribe
that a transcript may not be available where a hearing was not held.

Finally, PYTRAP Rule 9(B)(2) requires that the appellee receive written notice
regarding the transcript — whether it is a notice to file the entire transcript; a notice to file a
partial transcript; or a notice that no transcript will be filed. Notice gives the appellee an
Opportunity to respond or pursue other alternatives. If no transcript exists, it makes sense
that the Tribe should give Soto notice so she can respond or request a narrative summary, if
necessary, pursuant to PYTRAP Rule 9(C). In this case, because no hearing was held, the
Tribe can be excused from its failure to file the transcript. Moreover, even if we were to
agree that no transcript is needed, the Tribe must still ensure that the trial court record is

timely filed with the appellate court.

B. Failure to file the record

Soto argues that the Tribe has the duty to make sure the record is timely filed, and if
the record is not timely filed, the chief justice may summarily dismiss the appeal. 3 PYTC §
2-3-9(a)(2), 3 PYTC § 2-3-10(b)(hereafter PYTRAP Rule 9(A)(2), PYTRAP Rule 10(B)).
The Tribe counters that PYTRAP Rule 9 places the burden on the trial court clerk, and not
an appellant, to prepare and transmit the record to the appellate court. In support the Tribe
relies on PYTRAP Rule 9(A)(2), which states that the trial court clerk shall number the
items in the record, prepare an index and “transmit the record with the index to the appellate
court no later than thirty (30) days from the date the notice of appeal is filed.”

The trial court record is critical to the appellate process because the appellate court
uses it to understand what occurred on the trial level. Lamone v. Navajo Nation, 3 Nav. R.
87 (1982)(citing 4 Am. Jur. 2d Appeals and Error §§ 399, 491). The question is who has
responsibility for the timely filing of the record, the trial court clerk or the Tribe? We rely
on two provisions in the appellate rules to hold that the Tribe, as the appellant, has the duty
to make sure the trial court record is timely filed with the appellate court. PYTRAP Rule
9(A)(3) allows the “appellant [to] obtain an order from the appellate court that extends the
time for transmission of the record.” This rule gives appellant control over the record
because it gives the appellant authority to request an extension of time to file the record.
The other rule is plain and unambiguous and orders the appellant to timely file the record:
“If the appellant fails to timely file the record, the chief justice may summarily dismiss the
appeal.” PYTRAP Rule 10(B)(emphasis added).

These two rules, PYTRAP 9(A)(3) and PYTRAP 10(B), make the appellant
responsible for ensuring that the trial court record is timely filed with the appellate court.
The rules place this duty on the appellant for several reasons. The appellant, as the party
appealing, is in a better position to know about the progress of the appeal than the trial court
clerk, who has many other cases to oversee. In addition, to place the burden on the trial
court clerk would, not only overburden the clerk, but would create delays that could prove
detrimental to the appellant’s appeal. The appellant, whose primary interest is a final

decision, must maintain consistent contact with the trial court to make sure that the record is
being prepared for timely submission to the appellate court. Lastly, the appellant’s
interests in the appeal are significant because an appellate court can only rule on issues in
the record. The appellant’s interests in the appeal should be enough to burden the appellant
with ensuring that appellate court receives the full record.

The Tribe’s reliance on PYTRAP Rule 9(A)(2) is misguided. The rule states that the
“trial court clerk shall number the items comprising the record . . . [and] transmit the record
with the index to the appellate court.” PYTRAP Rule 9(A)(2). Common sense holds that
the trial court clerk is charged with transferring the record because the clerk is the custodian
of the trial court record. The trial court clerk has access to the record and all the necessary
information, including the names of the parties and their counsels, and the appellate court
clerk, to make a smooth transfer possible. PYTRAP 9(A)(2) does not impose a duty on the
trial court clerk to make sure the record is timely filed; that duty, as explained earlier, falls
on the appellant. The Navajo Nation Supreme Court, in interpreting its Appellate Rule
9(b)(4), which is nearly identical to the Pascua Yaqui rule, also held that the appellant, and
not the trial court clerk, bears the burden of ensuring that the trial court record (which
includes the transcript) is timely filed with the supreme court. Navajo Nation v. Hatathlie,7
Nav. R. 259, 260 (1997).

Under PYTRAP Rule 10(B), “If the appellant fails to timely file the record, the chief
justice may summarily dismiss the appeal.” Rule 10(B) is permissive because it states that
the chief justice “may” dismiss, and not “shall” dismiss, the appeal. Likewise, PYTRAP
Rule 3 states that “the appellate court may, upon motion for good cause shown, suspend the
requirements or provisions of any of these rules in a particular case, and may order
proceedings in accordance with its discretion. These rules shall be construed to do justice.”
Here, given the novelty and confusion surrounding the issue of filing the record, we find
that a dismissal of the appeal on procedural grounds would not do justice. We further find
that, instead of a dismissal, a clarification of the rules as we have done above would be more

in line with doing justice. Accordingly, Soto’s motion to dismiss the appeal is denied. Our
interpretations of the appellate rules at issue in this case will apply to all cases pending in

the Pascua Yaqui courts on the day this opinion is filed.

II
A. Failure to file disclosure
Soto argues that the Tribe, as prosecutor, has an affirmative statutory duty to disclose
all evidence in its possession regarding her case no later than ten days after her arraignment.
Criminal Rule 38 (3 PYT R. Crim. P. Rule 38) states that “no later than ten (10) days after
the arraignment, the prosecutor shall make available to the defendant for examination and

99

reproduction the following material and information . . . (emphasis added). The rule
provides a list of items that the prosecution must make “available” such as the names and
addresses of any intended witnesses, a list of all papers and prior convictions that the
prosecution intends to use, and all material that tends to mitigate or negate defendant’s guilt.
Id. Soto insists that a plain reading of Criminal Rule 38 necessitates the conclusion that the
Tribe must disclose all evidence listed in the rule by turning it over to her. The Tribe, on the
other hand, argues that the rule does not require a prosecutor to turn over documents, but
instead they need only make the evidence “available” (like an open file) for a defendant to
inspect no later than ten days after the arraignment. The dispute centers on the words
“shall make available.”

For background purposes, it is generally understood that there is no constitutional
right for a defendant to be granted access to the prosecution’s evidence. See Kanuck v.
Meehan, 165 Ariz. 282, 284, 798 P.2d 420, 422 (1990); accord Weatherford v. Bursey, 429
U.S. 545, 559 (1977). In the absence of a statute or court rule to the contrary, a person
accused of crime is not, as a matter of right, entitled to inspection or disclosure of evidence
in the possession of the prosecution. 7 A.L.R. 3d. 8 § 3 (2006). Similarly, in Arizona, prior
to the adoption of 16A A.R.S. Rule 15.1, the defendant had no right to disclosure, absent a

statutory provision providing such a right. Burke v. Superior Court of Pima County, 3 Ariz.
App. 576, 577, 416 P.2d 997, 998 (1966). Thus, the requirement of disclosure by the
prosecution is, by and large, statutory in nature requiring us to look to the language of
Criminal Rule 38.

The Pascua Yaqui Tribal Court interpreted Criminal Rule 38 to mean “that the
prosecutor has the affirmative duty to provide the defendant all information within the
possession or control of the prosecutor to reasonably apprise the defendant of the charges
filed against him or her,” so that the defendant may prepare a defense. Order of Dismissal
and Exoneration of Bond (April 4, 2006). The trial court’s use of the words “affirmative
duty to provide” could be taken to mean that the prosecutor has to do more than provide an
open file. However, whether our interpretation of the trial court’s ruling is correct or not
makes no difference because we are not bound by our trial courts’ interpretation of Pascua
Yaqui statutes and court rules. We review questions of law using the de novo standard of
review, which makes this Court the final arbiter on interpreting our statutes or rules.

Criminal Rule 38(A)(1)-(6) states that “the prosecutor shall make available to the
defendant,” no later than ten days after the arraignment, items summarized here as the
names and addresses of any intended witnesses, a list of all papers and prior convictions
that the prosecution intends to use, and all material or information that would tend to
mitigate or negate defendant’s guilt. More specifically, Criminal Rules 38(A)(4) and
38(A)(5) states that the prosecution must “make available,” “a list of all papers,
documents, photographs or tangible objects” and “a list of all prior convictions” that the
prosecutor intends to use. (emphasis added). Both rules require the prosecution to create a
list which can be made available to the defendant.

Because clauses in a statute are to be “read in conjunction with each other and
harmonized whenever possible,” we must interpret rule 38(A) in light of all its various
subdivisions. Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (1994).
Thus, while Criminal Rule 38(A) merely requires the prosecution to “make available”

information in its possession, when read in conjunction with other provisions in the rule, it
becomes clear that the law requires the prosecution to do some affirmative act in excess of
providing an open file (i.e., give a list to the defendant).

The prosecution should, at a minimum, write up a list of the items in its possession,
mentioned in Criminal Rule 38, that it intends to use at trial and give the list to the
defendant. This list should be provided to the defendant within ten days after arraignment.
The prosecution is not required to go beyond providing a list by also handing over to the
defendant tangible evidence for inspection within the initial ten days. The defendant,
however, can use the list to request documents or seek an opportunity to inspect tangible
evidence in the prosecution’s possession. Following this reasoning, the Tribe should have,
at a minimum, given Soto a list of materials in its possession that it intended to use at trial.
Because the Tribe failed to do so, it violated Criminal Rule 38 and violated Soto's due

process rights.

B. Dismissal with prejudice

The Tribe argues that even if it violated Criminal Rule 38 by not affirmatively
disclosing evidence in its possession, the sanction of dismissal with prejudice is overly
harsh. We use an abuse of discretion standard to review sanctions for failure to comply
with discovery rules and we give deference to the trial court’s findings because of its
superior ability to determine the facts of the case. Under this standard, we may reverse a
discretionary decision if it rests on a clearly erroneous fact. In addition, as stated above, we
review the trial court's findings of law de novo.

In this case, we give deference to the trial court’s determination of the degree to which
the Tribe’s failure to follow discovery rules prejudiced Soto. The trial judge always has the
option to throw out evidence that was not properly disclosed by the Tribe if it prejudices the
defendant instead of dismissing the entire case. Criminal Rule 42(D). However, when there
is a violation of a defendant's due process rights, it will be difficult to find an abuse of

discretion on the part of the trial judge. If Soto’s due process rights were not implicated by
the Tribe’s failure to disclose within the ten-day time limit, there would be little reason to
dismiss the case with prejudice.

Due process is a fundamental right that is protected by the Pascua Yaqui Tribal
Constitution and the Indian Civil Rights Act (ICRA). 25 U.S.C. § 1302(8) (2006). In fact,
the trial court stated that “one of the fundamental rights of due process is the defendant's
right to disclosure of all material evidence that may be used against him or her.” Order of
Dismissal and Exoneration of Bond at 2. The decision also stated that “due process rights
must be afforded to defendants so that they may adequately defend their rights.” Jd.
Unless the prosecution properly discloses evidence against a defendant, a defendant would
have a difficult time preparing for trial. In addition, the ICRA states that a defendant must
“be informed of the nature and cause of the accusation” and “be confronted with the
witnesses against” her. 25 U.S.C. § 1302(6). By failing to provide Soto with the
disclosure listed in Criminal Rule 38, including a list of the witnesses that the Tribe planned
to use against her, the Tribe clearly violated Soto’s due process rights and severely
prejudiced her ability to prepare an adequate defense to the charges brought against her.

Criminal Rule 42 provides that if “a party has failed to comply with any provisions of
these discovery rules . . . the court may impose any sanction which it finds just under the
circumstances[.]” The rule goes on to provide a non-exclusive list of potential sanctions
including ordering discovery, granting continuance, and declaring a mistrial. The list is nonexclusive and the rule grants the trial court much discretion to impose any sanction that it
finds just. The trial court is in a better position to determine the prejudice to Soto for the
Tribe's failure to disclose evidence and whether the Tribe was acting in good faith or not.
Thus, while the sanction of dismissal with prejudice is strict, it does not rise to the level of
an abuse of discretion. We affirm the trial court's decision to dismiss with prejudice the

criminal charges against Soto.

10
A [
Filed this___' __ day of i larc ln , 2007.

Chief Justice
\ Uuny Death
" IY Assbeigé Justne ——
=" LF 2 an
Associate Mustive

11
IN THE PASCUA YAQUI COURT OF APPEALS

) Case No.: CA-06-010
)
PASCUA YAQUI TRIBE, )
)
Plaintiff/Appellant )

Vv ) NOTICE OF HEARING

ALMA SOTO, )
)
Defendant/A ppellee )
)
)

Micah Schmit, Esq., Office of the Prosecutor, Pascua Yaqui Tribe, Tucson, Arizona, for
the Appellant.

Nicholas A. Fontana, Esq., Office of the Public Defender, Pascua Yaqui Tribe, Tucson,
Arizona, for the Appellee.

Upon review of the record, this Court requests an appellate hearing be held in this
case. Oral arguments have been scheduled for Dec 8", 2006 at 2:45 PM. Arguments will
be held in the courtroom at the Pascua Yaqui Tribal Court. Appellant and Appellee will

each have 15 minutes to present.

Af
So ORDERED this CK day of Nov, 2006.

LA\~

Chief Justice

Pascua Yaqui Tribe

Office of the Prosecutor

7474 S. Camino de Oeste

Tucson, AZ 85746

(520) 879-6251 CA -G61G

Yancy A. Jencsok
Deputy Prosecutor

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) Trial Court case number: CR-06-116
)
Plaintiff/Appellant, ) Appeals Court case number: CA-06-01 1
)
vs. ) RESPONSE TO
) DEFENDANT/APPELLEE’S
Soto, Alma, ) MOTION TO DISMISS
)
Defendant/Appellee, )
)

Plaintiff/Appellant (“Appellant”), through counsel, hereby responds to
Defendant/Appellee’s (“Appellee”) Motion to Dismiss Appeal as follows:

ARGUMENT

A. The time limit for filing an opening brief begins running upon the transmission of
the record to the appellate court.

Appellee indicates in the statement of facts of her motion that Appellant’s
opening brief was filed “seventy-seven (77) days after filing the Notice of Appeal.”
Appellee seems to be implying that Appellant should have filed the opening brief sooner.
In point of fact, the deadline for filing an opening brief is triggered by the mailing of a
notice by the appellate court clerk that the record was filed. PYTRAP Rules 10(A) and
12(A). Upon mailing of such a notice, an appellant has thirty days to file and opening

brief. Rule 12(A). Appellee has not received any notice from the appellate court clerk.
B. It is not an appellant’s burden to insure that the record on appeal is transmitted to
the appellate court.

The Appellee has argued that it is the duty of the Appellant to prepare and
transmit the record on appeal. This argument is not supported by the wording of the
Appellate Rules, nor is it supported by logic.

PYTRAP Rule 10(B) states that “[i]f the appellant fails to timely file the record,
the chief justice may summarily dismiss the appeal.” However, as discussed below, other
portions of the Rules place the burden of preparing and transmitting the record squarely
upon the shoulders of the trial court clerk.

PYTRAP Rule 9(A) is titled “Composition of Record on Appeal; Transmission of
Record.” It discusses in detail the record on appeal. Section (A)(1) describes what
makes up the record. The record is “the original papers, exhibits, and other objects filed
with the trial court clerk, a reporter’s transcript, transcription of an electronic recording or
narrative or agreed statement, and copies of all entries.” Section (A)(2) directs how the
record shall be prepared. In a relatively short section comprising 73 words, the phrase

“the trial court clerk shall” is used three times. The trial court clerk shall number the

items comprising the record. The trial court clerk shall transmit the record. The trial

court clerk shall serve the index. All of these are duties given to the trial court clerk.
Nowhere in Section (A)(2), nor anywhere else in Section (A) does it state that “the
appellant shall.” Section (A)(3) does give the appellant permission to motion for an
extension of time. But there is no accompanying duty or responsibility mentioned, and
again, there is no mandatory language used anywhere in Section (A) in reference to the
appellant.

In addition to the explicit language of Rule 9(A), logic indicates that the trial
court clerk should be the one to prepare and transmit the record. The trial court clerk has
possession of all the elements of the record, most importantly the original pleadings and
the exhibits. The trial court clerk is the one most likely to have a complete record of the
proceedings. Other jurisdictions commonly require the trial court clerk to prepare and

transmit the record when there is an appeal.

' See for example Arizona Rules of Criminal Procedure, Rule 31.9 and Arizona Rules of Civil Procedure,
Rule 11.
C. Ordering a transcript is not mandatory.

Appellee argues in her motion that an appellant must order a transcript. That is
simply wrong. Rule 9(B) addresses the transcript. It does not require the ordering of a
transcript in all appeals. Rather, it simply requires that a transcript “of such parts of the
proceedings necessary for inclusion of the record” be ordered by the appellant. In this
case, Appellant made the decision that no part of the proceedings needed to be
transcribed. This case did not reach the stage of trial. It was dismissed at the time
originally scheduled for a pretrial hearing. There was never any testimony taken or
evidence submitted. The issues leading to the dismissal were thoroughly briefed, and the
trial court judge issued a detailed order explaining his decision. In Appellant’s judgment,
no transcript is necessary. If Appellee thinks that some, or all, of the proceedings should
be transcribed, there is a procedure set forth in the rules allowing an appellee to request
that some, or all, of the proceedings be transcribed. Those procedures are found at Rule

9(B)(2)(i) and (ii).

CONCLUSION

It is true that Rule 10(B) is inconsistent with Rule 9(A) as to who has the duty to
file a record on appeal. However, these two rules should not be given equal weight. Rule
10(B) provides for a discretionary punishment when an appellant fails to timely file a
record, but it does not state that an appellant actually has such a duty. Rule 9(A) on the
other hand, has very explicit language regarding the record and indicating that it is the
trial court clerk’s duty to prepare and file the record.

Rule 9(B) requires a transcript only when necessary. In this case, a transcript is
not necessary.

These appellate rules are new and have not yet been interpreted by this court. If
the court wishes Appellant to prepare and file the record and order a transcript, Appellant
will certainly do so. But to dismiss the appeal is not an appropriate remedy under the

circumstances.

WHEREFORE, Appellee’s motion should be denied.
DATED this 16" day of August, 2006.

MICAH SCHMIT
CHIEF PROSECUTOR

“VANCY.A. JENCSOK

Deputy Prosecutor
Counsel for Appellant
Original delivered to:
Clerk, Pascua Yaqui Tribe Court of Appeals
Copy mailed/delivered to:

Pascua Yaqui Public Defender

a,
On August 16, 2006 by: SK

IN THE PASCUA YAQUI TRIBE COURT OF APPEALS
IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION
PASCUA YAQUI TRIBE, Trial Court case number: CR-06-116
Plaintiff/Appellant, Appeals Court case number: CA-06-011

NOTICE THAT NO REPLY BRIEF
WILL BE FILED

Vs.
Soto, Alma,

Defendant/Appellee,

SO a ia a ae a

NOTICE IS HEREBY GIVEN that the Appellant will not file a Reply Brief.
Pursuant to PYTRAP Rule 12, the appeal should now be deemed at issue.
DATED this 11" day of August, 2006.

MICAH SCHMIT
CHIEF PROSECUTOR

J

Y A/ JENCSOK
Deputy Prosecutor
Counsel for Appellant

Original of foregoing and 5 copies delivered to:
Clerk, Pascua Yaqui Tribe Court of Appeals

Copy mailed/delivered to:
Pascua Yaqui Public Defender

On August 11, 2006 by: wy —

24

25

Nicholas A. Fontana

State Bar No. 014429 a
OFFICE OF THE PUBLIC DEFENDER ‘
7474 South Camino de Oeste

Tucson, AZ 85757

=.

Va Ob 0
@

Attorney for Appellee

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) APPELLATE CASE NO. CA-06-010
)
Appellant, ) PASCUA YAQUI TRIBAL COURT NO::
) CR-06-116
vs. )
) PYTRAP 10 MOTION TO DISMISS
ALMA SOTO, ) APPEAL
)
Appellee. )
)

Comes now Appellee Alma Soto, through counsel, and respectfully moves the Chief Justice
of the Pascua Yaqui Court of Appeals to enter an order dismissing the appealing due to the
Appellant’s failure to comply with Rule 9, Title 3, Pascua Yaqui Judicial Titles and Codes (Revised).

The grounds for this motion ate set forth in the accompanying Memorandum of Points and
Authorities.

t
DATED this / eo day of August, 2006.

PASCUA YAQUI PUBLIC DEFENDER

V1 ae

“Michohas A. F ontana
Chief Public Defender

a)
24

25

MEMORANDUM OF POINTS AND AUTHORITIES

I FACTS.

On April 7, 2006, Appellant filed a timely Notice of Appeal appealing the order of dismissal
entered by the trial court on April 4, 2006. On June 23, 2006, seventy-seven (77) days after filing the
Notice of Appeal, the Appellant filed its Opening Brief.

The Appellant has not filed or served a transcript, agreed statement in lieu of transcript, or
requested additional time for the purpose of providing the Court of Appeals with record on appeal.

As result, there is no record on appeal for the Court of A

ppeals to review. The Appellant failed to
comply with any of the provisions of Rule 9, Title 3, Pascua Yaqui Judicial Titles and Codes.

II. RULE 10, TITLE 3, PASCUA YAQUI JUDICIAL TITLES AND CODES, REQUIRES
THE DISMISSAL OF THE APPEAL.

After a notice of appeal is filed, the trial court clerk has thirty (30) days to ptepate, index,
transmit the record on appeal to the Court of Appeals, and serve a copy of the index to all parties to
the appeal. PYTRAP 9(A)(2). The burden of perfecting the record on appeal falls to the appellant.
If the appellant requires additional time, the appellant may obtain an extension of time for
transmission of the record. PYTRAP 9(A)(3). However, the motion for an extension of time must
be made before the expiration of the time for transmittal. Id.

An appellant has ten (10) days to order a transcript for inclusion in the record on appeal.
PYTRAP 9(B). The appellant must file the original transcript with the appellate court clerk and
serve a copy on each party to the appeal no later than thirty (30) days from the date the notice of
appeal is filed. PYTRAP 9(B)(4). If the appellant fails to timely file the record, the chief justice of
the Pascua Yaqui Court of Appeals may summarily dismiss the appeal. PYTRAP 10(B).

The Appellant has failed to comply with a single provision of Rule 9, Pascua Yaqui Tribe
Rules of Appellate Procedure. There is no record or transcript. At no time did the Appellant

request an extension from the Court of Appeals for transmittal of the record. The Appellant has

24

25

utterly failed to comply with its obligation to secure a record on appeal for the Coutt of Appeal’s
consideration.

WHEREFORE Appellee Alma Soto respectfully moves the Honorable Chief Justice Robert
Williams to enter an order dismissing the Appellant’s appeal.

D2
DATED this } day of August, 2006.

PASCUA YAQUI PUBLIC DEFENDER

MI~ATZ S
ANY Y fen feo ~
Nicholas A. Fontana ¢ '

Chief Public Defender

24

25

CERTIFICATE OF SERVICE

et

ORIGINAL and five (5) copies of the foregoing delivered this /

Clerk of the Court of Appeals
Pascua Yaqui Court of Appeals
7474 S. Camino de Oeste
Tucson, AZ 85757

day of August, 2006, to:

COPY of the foregoing delivered this a ital day of August, 2006, to:

Micah Schmit

Chief Prosecutor

Office of the Prosecutor for the Pascua Yaqui Tribe
7474 S. Camino de Oeste

Tucson, Abt,

Nicholas A. Fontanf —
Chief Public Defender

Nicholas A. Fontana

State Bar No. 014429

OFFICE OF THE PUBLIC DEFENDER

7474 South Camino de Oeste CACL.0%
Tucson, AZ 85757

Attorney for Appellee

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) APPELLATE CASE NO. CA-06-010
)
Appellant, ) PASCUA YAQUI TRIBAL COURT NO::
) CR-06-116
vs. )
) NOTICE OF ERRATA
ALMA SOTO, )
)
Appellee. )
)

Comes now counsel for the Appellee to give the Court and the Appellant notice that the
appellate case number on the Appellee’s Brief in Response, filed on July 27, 2006, is incorrect. The
correct appellate case number is CA-06-010. Counsel respectfully moves to amend the Brief in

Response to reflect the correct case number.

DATED this_ 267 day of July, 2006.

PASCUA YAQUI PUBLIC DEFENDER

2

Nicholas A. Fositana Ji
Chief Public Defender

24

25

CERTIFICATE OF SERVICE

ORIGINAL and five (5) copies of the foregoing delivered this 28

Clerk of the Court of Appeals
Pascua Yaqui Court of Appeals
7474 S. Camino de Oeste
Tucson, AZ 85757

COPY of the foregoing delivered this aett day of July, 2006, to:

Micah Schmit

Chief Prosecutor

Office of the Prosecutor for the Pascua Yaqui Tribe
7474 S. Camino de Oeste

Tucson, AZ 85757

_— y/
BY: PoxdSen. LAA
}éssica Vega TF
Legal Secretary

day of July, 2006, to:

IN THE PASCUA YAQUICOURT OF APPEAIS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

APPELLATE CASE NO. CA-06-011

)

PASCUA YAQUI TRIBE, )
) PASCUA YAQUI TRIBAL COURT NO::

Appellant, ) CR-06-116

)

vs. )

SOTO, ALMA,

Appellee.

BRIEF IN RESPONSE

Nicholas A. Fontana

State Bar No. 014429

OFFICE OF THE PUBLIC DEFENDER
7474 South Camino de Oeste

Tucson, AZ 85757

Attorney for Appellee
TABLE OF CONTENTS

Page
Statement OF PAC, 1. ccscwes eves cewnawinne eed 1404449 bbdiiomnnnnncenessusamenayetns pawmew vugnisedibaueas 1
Statemicat OF SSUES .nsness ss sswsnmansssasiedsd sdseaeWeccesueceecasaaneuussgaepoesesessinvewmaeee oes 4
PEPTIC sees sas svwnacnnes e's ba sommes 148449985 BAAAUIRUARsin nun aceon ommnenne 949 ppeUwONS ent ENMRGA@eR 4 TE Ted 5

I. The Trial Court properly found that the Appellant violated Rule 500, .........5
Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).

Il. The Trial Court properly held that the Appellant’s failure to provide .........7
disclosure in a timely manner violated the Due Process clauses of
the Indian Civil Rights Act, 25 U.S.C. § 1302, ef seq., and Article 1,
§ 1(h) of the Constitution of the Pascua Yaqui Tribe.

WI. The Trial Court’s dismissal of the charges with prejudice as a sanction ....... 8
for the Appellant’s failure to comply with Rule 500, Title 9, Pascua
Yaqui Judicial Titles and Codes (Revised), was proper under Rule 504
Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).

>
TABLE OF AUTHORITIES

Page

CASES

Brady v. Maryland, 373 U.S. 83 (1963)... ccc ccccce cece ces eeececussuceseeeeeeucerseceucereecess 2,8

Coin v. Mowa, No. AP-005-95 (Hopi 3/23/1997), 1997.NAHT.0000006 at 9 37 ....... ccs 5

http: //www.tribalresourcecenter.org

United States v. Robinson, 94 F.3d 1325 (9" Cit. 1996).......ccecccccccecececseeceusececeueceu cess 5,6

United States v. Sanchez-Lopex, 879 F.2d 541 (9" Cit. 1989)......0c.cccccceseeeceesceueceuseueeeces 5
CONSTITUTIONS

Article 1, § 1(f), Constitution of the Pascua Yaqui Ttibe............0.0c.ccccceceeceeceeceeceecen 2
Article 1, § 1(h), Constitution of the Pascua Yaqui Tribe..........0..00.0 ccc ecceceuceuceuees 2,4, 7
Article 8, § 1, Constitution of the Pascua Yaqui Tribe SAAAATONLE VE EA ESTN GAATOme w ew ve ewnncve y 4 ya 408 8
STATUTES & RULES

25 United States Code § 1302.00... 0. cccccecccececcescesuevceeveveveeecaeacnsvevuvurnererereeres 4,7
Title 1, Pascua Yaqui Judicial Titles and Codes, § 1.21.........00..0ccceccuccuecueceuuecseesees 8,9
Rule 9, Pascua Yaqui Tribe Rules of Appellate Procedure.........00.....cccccecceceeceueeuee 1,3
Rule 10, Pascua Yaqui Tribe Rules of Appellate Procedure...........0..0.ccccccceueeeceeceees 1,3
Rule 101, Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).........cccccccseeeeceeeeees 6
Rule 500, Title 9, Pascua Yaqui Judicial Titles and Codes (Cc) oe passim
Rule 503, Title 9, Pascua Yaqui Judicial Titles and Codes (Co) ee 2
Rule 504, Title 9, Pascua Yaqui Judicial Titles and Codes (REVISED) ccc isiisscncnenveues 2,4, 8
OTHER
Comment, Rule 3.8, American Bar Association Model Rules of Professional Conduct ....... 7

ii
STATEMENT OF FACTS’

Appellee Alma Soto was arrested at her home by an officer of the Pascua Yaqui Law
Enforcement on January 27, 2006. On January 28, 200, the Appellant filed a criminal complaint in
the Pascua Yaqui Tribal Court charging the Appellee with two counts of possession of narcotics and
dangerous drugs and three counts of possession of drug paraphernalia. [Criminal Complaint, CR-
06-116, filed 1/28/06].

The Appellee appeared before the Pascua Yaqui Tribal Court for her Initial Hearing on
January 28, 2006. [Initial Hearing Order, CR-06-116, filed1/28/06]. The Appellee was in custody
and without legal counsel. [Id.]. Her Arraignment was scheduled for February 7, 2006. [Id]

The Appellee appeared for her arraignment on February 7, 2006, out of custody, but again
without counsel. [Arraignment Order, CR-6-116, filed 2/7/06]. She entered a plea of not guilty to
all charges and the matter was set for a Pretrial Conference on March 13, 2006.

On March 10, 2006, the Pascua Yaqui Public Defender entered a Notice of Appeatatice on
behalf of the Appellee. [Notice of Appearance, CR-06-116, filed 3/10/06]. At the same time,
counsel for the Appellee filed a Request for Disclosure. [Request for Disclosure, CR-06-116, filed
3/10/06].

At the Pretrial Conference on Match 13, 2006, counsel for the Appellee moved to continue
the Pretrial Conference to afford the Appellee an opportunity to obtain disclosure from the
Appellant. [Order Continuing Pre-Trial, CR-06-116, filed 3/13/06]. The trial court granted the
motion and re-set the Pretrial Conference for April 4, 2006. During the Pretrial Conference,

counsel for the Appellee requested that the Court consider the Appellant’s failure to provide

" The Appellee’s Statement of Facts is limited to information contained in the pleadings and orders
of the lower court. It appears that the Appellant has failed to file a transcript or narrative statement
of evidence as required by Rule 9, Pascua Yaqui Tribe Rules of Appellate Procedure. As a result,
notice has not been filed ot served as required by Rule 10, Pascua Yaqui Tribe Rules of Appellate
Procedute.
disclosure. [Minute Order, CR-06-116, filed 3/13/06]. The trial court noted that the Pascua Yaqui
Code of Criminal Procedure requires the Tribe to produce disclosure within ten days of the
arraignment, and that the Appellant was statutorily obligated to submit disclosure by February 17,
2006. [Id.]. The trial court ordered the Appellant to file a response to the Appellee’s Request of
Disclosure no later than March 17, 2006. [Id.].

The Appellant filed a Response to Disclosure & Tribe’s Notice of Witness and Supplemental
Disclosure on March 14, 2006. [Response to Disclosure & Tribe’s Notice of Witness and
Supplemental Disclosure, CR-06-116, filed 3/14/06]. The Appellee filed her Notice of Defenses
and Disclosure on March 16, 2006. [Defendant’s Notice of Defenses and Disclosure, CR-06-116,
filed 3/16/06].

On Match 23, 2006, the Appellee filed a Motion to Dismiss based on the Appellant’s
violation of Article 1, §§ 1(f) and (g) of the Pascua Yaqui Tribal Constitution, Rules 500, 503, and
504, Title 9, Chapter 2 of the Pascua Yaqui Judicial Titles and Codes (Revised), and Brady v.
Maryland, 373 U.S. 83 (1963).

On Match 24, 2006, the trial court issued an order directing the Appellant to file its response
to the Appellee’s Motion to Dismiss by April 3, 2006, and setting the matter for a hearing on April
4, 2006. [Minute Order and Order Setting Hearing on Defendant’s Motion to Dismiss, CR-06-116,
filed 3/24/06].

The Appellant did not file a response to the Appellant’s Motion to Dismiss as ordered by the
trial court. At the conclusion of the hearing on the Defendant’s Motion to Dismiss, the trial court
entered an order finding that the Appellant had failed to comply with the Pascua Yaqui Rules of
Criminal Procedure, that the Appellant’s failure to comply with the rules violated the Appellee’s
tight to due process of law, and entered an order dismissing the charges against the Appellee with

prejudice. [Order of Dismissal and Exoneration of Bond, CR-06-116, filed 4/4/ 06].
The Appellant filed a timely Notice of Appeal on April 7, 2006. [Notice of Appeal, CA-06-
011, filed 4/7/06]. After filing the Notice of Appeal, it appeats that the Appellant made no effort to
comply with the provisions of Rule 9, Pascua Yaqui Tribe Rules of Appellate Procedure (hereinafter
“PTYRAP 9”). As a result, the Clerk of the Court of Appeals has not filed a notice of tecord as
required by Rule 10, Pascua Yaqui Tribe Rules of Appellate Procedure.

Despite the absence of a record, the Appellant filed its Opening Brief on June 23, 2006.
[Appellant’s Opening Brief, CA-06-011]. A copy of the Opening Brief was served on counsel for

the Appellee on June 27, 2006.
STATEMENT OF ISSUES

1. Whether the trial court erred in finding that the Appellant’s failure to provide disclosure within
ten days of the Appellee’s was violation Rule 500, Title 9, Pascua Yaqui Judicial Titles and Codes,
(Revised).

2. Whether the trial court erred in finding that the Appellant’s failure to provide disclosure in a
timely matter violated the Appellee’s due process rights as guaranteed by the due process clauses of
the Indian Civil Rights, 25 U.S.C. § 1302, ef seq., and Article 1, § 1(h) of the Constitution of the
Pascua Yaqui Tribe.

3. Whether the trial court erred in dismissing the charges against the Appellee with prejudice,

pursuant to Rule 504, Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).
[OCR skipped on page(s) 31-65]

[Read from a scan; the first 30 pages.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Apascua_yaqui%3Aed5ff734b033e2c4. Public record. Not legal advice.