United States District Court, N.D. California
ORDER RE FORFEITURE RE: DKT. NOS. 60, 72, 83
ILLSTON UNITED STATES DISTRICT JUDGE
November 3, 2017, the Court heard argument on the
government's Motion for Forfeiture and surety Nichole
Little Cloud's Request for Abatement of the Criminal
Action, Dismissal of the Indictment, and Exoneration of the
Bond. Dkt. Nos. 60, 83. After considering the parties'
materials and arguments, the Court orders the bond forfeited,
but the forfeiture is set aside. Pursuant to the
government's Notice of Dismissal, the Court grants the
government leave to dismiss the indictment with prejudice
pursuant to Federal Rule of Criminal Procedure 48(a).
See Dkt. No. 72. The request to abate the criminal
action is denied.
2016, defendant Thomas Daniel Little Cloud was indicted on
charges of: (1) possession with intent to distribute
methamphetamine; (2) felon in possession of a firearm; (3)
using a counterfeit access device; and (4) aggravated
identity theft. Dkt. No. 1. In August 2016, defendant was
released on a $100, 000 appearance bond, secured by
defendant's mother Nichole Little Cloud's home. Dkt.
No. 22. Ms. Little Cloud avers that at the time she signed
the bond, she believed defendant “would make all his
court appearances because his number one priority in his life
was gaining custody of his son” so that his son would
not be placed in foster care. Declaration of Nichole Little
Cloud (“Little Cloud Decl.”) (Dkt. No. 80 at 16)
¶ 6. She also declares that she was unaware defendant
had any bench warrant history. Supplemental Declaration of
Nichole Little Cloud (“Supp. Little Cloud Decl.”)
(Dkt. No. 91-2) at 2:6-7.
his pretrial release, defendant was placed at a
rehabilitation center, and later transitioned to a sober
living residence. Little Cloud Decl. ¶ 7. He completed a
parenting class and encouraged his wife to seek drug
treatment as well. Id., Ex. N. However, defendant
failed to appear for a July 3, 2017 status conference.
Defendant again failed to appear for his July 7, 2017 change
of plea hearing, prompting the Court to issue a no bail
arrest warrant. See Dkt. Nos. 55, 56, 57. Homeland
Security Investigations (“HSI”) Special Agent
Craig Hyatt and Officer Matthew Werle were assigned as co-lead
case agents in the efforts to apprehend defendant.
Declaration of Craig Hyatt (“Hyatt Decl.”) (Dkt.
No. 84-2) ¶ 3; Declaration of Matthew Werle
(“Werle Decl.”) (Dkt. No. 84-3) ¶¶ 3,
14, 2017, Agent Hyatt contacted Ms. Little Cloud. Hyatt Decl.
¶ 5. She informed Hyatt that she had last seen defendant
three weeks earlier in San Francisco and provided the address
of a San Francisco apartment where she had visited defendant
and believed he was living. Id. On July 17, 2017,
Agent Hyatt and other HSI agents conducted surveillance at
that address, but were unsuccessful in locating defendant.
Id. ¶ 6.
31, 2017, Agent Hyatt called Ms. Little Cloud regarding
information that defendant had left a voicemail for his son
on Ms. Little Cloud's cell phone. Id. ¶ 7.
Ms. Little Cloud stated that defendant had left a message
wishing his son a happy birthday on July 20, 2017, and
provided the phone number used to leave the message.
Id. She also provided the phone number that
defendant used to call her before he absconded, and contact
information for defendant's wife and mother-in-law.
Id. ¶¶ 8-9. Ms. Little Cloud stated that
she had not heard from defendant other than the voicemail
left for his son. Id. ¶ 10. This information
did not provide any leads. Id. ¶ 9; see
also Werle Decl. ¶ 5.
August 10, 2017, the government filed a Motion for Forfeiture
of Bond, Judgment Against Defendant, and Enforcement of
Surety's Obligations. Dkt. No. 60. Ms. Little Cloud
received notice of that motion on August 14, 2017. Little
Cloud Decl. ¶ 10. On August 18, 2017, she attended a San
Francisco Bar Association clinic to obtain legal advice.
Id. ¶ 11. She was given the name of a private
investigator “well-known for having the ability to find
people, ” and later hired him on August 22, 2017.
Id. The private investigator spent three days
searching a neighborhood that defendant was known to
frequent. Id. Ms. Little Cloud also asked her family
members and defendant's friends to reach out to and ask
defendant to turn himself in, which several people did
through social media posts. Id. ¶ 13..
Id. Additionally, Ms. Little Cloud provided
information she had about defendant's whereabouts to
Agent Hyatt and another HSI agent, Lucy Pezulo. Id.
¶ 14; Declaration of Erin Crane (“Crane
Decl.”) (Dkt. No. 80 at 11) at 11:7-8.
August 22 or 23, 2017, Ms. Little Cloud met with and hired
two attorneys to assist with the forfeiture action and
apprehension of defendant. Little Cloud Decl. ¶ 12;
Crane Decl. at 11:4-6. She “insisted that they tell any
law enforcement person that might encounter [defendant] that
he should be considered armed and dangerous.” Little
Cloud Decl. ¶ 12; Crane Decl. at 11:6-7, 17-18. She also
provided counsel with photographs of defendant and a list of
his friends and relatives who might be able to locate him.
Crane Decl. at 11:14-15. Ms. Little Cloud authorized counsel
to offer a reward to any who might lead them to defendant.
Id. at 11:16. During the course of their meeting,
counsel attempted but was unable to find a retired police
officer willing to work as a bounty hunter to locate
defendant. Id. at 11:9-12.
evening of August 23, 2017, Ms. Little Cloud's counsel
located a friend of defendant's who believed defendant
was going to Los Angeles. Id. at 11: 19-20. The
following day, counsel contacted Agent Pezulo, who advised
counsel that Officer Werle was assigned to defendant's
case and suggested counsel contact him. Id. at
August 25, 2017, Ms. Little Cloud's counsel showed
photographs of defendant to two of her other clients, both of
whom independently told counsel of two San Francisco streets
where they knew defendant to sell drugs. Id. at
11:24-26. Counsel left a voice message for Officer Werle
regarding this and other information on defendant's
whereabouts. Id. at 11:26 - 12:2.
same day, Ms. Little Cloud told her counsel that a friend of
defendant had told her that defendant “was driving cars
rented from Sixt Rental Cars in San Jose, that he may be
driving a black BMW coupe and that he was currently staying
in hotels with a Christina Lal.” Id. at
12:3-5. This friend was able to monitor Lal's location
through Facebook. Id. at 12:5-6. Counsel
“immediately relayed this information to Officer Werle
via voicemail.” Id. at 12:7. Officer Werle
received this information from his HSI Group Supervisor, but
was off-duty the rest of the day through the weekend and
planned to follow up on the information on August 28, 2017.
Werle Decl. ¶ 6.
August 26, 2017, Ms. Little Cloud's counsel and
“two others walked through the Tenderloin and Civic
Center area of San Francisco looking for [defendant] for
about 6 hours.” Id. at 12:9-10. They found
several police officers in the area, showed them photographs
of defendant, and asked them to be on the lookout.
Id. at 12:11-12. Counsel also met with a police
captain from the Tenderloin Police Station, who offered to
post information about defendant at the station. Id.
at 12:12-15. Counsel emailed information to the police
captain that evening. Id. at 12:15; Ex. L. Also that
day, counsel received information that defendant was known to
sell drugs near two additional San Francisco streets in the
Castro District. Id. at 12:16-17. Counsel went to
and canvassed that area, “asking bouncers seated
outside doors if they had seen him in the area.”
Id. at 12:18-19.
August 29, 2017, Ms. Little Cloud informed counsel that she
was “about to rent a car [defendant] would not
recognize and scour the Civic Center area looking for
him.” Id. at 13:1-2. Counsel
“discouraged her from doing so, ...