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USA v. Little Cloud

United States District Court, N.D. California

November 9, 2017

USA, Plaintiff,
v.
THOMAS DANIEL LITTLE CLOUD, Defendant.

          ORDER RE FORFEITURE RE: DKT. NOS. 60, 72, 83

          SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

         On 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.

         BACKGROUND

         In June 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.

         Upon 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[1] 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, 5.

         On July 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.

         On July 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.

         On 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.

         On 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.

         On the 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 11:21-23.

         On 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.

         That 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.

         On 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.

         On 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 ‚Äúdiscouraged her from doing so, ...


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