NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30010

Plaintiff-Appellee, D.C. No. 4:16-cr-00009-BMM-1 v.

CHERYL LYNN LITTLE DOG, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted July 12, 2018 Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District Judge.

Cheryl LittleDog1 appeals from her convictions for harboring a fugitive and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 1 Because Ms. LittleDog styles her name this way in her briefing on appeal, we adopt that formulation rather than “Little Dog” (as the name was styled in the district court). making a false statement to federal law enforcement, which arise from the

discovery of federal fugitive Frank Gallardo in the crawlspace of Ms. LittleDog’s

house. As the parties are familiar with the facts, we do not recount them here. We

have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s order

denying Ms. LittleDog’s motion to suppress evidence obtained during the two

searches of her house, but we vacate the judgment and remand for an evidentiary

hearing as to whether Ms. LittleDog’s Sixth Amendment right to conflict-free

counsel was violated by the Federal Defenders’ successive representation of both

her and the fugitive she was accused of harboring.2 We also grant Ms. LittleDog’s

request for judicial notice.

1. On appeal, Ms. LittleDog argues that both the first and second searches

of her house were unlawful. But in her motion to suppress, Ms. LittleDog

conceded that the first warrantless search was consensual and moved to suppress

only the evidence gathered during the second warrantless search. Accordingly,

Ms. LittleDog has waived her challenge to the legality of the first search. See

United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (per curiam).

The district court did not clearly err in finding that Ms. LittleDog consented

to the second warrantless search of her home where the undisputed suppression

2 Accordingly, we do not reach Ms. LittleDog’s other claims: that insufficient evidence supports her conviction of the first count; and that both the first and second counts suffer from erroneous jury instructions.

2 hearing testimony was that, after the officers knocked, Ms. LittleDog opened her

front door, “invited [them] in,” and then told them to “go look” for Mr. Gallardo in

the house. See Pavao v. Pagay, 307 F.3d 915, 919–21 (9th Cir. 2002); United

States v. Garcia, 997 F.2d 1273, 1280–81 (9th Cir. 1993); United States v. Shaibu,

920 F.2d 1423, 1427 (9th Cir. 1990). Nor did the district court clearly err in

finding, under the totality of the circumstances, that Ms. LittleDog’s consent was

voluntary, where Ms. LittleDog was not in custody and the officers did not have

their guns drawn; the “second search lacked the level of intensity of the first

search”; and Ms. LittleDog did not appear afraid of the officers at any point. See

United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002); United States v. Kim,

25 F.3d 1426, 1431–32 (9th Cir. 1994).

The district court did not err in denying Ms. LittleDog’s motion to suppress.

2. Ms. LittleDog also argues that her Sixth Amendment right to conflict-free

counsel was violated by the Federal Defenders’ prior representation of Mr.

Gallardo. The Sixth Amendment’s guarantee of the effective assistance of counsel

is violated when an actual conflict of interest exists. United States v. Walter-Eze,

869 F.3d 891, 900 (9th Cir. 2017). “[A]n actual conflict ‘is a conflict of interest

that adversely affects counsel’s performance.’” Id. (quoting Hovey v. Ayers, 458

F.3d 892, 908 (9th Cir. 2006)). To establish an “adverse effect,” a defendant “must

demonstrate that his attorney made a choice between possible alternative courses

3 of action that impermissibly favored an interest in competition with those of the

client.” McClure v. Thompson, 323 F.3d 1233, 1248 (9th Cir. 2003). An adverse

effect exists where counsel fails to put on certain defenses and witnesses as a likely

result of the conflict. See United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.

1992).

When a potential conflict of interest due to simultaneous representation is

brought to the court’s attention, and where the defendant has established an “actual

conflict” by demonstrating “adverse effects” resulting from the conflict, Mickens v.

Taylor, 535 U.S. 162, 173–74 (2002), the court’s failure to “take adequate steps to

ascertain whether the risk was too remote to warrant separate counsel” requires

automatic reversal. Holloway v. Arkansas, 435 U.S. 475, 484–85, 488–91 (1978).

In this case, Ms. LittleDog’s trial counsel was a member of the Great Falls

Federal Defenders’ office. Another attorney from the Great Falls Federal

Defenders’ office represented Mr. Gallardo from October 19, 2015 until October

23, 2015.3 Because Mr. Gallardo was the only direct witness in the case against

Ms. LittleDog for harboring a federal fugitive, the Federal Defenders’ duty of

loyalty to Mr. Gallardo, a former client, creates a potential conflict of interest in its

3 Pursuant to Fed. R. Evid. 201(f), Ms. LittleDog requests judicial notice of filings from Mr. Gallardo’s criminal proceedings in the U.S. District Court for the District of Montana and the U.S. District Court for the District of South Dakota. The government does not oppose this motion, and we grant it.

4 representation of Ms. LittleDog. See United States v. Rodrigues, 347 F.3d 818,

824 (9th Cir. 2003) (holding that a firm’s successive representation of clients with

an adverse interest to one other could violate the firm’s duty of loyalty to each

client and create an “actual conflict,” just as a single attorney’s successive

representation of those clients might).

Ms. LittleDog objected to this potential conflict of interest. The district

court apparently never addressed this pro se motion, and the record contains no

evidence indicating that it inquired into the potential conflict.

Ms. LittleDog argues that the district court’s failure to inquire into the

potential conflict of interest, when it knew or reasonably should have known of

that conflict, requires automatic reversal under Holloway, 435 U.S. at 488–91. But

Ms. LittleDog must also show “adverse effects” creating an “actual conflict” to

justify reversal. See Mickens, 535 U.S. at 173–74. Accordingly, we vacate the

judgment and remand for an evidentiary hearing on the question whether any

“actual conflict” existed, and if so, whether Ms. LittleDog validly waived her right

to independent counsel. See Mickens, 535 U.S. at 170 n.3; Wood v. Georgia, 450

U.S. 261, 272–74 (1981).

Each party shall bear its own costs on appeal.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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