FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS May 17, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-2047
          v.                                               (D. N.M.)
 MARTIN AGUILAR,                              (D.C. No. 1:10-CR-03101-MCA-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, SEYMOUR, and MURPHY, Circuit Judges.



I.    Introduction

      Defendant-appellant Martin Aguilar entered a conditional plea of guilty,

pursuant to Fed. R. Crim P. 11(a)(2), to two counts of violating the Bald and

Golden Eagle Protection Act (“Eagle Protection Act”) by taking a bald eagle and

possessing bald eagle parts without a permit. See 16 U.S.C. § 668. Consistent

with his conditional plea, Aguilar now appeals two adverse rulings of the district

court: an order denying his motion to suppress evidence and an order denying his


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
motion to dismiss the indictment. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, this court affirms.

II.   Background

      Aguilar is an enrolled member of Kewa Pueblo (formerly known as the

Pueblo of Santo Domingo), a federally recognized Indian tribe. Indian Entities

Recognized and Eligible To Receive Services From the Bureau of Indian Affairs,

77 Fed. Reg. 47,868, 47,870 (Aug. 10, 2012). On February 12, 2010, Special

Agents Jason Riley and Russell Stanford of the United States Fish and Wildlife

Service (USFWS) began investigating an anonymous tip that Aguilar had killed

eagles on tribal land the previous weekend. The agents drove onto the Pueblo and

conducted surveillance near the Rio Grande for about three hours, beginning

around 5:30 a.m. They then drove to the Kewa Pueblo government headquarters

and spoke to tribal officials about their investigation. The agents asked the tribal

officials if they knew anything about eagles being killed. The tribal officials

responded they had spoken about such a matter with a tribe member, whom they

would not identify. It was tribal policy to assign a tribal officer as an escort when

outsiders were conducting business within the main village of the Pueblo.

However, because the agents did not tell the tribal officials they would be

conducting their investigation within the village, the tribal Governor did not

assign a tribal officer to escort them.




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      The agents drove to the main village of the Pueblo and located Aguilar’s

house, which he shared with his sister and mother. They knocked on the door and

spoke with Aguilar’s sister. After identifying themselves as USFWS special

agents, they asked to speak with Aguilar, and were informed he was not home.

The agents returned to their vehicle and left the Pueblo, returning to Aguilar’s

house later and waiting for him to come home. Some time later, Aguilar’s sister

invited the agents to come into the house because Aguilar was on the phone and

wanted to speak to the agents. Special Agent Stanford spoke to Aguilar,

identifying himself and stating he had some questions about eagle feathers.

Aguilar told Agent Stanford he was at a Sam’s Club in Albuquerque and agreed to

meet the agents outside the store. The agents arrived at the Sam’s Club twenty to

twenty-five minutes later, where they found Aguilar in the food court. The agents

explained to Aguilar that they wanted to talk with him based on information he

shot two eagles the previous weekend. He perceived the agents as polite and

courteous; they told him he was not under arrest, did not have to speak with them,

and could leave.

      Aguilar was very cooperative with the agents. He admitted he shot one

eagle the previous weekend and his son shot another. He explained that he was a

medicine man and had killed the eagles for their feathers. Aguilar told the agents

he had been called into the Governor’s office two days earlier and that, when

questioned about the incident, he was told to stop killing eagles. He also told the

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agents he had the feathers in a basket in a workshop behind his house. Special

Agent Stanford asked if he could see the feathers, and Aguilar agreed to meet the

agents at his house later that afternoon. The agents returned to the Pueblo around

3:00 p.m. to find Aguilar already home. Aguilar had moved the eagle parts from

a shed into his house, and invited the agents to examine the feathers. The agents

asked if they could look inside the shed where he kept the feathers, and he

responded they could not. He then told the agents he had telephoned tribal

officials and wanted to wait until they arrived before proceeding further. Tribal

police officer Kerwin Tenorio arrived minutes later and discussed the

investigation with Special Agent Stanford. After conferring with Aguilar in their

native language, Keres, Officer Tenorio told the agents they should immediately

report to the Governor at his office. Prior to doing so, the agents seized a .22

magnum rifle, eagle feathers, and a pair of mounted eagle wings.

      Aguilar was charged in a four-count indictment. Counts 1 through 3 were

brought under the Eagle Protection Act, 16 U.S.C. § 668. 1 Aguilar moved to

suppress the evidence seized at his home, arguing, inter alia, that the agents

obtained his consent to speak with them and search his home under the false

pretense that they were acting with the approval of the Governor of the Pueblo.



      1
       Count 4, which related to the illegal taking of a red-tailed hawk also found
on Aguilar’s property, was brought under the Migratory Bird Treaty Act, 16
U.S.C. §§ 703, 707(a).

                                         -4-
Aguilar also moved to dismiss the indictment, arguing the Eagle Protection Act

impermissibly burdened his religious practices in violation of the Religious

Freedom Restoration Act (“RFRA”). See 42 U.S.C. § 2000bb-1. The district

court denied both motions, and Aguilar now appeals.

III.   Discussion

       A.    Motion to Suppress

       When reviewing a Fourth Amendment challenge to a search by police, this

court “review[s] the district court’s factual findings for clear error, and the

ultimate reasonableness of the search de novo.” United States v. Pikyavit, 

, 1129 (10th Cir. 2008). In the course of this review, we view the facts

in the light most favorable to the prevailing party below, in this case the

government. Id. at 1130. A finding is clearly erroneous only if it “is without

factual support in the record or if, after reviewing all the evidence, we are left

with a definite and firm conviction that a mistake has been made.” United States

v. Quaintance, 

, 721 (10th Cir. 2010) (quotation omitted).

       Aguilar argues his consent to the agents to enter his home and view the

eagle feathers was involuntary when considering the totality of the circumstances.

In particular, Aguilar argues the district court understated the significance of his

belief that the agents were acting under the authority of the Pueblo Governor,

whom, he argues, he was bound to obey according to Pueblo custom and tradition.

In response, the government argues Aguilar’s subjective beliefs are irrelevant to

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the issue of voluntariness of consent insofar as there is no indication the agents

were aware of or took advantage of them. The district court acknowledged there

is conflicting authority as to whether subjective facts about a defendant, unknown

to officers at the time consent to search is given, are relevant in determining

whether consent is voluntary. See United States v. Sims, 

, 953 n.2

(10th Cir. 2005); United States v. Grap, 

, 444 (7th Cir. 2005)

(discussing “the apparent difference between . . . approaches to voluntary consent

. . . stem[ming] from the weight to be accorded the evidence presented to a

reasonable officer asking for consent as opposed to some other facts, unknown to

the officer, but later argued to the reviewing court.”).

      The district court nonetheless concluded the consent to search was valid

regardless of the extent to which Aguilar’s subjective state of mind informed the

analysis:

      The Court concludes that if the voluntariness of Defendant’s consent
      is measured by an objective standard limited to . . . what the special
      agents knew or should have known about Defendant’s state of mind,
      Defendant’s subjective concern that he might be acting contrary to
      the Governor’s will if he declined to cooperate is irrelevant to the
      voluntariness inquiry due to the absence of evidence that the special
      agents knew or had reason to know of Defendant’s subjective state of
      mind. Alternatively, the Court concludes that if Defendant’s
      unexpressed subjective concern is part of the “totality of the
      circumstances,” it should not be given significant weight, United
      States v. Iribe, 

, 1557 (10th Cir. 1993), and that due to
      the absence of evidence of coercion or duress on the part of the
      special agents, Defendant’s subjective concern that a failure to
      cooperate with the special agents might be viewed as disrespect for
      the Governor is insufficient to render his consent involuntary.

                                          -6-
Order Den. Mot. to Suppress Evid. at 19 (footnote omitted). Elsewhere in its

order, the district court found that, if Aguilar believed the agents were acting at

the direction of the Governor, he would have felt obliged to cooperate with them.

The court also found, however, that at the time Aguilar agreed to meet with the

agents at the Sam’s Club, he was “unsure whether the investigation by the

USFWS had been instigated by the Governor or was being conducted with his

approval.” Id. at 14 (emphasis added). The district court arrived at this finding by

noting that, prior to the agents’ arrival, Aguilar had already spoken with the

Governor about his having killed eagles on tribal land. From this, the court found

it was possible Aguilar thought the Governor informed the USFWS about his

killing of eagles, but that it was equally likely Aguilar considered the matter to

have been resolved to the Governor’s satisfaction during their meeting.

      Aguilar challenges these findings on several grounds. First, he argues the

district court disregarded the effect of the agents’ entry into the Pueblo’s main

village and Aguilar’s home on Aguilar’s state of mind. As a member of the

Pueblo, Aguilar would have understood Pueblo custom and law to prohibit such

entry unless the Governor had explicitly authorized it. Relatedly, Aguilar argues

the district court understated the significance of Aguilar’s concern that he was

bound to cooperate with the agents to meet his obligations to the Governor.

Aguilar also argues there were other coercive circumstances attendant to his

consent to search, including statements by the agents that it was in his best

                                          -7-
interest to tell the truth, his own impressions that he would not be prosecuted, and

the lack of evidence Aguilar was advised of his right to refuse consent to the

search. These arguments do not come close to demonstrating that the district

court’s contrary factual findings were clearly erroneous. “To be clearly

erroneous, a finding must be more than possibly or even probably wrong; the

error must be pellucid to any objective observer.” Quaintance, 608 F.3d at 721

(quotation omitted). Aguilar’s challenges to the district court’s factual findings

invite this court to reconsider and reweigh evidence already passed upon by the

district court. As such, they are insufficient to demonstrate clear error.

      It is therefore unnecessary to decide the extent to which a defendant’s

subjective perceptions unknown to police officers are relevant in assessing the

voluntariness of a consent to search under the Fourth Amendment. Even

assuming the law is as Aguilar claims, he advances no persuasive argument

undermining the district court’s finding that his consent to search was voluntary

in light of the totality of the circumstances. The district court therefore correctly

denied his motion to suppress.

      B.     Motion to Dismiss

      Appealing the denial of his motion to dismiss, Aguilar argues the Eagle

Protection Act impermissibly burdens his practice of religion in violation of

RFRA. The relevant provisions of RFRA provide:




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      (a) In general

      Government shall not substantially burden a person’s exercise of
      religion even if the burden results from a rule of general
      applicability, except as provided in subsection (b) of this section.

      (b) Exception

      Government may substantially burden a person’s exercise of religion
      only if it demonstrates that application of the burden to the person—

             (1) is in furtherance of a compelling governmental interest;
             and

             (2) is the least restrictive means of furthering that compelling
             governmental interest.

42 U.S.C. § 2000bb-1. 2 In United States v. Friday, 

, 952–56 (10th

Cir. 2008), this court rejected a virtually identical argument by a similarly

situated defendant. We held that the Eagle Protection Act, and its attendant

permitting process which allows for the taking of live eagles for religious

purposes by members of federally recognized Indian tribes under certain

circumstances, was the least restrictive means of furthering compelling

governmental interests in protecting eagles and protecting the religion of federally

recognized Indian tribes. Id. at 956; see also United States v. Wilgus, 

        “In City of Boerne v. Flores, 

, 536 (1997), the Supreme
Court held that RFRA could not be constitutionally applied to the states as an
exercise of Congress’ power to enforce the Fourteenth Amendment. RFRA can,
however, be constitutionally applied to the federal government, as an exercise of
Congress’ Article I, Section 8 powers under the Necessary and Proper Clause.”
United States v. Wilgus, 

, 1279 (10th Cir. 2011).

                                         -9-
1274, 1288 (10th Cir. 2011) (“We . . . evaluate the validity of the Eagle

[Protection] Act under RFRA with reference to two compelling governmental

interests: protecting bald and golden eagles, and fostering the culture and religion

of federally-recognized Indian tribes.”). Aguilar acknowledges his challenge to

the Eagle Protection Act is similar to the position which was rejected in Friday,

but asserts this court should reconsider the balancing of interests in light of the

delisting of the bald eagle from the endangered species list. See Endangered and

Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States

From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 37,346,

37,372 (July 9, 2007); 50 C.F.R. 17.11(h). This argument is unpersuasive.

Contrary to Aguilar’s suggestions on appeal, the delisting of the bald eagle

occurred before Friday was decided. In fact, the court in Friday made reference

to the delisting in the course of its discussion. 525 F.3d at 954. Additionally, in

delisting the bald eagle, the USFWS specifically cited the Eagle Protection Act,

among other federal statutes, as providing the sufficient protections to ensure the

continued health of the eagle population. 72 Fed. Reg. at 37,353, 37,362–64.

Therefore, the delisting, standing alone, does not require this court to recalculate

the interests involved and means required to serve those interests in light of

Aguilar’s RFRA challenge. Because the delisting is the only changed

circumstance Aguilar points to as necessitating such a recalculation, the district

court correctly denied Aguilar’s motion to dismiss.

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IV.   Conclusion

      For the foregoing reasons, the orders of the district court are affirmed.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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