NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         OCT 22 2020
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-30096

                Plaintiff-Appellee,             D.C. No.
                                                1:17-cr-02053-SAB-1
 v.

GEORGE SKYLAR CLOUD,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Eastern District of Washington
               Stanley Allen Bastian, Chief District Judge, Presiding

                      Argued and Submitted October 8, 2020
                              Seattle, Washington

Before: GILMAN,** CALLAHAN, and CHRISTEN, Circuit Judges.

      George Skylar Cloud appeals his conviction and sentence for first-degree

murder and discharging a firearm during a crime of violence, in violation of 18

U.S.C. §§ 1111, 924(c). He challenges several of the district court’s pre-trial and

evidentiary rulings. We have jurisdiction under 28 U.S.C. § 1291, and, finding no


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
prejudicial error, we affirm.

      1. Cloud first contends that the court erred in admitting evidence that, just

weeks before the murder, he stole a car at gunpoint and shot the carjacking victim

in the leg. The carjacking and firearm possession were “inextricably intertwined”

with the charged offense, however, because they “bore directly on the commission

of the charged crimes.” United States v. Dorsey, 

, 952 (9th Cir.

2012). The car Cloud stole—which he alone used—was found abandoned in a

remote location near the victim’s remains, with traces of the victim’s blood in the

trunk. As for Cloud’s possession of the firearm, it showed that he “had the means

to commit the charged crimes.”

Cloud shot the carjacking victim

presents a closer question, but any error in this regard was harmless. See United

States v. Liera, 

, 1244 (9th Cir. 2009). The car established Cloud’s

ties to the murder, two witnesses testified that Cloud confessed to the crime, and

one of those witnesses recounted helping Cloud hide the victim’s body. In

addition, the court gave the jury a limiting instruction, thereby minimizing any

resulting prejudice. See United States v. Mende, 

, 1302 (9th Cir.

1995); see also 

(entertaining a “strong presumption that

jurors follow instructions”).

      2. Cloud next faults the court for admitting evidence that he intended to

escape from prison and possessed two shanks. But such evidence is probative of a



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defendant’s “consciousness of guilt.” United States v. Guerrero, 

,

1347 (9th Cir. 1984); see also United States v. Bartelho, 

, 677–78 (1st

Cir. 1997). According to a fellow inmate, an already-imprisoned Cloud formulated

his escape plan in response to being charged with the victim’s murder. See

(finding evidence of a prison escape particularly

relevant where the escape occurred one day prior to the defendants’ arraignment).

As for the shanks, they corroborated the inmate’s testimony and were relevant to

Cloud’s intent and plans. The court therefore did not err in admitting this

evidence.

      3. Nor did the court abuse its “wide discretion” in ordering Cloud shackled

during the trial. See United States v. Fernandez, 

, 1245 (9th Cir.

2004) (quoting Morgan v. Bunnell, 

, 51 (9th Cir. 1994)). The court

found that Cloud posed a safety risk based on his extensive criminal history and

prior intent to escape from prison. The court also took steps to minimize the

prejudicial impact of the restraints, ordering Cloud shackled only at the ankle and

in such a way that was neither audible nor visible to the jury. This careful, case-

specific consideration of whether to require restraints defeats Cloud’s challenge to

their imposition. Contrary to Cloud’s assertion, the court need not have waited for

disruptive courtroom behavior before ordering him restrained. See, e.g., United

States v. Cazares, 

, 965 (9th Cir. 2015) (upholding the imposition of



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restraints where the defendants were members of a violent gang and were facing

life sentences).

      4. The court properly denied Cloud’s motion to dismiss the indictment.

Cloud contends that the Government violated his due process rights by failing to

secure and preserve the trailer in which the victim was killed. He does not explain

the trailer’s exculpatory value, however, and the failure to preserve potentially

exculpatory evidence rises to a due process violation only if the Government acted

in bad faith. Arizona v. Youngblood, 

, 57–58 (1988). Cloud offers no

evidence of bad faith and, before the district court, argued only that the

Government’s purported negligence should suffice given the severity of the

sentence faced. But negligence is insufficient, see United States v. Flyer, 

, 916 (9th Cir. 2011), and Cloud cites no authority in arguing for a different

rule in murder cases. Thus, even assuming that the Government should have

preserved the trailer, it did not violate Cloud’s due process rights by failing to do

so.

      5. Finally, Cloud insufficiently developed and therefore waived his

argument that first-degree murder is not a “crime of violence” for purposes of his

18 U.S.C § 924(c) conviction. See Greenwood v. FAA, 

, 977 (9th Cir.

1994) (“We review only issues which are argued specifically and distinctly in a

party’s opening brief.”). He states that, under United States v. Begay, 

1033 (9th Cir. 2019), where we held that second-degree murder is not a categorical

crime of violence, the district court should have dismissed the firearm charge. But

he fails to explain how Begay might apply to first-degree murder, and his “bare

assertion does not preserve [his] claim.” 

.

      AFFIRMED.




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