United States v. George Cloud ( 2020 )

NOT FOR PUBLICATION FILED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, 677 F.3d 944, 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.” Id. The fact that Cloud shot the carjacking victim
presents a closer question, but any error in this regard was harmless. See United
States v. Liera, 585 F.3d 1237, 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, 43 F.3d 1298, 1302 (9th Cir.
1995); see also Dorsey, 677 F.3d at 955 (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, 756 F.2d 1342,
1347 (9th Cir. 1984); see also United States v. Bartelho, 129 F.3d 663, 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
Guerrero, 756 F.2d at 1342 (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, 388 F.3d 1199, 1245 (9th Cir.
2004) (quoting Morgan v. Bunnell, 24 F.3d 49, 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, 788 F.3d 956, 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, 488 U.S. 51, 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, 633 F.3d
911, 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, 28 F.3d 971, 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, 934 F.3d
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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.” Greenwood, 28 F.3d at 977.
AFFIRMED.
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