U.S. Tenth Circuit

U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog


An Air Force Captain and her family cannot plead their way around hurdles to suing the federal government, the Tenth Circuit reluctantly found last week. After Captain Heather Ortiz suffered negligent treatment at a military hospital during her pregnancy, her husband and child sued. However, the government cannot be sued for that negligence, the court found.

Under a 1950 Supreme Court decision, Feres v. United States, military service members are barred from suing the government under the Federal Tort Claims Act. That Heather Ortiz was not named as a plaintiff made no difference, since the in utero injuries claimed were to her. The court made it clear that it disagreed with the precedent, describing it as overbroad and unfair, but had no choice except to uphold it.

After Miguel Gutierrez-Carranza pleaded guilty to reentering the U.S. following a prior deportation, the district court sentenced him to three years of supervised release. Gutierrez-Carranza appealed, making the fairly straightforward argument that, since he was bound to be deported anyway, the supervised release was unreasonable. After all, he won't be in the country to be supervised.

That's not unreasonable enough for the Tenth Circuit, though. The court found that supervised release could provide deterrence against Gutierrez-Carranza illegally returning to see his family and children.

Richard Franklin was convicted on federal child pornography charges, including advertisement or notice of child pornography. Franklin was a member of a file-sharing website called GigaTribe, which allowed him to approve other users as "friends," letting them into his "tribe."

Of course, his fellow tribe members wanted child pornography, which he supplied, leading to his conviction. On appeal, he contended that the evidence didn't support a conviction for "advertisement or notice" of pornography. He also claimed that his total sentence -- five consecutive sentences, totaling 100 years -- was unreasonable.

This is a case about a fax. In 2008, well after the rest of the world had retired its fax machines, Custom Mechanical Equipment faxed CE Design an unsolicited advertisement, perhaps because their carrier pigeon had the day off. CE Design reacted proportionately -- by filing a class action lawsuit.

Custom's insurer, Emcasco, refused to defend the junk faxers, not just because they were embarrassed to represent a company that advertised via fax. They also didn't believe Custom's policy required them to defend or indemnify Custom for the junk faxes. They were right, the Tenth Circuit ruled this week.

New Mexico Governor Susana Martinez, a Republican, didn't violate anyone's civil rights when she cleaned house after taking office, demanding the resignation of employees appointed by her Democratic predecessor. Glenn Smith, the former director of the state Workers' Compensation Administration sued after he was terminated, arguing that he had a right to finish out his five year term.

Unfortunately for Smith, the Tenth Circuit disagreed, finding that he served at the will of the Governor and could be let go before his term concluded. Martinez is considered by some to be a likely contender for the GOP's VP pick in 2016.

Anthony Washington and Maurice Edwards were both convicted on federal drug possession charges with intent to sell after police found the drugs in the trunk of a rental car Edwards borrowed from his mother.

Trouble is, while it was easy for the jury to tie Edwards to the fourteen bricks of marijuana inside a black duffel bag, Washington's connection wasn't so clear. For that reason, the Tenth Circuit last week reversed Washington's conviction, finding insufficient evidence to tie him to the drugs.

Everyone makes mistakes. Some folks have one too many drinks before getting behind the wheel. Others fail, allegedly, to follow proper procedure when testing DUI blood draws, leading to retesting 1,700 samples. When Colorado's state toxicology lab had to do just that, they laid the blame publicly on one young lab tech, Mitchell Fox-Rivera.

After he was fired, Fox-Rivera claimed that the government lab improperly impugned his reputation, denying him due process. The Tenth Circuit was less sympathetic to his claims of scapegoating, finding that the comments made, which accused Fox-Rivera of not doing his job properly, did not rise to the level needed to implicate his due process liberty interests.

A bankruptcy trustee can't recover real property that was transferred, allegedly to avoid being lost, the Tenth Circuit ruled on Monday. That's because the transferor possessed only bare legal title, which is not an interest that may be avoided as a fraudulent conveyance under the Bankruptcy Code.

The case confirms that a joint tenancy and a trust may coexist under Kansas law. When a parent transferred her interest in a joint tenancy to her child without consideration, but also without fraudulent intent, and to be managed for her benefit -- she created a resulting trust, transferring only "bare legal title" to her soon-to-be-bankrupt child.

When a Wells Fargo branch was robbed in Aurora, Colorado, police took it seriously, stopping every car at a nearby intersection and holding them at gunpoint while they attempted to locate the pilfered cash. The mass detention of 29 people lasted over two hours and led to two lawsuits; one by fourteen people who were detained and another by the bank robber, who was caught in the stop.

If that's not bizarre enough, consider how the robbery itself. Recently fired violinist and music teacher Christian Paetsch road to the bank on a stolen bicycle, donned a beekeeper's hat and held up the bank while blasting an air horn. When he left, he took $26,000 in cash and a hidden tracking beacon.

He'd returned to his car by the time police placed the street on lockdown. In an appeal from his conviction, he argued that the mass detention was an unreasonable search and seizure.

James White pleaded guilty to violating the Sex Offender Registration and Notification Act (SORNA) after he failed to update his sex offender registration when he moved from Oklahoma to Texas. (He actually moved to Texas, then "drove back to Oklahoma every ninety days to maintain the illusion that he continued to reside there.")

On appeal, he claimed SORNA violated the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. He also brought two sentencing issues. So, is SORNA grossly unconstitutional?