U.S. Tenth Circuit: June 2009 Archives
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June 2009 Archives

US v. Torres, No. 07-2158

Defendant's drug distribution conviction is reversed where the government failed to disclose evidence of a confidential informant's work as a DEA informant prior to the drug transaction at issue, and that evidence would have been material to the impeachment of the witness.

Read US v. Torres, No. 07-2158

Appellate Information

Filed June 30, 2009

Judges

Opinion by Judge Kelly

Counsel

For Appellant:

Joe M. Romero, Jr., Albuquerque, NM

For Appellee:

Terri J. Abernathy, Assistant United States Attorney, Las Cruces, NM

US v. Brooks, No. 08-5133

Defendant's robbery conviction is affirmed where: 1) there was no evidence that a juror whom Defendant challenged for cause recognized Defendant; and 2) because Defendant had been indicted before his initial appearance, he had no right to a preliminary hearing.

Read US v. Brooks, No. 08-5133

Appellate Information

Filed June 30, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Fred Randolph Lynn, Tulsa, OK

For Appellee:

Dennis A. Fries, Assistant United States Attorney, Tulsa, OK

FTC v. Accusearch Inc., No. 08-8003

In an action by the FTC to curtail Defendant's sale of confidential information and require it to disgorge profits, summary judgment for Plaintiff is affirmed where a practice may be "unfair" under the Federal Trade Commission Act (FTCA) even if it does not violate some law independent of the FTCA.

Read FTC v. Accusearch Inc., No. 08-8003

Appellate Information

Filed June 29, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

Deborah L. Roden, Gay Woodhouse Law Office, P.C., Cheyenne, WY

Gay Woodhouse, Gay Woodhouse Law Office, P.C., Cheyenne, WY

For Appellee:

Lawrence DeMille-Wagman, Attorney, Federal Trade Commission, Washington,
DC

William Blumenthal, General Counsel, Federal Trade Commission, Washington,
DC

Starkey v. Boulder Cty. Soc. Servs., No. 08-1013

In a 42 U.S.C. section 1983 action claiming that Defendant social services department deprived Plaintiffs of custody of their children based on Plaintiffs' religious beliefs, summary judgment for Defendants is affirmed where Plaintiffs failed to show that any false information from Defendants influenced the state court in issuing the various orders that interfered with Plaintiffs' family integrity.

Read Starkey v. Boulder Cty. Soc. Servs., No. 08-1013

Appellate Information

Filed June 29, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

Samuel Ventola, Ventola & Staggs P.C., Denver, CO

For Appellees:

Madeline J. Meacham, Deputy County Attorney, Boulder, CO

Shelly Stratton Bailey, Assistant County Attorney, Boulder, CO

 

US v. Eckhart, No. 07-4022

Defendants' drug possession convictions and sentences are affirmed, where 1) the police had reasonable suspicion to stop Defendants' vehicle because their license plate was not clearly visible, in violation of Utah law; and 2) the District Court's determination that Defendants failed to establish their minor participation in the offense was not clearly erroneous.

Read US v. Eckhart, No. 07-4022

Appellate Information

Filed June 29, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Appellants:

Steven B. Killpack, Utah Federal Defender, Salt Lake City, UT

Scott Keith Wilson, Assistant Federal Defender, Salt Lake City, UT

Mary C. Corporon, Corporon & Williams, Salt Lake City, UT

For Appellee:

Brett Tolman, United States Attorney, Salt Lake City, UT

Diana Hagen, Assistant United States Attorney, Salt Lake City, UT

Schmier v. McDonald's, LLC, No. 09-1036

The District Court's denial of Plaintiff's motion to set aside his voluntary dismissal is affirmed where a plaintiff who has dismissed his claim by filing notice under Fed. R. Civ. P. 41(a)(1)(A)(i) may move before the District Court to vacate the notice on any of the grounds specified in Rule 60(b), but Plaintiff offered no such ground.

Read Schmier v. McDonald's, LLC, No. 09-1036

Appellate Information

Filed June 26, 2009

Judges

Opinion by Judge Hartz

Counsel

Jonathan Schmier, pro se.

Bledsoe v. Bruce, No. 08-3172

In a murder prosecution, the grant of Petitioner's habeas petition is reversed, where the state supreme court properly held that, in order to reverse Petitioner's conviction based on ineffective assistance of counsel, they must be convinced that, but for counsel's deficiencies, there was a reasonable probability of a different outcome.

Read Bledsoe v. Bruce, No. 08-3172

Appellate Information

Filed June 26, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellants:

Jared S. Maag, Deputy Solicitor General, Topeka, KS

Stephen N. Six, Kansas Attorney General, Topeka, KS

For Appellees:

Alice Craig White, Paul E. Wilson Defender Project, University of Kansas School of Law, Lawrence, KS

Elizabeth Seale Cateforis, Paul E. Wilson Defender Project, University of Kansas School of Law, Lawrence, KS

US v. Cruz-Rodriguez, No. 07-4083

Defendant's conviction for illegally reentering the U.S. is affirmed, where Defendant waived his argument that the District Court erred by expanding the indictment, because he stipulated to the prior deportations at issue during trial.

Read US v. Cruz-Rodriguez, No. 07-4083

Appellate Information

Filed on June 24, 2009

Judges

Opinion by Judge Holmes

Counsel

For Appellant:

Scott Keith Wilson, Assistant Federal Public Defender, Salt Lake City, UT

Steven B. Killpack, Assistant Federal Public Defender, Salt Lake City, UT

For Appellee:

Elizabethanne C. Stevens, Assistant United States Attorney, Salt Lake City, UT

Brett L. Tolman, Assistant United States Attorney, Salt Lake City, UT

Bylin v. Billings, No. 08-8026

In a negligence action against a company that led hunting expeditions, the dismissal of the complaint is affirmed where the action was untimely under Wyoming's professional malpractice statute of limitations, and Plaintiffs received adequate notice of the statute of limitations defense and had ample opportunity to respond.

Read Bylin v. Billings, No. 08-8026

Appellate Information

Filed May 27, 2009

Judges

Judge Kelly delivered the opinion of the Court.

Counsel

For Plaintiffs:

Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY

For Defendants:

Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, WY

Michael C. Steel, Lonabaugh & Riggs, LLP, Sheridan, WY

Poppa v. Astrue, No. 08-4209

In an action seeking Social Security disability benefits, the denial of benefits is affirmed where: 1) res judicata did not preclude Defendant from denying benefits because the previous ALJ's decision did not constitute a final decision; and 2) the ALJ properly considered the relevant factors and the evidence in the record in making his credibility determination.

Read Poppa v. Astrue, No. 08-4209

Appellate Information

Filed June 23, 2009

Judges

Judge Kelly delivered the opinion of the Court.

Counsel

For Plaintiff:

Michael E. Bulson, Utah Legal Services, Inc., Salt Lake City, UT

Wendy Fenton, Utah Legal Services, Inc., Salt Lake City, UT

For Defendant:

Brett L. Tolman, United States Attorney, Salt Lake City, UT

Alexess D. Rea, Special Assistant United States Attorney, Salt Lake City, UT

Deana R. Ertl-Lombardi, of Counsel and Regional Chief Counsel, Social Security Administration, Denver, CO

Dillon v. Mtn. Coal Co., No. 08-1004

In an Americans with Disabilities Act action, the District Court's grant of judgment as a matter of law to Defendant is affirmed where Plaintiff produced no evidence from which a reasonable jury could conclude that Defendant regarded him as substantially limited in the ability to perform a class of jobs.

Read Dillon v. Mtn. Coal Co., No. 08-1004

Appellate Information

Filed June 23, 2009

Judges

Judge Tacha delivered the opinion of the Court.

Counsel

For Appellant:

Damon J. Davis, Killian, Jensen & Davis, P.C., Grand Junction, CO

J. Keith Killian, Killian, Jensen & Davis, P.C., Grand Junction, CO

For Appellees:

Jeffrey T. Johnson, Holland & Hart LLP, Denver, CO

Christina Gomez, Holland & Hart LLP, Denver, CO

Alyssa Yatsko, Holland & Hart LLP, Denver, CO

US v. Leifson, 08-4103

Defendant's perjury sentence is affirmed where: 1) a defendant does not need to commit nor be charged with the underlying offense for the "accessory after the fact" cross reference guideline, U.S.S.G. section 2J1.3(c), to apply; and 2) Defendant was on notice that the grand jury investigation in which he committed perjury pertained to murder.

Read US v. Leifson, 08-4103

Appellate Information

Filed June 23, 2009

Judges

Judge Briscoe delivered the opinion of the Court.

Counsel

For the U.S.:

Brett L. Tolman, United States Attorney, Salt Lake City, UT

Diana Hagen, Assistant United States Attorney, Salt Lake City, UT

For Defendant:

Edward K. Brass, Salt Lake City, UT

US v. Robertson, No. 08-3126

Defendant's firearm possession sentence is affirmed where: 1) Defendant's unconvicted conduct provided the District Court with an appropriate ground for departure under U.S.S.G. section 4A1.3(a)(2)(E), and 2) Defendant's criminal history and propensity to recidivate placed him outside the heartland of typical cases considered in drafting the Guidelines.

Read US v. Robertson, No. 08-3126.

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
(D.C. No. 2:07-CR-20153-KHV)
Decided June 19, 2009

Judges

Before O'BRIEN and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.
Opinion by BALDOCK, Circuit Judge.

Counsel

Terrence J. Campbell, Barber Emerson, L.C., Lawrence, Kansas, for Defendant- Appellant.

Leon Patton, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, with him on the briefs), Kansas City, Kansas, for Plaintiff-Appellee.

Gardner v. Galetka, No. 07-4104

In a capital habeas matter, the denial of Petitioner's petition is affirmed where: 1) defense counsel made an objectively reasonable strategic decision in not investigating further or presenting psychological evidence at trial; and 2) a post-trial examination of the gun Petitioner used did not indicate it was faulty in any material way that would have caused it to accidentally discharge.

Read Gardner v. Galetka, No. 07-4104.

Appellate Information

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
(D.C. NO. 2:95-CV-846-TC)
Decided June 19, 2009

Judges

Before McCONNELL, TYMKOVICH and GORSUCH, Circuit Judges.
McCONNELL, Circuit Judge.

Counsel

Andrew Parnes and W. Keith Goody, Attorneys for Petitioner-Appellant.

Thomas B. Brunker, Assistant Attorney General (Erin Riley, Assistant Attorney General, and Mark Shurtleff, Utah Attorney General with him on the briefs), Salt Lake City, Utah, for Respondent-Appellee.

US v. Smith, No. 08-8019

Defendant's tax evasion conviction is affirmed, where the delay prior to the District Court's hearing on his motion to dismiss the indictment did not violate the Speedy Trial Act, as the Act did not require the dismissal of an indictment whenever the defendant files a pre-trial motion and retracts it at a hearing held more than seventy days later.

Read the full decision in US v. Smith, No. 08-8019.

Appellate Information:

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. NO. 2:07-CR-00125-CAB-1)
Opinion filed on June 18, 2009

Judges:

Before TACHA, O'BRIEN and McCONNELL, Circuit Judges.
Opinion by McCONNELL, Circuit Judge.

Counsel:

Henry F. Bailey, Jr., Bailey Stock & Harmon, Cheyenne, Wyoming (Jared S. Crecelius, Bailey, Stock & Harmon and Ronald Petty, Cheyenne, Wyoming, with him on the brief), for Defendant-Appellant.

Gregory Davis, United States Department of Justice, Washington, D.C. (Nathan J. Hochman, Assistant Attorney General, Alan Hechtkopk and Elissa Hart-Mahan, Tax Division, Department of Justice, Washington, D.C., with him on the brief), for Plaintiff-Appellee.

US v. Barwig, No. 08-3062

Defendant's sentence for violating the terms of her supervised release is reversed, where the District Court's oral pronouncement of Defendant's sentence at an earlier sentence hearing unambiguously imposed a term of supervised release, and thus the court erred by sentencing Defendant to five years' imprisonment when it revoked that earlier sentence.

Read the full decision in US v. Barwig, No. 08-3062.

Appellate Information:

Appeal from the United States District Court for the District of Kansas
(D.C. No. 6:05-CR-10155-JTM-1)
Filed on June 17, 2009


Judges:

Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.
Opinion by LUCERO, Circuit Judge.


Counsel:

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, Colorado, for Defendant-Appellant.

Jared S. Maag, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, and Mona L. Furst, Assistant United States Attorney, with him on the briefs), Office of the United States Attorney for the District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.

Alzainati v. Holder, No. 07-9565

Petitioner's petition for review of the BIA's order denying his petition to reopen is denied where: 1) the record reflected that the BIA fully considered the evidence submitted by Petitioner; and 2) Petitioner's challenges to the BIA's factual assumptions could not be recast as constitutional claims falling under the jurisdictional safe-harbor of 8 U.S.C. section 1252(a)(2)(D).

Read the full decision in Alzainati v. Holder, No. 07-9565.

Appellate Information:

APPEAL FROM THE BOARD OF IMMIGRATION APPEALS PETITION FOR REVIEW
Filed on June 17, 2009

Judges:

Before O'BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and McCONNELL, Circuit Judge.

Opinion by O'BRIEN, Circuit Judge.

Counsel:

Submitted on the briefs. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.

Daniel F. Boyle, Denver, Colorado, for Petitioner.

Mark C. Walters, Assistant Director, Joanne E. Johnson, Attorney, Department of
Justice, Civil Division, Office of Immigration Litigation
, Washington, D.C., for Respondent.

US v. Beltran, No. 08-2191

Defendant's drug distribution sentence is affirmed where, although Defendant claimed that he became caught up in a drug conspiracy due to his inexperience and youth, the government presented evidence contradicting Defendant's statements and the District Court did not abuse its discretion in determining that the 18 U.S.C. section 3553(a) factors did not support a downward variance.

Read the full decision in US v. Beltran, No. 08-2191.

Appellate Information:

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:07-CR-2132-001-WJ)

Decided on June 12, 2009

Judges:

Before KELLY and LUCERO, Circuit Judges, and EAGAN, District Judge. The Honorable Claire V. Eagan, United States District Judge for the Northern District of Oklahoma, sitting by designation.

Opinion by EAGAN, District Judge.

Counsel:

Erlinda O. Johnson, Law Office of Erlinda Ocampo Johnson, LLC, Albuquerque, New Mexico, for Defendant - Appellant.

David N. Williams, Assistant United States Attorney, (Gregory J. Fouratt, United States Attorney for the District of New Mexico, with him on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.

US v. Hernandez, No. 08-6190

Defendant's firearm possession sentence is affirmed where Defendant's prior conviction under Texas Penal Code section 22.05(b)(1) for firing a gun at or in the direction of another person constituted a violent felony under the Armed Career Criminal Act because it involved the use, attempted use or threatened use of physical force against another person.

Read the full decision in US v. Hernandez, No. 08-6190.

Appellate Information:

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. CR-08-48-F-1)

Decided on June 16, 2009


Judges:

Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.

Opinion by TYMKOVICH, Circuit Judge.

Counsel:

William P. Earley, Assistant Federal Public Defender, Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Appellant.

Edward J. Kumiega, Assistant United States Attorney, Office of the United States
Attorney, Oklahoma City, Oklahoma, for Appellee.

McGee v. Higgins, No. 07-6243

In a habeas matter involving drug distribution, the denial of Petitioner's petition is affirmed, where Petitioner failed to show prejudice based on his counsel's allegedly ineffective performance, because there was no reasonable probability that the state court would have imposed a sentence of less than twenty years had counsel not made his alleged errors.

Read the full decision in McGee v. Higgins, No. 07-6243.

Appellate Information:

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:06-CV-00807-R)
Decided on June 16, 2009

Judges:

Before O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

Opinion by TYMKOVICH, Circuit Judge.

Counsel:

Fred Randolph Lynn, Tulsa, Oklahoma, for Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, Stephanie D. Jackson,
Assistant Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

Allen v. Zavaras, No. 07-1501

The dismissal of Petitioner's habeas petition is affirmed, where the District Court was not required to seek a response to the petition from the government before dismissing the action for failure to exhaust state remedies.

Read the full decision in Allen v. Zavaras, No. 07-1501.

Appellate Information:

Appeal from the United States District Court for the District of Colorado
(D.C. No. 07-CV-02052-ZLW)
Decided on June 15, 2009

Judges:

Before LUCERO, ANDERSON and O'BRIEN, Circuit Judges.

Opinion by O'BRIEN, Circuit Judge.

Counsel:

Robert Seldis Berger of Robert S. Berger, P.C., Denver, Colorado for Petitioner -
Appellant.

Laurie Booras, First Assistant Attorney General, (John W. Suthers, Attorney
General of the State of Colorado with her on the briefs), Denver, Colorado, for
Respondents - Appellees.