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

Sherouse v. Ratchner, No. 08-2105

In a 42 U.S.C. section 1983 action alleging an unlawful arrest, judgment for defendants is affirmed in part where the district court did not abuse its discretion by declining to give an involuntary transportation instruction, because defendants conceded that transporting plaintiffs to the police station was equivalent to an arrest. However, the ruling is reversed in part where defendants lacked probable cause to arrest plaintiffs as a matter of law.

Read Sherouse v. Ratchner, No. 08-2105

Appellate Information

Filed July 31, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellants:

Paul J. Kennedy, Kennedy & Han, P.C., Santa Fe, NM

Mary Y. C. Han, Kennedy & Han, P.C., Santa Fe, NM

For Appellees:

Lisa Eutes Pullen, Civerolo, Gralow, Hill & Curtis, P.A., Albuquerque, NM

Megan Day Hill, Civerolo, Gralow, Hill & Curtis, P.A., Albuquerque, NM

Phelan v. Wyo. Associated Builders, No. 08-8055

In an ERISA action claiming that the termination of the membership of plaintiff's employer in defendant's health plan was arbitrary and capricious, judgment for plaintiff is affirmed where: 1) the reinstatement of pension benefits is a permissible equitable remedy under ERISA; and 2) the district court did not err in finding that the termination was a pretext to avoid paying plaintiff's claim.

Read Phelan v. Wyo. Associated Builders, No. 08-8055

Appellate Information

Filed July 31, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellant:

Timothy M. Stubson, Brown, Drew & Massey, LLP, Casper, WY

For Appellee:

Jessica Rutzick, Rutzick Law Office, Jackson, WY

US v. Nacchio, No. 07-1311

In an insider trading prosecution, the restitution order issued against defendant is reversed, where the gain from defendant's offense should be calculated in a manner that is more narrowly focused on producing a figure that reflects, in at least approximate terms, the proceeds related to his criminally culpable conduct.

Read US v. Nacchio, No. 07-1311

Appellate Information

Filed July 31, 2009

Judges

Opinion by Judge Holmes

Counsel

For Appellant:

Maureen E. Mahoney, Latham & Watkins LLP, Washington, DC

Alexandra A.E. Shapiro, Latham & Watkins LLP, Washington, DC

For Appellee:

Stephan E. Oestreicher, Jr., Attorney, Criminal Division, Department of Justice, Washington, DC

Troy A. Eid, United States Attorney, Washington, DC

US v. Fox, No. 08-2190

Defendant's firearm possession conviction is affirmed where defendant argued that he was entitled to possess guns for hunting on a Navajo reservation pursuant to a treaty between the United States and the Navajo Nation, but defendant forfeited those rights by committing his prior felonies.

Read US v. Fox, No. 08-2190

Appellate Information

Filed July 29, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellant:

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, NM

For Appellee:

Laura Fashing, Assistant United States Attorney, Albuquerque, NM

Gregory J. Fouratt, United States Attorney, Albuquerque, NM

US v. McCane, No. 08-6235

In a firearm possession prosecution, denial of defendant's motion to suppress is affirmed where the police lacked probable cause to search defendant's vehicle, but the search was justified by the good-faith exception because the reach of the exclusionary rule does not extend beyond police conduct to punish the mistakes of others, be they judicial officers or employees, or even legislators.

Read US v. McCane, No. 08-6235

Appellate Information

Filed July 28, 2009

Judges

Opinion by Judge Murphy

Counsel

For Appellant:

William H. Campbell, Campbell Law Office, Oklahoma City, OK

For Appellee:

Edward J. Kumiega, Assistant United States Attorney

John C. Richter, United States Attorney, Oklahoma City, OK

US v. Hutchinson, No. 07-1204

Defendants' drug convictions and sentences are affirmed in part, where the District Court's RICO instructions were adequate because they required that the members of the alleged RICO enterprise shared a common purpose, that they interacted or associated in some way to advance this shared purpose, and that the members of the enterprise so functioned long enough to complete a pattern of racketeering activity; but reversed in part, where Defendants' convictions for both drug conspiracy and for participating in a continuing criminal enterprise amounted to double jeopardy.

Read US v. Hutchinson, No. 07-1204

Appellate Information

Filed July 27, 2009

Judges

Opinion by Judge Gorsuch

Counsel

For Appellants:

Howard A. Pincus, Assistant Federal Public Defender, Denver, CO

Raymond P. Moore, Assistant Federal Public Defender, Denver, CO

For Appellees:

James C. Murphy, Assistant United States Attorney, Denver, CO

Troy A. Eid, United States Attorney, Denver, CO

Herrera-Castillo v. Holder, No. 08-9538

In a petition for review of a BIA order finding petitioner ineligible for adjustment of immigration status, the petition is denied where 8 U.S.C. section 1255(i) reasonably suggests that Congress considers aliens who accrue a period of unlawful presence more culpable than those immigration violators who do not, and thus, that the former are less deserving of relief under section 1255(i).

Read Herrera-Castillo v. Holder, No. 08-9538

Appellate Information

Filed July 27, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Petitioner:

John Elliott Reardon, Glenwood Springs, CO

For Respondent:

Anh-Thu P. Mai-Windle, Senior Litigation Counsel, United States Department of Justice, Washington, DC

Karen Y. Stewart, Attorney, Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, DC

WildEarth Guardians v. US Forest Serv., No. 09-1089

In an action challenging the Forest Service's approval of the venting of methane gas from a mine on the ground that it violated the National Environmental Policy Act, denial of mine owner's motion to intervene is reversed where the owner was entitled to intervene as of right because it had a direct economic stake in the subject of the litigation.   

Read WildEarth Guardians v. US Forest Serv., No. 09-1089

Appellate Information
Appeal from the United States District Court for the District of Colorado.
Filed July 24, 2009

Judges
Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.
Opinion by HARTZ, Circuit Judge.

Counsel
For Appellant: Stephen D. Bell, Scott P. Sinor, Dorsey & Whitney, LLP, Denver, Colorado, Mike Drysdale, Dorsey & Whitney, LLP, Minneapolis, Minnesota.
For Appellee: Edward B. Zukoski, Earthjustice, Denver, Colorado.

Holdeman v. Devine, No. 07-4235

In an ERISA action claiming that a health plan administrator failed to assure adequate funding of the plan to pay all submitted medical claims, judgment for defendant is affirmed where plaintiff failed to establish that it was more likely than not that defendant's breaches caused the under-funding of the plan.

Read Holdeman v. Devine, No. 07-4235

Appellate Information

Filed July 21, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Brian S. King, Salt Lake City, UT

For Appellee:

Michael W. Homer, Suitter Axland, PLLC, Salt Lake City, UT

Carl F. Huefner, Suitter Axland, PLLC, Salt Lake City, UT

US v. Baines, No. 08-2098

Defendant's drug conviction is affirmed where the district court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to defendant's print.

Read US v. Baines, No. 08-2098

Appellate Information

Filed on July 20, 2009

Judges

Opinion by Judge Holloway

Counsel

For Appellant:

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

For Appellee:

Zachary A. Ives, Freedman Boyd Hollander Goldberg & Ives P.A., Albuquerque, NM

US v. Juarez-Galvan, No. 08-3211

Defendant's sentence for illegally reentering the U.S. is affirmed where kidnapping under Cal. Penal Code section 207(a) and second-degree robbery under Cal. Penal Code section 211, of which defendant was convicted, are "crimes of violence" under Section 2L1.2 of the Sentencing Guidelines.

Read US v. Juarez-Galvan, No. 08-3211

Appellate Information

Filed July 20, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Timothy J. Henry, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Kansas, Wichita, KS

For Appellee:

Leon Patton, Assistant United States Attorney Office of the United States Attorney for the District of Kansas, Wichita, KS

US v. Rizvanovic, No. 08-4123

Defendant's kidnapping conviction is affirmed, where evidence related to Defendant's domestic violence was relevant to the jury's assessment of Defendant's testimony regarding his motivation, as the jury might reasonably doubt that Defendant was actually motivated in the kidnapping by a desire to protect his children from harm or abuse.

Read US v. Rizvanovic, No. 08-4123

Appellate Information

Filed July 17, 2009

Judges

Opinion by Judge McKay

Counsel

For Appellant:

Bretta Pirie, Federal Public Defender, Utah Federal Defender's Office, Salt Lake City, UT

Steven B. Killpack, Federal Public Defender, Utah Federal Defender's Office, Salt Lake City, UT

For Appellee:

Stewart C. Walz, Assistant United States Attorney, Salt Lake City, UT

Kerber v. Qwest Pension Plan, No. 08-1387

In an ERISA action challenging certain amendments to an employee benefit plan that purported to eliminate a "pensioner death benefit," summary judgment for Defendants is affirmed, where the benefit did not constitute a "retirement-type subsidy" for purposes of ERISA's anti-cutback provision.

Read Kerber v. Qwest Pension Plan, No. 08-1387

Appellate Information

Filed July 17, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellants:

Curtis L. Kennedy, Denver, CO

For Appellees:

John Houston Pope, Epstein, Becker & Green, P.C., New York, NY

Elizabeth I. Kiovsky, Baird & Kiovsky, LLC, Denver, CO

Witjaksono v. Holder, No. 08-9540

In a petition for review of the BIA's order denying Petitioners protection under the Convention Against Torture, the petition is denied, where failure by the government to provide a complete record of the proceedings below does not constitute a due process violation unless a petitioner can show prejudice.

Read Witjaksono v. Holder, No. 08-9540

Appellate Information

Filed July 17, 2009

Judges

Opinion by Judge Lucero

Counsel

For Petitioners:

Lisa Suzanne Anderson, VHF Law Group, Los Angeles, CA

Houman Varzandeh, VHF Law Group, Los Angeles, CA

For Respondent:

William C. Minick, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, DC

Linda S. Wernery, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, DC

Martinez v. Caterpillar, Inc., No. 08-2074

In an action for injuries sustained by plaintiff while attempting to inflate the right-front tire on a motor grader that was designed and manufactured by defendant, judgment for defendant is affirmed where the district court did not err in instructing the jury that defendant could not be liable if the machine's condition had "substantially changed" before the accident.

Read Martinez v. Caterpillar, Inc., No. 08-2074

Appellate Information

Filed July 16, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Kevin A. Zangara, Taos, NM

For Appellee:

Jeffrey M. Croasdell, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM

W.T. Womble, Womble, Howell & Croyle, Houston, TX

McCormick v. Kline, No. 07-3213

In a drug possession prosecution, denial of petitioner's habeas petition is affirmed where petitioner was no longer in custody for the convictions on which his petition was based.

Read McCormick v. Kline, No. 07-3213

Appellate Information

Filed July 14, 2009

Judges

Opinion by Judge Ebel

Counsel

For Petitioner:

Stephen Kessler, Topeka, KS

For Respondents:

Jared Maag, Deputy Solicitor General, Topeka, KS

Caplan v. B-Line, LLC, No. 08-2017

In an appeal from a bankruptcy court's disallowance of creditor's claim in a Chapter 13 bankruptcy case, Bankruptcy Appellate Panel's judgment reversing the bankruptcy court ruling is reversed where the creditor failed to provide documentation in support of its claim, and thus it was properly disallowed.

Read Caplan v. B-Line, LLC, No. 08-2017

Appellate Information

Filed July 14, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Michael K. Daniels, Albuquerque, NM

For Appellee:

Linh K. Tran, B-Line, LLC, Seattle, WA

US v. Cherry, No. 08-7090

Defendant's firearm possession sentence in connection with a murder is affirmed where the district court was not bound at sentencing by the terms of the federal homicide statutes, and a perfect match was not required between defendant's conduct and the homicide guideline selected as the most analogous.

Read US v. Cherry, No. 08-7090

Appellate Information

Filed July 13, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Robert Ridenour, Assistant Federal Public Defender, Office of Federal Public Defender, Eastern District of Oklahoma, Tulsa, OK

For Appellee:

Robert Wallace, Assistant United States Attorney, Muskogee, OK

US v. Miles, No. 08-5128

Defendant's conviction for filing false tax returns is affirmed where the district court did not deny defendant the right to self-representation because it reasonably believed that he waived his right to self-representation after the jury was dismissed, and it allowed him to resume representing himself as soon as he reasserted his desire to proceed pro se at his sentencing hearing.

Read US v. Miles, No. 08-5128

Appellate Information

Filed July 13, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Julia L. O'Connell, Federal Public Defender, Tulsa, Oklahoma

For Appellee:

David E. O'Meilia, United States Attorney, Tulsa, Oklahoma

Riggins v. Goodman, No. 08-1034

In an action claiming that Plaintiff police officer was discharged without adequate procedural safeguards after he suffered from a psychiatric episode that caused him to take administrative leave, the denial of qualified immunity is reversed, where the city's three-step appeals process provided adequate pretermination due process for Plaintiff to challenge the decision.

Read Riggins v. Goodman, No. 08-1034

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellants:

John R. Mann, Kennedy Childs & Fogg, P.C., Denver, CO

For Appellee:

Joseph A. Salazar, The Salazar Consultant Group, LLC, Thornton, CO

Greater Yellowstone Coalition v. Tidwell, No. 07-8083

In a petition for review of the Forest Service's determination not to undertake an environmental analysis of certain elk feed grounds, the denial of the petition is affirmed, where the Forest Service later undertook the requested analyses and thus the action was moot.

Read Greater Yellowstone Coalition v. Tidwell, No. 07-8083

Appellate Information

Filed July 10, 2009

Judges

For Petitioners:

Timothy J. Preso, Earthjustice, Bozeman, MT

For Respondents:

Robert H. Oakley, United States Department of Justice, Environmental & Natural Resources Division, Washington, DC

Ellenberg v. New Mexico Military Inst., No. 08-2112

In an action against a military institute for denying Plaintiff admission based on her disability, summary judgment for Defendant is affirmed, where having an individualized education program under the Individuals with Disabilities in Education Act does not automatically establish a disability under Section 504 of the Rehabilitation Act and the ADA.

Read Ellenberg v. New Mexico Military Inst., No. 08-2112

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellant:

Gail Stewart, Steven Granberg, P.A., Albuquerque, NM

For Appellee:

John F. Kennedy, Cuddy & McCarthy, LLP, Santa Fe, NM

Arambula-Medina v. Holder, No. 08-9589

Petitioner's petition for review of the BIA's order denying his application for cancellation of removal is dismissed for lack of jurisdiction, where Petitioner's disputes with the factual findings of the Immigration Judge did not rise to the level of due process violations.

Read Arambula-Medina v. Holder, No. 08-9589

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Petitioner:

Robert Brown, Oklahoma City, OK

For Respondent:

Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, DC

Boone v. MVM, Inc., No. 08-1074

In an action alleging that Defendant wrongfully discharged Plaintiff because he reported illegal and unethical conduct on the part of fellow contractors, the dismissal of the complaint is affirmed, where Virginia had the strongest connection to the dispute, and thus Virginia law applied and barred Plaintiff's wrongful discharge claim.

Read Boone v. MVM, Inc., No. 08-1074

Appellate Information

Filed July 9, 2009

Judges

Opinion by Judge Murphy

Counsel

For Appellant:

Thomas H. Stocker, Thomas H. Stocker, P.C., Lakewood, CO

For Appellee:

Jason M. Branciforte, Littler Mendelson, P.C., Washington, DC

Williams v. Jones, No. 06-7103

In a murder prosecution, Petitioner's habeas petition is granted, where the state appellate court erred by simply reducing Petitioner's sentence, as that remedy was not tailored to the seriousness of the ineffective assistance rendered by Petitioner's counsel.

Read Williams v. Jones, No. 06-7103

Appellate Information

Filed July 8, 2009

Judges

Per Curiam

Counsel

For Appellant:

Barry A. Schwartz, Kamlet Shepherd & Reichert, LLP, Denver, CO

For Appellee:

Diane L. Slayton, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK

US v. Burke, No. 08-8033

Defendant's drug conviction is affirmed where the defense failed to articulate to the District Court the reasons why the delay in production of potentially exculpatory evidence by the government should be regarded as materially prejudicial.

Read US v. Burke, No. 08-8033

Appellate Information

Filed July 7, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellant:

Patrick J. LeBrun, Casper, WY

For Appellee:

David A. Kubichek, Assistant United States Attorney, Casper, WY

Matthews v. Workman, No. 07-6209

In a capital habeas matter, the denial of Petitioner's petition is affirmed, where 1) an allegedly improper juror communication did not prejudice Petitioner, because the defense made no appeal to residual doubt in the penalty phase; and 2) the prosecutor did not reference any extra-record evidence in his argument.

Read Matthews v. Workman, No. 07-6209

Appellate Information

Filed July 7, 2009

Judges

Opinion by Judge Gorsuch

Counsel

For Appellant:

Timothy R. Payne, Assistant Federal Public Defender, Oklahoma City, OK

For Appellee:

Seth S. Branham, Assistant Attorney General, Oklahoma City, OK

Davis v. Miller, No. 07-7062

In a murder prosecution, the dismissal of Petitioner's habeas petition as a sanction is reversed where, because the District Court entered an order requiring Petitioner to file an amended petition the day after Respondent was served with the original petition, there was no chance Respondent was prejudiced by exerting effort to reply to the initial petition.

Read Davis v. Miller, No. 07-7062

Appellate Information

Filed July 7, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

Steven M. Presson, Presson Law Office, Norman, OK

For Appellee:

W.A. Drew Edmondson, Attorney General, Oklahoma City, OK

Keeley L. Harris, Assistant Attorney General, Oklahoma City, OK

Haynes Trane Serv. Agency v. Am. Std., Inc., No. 07-1441

In an action for breach of a franchise agreement, judgment for Defendant is affirmed, where 1) Plaintiff presented insufficient evidence that his franchise agreement had been modified; and 2) Plaintiff's unclean hands gave the District Court authority to deny him an equitable estoppel remedy.

Read Haynes Trane Serv. Agency v. Am. Std., Inc., No. 07-1441

Appellate Information

Filed July 6, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

Marcy G. Glenn, Holland & Hart LLP, Denver, CO

For Appellee:

Daniel M. Reilly, Reilly Pozner & Connelly LLP, Denver, CO

Kleinsmith v. Shurtleff, No. 07-4187

In a constitutional challenge to a Utah statute requiring attorneys who acted as trustees of real property trust deeds in Utah to maintain a place within the state to meet with trustors in connection with foreclosures, summary judgment for Defendant is affirmed where Plaintiff failed to present evidence that could satisfy his burden to establish a discriminatory effect.

Read Kleinsmith v. Shurtleff, No. 07-4187

Appellate Information

Filed July 6, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Philip M. Kleinsmith, pro se

For Appellee:

Nancy L. Kemp, Assistant Utah Attorney General, Salt Lake City, UT

Trentadue v. FBI, No. 08-4207

In a Freedom of Information Act action seeking FBI records regarding certain investigations, the District Court's order allowing the depositions of certain inmates is reversed where the FBI submitted declarations that provided a consistent and uncontradicted showing that it conducted an adequate search for the records requested by Plaintiff, and there was no reason why the depositions might yield additional documents.

Read Trentadue v. FBI, No. 08-4207

Appellate Information

Filed July 2, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

Nicholas Bagley, Assistant United States Attorney, Appellate Staff Civil Division, Washington, DC

Gregory G. Katsas, Assistant Attorney General, Washington, DC

For Appellee:

Jesse C. Trentadue, pro se

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Reber v. Steele, No. 08-4057

In a prosecution for felony wanton destruction of wildlife, Petitioner's habeas petition is remanded with instructions to dismiss where the premature filing of Petitioner's 18 U.S.C. section 2254 petition deprived the District Court of jurisdiction, and thus precluded the Court of Appeals' review.

Read Reber v. Steele, No. 08-4057

Appellate Information

Filed July 1, 2009

Judges

Opinion by Judge Henry

Counsel

For Appellant:

Michael L. Humiston, Heber City, UT

For Appellee:

Erin Riley, Assistant Attorney General, Salt Lake City, UT