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

In re: Riebesell, No. 09-1072

In a bankruptcy adversary proceeding seeking to prevent the discharge of a debt owed to plaintiff by his attorney (the debtor), judgment for plaintiff is affirmed where: 1) the parties had an attorney-client relationship during the relevant period under Colorado law; 2) the loans to defendant were not "standard commercial transactions" exempt from the requirements of Colo. R. Prof'l Conduct 1.8(a); and 3) the bankruptcy court's finding that defendant had the requisite intent to deceive plaintiff was not clearly erroneous.

Read In re: Riebesell, No. 09-1072

Appellate Information

Filed October 28, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Appellant:

Harold Frederick Riebesell, Jr., Pro Se.

For Appellee:

D. Bruce Coles, Law Office of D. Bruce Coles, Denver, CO

Mendiola v. Holder, No. 08-9565

In a petition for review of the BIA's denial of petitioner's second motion to reopen his removal proceedings, the petition is denied where the BIA correctly determined that 8 C.F.R. section 1003.2(d)'s post-departure bar divested it of jurisdiction to review a motion to reopen filed by a removed alien, like petitioner, even though relevant regulations allowed an alien to file one motion to reopen within 90 days.

Read Mendiola v. Holder, No. 08-9565

Appellate Information

Filed October 28, 2009

Judges

Opinion by Judge Baldock

Counsel

For Petitioner:

Kari E. Hong, Portland, OR

For Respondent:

R. Alexander Goring, Michelle Gorden Latour, Office of Immigration Litigation, (Michelle Gorden Latour, Office of Immigration Litigation, United States Department of Justice, Washington, DC

Hamilton v. Holder, No. 09-9505

In a petition for review of the BIA's order finding petitioner ineligible for cancellation of removal because he had been convicted of an aggravated felony, the petition is denied where, under the circumstance-specific approach, it was permissible for the Immigration Judge to rely upon sentencing-related material to determine the amount of the loss.

Read Hamilton v. Holder, No. 09-9505

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Petitioner:

Yalila Guerrero, Houston, TX

For Respondent:

Anh-Thu P. Mai-Windle, Ann M. Welhaf, Civil Division, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC

Trans-Western Petroleum, Inc. v. US Gypsum Co., No. 08-4120

In an action seeking a declaration that plaintiff held a lease on certain oil-producing land, judgment for plaintiff is affirmed where the production allocation scheme of the unit failed to meet the unambiguous requirements of defendant's lease, and that lease had expired by its terms.

Read Trans-Western Petroleum, Inc. v. US Gypsum Co., No. 08-4120

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Holloway

Counsel

For Appellants:

Jack R. Luellen, Katherine W. Wittenberg and Frederick M. MacDonald, Beatty & Wozniak, P.C., Denver, CO

For Appellee:

Stephen K. Christiansen, Thomas W. Clawson and Sam Meziani, Van Cott, Bagley, Cornwall McCarthy, Salt Lake City, UT

US v. Johnson, No. 08-4031

Defendant's firearm possession conviction is affirmed where defendant forfeited any Fourth Amendment privacy rights he might have had in a storage unit by directing his girlfriend to enter into the rental agreement using another person's name and stolen identification.

Read US v. Johnson, No. 08-4031

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Bretta Pirie, Salt Lake City, UT

For Appellee:

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

TMJ Implants, Inc. v. U.S. Dept. of Health & Hum. Servs., No. 08-9539

In a petition for review of an FDA order imposing civil penalties on a medical device manufacturer for failing to file certain reports, the order is affirmed where: 1) the hearing petitioners received provided them with due process; 2) the events at issue constituted "serious injuries" under 21 U.S.C. section 360i(a)(1)(A); and 3) petitioners were only required to have acted in deliberate indifference to or reckless disregard of the reporting requirements.

Read TMJ Implants, Inc. v. U.S. Dept. of Health & Hum. Servs., No. 08-9539

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Tacha

Counsel

For Petitioners:

Lynn M. Watwood, Jr., TMJ Implants, Inc., Golden, CO

For Respondent:

Peter R. Maier, Gregory G. Katsas and Douglas N. Letter, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.

US v. Cobb, No. 08-1213

In an appeal from a district court's denial of defendant's motion to reduce his crack cocaine sentence under Amendment 706 to the Sentencing Guidelines, the denial of the motion is reversed where: 1) defendant's sentence was based on the Sentencing Guidelines because the parties based their plea agreement on the properly computed guideline range, and the stipulated sentence fell within this range; and 2) contrary to the ruling below, the court had authority to reduce defendant's sentence under 18 U.S.C. section 3582(c)(2).

Read US v. Cobb, No. 08-1213

Appellate Information

Filed October 26, 2009

Judges

Opinion by Judge McKay

Counsel

For Appellant:

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

For Appellee:

John M. Hutchins, Robert Mydans, Assistant United States Attorney, Denver, CO

Bowling v. Rector, No. 07-6284

In a 42 U.S.C. section 1983 action alleging an unlawful search, denial of summary judgment for defendant based on qualified immunity is affirmed in part where defendant's alleged conduct in exceeding the scope of the search warrant violated plaintiff's clearly established right under the Fourth Amendment.  However, the order is reversed in part where: 1) defendant's alleged violation of Oklahoma law was not, without more, significantly relevant to the Fourth Amendment analysis; and 2) a search warrant was constitutionally valid.

Read Bowling v. Rector, No. 07-6284

Appellate Information

Filed October 26, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Charles A. Brandt and Robert S. Lafferrandre, Pierce, Couch Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, OK

For Appellee:

April M. Davis and Stephen Jones, Jones, Otjen & Davis, Enid, OK

US v. Pinson, No. 09-6119

Defendant's motion for a certificate of appealability of the district court's denial of his 28 U.S.C. section 2255 motion to vacate defendant's sentence is denied where: 1) the court had ample evidence before it both of defendant's history of emotional problems and his competency as of the date of the plea colloquy; and 2) when a habeas petitioner claims ineffective assistance of counsel, he impliedly waives attorney-client privilege with respect to communications with his attorney necessary to prove or disprove his claim.

Read US v. Pinson, No. 09-6119

Appellate Information

Filed October 26, 2006

Judges

Opinion by Judge Ebel

US v. White, No. 07-3153

Defendants' drug conspiracy convictions are affirmed where the district court correctly refused to suppress illicit drugs discovered in their car during a traffic stop because: 1) the district court's finding that a state trooper had reasonable suspicion to pull defendant over for unsafely passing another vehicle was not clearly erroneous; 2) defendant waived his right to assert certain arguments on appeal in his plea agreement; 3) the officer had reasonable suspicion of defendants' drug activity based on a) defendants' unusual nervousness; b) their improbable travel plans; c) one defendant's criminal history; and d) Las Vegas's reputation as a narcotics source city and Indianapolis's reputation as a drug distribution hub.

Read US v. White, No. 07-3153

Appellate Information

Filed October 22, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

B. Kay Huff, Lawrence, KS

Donald R. Hoffman, Hoffman & Hoffman, Topeka, KS

For Appellee:

Sangita K. Rao, Eric F. Melgren, David Zabel, Department of Justice, Criminal Division, Appellate Section, Washington, DC

US v. Robinson, No. 08-3120

Defendant's firearm possession conviction is reversed where 1) the district court's refusal to provide defendant access to a confidential informant's medical records contravened due process and 2) the court's limitations on cross-examination of the informant violated the Sixth Amendment.

Read US v. Robinson, No. 08-3120

Appellate Information

Filed October 20, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Ronald E. Wurtz and David J. Phillips, Federal Public Defenders, Topeka, KS

For Appellee:

James A. Brown, Topeka, KS

US v. Phillips, No. 08-3272

Defendant's conviction for obstructing an official proceeding, involving defendant's disclosure of the true identity of an undercover officer to a subject under investigation, is affirmed where: 1) 18 U.S.C. section 1512(c)(2) incorporates the nexus requirement as articulated by the Supreme Court in U.S. v. Aguilar, 515 U.S. 593 (1995); 2) section 1512(c)(2) does not require that a defendant know of the existence of an ongoing official proceeding; and 3) a reasonable jury could conclude that the natural and probable effect of disclosing an undercover officer's identity was impeding a federal grand jury investigation into a suspect's methamphetamine distribution and her supply source.

Read US v. Phillips, No. 08-3272

Appellate Information

Filed October 20, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Dwight L. Miller, Topeka, KS

For Appellee:

Jared S. Maag, Special Assistant United States Attorney, Office of the United States Attorney for the District of Kansas, Topeka, KS

Hall v. Witteman, No. 08-3251

In an action alleging that defendants unlawfully conspired to remove plaintiff's political ad from a newspaper, dismissal of the complaint is affirmed where the complaint failed to describe any misuse of governmental power.

Read Hall v. Witteman, No. 08-3251

Appellate Information

Filed October 19, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

George M. Hall, pro se

For Appellee:

Steve Phillips, Assistant Attorney General, Office of Attorney General Steve Six, Topeka, KS

Toby Crouse, Foulston Siefkin LLP, Overland Park, KS

Fisher v. City of Las Cruces, No. 07-2294

In a 42 U.S.C. section 1983 action alleging excessive force by defendant-officers in arresting plaintiff, summary judgment for defendants on qualified immunity grounds is reversed where plaintiff's injuries were sufficient to satisfy the minimal threshold injury requirement.

Read Fisher v. City of Las Cruces, No. 07-2294

Appellate Information

Filed October 19, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellant:

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, NM

For Appellees:

Jared Abrams, City of Las Cruces, NM

Ute Dist. Corp. v. Sec'y. of Interior, No. 08-4147

In an action by an Indian tribe seeking a declaration that the Secretary of the Interior's implementation of the 1954 Ute Partition and Termination Act did not provide for an equitable and practicable division and distribution of water rights between "mixed-blood" and "full-blood" members of the tribe, dismissal of the action is affirmed where plaintiff could not rely on the continuing wrong doctrine to save its action from being untimely.

Read Ute Dist. Corp. v. Sec'y. of Interior, No. 08-4147

Appellate Information

Filed October 19, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

Shawn E. Draney, Max D. Wheeler, Camille N. Johnson, and Judith D. Wolferts, Snow, Christensen & Martineau, Salt Lake City, UT

For Appellees:

Katherine J. Barton, John C. Cruden, John K. Mangum, Elizabeth A. Peterson, United States Department of Justice, Washington, DC

US v. Evanson, No. 08-4164

Defendant's tax fraud conviction is affirmed where the disqualification of defendant's counsel did not violate his right to counsel under the Sixth Amendment because the district court reasonably assessed the problems that could arise from counsel's continued representation of defendant.

Read US v. Evanson, No. 08-4164

Appellate Information

Filed October 19, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Rodney R. Parker, Max D. Wheeler and Sam Harkness, Snow, Christensen & Martineau, Salt Lake City, UT

For Appellee:

Jennifer Levin Eichhorn, John A. DiCicco, Alan Hechtkopf, Karen Quesnel, Gregory Victor Davis, Tax Division, United States Department of Justice, Washington, DC

Merryfield v. Jordan, No. 09-3002

In a 42 U.S.C. section 1983 action concerning the conditions of plaintiff's involuntary confinement at a state hospital, dismissal of the complaint is affirmed where individuals who are civilly committed are not "prisoners" within the meaning of the Prisoner Litigation Reform Act.

Read Merryfield v. Jordan, No. 09-3002

Appellate Information

Filed October 19, 2009

Judges

Opinion by Judge Baldock

Counsel

For Appellant:

Dustin J. Merryfield, pro se

For Appellees:

Danny J. Baumgartner, Department of Social and Rehabilitation Services, Topeka, KS

US v. Challoner, No. 08-1335

In a 28 U.S.C. section 2255 petition alleging ineffective assistance of trial counsel, the petition is denied where the omission of a "viable" issue by counsel did not in and of itself constitute ineffective assistance of counsel, and petitioner's double jeopardy argument required a non-obvious extension of currently existing law.

Read US v. Challoner, No. 08-1335

Appellate Information

October 14, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Robert G. Levitt, Denver, CO

For Appellee:

David M. Gaouette and Andrew A. Vogt, Assistant United States Attorneys, Office of the United States Attorney for the District of Colorado, Denver, CO

US v. Fontenot, No. 08-1363

Denial of defendant's motion to reduce his sentence under 18 U.S.C. section 3582(c)(2) is affirmed where Amendment 706 to the Sentencing Guidelines does not apply to a term of imprisonment imposed upon revocation of supervised release.

Read US v. Fontenot, No. 08-1363

Appellate Information

Filed October 13, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Marc Milavitz, Boulder, CO

For Appellee:

David M. Gaouette and Michael C. Johnson, Assistant United States Attorneys, Office of the United States Attorney for the District of Colorado, Denver, CO

Pacheco v. Shelter Mut. Ins. Co., No. 08-1046

In an action for insurance proceeds arising out of a car accident, summary judgment for defendant-insurer is reversed where the policy's exclusion of resident relatives who own a vehicle from Uninsured Motorist/Underinsured Motorist (UM/UIM) coverage violated Colorado public policy and thus there were issues of fact regarding whether defendant properly advised and offered UM/UIM coverage in an amount equal to the bodily injury limits for that policy.

Read Pacheco v. Shelter Mut. Ins. Co., No. 08-1046

Appellate Information

Filed October 2, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

William Babich, The Law Firm of William Babich, LLC, Denver, CO

For Appellees:

Steven J. Dawes, Light Harrington & Dawes, P.C., Denver, CO

In re: Corey, No. 08-3309

In an adversary proceeding in bankruptcy court by a creditor claiming that debtor's debt was undischargeable because of a finding in a prior action that the debtor committed fraud, summary judgment for plaintiff is affirmed where defendant was barred from defending the action by issue preclusion because the issue of his fraud was actually litigated in the prior case.

Read In re: Corey, No. 08-3309

Appellate Information

Filed September 30, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Jeffrey R. Siegel, The Siegel Law Firm, Kansas City, MO

For Appellee:

Colin N. Gotham, Evans & Mullinix, P.A., Shawnee, KS

Salisbury v. Hartford Life & Accident Ins. Co., No. 08-3316

In an ERISA action arising from a denial of disability benefits, summary judgment for defendants on limitations grounds is affirmed where defendant's benefit plan's limitations period was enforceable because the plan was not ambiguous and the limitations period was reasonable.

Read Salisbury v. Hartford Life & Accident Ins. Co., No. 08-3316

Appellate Information

Filed September 30, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Jack Shelton, Wichita, KS

For Appellee:

Patrick J. Kenney, Armstrong Teasdale LLP, St. Louis, MO