U.S. Tenth Circuit: January 2010 Archives
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January 2010 Archives

Weise v. Casper, No. 09-1085

In a Bivens action based on the exclusion of plaintiffs, by volunteers acting under government supervision, from a speech by then-President Bush, dismissal of the complaint based on qualified immunity is affirmed where plaintiffs failed to identify any First Amendment doctrine that prohibited the government from excluding them from an official speech on private property.

Read Weise v. Casper, No. 09-1085

Appellate Information

Filed January 27, 2010

Judges

Opinion by Judge Kelly

Counsel

For Appellants:

Christopher Hansen and Catherine Crump of American Civil Liberties Union, New York, NY

For Appellees:

Sean Gallagher and Dugan Bliss, Hogan & Hartson, L.L.P., Denver, CO

Brett Lilly, Brett R. Lilly, L.L.C.,Wheat Ridge, CO

US v. Osborne, No. 08-7121

Defendant's bank robbery sentence is affirmed where the facts of defendant's high-speed car chase following the robbery, which formed the basis for the district court's upward departure, were exceptional, and therefore outside of the heartland of ordinary cases.

Read US v. Osborne, No. 08-7121

Appellate Information

Filed January 26, 2010

Judges

Per Curiam

Counsel

For Appellant:

Barry L. Derryberry, Julia L. O'Connell and Robert A. Ridenour, Assistant Public Defenders, Eastern District of Oklahoma, Tulsa, OK

For Appellee:

Douglas E. Snow, United States Attorney's Office, Eastern District of Oklahoma, Muskogee, OK

US v. James, No. 08-1115

Defendant's wire fraud and money laundering sentence is affirmed in part where the district court did not clearly err in finding that defendant was an organizer of the fraudulent scheme.  However, the sentence is remanded where the record included no evidence to support an inference that the foreclosure sales prices at issue were appropriate estimates of what the original lenders received when they sold the loans to the successor lenders.

Read US v. James, No. 08-1115

Appellate Information

Filed January 22, 2010

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Susan L. Foreman, Denver, CO

For Appellee:

Andrew A. Vogt, Assistant United States Attorney, Office of the United States Attorney for the District of Colorado, Denver, CO

US v. Brown, No. 09-6079

Defendant's attempted armed robbery conviction is affirmed where the government's summary of an expert's proposed testimony stated that she would testify that the latent fingerprint on a job application left at the scene of the crime was defendant's, as did her own report, and thus the summary substantially complied with Fed. R. Crim. P. 16.

Read US v. Brown, No. 09-6079

Appellate Information

Filed January 22, 2010

Judges

Opinion by Judge Siler

Counsel

For Appellant:

Fred Randolph Lynn, Tulsa, OK.

For Appellee:

Edward J. Kumiega, Robert J. Troester, Assistant United States Attorneys, Oklahoma City, OK

Carpio v. Holder, No. 08-9536

In a petition for review of the BIA's denial of petitioner's application for a conditional adjustment of status under 8 U.S.C. section 1255(d), the petition is granted where petitioner met the statutory requirement of being under twenty-one at the time he entered the U.S.  A K-2 visa holder who timely applies for an adjustment of status under section 1255(d) must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated.

Read Carpio v. Holder, No. 08-9536

Appellate Information

Filed January 12, 2010

Judges

Opinion by Judge Henry

Counsel

For Petitioner:

Philip M. Alterman, Stern Elkind Curray & Alterman, Denver, CO

For Respondent:

James E. Grimes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC

US v. Farr, No. 09-6024

In a tax evasion prosecution, a denial of defendant's motion to dismiss the indictment is affirmed where: 1) a prior reversal for constructive amendment of the indictment did not itself engender double jeopardy concerns and neither the district court nor the court of appeals made factual findings tantamount to acquittal; and 2) since the Double Jeopardy Clause was not a bar to retrying defendant on the exact same offense, it did not matter whether she was instead charged with a different offense that required proof of the same elements.

Read US v. Farr, No. 09-6024

Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Siler

City of Herriman v. Bell, No. 08-4056

In an Equal Protection challenge to a Utah statute that allowed cities, through an election open only to residents in the proposed new district, to detach from an existing school district, summary judgment for defendants is affirmed where the electoral scheme furthered, among other things, the state's interests in promoting local control of public school districts by extending the franchise only to those voters who would reside in the new district.

Read City of Herriman v. Bell, No. 08-4056

Appellate Information

Filed January 7, 2010

Judges

Opinion by Judge Tymkovich

Counsel

For Appellants:

Blake T. Ostler and Jeffrey R. Olsen, Mackey Price Thompson & Ostler, Salt Lake City, UT

For Appellees:

Jeffrey L. Shields and Brent A. Burnett, Callister Nebeker & McCullough, Salt Lake City, UT

Union Pac. R.R. Co. v. US, No. 08-7102

In a Federal Tort Claims Act action by a railroad against the government based on the derailment of a train, judgment for plaintiff is reversed where: 1) the Tucker Act deprived the district court of jurisdiction over plaintiff's negligent breach of contract claim because it was a contract claim under the exclusive jurisdiction of the Court of Federal Claims; and 2) plaintiff's negligent inspection and maintenance claim was barred by the exculpatory clause of the parties' agreement, which did not violate Oklahoma public policy.

Read Union Pac. R.R. Co. v. US, No. 08-7102

Appellate Information

Filed January 5, 2010

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Sarang V. Damle, Michael F. Hertz, Sheldon J. Sperling, Thomas M. Bondy, Attorney, Appellate Staff, Civil Division, Washington, DC

For Appellee:

George R. Mullican, Robert D. Hart and Christopher D. Wolek, Gibbs Armstrong Borochoff Mullican & Hart, P.C., Tulsa, OK
Plaintiff - Appellee.

US v. De La Cruz-Garcia, No. 08-2298

Defendant's sentence for illegal reentry of a removed alien is affirmed where a Colorado conviction for attempted sexual assault on a child was a "crime of violence" under the Sentencing Guidelines that warranted a sixteen-level sentencing enhancement.

Read US v. De La Cruz-Garcia, No. 08-2298

Appellate Information

Filed January 5, 2010

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Scott M. Davidson, Scott M. Davidson, Ph.D., Esq., LLC, Albuquerque, NM

For Appellee:

Laura Fashing, Office of the United States Attorney, District of New Mexico, Albuquerque, NM