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

Criminal and Education Law Matters

The Tenth Circuit decided three criminal cases and one involving the allegedly unlawful denial of special education services.

D.L. v. Unified Sch. Dist. No. 497, No. 08-3273, was an action challenging a local school district's conclusion that plaintiff-students were ineligible for special education services.  The Tenth Circuit affirmed summary judgment for defendants on the grounds that 1) plaintiffs abandoned their Individuals with Disabilities in Education Act claims by failing to provide supplemental briefing to clarify and update the claims; and 2) plaintiffs lacked standing because they could not establish any causation between defendants' allegedly discriminatory conduct and any injury suffered by plaintiffs.

In US v. Washington, No. 09-3091, the court of appeals affirmed defendant's firearm possession conviction on the grounds that: 1) the district court did not err in denying defendant's motion to dismiss the indictment under the Interstate Agreement on Detainers (IAD) because the Supreme Court had specifically required actual delivery of a request under the IAD to both the prosecutor and the court, and refused to carve a "fairness" exception to the express language of the IAD in cases in which a third party had negligently or maliciously prevented delivery from occurring; 2) the evidence, at best, would support a favorable finding as to only the first element of a fleeting possession defense; and 3) even without the transcript of defendant's prior testimony, the jury had sufficient evidence to find that defendant at the very least constructively possessed the firearms.

In US v. Ramos-Arenas, No. 09-2165, the Tenth Circuit affirmed defendant's conviction for falsely impersonating an officer or employee of the U.S., holding that 1) a reasonable jury could infer that defendant intended for his unsolicited lie to a state police officer to result in reducing his girlfriend's ticket to a warning; and 2) 18 U.S.C. section 912 did not require defendant to obtain something of value through the impersonation.

In US v. Garcia, No. 08-5090, the court of appeals affirmed defendant's drug possession conviction on the grounds that 1) a witness's assertion did not come close to establishing "inherent incredibility"; 2) there was direct evidence of defendant's ownership of the drugs and his intent to distribute them; and 3) the instructions did not mislead the jury about the need to find guilt beyond a reasonable doubt.

Related Resources

Decisions in Criminal and Civil RICO Cases

Today, the Tenth Circuit decided one civil RICO matter and one criminal sentencing case.

Bixler v. Foster, No. 09-2138, involved an action by minority shareholders of a corporation against its directors and lawyers, alleging that defendants violated the civil Racketeer Influenced and Corrupt Organizations Act (RICO), when they arranged to transfer the company's assets to an Australian corporation.  The district court dismissed the complaint.

As the Tenth Circuit wrote:  "The minority shareholders contend the defendants defrauded them of their share of the UKL stock and rendered their METCO investment virtually worthless. . . . Plaintiffs claim defendants conspired to deprive them of the value of their
METCO shares by a series of predicate acts based on the above-described
conduct, in violation of RICO."

The Tenth Circuit affirmed, holding that (1) plaintiffs lacked standing under RICO to assert shareholder derivative claims; (2) allegations of securities fraud did not establish predicate acts under RICO; and (3) the "continuity" requirement of RICO was not satisfied by the allegations in the complaint.

US v. Corber, No. 09-3006, involved a crack cocaine prosecution in which the district court dismissed defendant's motion to reduce his sentence under 18 U.S.C. section 3582(c)(2).

The Tenth Circuit affirmed on the ground that, for purposes of a sentence modification under section 3582(c)(2), the "applicable guideline range" and the range upon which a sentence was "based" was, as a matter of law, the range produced under the guidelines' sentencing table after a correct determination of the defendant's total offense level and criminal history category but prior to any discretionary variances.

Related Resources

Rulings in Criminal and Employment Cases

The Tenth Circuit decided two cases today, one involving the allegedly wrongful termination of a public employee for exercising her First Amendment rights; and the other involving a criminal matter.

In Rohrbough v. Univ. of Colo. Hosp. Auth., No. 07-1498, plaintiff claimed that her employer, a public hospital, fired her in retaliation for exercising her First Amendment rights.  The district court granted summary judgment to defendant.

The Tenth Circuit affirmed, holding that plaintiff's speech was unprotected because it was made pursuant to her official duties as a "Transplant Coordinator" in the hospital's Heart Transplant Unit.

In US v. Lopez-Medina, No. 08-4055, defendant was convicted after a trial of methamphetamine possession.

Two Employment Rulings

The Tenth Circuit decided two employment cases today, one involving a First Amendment retaliation claim by a public employee, and the other concerning a claim of termination in breach of an employment contract.

In Wallace v. Microsoft Corp., No. 09-3187, plaintiff claimed that defendant wrongfully terminated him in violation of an employment contract allegedly created by e-mails between plaintiff and his supervisor.  The district court granted summary judgment to defendant.

The Tenth Circuit affirmed in part on the basis that no rational jury, viewing the emails and facts set forth in the record in a light most favorable to plaintiff, could infer the existence of an express employment contract, signed by an officer of defendant setting a minimum employment period, and containing language superseding a prior agreement.  However, the court of appeals reversed the judgment in part as to state tort claims, holding that service of process was not untimely because, once his case was removed to federal court, plaintiff then had 120 days in which to effect service.

In Chavez-Rodriguez v. Santa Fe, No. 09-2047, a public employee alleged that she was retaliated against based on her criticism of her employer.  The district court denied defendants summary judgment based on qualified immunity.

The court of appeals affirmed on the ground that the content of plaintiff's speech strongly suggested that plaintiff was communicating with her supervisor pursuant to her employment duties, and thus, that she was not entitled to First Amendment protection.

Related Resources

Six Criminal and Insurance Cases

The Tenth Circuit decided six cases today, four relating to criminal matters, one regarding a prisoner's exhaustion of administrative remedies, and one concerning bad faith allegations against an insurer.

In Roberts v. Printup, No. 08-3189, plaintiff brought suit against an insurer, claiming that it negligently failed to implement a system for evaluating settlement offers from injured parties.  The district court entered judgment for defendant after a bench trial.  The Tenth Circuit reversed, holding that it was foreseeable to defendant that its negligence in failing to implement a system to handle reasonable time-sensitive settlement offers from an injured party could result in a lawsuit being filed against its insured.

In Garza v. Davis, No. 09-1448, a prisoner filed a habeas petition alleging that Bureau of Prisons (BOP) officials at petitioner's prison camp were categorically denying review and transfer of eligible inmates to lower-security facilities such as community correction centers and residential re-entry centers in violation of 18 U.S.C. sections 3621(b) and 3624(c), and 28 C.F.R. sections 570.20 and 570.21.

The district court denied the petition on the ground that petitioner failed to exhaust the prison's administrative remedies, and the Tenth Circuit affirmed, holding that petitioner could not establish that he qualified for the narrow futility exception to the administrative exhaustion requirement because the BOP memoranda relied upon by petitioner did not demonstrate that further prison grievance proceedings would be futile.

In US v. Solon, No. 09-8018, defendant appealed his conviction, after a trial, for child pornography possession.  The court of appeals affirmed on the grounds that 1) the district court did not abuse its discretion in denying defendant's funding request to retain an expert because the district court never actually denied a funding request; 2) in light of the brevity of the judge's absence during defendant's closing argument, as well as the strength of the government's case, defendant did not establish a reasonable probability that, but for the judge's absence, the jury would not have convicted him; and 3) trial commenced well within the 70-day limit established by the Speedy Trial Act.

In US v. Darton, No. 09-1137, defendant appealed the district court's denial of his motion to reduce his sentence for cocaine base possession under 18 U.S.C. section 3582(c)(2) and Amendment 706 to the Sentencing Guidelines.  The Tenth Circuit affirmed, holding that the applicable guideline range was the one calculated via the career-offender provision of U.S.S.G. section 4B1.1, which was unaffected by Amendment 706.

In US v. Henderson, No. 09-8015, defendant conditionally pled guilty to child pornography possession and appealed the denial of his motion to suppress the evidence against him.  The court of appeals affirmed on the ground that the district court properly determined that the evidence resulting from the unlawful search of defendant's residence was nonetheless admissible due to the good faith exception.

In US v. Seltzer, No. 08-1469, the government appealed from the district court's dismissal on Speedy Trial Act grounds of an indictment charging defendant with counterfeit money and firearm possession.  The Tenth Circuit affirmed, holding that the delay before trial of more than a year was sufficiently lengthy, and awaiting the completion of a state prosecution of defendant was not a plausible reason for the government's delay.

Related Resources

First Amendment and Criminal Matters

Today, the Tenth Circuit decided one case regarding a public school teacher's First Amendment right against retaliation for advocating disabled students' rights, and two criminal matters concerning, respectively, a capital habeas petition and a Sentencing Guidelines issue.

In Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., No. 09-2005, plaintiff brought First Amendment and Rehabilitation Act claims based on defendant public school system's reduction of plaintiff to a standard contract to work with special education students on the ground that her caseload did not support an extended contract.  The district court granted summary judgment for defendant.

The Tenth Circuit reversed on the grounds that 1) the undisputed facts showed that plaintiff engaged in protected activity for the purposes of section 504 of the Rehabilitation Act; 2) there was an issue of material fact as to whether defendant deliberately maintained inaccurate caseload lists that artificially reduced plaintiff's workload in order to reduce her salary; and 3)  plaintiff felt that she had a duty to report the denial of services to special education students as part of her professional obligations, and the district court correctly found this to be conclusive that plaintiff was speaking as an employee and not as a private citizen.

In Alverson v. Workman, No. 09-5000, a capital habeas matter, petitioner's petition centered on the state trial court's denial of petitioner's requests for funding for a neuropsychological examination and the state's introduction of allegedly insufficient evidence to establish that he substantially participated in the murder charged.  The district court denied the petition.

The Tenth Circuit affirmed on the grounds that 1) the state's allegation of future dangerousness was not based on state-sponsored psychiatric evidence, but rather on petitioner's history of violent criminal conduct, including his role in the murder at issue, and thus he was not entitled to a psychiatric examination under Ake; 2) the heinous, atrocious or cruel aggravating factor was based not upon petitioner's state of mind, but rather the brutal manner in which the victim was killed; 3) the jury could clearly have inferred, based upon its viewing of (and listening to) the surveillance tape of the murder, that petitioner was well aware that a murder was going to occur and may well have directly participated in beating the victim; and 4) petitioner failed to identify what other action his trial counsel could or should have taken to obtain a court-ordered neuropsychological examination.

Finally, in US v. Patillar, No. 09-5067, defendant appealed his sentence for robbery, which the district court had enhanced based on defendant's prior Oklahoma convictions.

The Tenth Circuit affirmed on the grounds that both of the prior Oklahoma law offenses, larceny from the person and robbery with firearms, constituted crimes of violence under U.S.S.G. section 4B1.1.

Related Resources

US v. Middagh, No. 09-2123

Defendant's sentence for theft of public money of two years' probation, conditioned on 240 hours of community service, is affirmed where: 1) it was reasonable for the presentence report to recommend, and the district court to agree, that the sanction for defendant's offense needed to be more than losing his right to hunt; and 2) the sentence was not procedurally unreasonable because little explanation was required for a within-guidelines sentence.

Read US v. Middagh, No. 09-2123

Appellate Information

Filed February 12, 2010

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

John Van Butcher, Assistant Federal Public Defender, Albuquerque, NM

For Appellee:

Mary L. Higgins, Assistant United States Attorney, Albuquerque, NM

US v. Lewis, No. 08-1170

Defendants' convictions and sentences for securities and wire fraud are affirmed in part where: 1) there was sufficient evidence of guilt on a challenged wire fraud count even though the victim did not testify; 2) defendant failed to overcome the presumption of reasonableness of his within-guidelines 330-year sentence; 3) neither defendant pointed to the admission at trial of any inadmissible hearsay; 4) an indictment need not charge aiding and abetting in addition to the substantive offense; and 5) defendant was not entitled to a Franks hearing because he did not allege that an affiant in support of a search warrant lied in the affidavit. However, one defendant's conviction is reversed in part where the government conceded that it had no evidence that defendant knew that his agent's sales pitch was fraudulent, and it failed to point to any evidence supporting the theory that defendant caused the agent to make any of her false statements.

Read US v. Lewis, No. 08-1170

Appellate Information

Opinion by Judge Hartz

Counsel

For Appellant:

Jonathan S. Willett, Denver, CO

For Appellees:

Matthew T. Kirsch and James C. Murphy, Assistant United States Attorneys, Denver, CO

Lambert v. Workman, No. 09-5108

In a capital habeas matter, a denial of the habeas petition is affirmed where: 1) there was no Supreme Court authority clearly establishing the proper reconciliation of the competing double-jeopardy principles at issue, which was fatal to his claim; and 2) it was neither arbitrary nor capricious for a state court of appeals to retain and exercise its customary appellate authority to correct the trial court's error in the event the trial court failed to take the required action.

Read Lambert v. Workman, No. 09-5108

Appellate Information

Filed February 12, 2010

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Jonathan S. Willett, Denver, CO

For Appellees:

Matthew T. Kirsch and James C. Murphy, Assistant United States Attorneys, Denver, CO

US v. Jordan, No. 08-1431

In a murder prosecution, a denial of defendant's motion for DNA testing brought pursuant to the Innocence Protection Act is affirmed where the presence of another prisoner's DNA on the murder weapon or other items would not undermine the strength of the government's case in any meaningful way.  Moreover, an appeal from a denial of defendant's motion to preserve trial evidence is dismissed as moot where the current trial court had already entered an order requiring the government to preserve the evidence.

Read US v. Jordan, No. 08-1431

Appellate Information

Filed February 11, 2010

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Paula Marie Ray, Paula M. Ray, P.C., Denver, CO

For Appellee:

John M. Hutchins, David Conner and Gregory Holloway, Office of the United States Attorney for the District of Colorado, Denver, CO

Crandall v. Denver, No. 08-1197

In an action under the Resource Conservation and Recovery Act to prohibit full-plane deicing at an airport concourse and also require other precautionary steps relating to airplane deicing fluid (ADF), judgment for defendants is affirmed where plaintiffs failed to demonstrate that ADF at the airport (whether it degraded inside or outside the concourse) may present an imminent and substantial endangerment to health.

Read Crandall v. Denver, No. 08-1197

Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

Frederick Ganz, John D. Fognani and Perry L. Glantz, Fognani & Faught, PLLC, Denver, CO

For Appellee:

Andrew J. Carafelli, Chris Mattison and Peter Moyson, Hall & Evans, L.L.C., Denver, CO

Johnson v. Weld County, No. 08-1365

In an Americans with Disabilities Act (ADA) action based on defendant's failure to hire plaintiff, summary judgment for defendant is affirmed where plaintiff failed to rebut defendant's evidence suggesting that the male candidate it hired as Fiscal Officer had superior qualifications to plaintiff's, as well as its evidence that she was not, at the time of the hiring decision, disabled within the meaning of the ADA.

Read Johnson v. Weld County, No. 08-1365

Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Gorsuch

Counsel

For Appellant:

John R. Olsen of Olsen & Brown, LLC, Niwot, CO

For Appellee:

Katherine M.L. Pratt and Thomas J. Lyons, Hall & Evans, Denver, CO

DG v. DeVaughn, No. 09-5093

In a class action against the Oklahoma Department of Human Services claiming that the department's agency-wide foster care policies and practices exposed all class members to an impermissible risk of harm, the district court's order certifying a class is affirmed where: 1) plaintiffs presented more than conclusory statements that defendants' agency-wide monitoring policies and practices, or lack thereof, created a risk of harm shared by the entire class; 2) due to the common risk of harm and the common underlying legal theory for asserting that risk, the district court acted within its discretion to find that typicality was satisfied; and 3) the injunction sought by plaintiffs applied to the proposed class as a whole without requiring differentiation between class members.

Read DG v. DeVaughn, No. 09-5093

Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge Baldock

Counsel

For Appellants:

Marsha Robinson Lowry, Children's Rights, New York, NY

Frederic Dorwart and Paul DeMuro, Frederic Dorwart Lawyers, Tulsa, OK

For Appellees:

Donald M. Bingham and Holly M. Hillerman, Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., Tulsa, OK

US v. Schneider, No. 09-3028

In a prosecution for impermissibly dispensing controlled drugs, an order excluding evidence of all but one of the eighteen deaths charged in one count of the indictment and the court's placement of a ten-day limitation on the government's time to present its case is vacated where the district court's ruling effectively dismissed separately charged conduct brought by the government against defendants, and thus impermissibly intruded upon the authority of the executive branch to design a criminal prosecution in the way it deemed most prudent.

Read US v. Schneider, No. 09-3028

Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge O'Brien

Counsel

For Appellant:

Richard A. Friedman and Tanya J. Treadway, United States Department of Justice, Washington, DC

For Appellees:

Eugene V. Gorokhov, Eugene V. Gorokhov, PLLC, Arlington, VA

Lawrence W. Williamson, Jr., of Williamson Law Firm, LLC, Kansas City, MO

US v. Headman, No. 09-1033

Defendant's murder conviction is affirmed in part where: 1) defendant's Brady claim failed because he did not show that the allegedly undisclosed information was material; and 2) the trial court's instructions did not misinform the jury about the application of the intoxication defense to aiding and abetting first-degree premeditated murder.  However, the conviction is reversed in part where, for double jeopardy reasons, the government conceded that either the felony-murder or kidnapping conviction should be vacated on remand.

Read US v. Headman, No. 09-1033

Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Elizabeth L. Harris and Andrew W. Myers, Jacobs Chase Frick Kleinkopf & Kelley, LLC, Denver, CO

For Appellee:

James C. Murphy, Michael Carey and Todd Norvell, Assistant United States Attorneys, Denver, CO

Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., No. 08-1150

In an action against an insurer for breach of its duty to defend, summary judgment for defendant is reversed where the policies underlying Colorado's complaint rule did not allow an insurer to ignore ongoing parallel judicial proceedings which it was aware of, and Colorado law required policy exclusions to be read narrowly.

Read Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., No. 08-1150

Appellate Information

Filed February 2, 2010

Judges

Opinion by Judge McKay

Counsel

For Appellant:

Andrew M. Low, Davis Graham & Stubbs LLP, Denver, CO

Thomas L. Roberts and Bradley A. Levin, Roberts Levin & Patterson, P.C., Denver, CO

For Appellee:

Neil Lloyd, Lisa A. Brown and David C. Scott, Schiff Hardin LLP, Chicago, IL

US v. Speakman, No. 08-1332

In a wire fraud prosecution, the district court's restitution order is reversed and remanded where a remand was appropriate to allow the government to present evidence of the proximate cause of the loss to defendant's employer, which paid an arbitration award to the victim of defendant's fraud.

Read US v. Speakman, No. 08-1332

Appellate Information

Filed February 2, 2010

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Richard J. Banta, Denver, CO

For Appellee:

Paul Farley and David M. Gaouette, Office of the United States Attorney, Denver, CO

Laborers' Int'l. Union of N. Am. v. NLRB, No. 08-9564

In a union's petition for review of the National Labor Relations Board's order holding that the union engaged in unfair labor practices when it persuaded a construction company to fire an employee for failing to pay his union dues, the petition is denied where: 1) a letter sent by the union demanding the termination violated National Labor Relations Act section 8(b)(1)(A), because the union claimed the right and intent to seek the employee's immediate dismissal without first discharging its fiduciary duties by explaining to the employee how it calculated his dues, or providing him a reasonable time period in which to make payment.

Read Laborers' Int'l. Union of N. Am. v. NLRB, No. 08-9564

Appellate Information

Filed February 2, 2010

Judges

Opinion by Judge Gorsuch

Counsel

For Petitioner:

Terrence A. Johnson, Colorado Springs, CO

For Respondent:

Milakshmi V. Rajapakse, Meredith L. Jason, Ronald Meisburg, and John E. Higgins, Jr., National Labor Relations Board, Washington, DC

Chamber of Comm. of the US v. Edmondson, No. 08-6127

In an action claiming that provisions of the Oklahoma Taxpayer and Citizen Protection Act (the Act) were preempted by federal law, a preliminary injunction in favor of plaintiffs is affirmed in part where: 1) section 7(C) of the Act imposed sanctions "upon those who employ unauthorized aliens," and was thus preempted by 8 U.S.C. section 1324a(h)(2); and 2) by requiring verification of independent contractors, section 9 of the Act risked exposing contracting entities to liability under federal law, and thus section 9 was preempted as well.  However, the order is reversed in part where section 7(B) of the Act was not preempted because no evidence suggested that federal standards concerning immigration and employment-verification would be compromised by the online monitoring system required by that section.

Read Chamber of Comm. of the US v. Edmondson, No. 08-6127

Appellate Information

Filed February 2, 2010

Judges

Opinion by Judge Lucero

Counsel

For Appellants:

M. Daniel Weitman, Kevin L. McClure and Sandra D. Rinehart, Oklahoma Attorney General's Office, Oklahoma City, OK

Guy L. Hurst, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma
City, OK

For Appellees:

Carter G. Phillips, Eric A. Shumsky and Brian E. Nelson, Sidley & Austin LLP, Washington, DC

Robin S. Conrad and Shane Brennan, National Chamber Litigation Center, Inc., Sidley Austin LLP, Washington, DC

Clyma v. Sunoco, Inc., No. 08-5153

In a non-party's appeal from the district court's denial of an "Application for Permission to Interview Jurors for Instructional Purposes" pursuant to N.D. Okla. L.R. 47.2.1, the appeal is construed as a writ of mandamus and the district court is ordered to reconsider the matter pursuant to a meaningful exercise of its discretion in support of its ultimate determination.

Read Clyma v. Sunoco, Inc., No. 08-5153

Appellate Information

Filed February 3, 2010

Judges

Opinion by Judge Baldock

Counsel

For Appellant:

Mark Hammons of Hammons, Gowens & Associates, Oklahoma City, OK

For Appellee:

James B. Lebeck, Vinson & Elkins LLP, Houston, TX

John D.W. Partridge of Gibson Dunn & Crutcher LLP, Denver, CO

US v. Prince, No. 09-3208

In the government's appeal from the district court's order suppressing evidence in a drug and firearm possession prosecution, the order is reversed where: 1) a consensual encounter between a defendant and an officer motivated by a mistake of law on the part of the officer did not implicate any Fourth Amendment concerns; and 2) the totality of the evidence recounted in the officer's affidavit substantially supported the conclusion that there was a "fair probability that contraband or evidence of a crime" would be found in defendant's residence.

Read US v. Prince, No. 09-3208

Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

James A. Brown, Assistant United States Attorney, Topeka, KS

For Appellee:

Timothy J. Henry, Assistant Federal Public Defender, Wichita, KS

Peterson v. Grisham, No. 08-7100

In a defamation action against author John Grisham based on false statements he allegedly made about plaintiffs in a book, dismissal of the action is affirmed where: 1) any connection between defendants' statements and an accusation of criminal activity was far too tenuous for the court to declare them as unprivileged for purposes of Okla. Stat. 1443.1; and 2) because section 1443.1 applied to plaintiffs' libel claims, plaintiffs were also barred under the statute from asserting a valid claim of intentional infliction of emotional distress or false light.

Read Peterson v. Grisham, No. 08-7100

Appellate Information

Filed February 1, 2010

Judges

Opinion by Judge Lucero

Counsel

For Appellants:

Gary L. Richardson and Denise P. James, The Richardson Law Firm, P.C., Tulsa, OK

For Appellees:

Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK

Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, KS