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

Introduction Of Prior Murders Permitted In Capital Murder Case

US v. Lujan, No. 09-2046, involved the U.S.'s appeal, in a capital murder matter, of the district court's order excluding evidence that defendant had been responsible for prior murders.  The court of appeals reversed on the grounds that 1) the federal government sought to introduce evidence that defendant committed the prior murders only for the purpose of proving a non-statutory aggravating factor for sentencing for the murder presently at issue; 2) the district court abused its discretion in concluding that, in this case, any evidence of the double homicide posed such a great risk of unfair prejudice that it outweighed its high probative value; and 3) the district court could limit any prejudice with an instruction to the jury.

As the court wrote:  "Defendant-Appellee Larry Lujan is charged with the capital crime of kidnapping resulting in the death of a victim, in violation of 18 U.S.C. § 1201(a)(1), for the kidnapping and subsequent murder of Dana Joe Grauke II in March 2005 (the "Grauke murder"). In its pursuit of the death penalty, and for purposes of the sentencing phase only, Appellant-United States sought to have evidence admitted that Lujan had previously committed a double homicide in New Mexico in December 1998 (the "Chamberino murders" or the "double homicide"). The United States asserted that this double homicide evidence would prove Lujan's future dangerousness--a non-statutory aggravating factor for the death penalty. Lujan argued that this evidence cannot be admitted because it is unfairly prejudicial, particularly because Lujan has been charged by New Mexico with the Chamberino murders but not convicted of them. The district court agreed with Lujan and ordered the evidence excluded pursuant to 18 U.S.C. § 3593(c) of the Federal Death Penalty Act of 1994. The United States filed an interlocutory appeal of this order. Under 18 U.S.C. § 3731, we have jurisdiction to hear an interlocutory appeal of a district court's pretrial order excluding evidence from the sentencing phase. See also United States v. Pepin, 514 F.3d 193, 201-02 (2d Cir. 2008) (exercising jurisdiction under 18 U.S.C. § 3731 to review on interlocutory appeal an
order excluding from the penalty phase evidence proffered by the government). Exercising that jurisdiction, we reverse the district court's order and remand for further proceedings consistent with this opinion."

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In US v. Silva-Arzeta, 07-5140, the court of appeals affirmed defendant's drug and firearm possession convictions, holding that 1) defendant could converse in English sufficiently well to consent to the search at issue; 2) the consent of a handcuffed arrestee to a search may still be voluntary; 3) the use of certified interpreters and recording devices was not required during interrogation; and 4) defendant waived his right to request discovery into alleged evidence tampering.

Koch Indus., Inc. v. US, No. 08-3347, concerned the government's appeal from the district court's order holding that plaintiff was permitted to use the percentage-of-completion method of accounting under 26 U.S.C. section 460 to report $62 million in income received from the State of New Mexico for warranting a State highway would meet certain performance standards over a specified period of time.  The court of appeals reversed, holding that 1) the percentage-of-completion method of accounting applied only if manufacture, building, installation, or construction was necessary for the taxpayer's contractual obligations to be fulfilled; and 2) the percentage-of-completion method could not be used to defer tax on income received under a guaranty, warranty, or maintenance agreement.

Midwest Crane & Rigging, Inc. v. Fed'l. Motor Carrier Safety Admin., No. 09-9520, involved a petition for review of the Federal Motor Carrier Safety Administration's ("FMCSA") determination that petitioner was a "commercial motor carrier" subject to the agency's jurisdiction.  The court denied the petition, holding that the record indicated that petitioner's self-propelled cranes were designed to operate, and did operate, in highway traffic to transport property in the performance of a commercial function.

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Rodriguez v. Wet Ink, LLC, No. 08-1313, involved an employment discrimination suit against plaintiff's former employer, the court of appeals reversed summary judgment for defendant on the ground that the state anti-discrimination agency's notice did not trigger the 90-day limitation period for purposes of filing a federal action under Title VII, because nothing in the worksharing agreement between the Colorado Civil Rights Division (CCRD) and the EEOC, or relevant case law, supported defendant's view that the CCRD could issue right-to-sue notices on behalf of the EEOC.

US v. Steele, No. 09-7108, concerned defendant's appeal from his 18-month sentence of imprisonment imposed for his second violation of the terms of his supervised release.  The Tenth Circuit affirmed, on the grounds that 1) a remand was not necessary because the record on appeal was sufficient to enable adequate review; 2) the district judge clearly articulated his (self evident) reasons for imposing a sentence outside the recommended range; and 3) under the guidelines, recidivism was generally a reason for increased sentencing severity.

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Sexual Convictions Involving Minors Affirmed

In US v. Batton, No. 09-8079, the Tenth Circuit affirmed defendant's conviction under the Interstate Transportation of a Minor for Unlawful Sexual Relations Act, holding that 1) the evidence of defendant's prior sexual assault against a fourteen-year-old boy was strikingly similar to the charged offense and helped the jury determine the validity of the victim's accusations; 2) the jury instructions as a whole were not misleading; and 3) the expert testimony explained the characteristics and techniques of sex offenders in a way helpful to the jury.

In US v. Burkhart, No. 09-7091, the court of appeals affirmed defendant's conviction for possession of one or more matters containing a visual depiction of a minor engaging in sexually explicit conduct, holding that 1) even "on demand" Internet availability did not remove the incentive to hoard pornography that had been collected; 2) the magistrate judge reasonably concluded that a fair probability existed that defendant lived at the address at issue, and that the child pornography videos would be found in his home; and 3) because probable cause existed to search the address, the warrant was valid.

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Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2399, involved an action under the Endangered Species Act concerning whether the Bureau of Reclamation had discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow.  The court of appeals dismissed the appeal and remanded with instructions to dismiss the complaint, on the ground that the Fish and Wildlife Service's issuance of a new biological opinion mooted plaintiffs' prayer for both injunctive and declaratory relief.

Brammer-Hoelter v. Twin Peaks Charter Academy, No. 08-1325, concerned an action alleging that violated plaintiffs' First Amendment rights while they were employed at defendant school by unlawfully prohibiting them from meeting together to discuss school matters and retaliating against them when they did so.  The court of appeals affirmed summary judgment for defendants in part, holding that 1) there was no authority suggesting that an employer who expressed a preference regarding employee association thereby imposed an unconstitutional prior restraint; 2) controlling precedent would not have put a reasonable administrator on notice that the speech at each meeting at issue, viewed in the aggregate, was protected by the First Amendment; and 3) the record does not support the conclusion that the school board ratified plaintiffs' supervisor's directives on employee speech.  However, the court reversed in part, holding that there was no support for imposing the requirement that a government employee request clarification or complain to his supervisor before being permitted to file a complaint challenging his employer's speech restrictions.

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Kaufman v. Am. Family Mut. Ins. Co., No. 08-1491, concerned plaintiff's counsel's appeal from the district court's order imposing sanctions against them for discovery misconduct, and the district court's refusal to order discovery into the extent of ex parte communications between defense counsel and the court.

As the court wrote:  "The Silvern Law Offices, P.C. and its attorneys Steven Silvern and Jennifer Hicks ("Silvern") appeal from the district court's order imposing sanctions against them for discovery misconduct. Silvern also appeals from the district court's refusal to order discovery into the extent of ex parte communications between opposing counsel and the court. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM."

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Criminal, Employment, Environmental and Government Benefits Cases

Hill v. Ricoh Americas Corp., No. 09-3182, involved an action alleging that plaintiff was terminated from his position in violation of the Sarbanes-Oxley Act, and Kansas common law prohibiting retaliatory discharge.  The court of appeals reversed the denial of defendant's motion to compel arbitration, on the grounds that 1) defendant was not required by Fed. R. Civ. P. 8(c)(1) to demand arbitration in its answer; 2) defendant did not demand arbitration until four months after answering the complaint, but that length of time in itself did not establish waiver; and 3) the parties' retention bonus agreement did not supersede the arbitration clause in the initial employment agreement.

In US v. Martinez, No. 09-6049, the court of appeals reversed defendant's firearm possession sentence, on the ground that the Arizona offense of attempted second-degree burglary was a "crime of violence" under the Sentencing Guidelines, but not a "violent felony" under the Armed Career Criminal Act.

Wilson v. Astrue, No. 08-3325, concerned a petition for review of the Social Security Commissioner's order denying petitioner's applications for Social Security disability and for Supplemental Security Income benefits.  The court of appeals denied the petition, holding that 1) although the Administrative Law Judge did not go into the specifics about the symptoms that led to petitioner's psychotic disorder diagnosis, he made the findings required by 20 C.F.R. section 404.1520a, and considered the psychotic disorder diagnosis in doing so; 2) it was clear from the ALJ's decision, taken as a whole, that the ALJ was aware that a claimant's pain may be considered disabling despite the absence of neurological testing objectively showing a reason for such pain; and 3) there was substantial evidence to support the ALJ's determination that petitioner was not entirely credible.

Copar Pumice Co., No. 07-2211, involved a petition for review of a Notice of Noncompliance that the United States Forest Service (FS) issued to petitioner concerning its pumice mining activities.  The court affirmed the denial of the petition, on the grounds that 1) the expiration of petitioner's plan of operations completely and irrevocably eradicated the effects of the plan modification requirement set forth in the Notice of Noncompliance; 2) it was not plainly erroneous or inconsistent for the FS to conclude from its regulations that an "uncommon variety" mineral becomes a common variety mineral when it is no longer used in an application that emphasizes its distinct and special value; and 3) the administrative record simply did not support petitioner's assertion that it was unaware of the FS's requests for verification.

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US v. McCalister, No. 09-5101

US v. McCalister, No. 09-5101, involved a drug conspiracy prosecution.  The court of appeals affirmed the denial of defendant's motion for relief from judgment filed under Federal Rule of Civil Procedure 60(b), holding that Fed. R. Civ. P. 60(b) is not available to challenge a previous denial of an 18 U.S.C. section 3582(c) motion.

As the court wrote:  "Michael L. McCalister appeals the district court's denial of his motion for relief from judgment filed under Federal Rule of Civil Procedure 60(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court's denial of McCalister's Rule 60(b) motion. In so doing, we make clear that the resolution of an 18 U.S.C. § 3582(c) motion for reduction of sentence cannot be challenged under the Federal Rules of Civil Procedure because a § 3582(c) motion is a criminal proceeding."

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Civil Procedure and Civil Rights Matters

Hansen v. PT Bank Negara Indonesia, No. 09-4052, concerned an action claiming that defendant Indonesian state bank refused to honor certain financial instruments on the grounds that they were fraudulent and not issued by defendant.  The court of appeals affirmed the denial of defendant's motion for judgment on the pleadings, holding that 1) the district court's finding that defendant did not show by a preponderance of the evidence that none of its officers or employees actually participated in the alleged commercial activity was not clearly erroneous; and 2) the district court narrowly tailored its discovery order to the precise jurisdictional fact question presented.

Armijo v. Peterson, No. 09-2114, involved an action against police officers for violating the Fourth Amendment when they entered and searched plaintiff's home and detained her son.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that 1) the Fourth Amendment evaluated reasonableness based upon what the officers reasonably believed at the time, and it did not matter that, in retrospect, information provided to the officers was wrong; and 2) the search was justified by exigent circumstances because there was an urgent need to protect those at the high school against a possible bomb threat.

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Criminal and Insurance Matters

US v. Begay, No. 09-2163, involved the government's appeal from the district court's order dismissing with prejudice a superseding indictment charging defendant with multiple counts of aggravated sexual abuse of a child in Indian Country, and directing the parties to proceed to trial on the original indictment, which charged defendant with a single count of aggravated sexual abuse of a child in Indian Country.  The court reversed on the ground that, although it was true that the government delayed seeking the superseding indictment in the sense that it had been privy for some time to the evidence underlying each count of the superseding indictment, nothing in the record established that this was the type of "unnecessary delay" envisioned by Fed. R. Crim. P. 48(b)(1).

Safeco Ins. Co. of Am. v. Hilderbrand, No. 08-3225, concerned an action by an insurer seeking a declaration that it was not required to provide coverage to a defendant in an underlying suit regarding a person who was attacked by a tiger.  The court affirmed judgment for plaintiff, holding that the homeowners policy did not apply to defendants' exotic animal rescue and exhibition business, nor did any other exception in the policy apply to the facts of the case.

In US v. Martinez, No. 09-1140, the court of appeals affirmed defendant's bank robbery sentence, on the ground that defendant made a threat of death during the bank robberies and enhancing the sentence accordingly.  However, the court vacated defendant's sentence because a state court vacated one of defendant's prior convictions.

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Gunderson v. US Dept. of Labor, No. 08-9537

Gunderson v. US Dept. of Labor, No. 08-9537, concerned a petition for review of the Office of Workers' Compensation Programs' decision that petitioner was not entitled to benefits under the Black Lung Benefits Act.  The court of appeals granted the petition, holding that the Administrative Law Judge failed to provide a sufficient scientific explanation of his decision denying benefits.

As the court wrote:  "During his thirty-year employment as a coal miner and foreman, the petitioner, Terry Gunderson, was exposed to coal dust and developed chronic obstructive pulmonary disease. In January 2001, Mr. Gunderson received a letter from the National Institute for Occupational Safety and Health informing him that an x-ray taken as part of a monitoring program indicated that he suffered from pneumoconiosis, "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b). Pneumoconiosis "encompasses a cruel set of conditions that afflict a significant percentage of the nation's coal miners with 'severe, and
frequently crippling, chronic respiratory impairment.'" Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 854 (D.C. Cir. 2002) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6 (1976))."

US v. Cook, No. 08-2297

US v. Cook, No. 08-2297, involved a prosecution for various offenses arising out of a prison murder.  The Tenth Circuit reversed the grant of defendant's motion suppressing his statement to a jailhouse informant, holding that defendant was completely unaware that he was in the presence of a government agent when he made the suppressed statement and Miranda and its progeny were directed at the prevention of pressure and coercion in custodial interrogation settings, and thus the fears motivating exclusion of confessions that were the product of such custodial interrogation settings were not present.

As the court wrote:  "In June 2005, through the efforts of the FBI, the cooperating informant was wired with two recording devices and placed in a cell at the DACDC with Cook.  The placement of the cooperating informant and Cook in the same cell was the result of an orchestrated mock "reclassification day" in the DACDC.  The cooperating informant asked Cook about the Gantz murder and Cook described the roles that each of the three inmates played in killing Gantz.  This recorded statement was suppressed by the district court and is now the subject of this appeal.  Cook and his two cellmates were eventually charged in a five-count indictment with offenses related to the murder of Gantz."

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Abdulhaseeb v. Calbone, No. 08-6092

Abdulhaseeb v. Calbone, No. 08-6092, concerned an action under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and 42 U.S.C. section 1983, setting forth claims concerning plaintiff's conditions of incarceration.  The court of appeals affirmed summary judgment for defendants in part, on the ground that the prison administrative process was not inadequate and thus plaintiff failed to exhaust certain claims.  However, the court vacated in part, holding that 1) plaintiff remained incarcerated in the Oklahoma Department of Correction's (ODOC) custody, subject to ODOC policies, and a judgment in his favor could require ODOC to modify those policies, and thus his claims were not moot; and 2) there was no evidence in this record that plaintiff did not sincerely hold his expressed beliefs that he should eat a halal diet that includes meats, even though other Muslims may find a vegetarian or non-pork diet sufficient to satisfy Islam.

As the court wrote:  "Madyun Abdulhaseeb, an Oklahoma inmate who follows the Islamic faith, filed suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5,1 and 42 U.S.C. § 1983, setting forth seventeen claims concerning his conditions of incarceration. The district court dismissed without prejudice several of his claims for failure to exhaust administrative remedies and granted summary judgment to defendants on the remaining claims. Mr. Abdulhaseeb appeals. Initially he proceeded pro se, but we appointed counsel to represent him for supplemental briefing and oral argument."

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