U.S. Tenth Circuit: June 2010 Archives
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

June 2010 Archives

Provisions of New Mexico Campaign Reporting Act Invalidated

New Mex. Youth Organized v. Herrera, No. 09-2212, involved an action by political committees challenging New Mexico's ability to regulate plaintiffs pursuant to the New Mexico Campaign Reporting Act ("NMCRA").  The court of appeals affirmed summary judgment for plaintiffs, on the ground that the organizations could not be constitutionally said to have a primary purpose of influencing elections--as measured by either a comprehensive examination of their activities or by their satisfaction of the $500 threshold--such that they could be subject to the full range of disclosure and report provisions.

In US v. Apollo Energies, Inc., No. 09-3037, the court of appeals affirmed in part Defendants' convictions under the Migratory Bird Treaty Act (MBTA) after dead migratory birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater, holding that one defendant proximately caused the harm to protected birds.  However, the court reversed in part on the ground that a strict liability interpretation of the MBTA for the conduct charged here satisfied due process only if defendants proximately caused the harm to protected birds.

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In re: Graves, No. 08-1462, involved an appeal from the bankruptcy appellate panel's holding that the Bankruptcy Code's turnover provision, 11 U.S.C. section 542, did not empower a trustee to demand turnover from a debtor in this case.  The court of appeals affirmed with modification, on the ground that debtors' interest in a 2006 tax refund, irrevocably applied pre-petition to 2007 taxes, was not subject to turnover under 11 U.S.C. section 542(a).

In US v. McGinty, No. 09-6246, a prosecution for misapplication of bank funds, the court of appeals reversed the district court's award of forfeiture at sentencing, on the ground that the government was entitled to a money judgment against defendant for the money he obtained from his criminal activity.

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In US v. Martinez, No. 09-2117, the court of appeals affirmed defendant's sentence for conspiring to defraud the State of New Mexico during the construction of the Bernalillo County Metropolitan Courthouse in Albuquerque, on the grounds that 1) the district court did not err in applying the 2008 version of the Sentencing Guidelines; 2) the district court properly refused to embark upon an "apples and oranges" comparison between the fraudulent proceeds defendant gained from this conspiracy and the contract revenues for services rendered that other co-conspirators previously gained from allegedly bribing an official; and 3) any disparity between defendant's and the official's identical terms of imprisonment was explained by their different plea agreements.

Cahill v. Am. Fam. Mut. Ins. Co., No. 09-1200, involved an action against an insurer asserting state-law causes of action arising out of defendant's alleged failure to comply with Colorado insurance law.  The Tenth Circuit affirmed summary judgment for defendant, on the ground that plaintiff was incorrect in asserting that the relevant limitations periods should have been tolled until defendant informed him that it had not paid benefits required by law.

In US v. Simpson, No. 09-4127, the court of appeals affirmed defendant's drug trafficking conviction, holding that the district court properly denied defendant's motion to suppress narcotics found in his vehicle, because defendant's prior criminal conviction for drug trafficking, his extreme nervousness, and the fact that he provided inconsistent and evasive answers to queries about his travel plans together provided reasonable suspicion to justify extending a legitimate traffic stop to allow further questioning and a canine sniff of his automobile.

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In re: Trout, No. 09-1332, concerned a bankruptcy trustee's appeal from a decision of the bankruptcy appellate panel affirming the bankruptcy court's determination that, having successfully avoided a preferential vehicle lien under 11 U.S.C. section 547, the trustee was not entitled to a money judgment equal to the value of the avoided liens under section 550(a).  The court of appeals affirmed, on the ground that the bankruptcy estate had been sufficiently returned to its pre-transfer status by avoiding the preferential lien at issue and stepping into the lien priority of the avoided creditor under 11 U.S.C. section 551.

Narotzky v. Natrona Cty. Mem. Hosp. Bd. of Trustees, No. 09-8053, involved an action by doctors against their former hospital employer, stating a procedural due process claim based on a theory of constructive discharge and a claim based on the warrantless search of plaintiffs' lockers.  The court of appeals affirmed summary judgment for defendant, on the ground that no constructive discharge occurred and that the search was reasonable, given the context and circumstances.

Thomas v. Parker, No. 09-6203, concerned an action challenging various conditions of plaintiff's confinement at the James Crabtree Correctional Center (JCCC), a prison in the Oklahoma Department of Corrections (ODOC).  The Tenth Circuit affirmed the dismissal of the action, on the grounds that 1) the district court did not err in concluding that plaintiff failed to exhaust his administrative remedies when he did not properly complete all three required written steps; 2) plaintiff's allegations were insufficient to establish fraud on the court because, at most, they showed the nondisclosure of evidence or the alteration of evidence by a party, with no showing of attorney involvement; and 3) it is difficult to see how there could be actionable fraud on the court if the district court had before it the correct documents when it made its final decision.

In US v. Hasan, No. 08-5137, the court of appeals affirmed defendant's perjury convictions in part, on the ground that, although the prosecutor could have done more to clarify, the district court would not have clearly or obviously erred in concluding that a reasonable jury could find that the questions were not the cause of defendant's inconsistent answers.  However, the court vacated in part on the ground that the district court needed to determine in the first instance whether defendant spoke primarily a language other than the English language under the proper legal standard.

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Plus Criminal, Employment and Tort Cases

Golan v. Holder, No. 09-1234, involved an action challenging the constitutionality of Section 514 of the Uruguay Round Agreements Act ("URAA"), which granted copyright protection to various foreign works that were previously in the public domain in the U.S.  The court of appeals reversed summary judgment for plaintiffs, on the grounds that 1) the government's interest in securing protections abroad for American copyright holders satisfied this substantial government interest standard; 2) Congress had substantial evidence from which it could reasonably conclude that the ongoing harms to American authors were real and not merely conjectural; and 3) there was substantial evidence from which Congress could conclude that Section 514 would alleviate these harms to American copyright holders.

In US v. Salazar, No. 09-3073, a firearm possession prosecution, the Tenth Circuit reversed the district court's order suppressing defendant's firearm, on the grounds that 1) defendant was not seized until he submitted to the police's show of authority by obeying the command to get out of his truck; and 2) at the time that defendant submitted to the officer's authority, the officer had reasonable suspicion to detain him.

In Sines v. Wilner, No. 09-1347, a firearm possession prosecution, the court of appeals affirmed the denial of petitioner's habeas petition, holding that 1) defendant's remedy under 28 U.S.C. section 2255 was not inadequate or ineffective; 2) defendant could have appealed the district court's dismissal of his motion; and 3) defendant's notice of appeal could not be construed as encompassing the denial of his section 2255 motion, because the notice did not evince an intent to appeal that denial.

Fredericks v. Jonsson, No. 09-1169, involved an action against a licensed psychologist for failing to warn plaintiffs of the danger posed by one of the psychologist's patients.  The court of appeals affirmed summary judgment for defendant, holding that 1) Colorado's mental health-professional liability statute, Colo. Rev. Stat. section 13-21-117, applied in the circumstances of this case and 2) the statute did not require defendant to warn plaintiffs because the patient had not communicated to defendant any serious threat of imminent physical violence against them.

Medlock v. United Parcel Serv., Inc., No. 09-5109, concerned an action alleging federal claims under the Age Discrimination in Employment Act (ADEA) and his correlative Oklahoma "Burk tort" claim.  The court of appeals affirmed summary judgment for defendant, holding that it was not the employer's burden to negate any possible contributory role played by age in the challenged adverse action but, conversely, the employee's burden to show that age was the "but for" cause of the action.

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Challenge to BLM Approval of Natural Gas Plant

Biodiversity Conservation Alliance v. Bureau of Land Mgmt., No. 09-8011, involved several environmental and citizens' groups challenge to a 2003 Bureau of Land Management resource management plan amendment allowing natural gas development in Wyoming's Powder River Basin.  The court of appeals affirmed summary judgment for defendants on the ground that the Bureau reasonably concluded that phased development was impractical and would not meet the project's purposes, and this ground is an adequate basis for the Bureau's decision.

As the court wrote:  "In this appeal, several environmental and citizens' groups challenge a 2003 Bureau of Land Management resource management plan amendment allowing natural gas development in Wyoming's Powder River Basin. The groups argue that the Bureau violated the National Environmental Policy Act when it refused to study in detail their proposal to phase development in the Basin over decades. The district court held that the Bureau adequately considered their suggested alternative. W. Org. of Res. Councils (WORC) v. Bureau of Land Mgmt., 591 F. Supp. 2d 1206, 1228 & n.4 (D. Wyo. 2008). We have jurisdiction under 28 U.S.C. § 1291 and affirm. The Bureau reasonably refused to give detailed study to a plan that would not meet the project's purposes."

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Price v. Wolford, No. 09-6139, involved the Oklahoma Health Care Authority (OHCA)'s appeal from the district court's order allotting part of a malpractice settlement to OHCA in full satisfaction of the lien.  The court of appeals reversed, on the ground that the district court correctly construed Oklahoma law but erred in finding that the settling parties had proved by clear and convincing evidence that only $67,666.67 of the settlement could be attributed to medical care paid by Medicaid.

As the court wrote:  "The Oklahoma Health Care Authority (OHCA) asserted a $544,282.26
Medicaid lien on a $1.1 million settlement of Plaintiffs' malpractice suit against Dr. Dale Wolford. The district court, however, allotted OHCA only $67,666.67 in full satisfaction of the lien. OHCA appeals, contending (1) that the district court lost jurisdiction of the malpractice litigation when OHCA's intervention as a defendant destroyed diversity of citizenship; (2) that the district court erred in not conducting an evidentiary hearing at which OHCA could challenge the reduction of its lien; and (3) that the district court did not comply with Oklahoma law when it reduced OHCA's lien. We reject the jurisdictional argument because the supplemental-jurisdiction statute, 28 U.S.C. § 1367, permitted the joinder of OHCA as a nondiverse defendant. We reject OHCA's second contention because it did not timely request an evidentiary hearing. As for its final contention, we hold that the district court correctly construed Oklahoma law but erred in finding that the settling parties had proved by clear and convincing evidence that only $67,666.67 of the settlement could be attributed to medical care paid by Medicaid. We therefore reverse and remand for further proceedings."

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Hydro Resources, Inc. v. EPA, No. 07-9506, involved a petition for review of the EPA's "final land status determination" expressing its judgment that petitioner's land qualified as "Indian land."  The court of appeals granted the petition, holding that the EPA's interpretation cannot be reconciled with the Supreme Court's explanation of 18 U.S.C. section 1151(b)'s plain meaning.

In US v. Sanchez, No. 09-2239, the court of appeals affirmed defendant's marijuana possession conviction, holding that defendant's daughter had actual authority to consent to the police's home visit and the officers properly relied on her consent, and thus the district court properly denied defendant's motion to suppress.

US v. Terrell, No. 09-3074, involved defendant's appeal from the district court's denial of his motion for a reduction of sentence under 18 U.S.C. section 3582(c)(2) on the basis that his sentence was improperly enhanced as a result of double-counting.  The court of appeals affirmed on the ground that the number of weapons involved in the underlying offense to an 18 U.S.C. section 924(c) conviction was a separate type of offense conduct than that punished by section 924(c) itself. 

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Cocaine Possession Conviction Affirmed, and Other Criminal Matter

In US v. Corrales, No. 09-3259, the Tenth Circuit affirmed defendant's convictions for possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute, holding that 1) defendant did not challenge the sufficiency of the evidence to support a jury finding that he had actual knowledge of the presence of cocaine; 2) defendant did not argue that the district court erred on the two occasions on which it sustained objections to defendant's cross-examination of a witness and 3) defendant failed to show that this cross-examination was otherwise limited.

In US v. Silva, No. 09-2035, the Tenth Circuit affirmed defendant's sentence for possession of a firearm and ammunition after conviction of a felony, holding that the district court correctly determined that defendant's prior New Mexico convictions for burglary and aggravated assault qualified as violent felonies under the Armed Career Criminal Act.

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Duvall v. Georgia-Pac. Consumer Prods., L.P., No. 08-7096, concerned an action under the Americans with Disabilities Act (ADA) for failure to grant plaintiff a reasonable accommodation.  The court of appeals affirmed summary judgment for defendant, on the ground that the shipping department and storeroom positions filled by temporary workers were not "vacant" within the meaning of the ADA.

Porter Trust v. Bower, No. 09-6070, involved an action by landowners whose property was within the boundaries of the water and sewer district served by the defendant, seeking to de-annex the property from the defendant's district.  The court of appeals affirmed the remand of the matter to state court, holding that, although the Logan County Board of County Commissioners exercised a judicial function in de-annexation proceedings, it was an administrative rather than a judicial entity.

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Yost v. Stout, No. 09-3099, involved a 42 U.S.C. section 1983 challenge to the "endorsement clause" of the Kansas Code of Judicial Conduct that generally prohibited a judge or judicial candidate from publicly endorsing or opposing another candidate for public office.  The Tenth Circuit dismissed plaintiff's appeal from summary judgment for defendants, holding that the notice of appeal was untimely.

Little v. Jones, No. 08-7095, concerned an action under 42 U.S.C. section 1983 alleging that the Oklahoma Department of Corrections (ODOC) and several employees and officials at a prison violated plaintiff's constitutional rights.  The Tenth Circuit affirmed in part the dismissal of the complaint and the denial of plaintiff's motion for a preliminary injunction, on the grounds that plaintiff conceded in his motion for a preliminary injunction that he received his desired diet at other ODOC facilities, undercutting any potential claim of system-wide denial.  However, the court reversed in part, holding that the prison lacked the authority to reject his appeal for raising more than one issue and thereby prevented him from completing the grievance process.

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Denial of Capital Habeas Petition, and Indian Law Matter

In Welch v. Workman, No. 07-5061, a capital habeas matter, the court of appeals affirmed the denial of petitioner's habeas petition, holding that: 1) even assuming an allegedly hearsay statement was testimonial, numerous third-party eyewitnesses testified that defendant repeatedly stabbed and beat the victim; 2) the overwhelming evidence presented in the guilt phase negated any reasonable belief the prosecutor's minimal questioning and closing comments had a substantial and injurious effect on the jury's guilty verdict; 3) the jury was instructed on the non-capital crime of first-degree manslaughter, and was not faced with an all-or-nothing choice; and 4) while portions of the victim impact statements went outside constitutional bounds, we this evidence did not so clearly sway the jury as to cause petitioner actual prejudice.

Iowa Tribe of Ks. v. Salazar, No. 08-3277, involved an action by an Indian tribe claiming that the Secretary of the Interior improperly took a small tract of land into trust on behalf of the Wyandotte Tribe of Oklahoma.  The court of appeals dismissed plaintiffs' appeal from the dismissal of the action, holding that the Secretary had already taken the land at issue into trust, and sovereign immunity thus precluded the relief sought by plaintiffs.

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Thomas v. Durastanti, 07-3343, involved an action claiming that a BATF agent violated plaintiff's Fourth Amendment right to be free from unreasonable seizures when the agent shot plaintiff.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that a reasonable officer would have had probable cause to believe that there was a threat of serious physical harm to himself or others in the situation presented.

In US v. Adame-Orozco, No. 09-3296, the Tenth Circuit affirmed defendant's conviction for illegally reentering the U.S. after a prior deportation, holding that defendant was never improperly deprived of the opportunity for judicial review in his federal deportation proceedings, because 8 U.S.C. section 1326(d) did not guarantee judicial review in state court of defendant's underlying state felony convictions.

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Sexual Assault Conviction and Sentence Affirmed

In US v. Smith, No. 09-2040, the court of appeals affirmed defendant's conviction and sentence for sexual assault, holding that 1) nothing suggested that defendant was intoxicated, or otherwise incapable of sufficient comprehension, when the police advised him of his Miranda rights or when he signed the form acknowledging that he had been apprised of, understood, and waived those rights; 2) the presentment rule did not support suppressing defendant's confession; 3) the victim's statement that she had been raped constituted an excited utterance; and 4) the conditions of defendant's supervised release were linked to the offense and no broader than necessary to rehabilitate the defendant and protect the public.

As the court wrote:  "A jury convicted Lehman Smith of sexual assault, and he was sentenced to 60 months' imprisonment and 36 months of supervised release. Smith appeals his conviction and sentence, raising four pretrial and trial issues: the district court erred by (1) refusing to suppress his confession, (2) admitting hearsay evidence under the excited-utterance exception, (3) finding that evidence sufficient to sustain his conviction was introduced, and (4) imposing special conditions of supervised release restricting his contact with minors and the disabled. Our jurisdiction arises under 18 U.S.C. §§ 1291 and 3742. We AFFIRM the rulings of the district court."

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Action for Employment Discrimination Based on Obesity and Diabetes

Wilkerson v. Shinseki, No. 09-8027, involved an action claiming that plaintiff's reassignment discriminated against him based on his obesity and diabetes, and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff was not otherwise qualified to hold the position as required by the Rehabilitation Act; 2) defendant had a non-discriminatory reason for removing plaintiff that was not pretextual; and 3) plaintiff did not allege that the accessing of his health records was intentional misconduct, as required by the Privacy Act.

As the court wrote:  "Floyd Wilkerson worked on a temporary basis at the Cheyenne Veteran Affairs Medical Center as a boiler plant operator. Following a failed physical examination, the human resources manager notified him that he was reassigned to a lower paid position.  Mr. Wilkerson brought suit against the Secretary of the U.S. Department of Veterans Affairs (the "VA"), claiming that this reassignment discriminated against him based on his obesity and diabetes, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 626 and 633a(a). Mr. Wilkerson later tried to amend his complaint to allege that his health records were illegally accessed in violation of the Privacy Act, 5 U.S.C. § 552a. The district court granted summary judgment for the VA on all counts and denied Mr. Wilkerson's motion for leave to amend the complaint to allege the Privacy Act claim."

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