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

July 2010 Archives

Felon in Possession Sentence Affirmed, and Criminal Matter

In US v. Ford, No. 09-2244, the court of appeals affirmed defendant's sentence for being a felon in possession of firearms and ammunition, being a fugitive in possession of firearms and ammunition, and possession of stolen firearms, on the grounds that 1) the evidence of defendant's prior Kansas escape was undoubtedly res gestae--intrinsic evidence inextricably connected to the charged crimes; 2) the district court had enough evidence to find that firing a gun 100 feet from officers in the middle of the night creates a substantial risk of serious bodily injury; and 3) criminal discharge of a firearm at an occupied building or vehicle was at least as risky as burglary or arson.

In US v. Vincent, No. 09-4193, the court of appeals affirmed defendant's conviction for knowingly distributing methamphetamine, holding that 1) a defendant is entitled to a jury instruction on entrapment only when the government conduct is such that a reasonable jury could find that it "creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense"; and 2) the district court correctly concluded that even assuming a witness was a confidential informant, defendant did not adequately raise an entrapment defense.

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Reversal of Tax Refund, and Criminal Matter

In Sala v. US, No. 08-1333, an action seeking a tax refund, the court of appeals reversed the district court's order granting the refund, holding that the transaction giving rise to petitioner's claimed tax loss had no economic substance because the claimed loss generated by the program was structured from the outset to be a complete fiction.

US v. Pope, No. 09-4150, involved a prosecution for possessing a firearm while having been previously convicted of a misdemeanor crime of domestic violence.  The court of appeals affirmed the denial of defendant's motion to dismiss the indictment on Second Amendment grounds, holding that all the material facts on which defendant's motion to dismiss relied were outside the indictment, hotly disputed by the government, and intimately bound up in the question of defendant's guilt or innocence.

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Colorado Certificate of Title Act Did Not Supersede Colorado UCC

In re: Roser, No. 09-1341, involved a creditor's appeal from the bankruptcy court's order holding that the trustee in a Chapter 7 proceeding could avoid a creditor's lien.  The court of appeals reversed on the ground that the Colorado Certificate of Title Act (CCTA) did not supersede Colorado UCC section 4-9-317(e) because the provision did not govern the manner or timing of the perfection of liens, and governed only the priority of a lien and was not inconsistent with the CCTA.

As the court wrote:  "On May 19, 2007, Sovereign Bank gave Robert James Roser a secured loan to purchase a motor vehicle, and he took possession of the vehicle that day. Nineteen days later, on June 7, the Bank filed its lien in compliance with the Colorado Certificate of Title Act (CCTA), Colo.Rev.Stat. § 42-6-121 (2007). Because the Colorado Uniform Commercial Code (Colorado UCC), which closely tracks the Uniform Commercial Code (UCC), gives priority over other security interests to a purchase-money security interest that is filed within 20 days of the purchaser's taking delivery of the collateral, see Colo.Rev.Stat. § 4-9-317(e) (2007), the Bank felt secure."

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Iliev v. Holder, No. 09-9517, concerned a petition for review of a Board of Immigration Appeals (BIA) order holding petitioner ineligible for a hardship waiver under 8 U.S.C. section 1186a(c)(4)(B).  The court of appeals denied the petition on the grounds that 1) the court lacked jurisdiction to review part of the petition because deciding it would require the court to pass on the BIA's credibility determinations and the weight the BIA gave to certain pieces of evidence; and 2) the BIA applied the correct legal standard when evaluating his eligibility for a good faith marriage waiver.

Mink v. Knox, No. 08-1250, involved an action seeking damages for the search and seizure of plaintiff's computer as part of an aborted criminal libel prosecution.  The court of appeals reversed the dismissal of the action against defendant-district attorney based on qualified immunity, holding that 1) the amended complaint plausibly asserted the requisite casual connection between defendant's conduct and the search and seizure that occurred at plaintiff's home; and 2) because a reasonable person would not take the statements in the editorial column at issue as statements of facts by or about the alleged libel victim, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting a search and seizure of plaintiff's property.

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Skrzypczak v. Roman Catholic Diocese of Tulsa, No. 09-5089, concerned an action against a Roman Catholic diocese alleging gender and age discrimination.  The court of appeals affirmed summary judgment for defendants, on the ground that Title VII's ministerial exception barred plaintiffs' claims because plaintiff's position was not limited to a merely administrative role, but it also involved responsibilities that furthered the core of the spiritual mission of the diocese.

As the court wrote:  "In this case we consider whether the district court correctly granted summary judgment in favor of the Roman Catholic Diocese of Tulsa on a former employee's federal employment law claims, based on the ministerial exception to Title VII. After considering the parties' arguments and the evidence in the record before us, we hold that the district court correctly dismissed the claims."

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Muscogee (Creek) Nation v. Okla. Tax. Comm., No. 09-5123, concerned an action by an Indian tribe challenging Oklahoma's seizure of cigarettes failing to bear a tax stamp from the tribe.  The court of appeals affirmed the dismissal of the action on the ground that sovereign immunity barred plaintiff's claims because plaintiff, in effect, sought to render nugatory, via the Fourth Amendment, the state's cigarette tax enforcement scheme as an affront to Indian sovereignty.

Lorillard Tobacco Co. v. Engida, No. 08-1037, involved plaintiff's appeal from the district court's order granting attorney's fees to defendant under the Lanham Act's fee provision, 15 U.S.C. section 1117(a), and alternatively under section 13-17-102 of the Colorado Revised Statutes.  The court of appeals reversed on the ground that defendant was not a prevailing party because plaintiff voluntarily dismissed the case without prejudice and without a court order under Fed. R. Civ. P. 41(a)(1)(A)(i).

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