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

March 2010 Archives

Criminal and Insurance Matters

In US v. De La Torre, No. 09-3029, the court of appeals affirmed defendant's drug possession conviction, on the grounds that 1) 18 U.S.C. section 841(a)(1) did not require the government to prove a defendant knew the precise nature of the controlled substance he possessed, so long as he knew he did in fact possess a controlled substance; and 2) the inadmissibility of statements made to Pretrial Services as to the issue of guilt did not restrict the government from using such statements to impeach a defendant's trial testimony.  However, his sentence is vacated where, while defendant did not produce any evidence at the sentencing hearing below, the district court did not permit him the opportunity to do so, instead concluding that trial testimony could not, under any circumstances, satisfy U.S.S.G. section 5C1.2(a)(5).

Dobbs v. Anthem Blue Cross & Blue Shield, No. 07-1398, concerned an action alleging failure to comply with the terms of a health insurance policy.  The court of appeals reversed the dismissal of the complaint on the grounds that 1) under the law of the case doctrine, section 906(a)(2)(A) of the Pension Protection Act applied retrospectively to plaintiffs' policy; and 2) the policy met the definition of a "governmental plan" under 29 U.S.C. section 1002(32).

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SEC v. Vescor Capital Corp., No. 08-4224

SEC v. Vescor Capital Corp., No. 08-4224, concerned an appeal from a district court's order staying all actions related to property in a receivership estate containing the proceeds of an alleged financial fraud.  The court of appeals affirmed the order, holding that 1) the district court properly focused on safeguarding the investors' assets as a whole in refusing to lift the stay; and 2) the receiver's actions to this point did not invalidate or otherwise impact any party's perfected security interest.

As the court wrote:  "The SEC filed a complaint against Val E. Southwick and a variety of companies he controlled (Vescor Capital Corp.; Vescor Capital, Inc., Vescorp Capital, LLC, Vescorp Capital IV-A, LLC; Vescorp Capital IV-M, LLC; together "Vescor"), alleging that Mr. Southwick operated a massive Ponzi scheme that defrauded several hundred investors of approximately $180 million. Soon thereafter, the SEC sought and obtained the appointment of a receiver to manage and control all Vescor-related assets as well as any other entity directly or indirectly controlled by Mr. Southwick. A group of investors, which included Heritage Capital Management, LLC; Covenant Bancorp, Inc.; Covenant Capital, LLC; Heritage Orcas Partners, LP; Heritage Orcas VL Partners, LP; and Boundary Bay Capital, LLC (collectively, the "Covenant Group"); had advanced over $66 million to various Southwick-related entities, and were caught within the receiver's wide net. The district court granted a stay of all actions related to property in the receivership estate."

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US v. Ferrel, No. 09-1002

In US v. Ferrel, No. 09-1002, the Tenth Circuit affirmed defendant's drug conspiracy conviction and sentence, on the grounds that 1) nothing in the record indicated that defendant would not have pleaded guilty and would have instead exercised his right to trial had the district court properly informed him of the quantity of drugs with which he was charged; 2) defendant failed to show that he would not have pleaded guilty had he correctly been informed of the statutory minimum and maximum sentence; and 3) defendant had no right to plead guilty to some elements of an offense but have a jury decide others.

As the court wrote:  "Lionel Ferrel was indicted on and pleaded guilty pursuant to a plea agreement to one count of conspiracy to possess with intent to distribute fifty grams or more of a substance containing a detectable amount of methamphetamine, and a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). He was sentenced to 108 months' imprisonment. On appeal, he challenges the validity of his guilty plea and sentence, arguing that the district court: (1) failed to inform him during the Rule 11 plea colloquy of the drug-quantity element of the offense--namely, that the purpose of the conspiracy was to possess with intent to distribute at least fifty grams of methamphetamine; (2) misinformed him during the Rule 11 plea colloquy of the statutory maximum sentence; and (3) should have submitted to a jury the question of the quantity and purity of the methamphetamine involved in the offense. We have jurisdiction under 21 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM."

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Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2293

Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2293, involved a quiet title action regarding certain dam areas.  The Tenth Circuit remanded the action, on the ground that plaintiff's action was time-barred, because the district court did not clearly err in finding that plaintiff knew as far back as the early 1950s that the U.S. claimed title to the properties, and thus the district court did not have jurisdiction to decide the merits of the action.

As the court wrote:  "The Middle Rio Grande Conservancy District ("MRGCD") challenges a final judgment entered on its cross-claims brought pursuant to the Federal Quiet Title Act of 1972 (the "QTA"), 28 U.S.C. § 2409a, in favor of the Secretary of the Interior Ken Salazar, the Bureau of Reclamation ("BOR"), BOR officials, the United States Army Corps of Engineers ("Corps"), and Corps officials (collectively the "federal appellees"). Specifically, following a bench trial, the district court held that MRGCD's claims were time-barred pursuant to 28 U.S.C. § 2409a(g). The court ruled in the alternative that, even if its claims were not time-barred, MRGCD was judicially estopped from claiming that it owned the properties in question, and, furthermore, the federal appellees were entitled to judgment on the merits. As to the limitations issue, we agree with the district court: MRGCD's quiet-title action is time-barred. It follows, however, that the district court did not have jurisdiction to decide the merits of that action. Therefore, we remand to the district court with instructions to vacate the portion of its judgment that resolves the merits of MRGCD's quiet-title action and to enter judgment on its jurisdictional dismissal of the claim."

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Criminal Cases

In US v. Bergman, No. 08-1472, the court of appeals remanded defendant's conviction for conspiracy to commit murder, holding that defendant was not represented by counsel when the court declared her competent to stand trial, and thus the district court needed to consider whether it could make a retrospective competency determination.

In Richie v. Workman, No. 08-5091, a capital habeas matter, the Tenth Circuit affirmed the grant of petitioner's habeas petition as to petitioner's murder conviction, and the denial of the petition as to his kidnapping for extortion, robbery with a firearm, unauthorized use of a debit card, and larceny of a vehicle convictions, on the grounds that 1) petitioner was entitled to an instruction on the lesser included offense of second-degree depraved-mind murder; and 2) petitioner's argument that several jurors were biased against him for not testifying but concealed this bias during voir dire was not supported by admissible evidence.

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US v. Fox, No. 09-5131

In US v. Fox, No. 09-5131, the court of appeals reversed defendant's conviction for possession of an unregistered shotgun with a barrel less than 18 inches long, holding that "when an officer entered defendant's wife's car and directed her to drive to a nearby parking lot, she was seized under the Fourth Amendment, and thus her purported consent to a subsequent search was tainted by an illegal seizure."

"A warrantless search of an individual's home is "per se unreasonable under the Fourth Amendment unless the government can show that it falls within one of a carefully defined set of exceptions." United States v. Cos, 498 F.3d 1115, 1123 (10th Cir. 2007) (quotation omitted). Here, the government relied on Ms. Chiles's consent to search the home as an exception to the general warrant requirement. Fox argues that Ms. Chiles's consent was invalid because it was tainted by a prior illegal seizure and, as a result, her consent was not voluntary."

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US v. Livesay, No. 09-5080

US v. Livesay, No. 09-5080, involved defendant's appeal from the district court's order committing him to the custody of the Attorney General while expressly leaving open the possibility of his release, either conditionally or unconditionally, at a later date.  The court of appeals affirmed, holding that the district court was correct when it concluded that it was not statutorily authorized to afford defendant a conditional release, even if it wished to do so.

As the court of appeals wrote:  "At his trial on gun charges, a jury found Coby Livesay not guilty by reason of insanity. The district court responded to the verdict by ordering a psychiatric evaluation of Mr. Livesay and holding a series of hearings, after which the court held that Mr. Livesay could not be unconditionally released without posing a substantial risk to others. In light of this conclusion, the district court committed Mr. Livesay to the custody of the Attorney General while expressly leaving open the possibility of Mr. Livesay's release, either conditionally or unconditionally, at a later date. Mr. Livesay now appeals the district court's ruling to us. But, as we will explain, the district court's ruling represented the only possible course of action available to it under the processes Congress has mandated for the care and disposition of insanity acquittees. So it is that we must affirm."

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Firearm Possession Conviction Upheld in US v. Fisher

In US v. Fisher, No. 09-6142, the court of appeals affirmed defendant's firearm possession conviction.

As the court wrote:  "Floyd Eugene Fisher was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) after police officers responding to an emergency "shots-fired" call found him at the scene armed with a .44 caliber revolver and ammunition. He appeals his conviction, arguing that the Government's introduction of this evidence at trial violated his Fourth Amendment rights. We have jurisdiction under 28 U.S.C. §1291, and we affirm."

The court of appeals held that the police had probable cause to detain defendant because they were responding to a 911 call late at night, in a high crime area, with every reason to suspect gunplay, and the only vehicle at the scene looked as if it was about to depart.

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In US v. Wise, No. 08-4033, the court of appeals affirmed defendant's firearm possession sentence, on the grounds that: 1) defendant's prior conviction under Utah law for failure to stop at the command of a police officer was a "crime of violence" under the Sentencing Guidelines (the court noted a circuit split); and 2) the district court erred in not assigning criminal history points for one of defendant's prior convictions, but that error did not invalidate defendant's sentence.

In Zia Trust Co. v. Montoya, No. 09-2006, the court of appeals affirmed the denial of qualified immunity in an excessive force action against a police officer, on the grounds that the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

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Civil Procedure, Civil Rights, and Environmental Cases

The Tenth Circuit decided matters concerning civil procedure, environmental law, and criminal procedure.

Morris v. US Nuclear Reg. Comm'n., No. 07-9505, involved a petition for review of a license granted by the Nuclear Regulatory Commission (NRC) to conduct in situ leach mining for uranium on four sites in northwest New Mexico.  The court of appeals denied the petition, on the grounds that 1) the clear language of 10 C.F.R. section 20.1301(a)(1) supported the NRC's decision to focus only on the licensed operation; 2) the National Environmental Policy Act did not prohibit approval of projects with negative cumulative effects; it only required that the agency consider and disclose such effects; and 3) there was no evidence in the administrative record to support petitioners' assertion that the NRC based its adoption of the nine-pore-volume restoration effort on economic reasons.

McBeth v. Himes, No. 07-1165, was an action arising out of an investigation by the sheriff's office and the Colorado Department of Human Services that resulted in plaintiff surrendering her license to run a daycare facility in Colorado.  The court of appeals partly affirmed the district court's partial summary judgment based on qualified immunity for defendant-officials, on the grounds that 1) plaintiff voluntarily relinquished her license before any suspension proceedings could take place; and 2) defendants made a prima facie showing that they acted objectively reasonably when they sought suspension of plaintiff's daycare license.  However, the court reversed in part, on the grounds that plaintiff failed to allege and prove that the state officials lacked cause to seek suspension of her license.

Kane Cty. v. US, No. 09-4087, involved an appeal from the denial of plaintiffs' motion to intervene in an action brought by Kane County, Utah, to quiet title to several purported rights-of-way across federal public lands.  The court of appeals affirmed, holding that 1) even assuming plaintiffs had an interest in the quiet title proceedings at issue, plaintiffs failed to establish that the U.S. could not adequately represent plaintiffs' interest; and 2) the denial of permissive intervention was not arbitrary and capricious.

In US v. Chavez-Suarez, No. 09-1005, the court of appeals affirmed defendant's sentence for reentering the country following deportation after a conviction for a drug trafficking offense, on the grounds that, in light of all of the evidence in the record, including defendant's past illegal reentries and certain aggravating factors in his underlying drug-trafficking conviction, the imposition of a guidelines-range sentence did not manifest a clear error of judgment by the district court.

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Osage Nation v. Irby, No. 09-5050, concerned an action by the Osage Nation seeking a declaratory judgment that the Nation's reservation, which comprised all of Osage County, Oklahoma, had not been disestablished and remained Indian country within the meaning of 18 U.S.C. section 1151.

As the court of appeals wrote:  "The pivotal issue in this case is whether the Nation's reservation has been disestablished, not Oklahoma's tax policies. The district court held that the Osage reservation had been disestablished; that tribal members who work and live on non-trust/non-restricted land in Osage County are not exempt from state income tax; and that "[t]he Osage have not sought to reestablish their claimed reservation or to challenge [Oklahoma's] taxation until recently," and Oklahoma's longstanding reliance counsels against now establishing Osage County as a reservation."

The court of appeals affirmed summary judgment for defendants, holding that 1) the legislative history and the negotiation process made clear that all the parties at the table understood that the Osage reservation would be disestablished by the Osage Allotment Act, and uncontested facts in the record provided further evidence of a contemporaneous understanding that the reservation had been dissolved; and 2) after enactment, federal officials responsible for the Osage lands repeatedly referred to the area as a "former reservation" under state jurisdiction.

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Medical Malpractice and Lack of Informed Consent Appeal

Willis v. Bender, No. 07-8057, involved an action against a surgeon for lack of informed consent and medical malpractice.

As the court of appeals wrote:  "Dr. D. Scott Bender, a general surgeon, perforated Marcy Willis' small bowel while performing a laparoscopic cholecystectomy (laparoscopic surgery to remove her gallbladder). Relevant here, Willis sued Bender for lack of informed consent and medical malpractice. The district court granted summary judgment to Bender on the informed consent claim. The medical malpractice claim proceeded to a jury trial. Willis requested a "captain of the ship" jury instruction which would have allowed the jury to hold Bender liable for his surgical assistant's negligence. The jury found in favor of Bender."

The court of appeals partially affirmed judgment for defendant on the ground that there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence.  However, the court reversed the judgment in part, holding that defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed."

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The Tenth Circuit decided one criminal sentencing matter and one concerning the Railway Labor Act.

In US v. Gonzalez, No. 09-6069, the court of appeals affirmed the denial of defendant's motion to vacate, set aside, or correct his drug distribution sentence, holding that 1) the testimony excerpts presented by defendant, considered either alone or collectively, were far from sufficient to have allowed the jury to find that defendant withdrew from the charged conspiracy; 2) defendant failed to establish that his counsel's rejection of the district court's proffered withdrawal instruction deprived him of his constitutional right to the effective assistance of counsel; and 3) reasonable jurists could not debate whether defendant had a due process right to be present during an in-chambers conference.

Bhd. of Maint. of Way Employees' Div. v. Burlington Northern Santa Fe Railway Co., No. 08-2232, was an action by a union claiming that a railroad's proposed sale of a portion of its rail line to the state violated the Railway Labor Act (RLA).

The Tenth Circuit affirmed the dismissal of the action on the ground that the RLA reserved the dispute in this case to the Adjustment Board in the first instance, thus depriving the district court of jurisdiction, and the workers' remedy thus lay in the administrative process before the Adjustment Board.

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