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TCL > January 2003 Issue > Tenth Circuit Summaries

January 2003       Vol. 32, No. 1       Page  131
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Upward Departure—Abuse of Discretion—Hypothetical Criminal History Level—Mathematical Calculations—USSG § 4A1.3

U.S. v. Sims, No. 01-6428, 10/29/02, W.D.Okla., Judge Seymour.

Defendant appeals her sentence. She pled guilty to possessing and making counterfeit traveler’s checks. The district court held that defendant’s criminal history category did not adequately reflect the seriousness of her criminal history, and departed upward in imposing sentence. Defendant argues on appeal that the district court erred in determining the degree of departure.

The Tenth Circuit Court agrees with defendant, reverses the sentence, and remands for resentencing. The court increased defendant’s criminal history level from VI to a hypothetical level of IX. This method violated the applicable guideline. USSG § 4A1.3 requires that when a defendant is already at level VI, the court should look to the other axis and consider the available ranges from higher offense levels. The court did not do that. The court also made an erroneous mathematical assumption in estimating what range there would be for the hypothetical level IX. The court’s departure approach was incorrect and, thus, an abuse of discretion. Because the court relied on a flawed and improper method in calculating the degree of upward departure, the sentence is reversed and the case is remanded for resentencing.

Free Speech—Governmental Employee—Matters of Public Concern—Colorado Constitution Implied Cause of Action

Arndt v. Koby, No. 01-1356, 10/31/02, D.Colo., Judge Anderson.

Plaintiff was the first Boulder police officer on the murder scene of JonBenet Ramsey, a child killed in her own home. The crime received intense media coverage, including criticism of plaintiff’s handling of the case. The police chief imposed a gag order on all police officers, thus preventing plaintiff from refuting the allegations against her. The police chief also refused her requests to issue a statement defending her work. Plaintiff sued the police chief and the City of Boulder, alleging that her First Amendment free speech rights were violated by the gag order. At the close of plaintiff’s case at trial, the district court granted defendants’ motion for judgment as a matter of law.

On appeal, the Tenth Circuit Court notes that a governmental employer may limit the speech of its employees. Those limits must balance the employee’s free-speech rights against the employer’s interests in the efficiency of the public services it delivers. The employer need not justify restrictions on private speech, but restrictions on speech about matters of public concern require the government to justify its restrictions. In addition, prior restraint of speech, such as the gag order issued in this case, heightens the government’s burden. Here, plaintiff’s complaint covered only her own interests in her reputation, not matters of public concern. Although the performance and integrity of a highly visible public official can be a matter of public concern, the fact that intense media attention is given to a particular case does not necessarily make the officer’s performance a public matter. Therefore, plaintiff’s proposed speech did not address matters of public concern and was not protected by the First Amendment.

The Tenth Circuit Court rejects plaintiff’s claim under the Colorado Constitution’s free speech clause. Under Colorado law, there is no implied state constitutional cause of action where other adequate remedies exist. Here, the federal civil rights action provided an adequate alternate remedy. The district court’s judgment is affirmed.

Usurious Interest—Small Business Investment Act—Remedies

Marker v. Pacific Mezzanine Fund, No. 01-4043, 10/30/02, D.Utah, Judge Ebel.

Plaintiff, as bankruptcy trustee for the borrower, sued defendant-lender, alleging that it had charged excessive interest in violation of the Small Business Investment Act ("SBIA"). The loan was secured by two promissory notes. When the borrower defaulted, the lender collected on the collateral. The lower courts held that the interest rate violated the SBIA and, therefore, the borrower was entitled to recover double the interest it had paid, as well as the proceeds from the two promissory notes.

On appeal, the lender conceded that the interest it charged on the loan was usurious, thus requiring it to pay twice the interest the borrower paid on the loan. The lender challenged the order requiring it to return the proceeds from the promissory notes. The Tenth Circuit Court holds that SBIA’s remedial provisions at issue here applied to interest. The underlying principal obligation, including collateral, remained undisturbed by the statute. Accordingly, the lender was not required to return the proceeds from the promissory notes. The judgment of the district court is reversed.

Defamation—Public Figure—Actual Malice

Revell v. Hoffman, No. 01-6169, 10/30/02, W.D.Okla., Chief Judge Tacha.

Plaintiff is a retired FBI deputy director who has served on several committees on terrorism and security, testified before congressional committees, and appeared on various national news programs. Defendant is the author of two books in which he states that plaintiff was involved in secret, immoral, and illegal activities within the government. Plaintiff sued for defamation. The district court granted summary judgment to defendant.

The First Amendment prohibits a public official from recovering damages for defamation relating to his official conduct unless he proves by clear and convincing evidence that the statements were made with actual malice. The Tenth Circuit Court first holds that plaintiff was a public official, even though he is now retired, because he held important governmental positions. In addition, law enforcement personnel are public officials. The Tenth Circuit Court next evaluates whether plaintiff had alleged actual malice, which requires that defendant in fact entertained serious doubts as to the truth of his publication. Plaintiff did not meet his burden of offering extrinsic evidence that defendant entertained doubt regarding the truth of his statements. Accordingly, plaintiff was not entitled to damages for defamation. The district court’s judgment is affirmed.

Right to Hearing on Request for New Counsel—Applicable Standard—Application of Apprendi—Plain Error—Stacking of Sentences Under USSG § 5G1.2(d)

U.S. v. Lott, Nos. 00-6141 & 00-6200, 11/5/02, W.D.Okla., Judge Ebel.

In separate appeals, defendants appeal their convictions and sentences. The case arises from a methamphetamine manufacturing and distribution conspiracy. Both defendants were convicted of all counts charged. Gary Lott was sentenced to life; Johnny Lott was sentenced to thirty years’ imprisonment. After conviction but before sentencing, Johnny Lott filed five pro se motions in the district court, claiming that he was dissatisfied with counsel’s representation of him at trial. He alleged communication problems with counsel and requested "effective counsel."

The Tenth Circuit Court rejects both defendants’ challenges to their sentences under Apprendi v. New Jersey, 530 U.S. 466 (2000). The issue is whether the indictment error in count 11, or jury instruction errors on all counts, constitute plain error. The Tenth Circuit Court holds that the errors do not satisfy the third prong of plain error—whether the errors affected defendants’ substantial rights. This is so because the total length of their imprisonment would not have been shorter even if they were properly sentenced under 21 U.S.C. § 841(b)(1)(C), due to the mandatory stacking requirements of USSG § 5G1.2(d). The evidence was sufficient for the jury to find Gary Lott guilty of possessing a firearm in furtherance of his attempts to manufacture methamphetamine, so the Court need not address the "carried" charge. The admission of hearsay exhibits did not affect Johnny Lott’s substantial rights, because there was ample evidence linking him to the conspiracy’s drug activities. On the request for substitution of counsel, the Court holds that the district court abused its discretion by denying Johnny Lott’s motions without a hearing. The case is remanded for a hearing into his allegations of total breakdown in communication between him and his attorney. The government must prove that a total breakdown in communication was harmless beyond a reasonable doubt. All the claims are affirmed except for the district court’s orders denying Johnny Lott an evidentiary hearing on this claim. Those orders are reversed and remanded for a hearing.

Suppression of Evidence and Statements—Unconstitutional Detention—Consent—Drug Interdiction Interviews of Bus Passengers—Miranda Warnings

U.S. v. Tapia, No. 02-1028, 11/7/02, D.Colo., Judge Aldisert.

Defendant was charged with possession of methamphetamine with intent to distribute it. The district court granted defendant’s motion to suppress the methamphetamine found in his baggage aboard a Greyhound bus, and suppressed his subsequent statements to law enforcement. The government appealed. The issue on appeal is whether the district court erred in determining that there was an illegal seizure by the government of a bus passenger’s baggage, and in deciding that a subsequent detention of the passenger based on this improper seizure vitiated the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).

The Tenth Circuit Court reverses. Police officers used a drug detection dog to search a bus that was being serviced. The dog alerted on a cardboard box. When the passengers boarded, the driver gave plain clothes police officers permission to board the bus. When defendant was questioned, he handed over the baggage claim ticket that matched the cardboard box. Defendant gave permission to search the box, and methamphetamine was found inside. Defendant was arrested and advised in Spanish of his Miranda rights. Defendant waived his Miranda rights and made statements to law enforcement officers. He then argued that his consent to the search of his luggage was tainted by an illegal detention, and that his statements were made without compliance with Miranda. The district court found that defendant’s interaction with law enforcement officers on the bus was not consensual, and that his consent to search was tainted by his illegal detention. The Court reverses based on the new Supreme Court decision in U.S. v. Drayton, 122 S. Ct. 2105 (2002). In Drayton, the Court held that when police officers ask questions of bus passengers to obtain consent to search, the inquiry must consider all the circumstances surrounding the encounter. Specifically, drug interdiction interviews on a bus will pass constitutional muster if there was not application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, and no authoritative tone of voice. The facts here are substantially similar to Drayton, and require the same result. There was proper consent for seizure of the contraband, so the district court erred in suppressing the evidence. Because there was no illegal detention before or at the time defendant was given his Miranda warnings, the district court erred in suppressing his statements to authorities. The order is reversed.

Full copies of the Tenth Circuit decisions summarized in each issue are available on the CBA website at (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.

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