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TCL > June 2003 Issue > Tenth Circuit Summaries

June 2003       Vol. 32, No. 6       Page  145
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are available on the CBA website at http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Child Pornography—Preservation of Objection—Retrial—Double Jeopardy—Government Destruction of Evidence

U.S. v. Pearl, No. 00-4170, 4/9/03, D.Utah, Judge Kelly.
Defendant appeals his convictions of transportation and possession of child pornography, an attempt to persuade a minor to engage in unlawful sexual conduct, and traveling to engage in sex acts with a minor. The first four charges arose from conversations defendant had by e-mail correspondence, in Internet “chat rooms,” and by telephone with a social worker posing undercover as a minor. The last two charges arose from defendant traveling to Utah to meet with the minor. The jury convicted him of all but one charge.
The Tenth Circuit Court reverses in part and affirms in part. The district court’s instruction to the jury on the child pornography counts contained both constitutional and unconstitutional definitions of child pornography. The unconstitutional language was based on the portion of the child pornography statute that the U.S. Supreme Court held unconstitutional in Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002). Defendant challenged the sufficiency of the indictment and the jury returned a general verdict that did not specify the grounds for conviction, so the first four convictions must be reversed. One of the possible grounds for conviction is unconstitutional. Defendant’s motion to dismiss the indictment preserved his right to challenge his convictions on appeal, even though he did not object to the jury instruction that later proved to be erroneous. The government may retry defendant without violating the Double Jeopardy Clause of the Fifth Amendment. Defendant’s argument based on the government’s alleged destruction of evidence is rejected. The first four convictions are vacated and remanded, and the other two convictions are affirmed.

Continuing Tort—Continued Migration and Ongoing Presence of Toxic Chemicals—FTCA—Statute of Limitations—Colorado Law

Hoery v. U.S.A., No. 01-1100, 4/11/03, D.Colo., Judge Seymour.
Plaintiff owns property north of Lowry Air Force Base in Colorado. He sued the U.S.A. under the Federal Tort Claims Act (“FTCA”), seeking damages for groundwater contamination on his property caused by the wrongful discharge of chemicals at Lowry. He alleged that the chemicals continue to cause harm, so the migration and presence of the chemicals should be considered continuing torts. The government responded that the FTCA’s two-year statute of limitations expired, because Lowry ceased being an active military base in September 1994 and no chemicals were deposited on the property after that time. The district court granted the government’s motion to dismiss.
The Tenth Circuit Court notes that under the FTCA, the government’s liability is the same as a similarly-situated private individual and the law of the place where the act occurred applies. Therefore, the Court certified two questions to the Colorado Supreme Court, asking (1) whether the continued migration of toxic chemicals onto the plaintiff’s property constituted continuing trespass and/or nuisance, and (2) whether the ongoing presence of those toxic chemicals constituted continuing trespass and/or nuisance. The Colorado Supreme Court answered both questions in the affirmative. Therefore, plaintiff stated claims for continuing torts that continued to accrue as long as the tortious conduct continued, although plaintiff’s recovery would be limited to the two years preceding his administrative claim. The district court’s judgment is reversed and the case is remanded.

Reverse Race Discrimination—Title VII—Unusual Circumstances Showing Defendant Discriminated Against Whites

Mattioda v. White, No. 01-5157, 4/1/03, N.D.Okla., Judge Murphy.
Plaintiff is a white male who was employed as a chemist by the U.S. Army on a one-year term appointment that was extended for an additional year, despite the Army’s concern that there was not enough work for plaintiff and the other term chemist. Plaintiff filed several job grievances. Ultimately, the Army decided it could retain only one term chemist. Plaintiff’s position was terminated; the other term chemist position, apparently held by a member of a minority race, was retained. Plaintiff sued the U.S. Army under Title VII, claiming reverse race discrimination. The district court granted summary judgment to the Army.
On appeal, plaintiff challenged the requirement for a prima facie case of reverse race discrimination that he establish background circumstances to support an inference that defendant is one of those unusual employers who discriminates against the majority. He argued that two recent Supreme Court cases overruled Notari v. Denver Water Department, 971 F.2d 585 (10th Cir. 1992); therefore, he had to show only that (1) he was qualified; (2) he was terminated; and (3) a non-white employee was retained. The Tenth Circuit Court holds that Notari was not overruled, and because plaintiff had not produced the necessary circumstances showing that the U.S. Army discriminates against whites, he failed to make a prima facie case of reverse discrimination. The Tenth Circuit Court also rejects plaintiff’s retaliation claim, because the Army had conducted its workload analysis before he filed his first grievance. The district court’s judgment is affirmed.

Habeas Corpus—Antiterrorism and Effective Death Penalty Act—One-Year Limitations Period—Computation of One-Year Period—Anniversary Method or Calendar Method—Federal Rule of Civil Procedure 6(a)

U.S. v. Hurst, No. 01-7057, 3/21/03, E.D.Okla., Judge Seymour.
Hurst, a federal prisoner, seeks habeas relief under 28 U.S.C. § 2255, challenging the validity of the judgment and sentence entered upon his guilty plea. The district court dismissed the action on the ground that it was filed one day too late to comply with the one-year limitations period applicable to § 2255 motions. The Tenth Circuit Court of Appeals granted a certificate of appealability under § 2253(c), limited to the procedural issue of whether the limitations period had expired at the time Hurst submitted his motion to the district court. The applicable statute of limitations for federal prisoners seeking habeas relief under the Antiterrorism and Effective Death Penalty Act (“Act”) is one year. The one year begins to run when the time for filing a certiorari petition expires. Here, the statute of limitations began running on May 17, 1999. Using the calendar method, the court concluded that the one-year period ended on May 16, 2000. Because the court received Hurst’s motion on May 17, 2000, it held that the petition was untimely, and dismissed the case without reaching the merits.
The Tenth Circuit Court reverses. The Court notes that the Act does not specify how the one-year period should be computed. The issue is whether the period ends on the one-year anniversary of the final judgment of conviction, measured from the denial of certiorari (the anniversary method), or the day before the anniversary (the calendar method). Turning to Federal Rule of Civil Procedure 6(a), which uses the anniversary method, the Court holds that calculation issues concerning the Act’s statutes of limitations should be resolved under the principles in Rule 6(a), using the anniversary method. Thus, this motion received by the district court on May 17, 2000, was timely filed, because the statute of limitations began running on May 17, 1999. This is true even though 2000 was a leap year. Also, the document is deemed filed when it is actually received by the court clerk, not when some other processing events occur. The submission of a counseled § 2255 motion to the custody of the clerk commences the action, regardless of the date the motion is formally filed. The district court’s judgment is reversed and the case is remanded for further proceedings.

Possession of a Firearm by a Previously Convicted Felon—Possession of Gun in Connection with State Offense of Felony Menacing—Enhancement for Victim’s Status as Official Victim—Consideration of Relevant Conduct

U.S. v. Blackwell, No. 02-1062, 3/24/03, D.Colo., Judge Seymour.
Defendant appeals his sentence. He was convicted by a jury of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Over defendant’s objections, the district court enhanced his sentence by four levels for possessing a gun in connection with the state offense of felony menacing, and by three levels on the basis that the police officer was an “official victim.”
The Tenth Circuit Court affirms in part and reverses in part. The felony menacing arose from the fact that officers saw a red beam coming from defendant’s car and passing over their bodies, which came from a laser-sighted weapon. The Court finds that the evidence was clearly sufficient for the district court to determine by a preponderance that defendant pointed a laser-sighted weapon at the officers. That enhancement under U.S.S.G. § 2K2.1(b)(5) is affirmed. The official victim enhancement was based on the status of the police officers. In making this decision, the court considered not only the specific offense of possession of a weapon by a felon, but also relevant conduct. The Court agrees with defendant that this guideline does not apply, because the offense of conviction is possession of a weapon by a felon, which is not a charge that encompasses menacing a police officer. Section 3A1.2(a) applies only to the offense of conviction, not to accompanying relevant conduct. Nothing about the status of the officers motivated the commission of this offense, nor were the officers victims of that offense. This enhancement is reversed. The judgment is affirmed in part and reversed in part, and the case is remanded for resentencing.

Mootness—Aggravated Felony—Simple Possession State Felony Conviction—Proposed Amendment to Sentencing Guideline

U.S. v. Castro-Rocha, No. 02-1106, 3/25/03, D.Colo., Judge Murphy.
Defendant pled guilty to re-entering the United States after deportation, in violation of 8 U.S.C. § 1326. Over a defense objection, the district court held that defendant was subject to the 2001 version of U.S.S.G. § 2L1.2(b)(1)(C), because his prior Texas state drug conviction was an “aggravated felony.” Defendant’s argument was that the amendments to § 2L1.2 adopted on November 1, 2001, required reexamination of the question of whether a state felony conviction for simple possession constituted an aggravated felony for purposes of § 2L1.2(b)(1)(C).
The Tenth Circuit Court affirms. The sole issue on appeal is whether the district court erred in concluding that a state felony conviction for simple possession of a controlled substance is an aggravated felony under this guideline section. It is undisputed that under Tenth Circuit Court precedent defendant’s conviction qualifies as an aggravated felony. The question is whether the amendments to § 2L1.2 altered the definition “aggravated felony” to exclude simple possession state felony convictions. The Court holds that the Sentencing Commission intended that state felony convictions for simple possession still qualify for the eight-level enhancement in § 2L1.2(b)(1)(C). The Court also holds that this appeal is not moot, even though defendant has completed his prison term, because the decision in this case could result in the shortening or elimination of his term of supervised release. The judgment is affirmed.

Government Appeal—Illegal Re-Entry After Having Been Deported—Underlying Deportation Proceeding that was Fundamentally Unfair—Showing of Prejudice

U.S. v. Aguirre-Tello, No. 02-2049, 4/7/03, D.N.M., Judge Holloway.
The government appeals the district court order dismissing the indictment that had been returned against defendant, charging him with illegal re-entry into the United States after having been deported. The district court dismissed the charge based on the conclusion that the underlying deportation proceedings had been fundamentally unfair. The deportation hearing was held one day before defendant would have been eligible for a “waiver” or discretionary relief from deportation. The district court held that the deportation hearing had been unfair because the immigration judge did not adequately explain to defendant the unique circumstances and their import. The judge also held that defendant had not been given a list of free legal services prior to the hearing, and had not been advised that his bond had already been set at $20,000. The district court found that defendant established that the underlying deportation proceedings were fundamentally unfair, and also that the deficiencies had worked to his legal prejudice.
The Tenth Circuit Court affirms. Defendant’s collateral attack is not barred by the failure to exhaust administrative remedies. The immigration judge’s suggestion to defendant that he might be eligible for a pardon did not discharge the judge’s duty to inform him about his eligibility for a waiver of deportation by the Attorney General. Combined with the fact that defendant was not told about the bond, and not advised that free legal services were available to him, these deficiencies resulted in fundamental unfairness. In showing prejudice, defendant must show that there is a reasonable probability that he would have obtained relief from deportation had the immigration judge properly advised him about the waiver’s imminent availability as a recourse he could invoke. More than half of the applications for waiver during this time period were granted, and defendant had been in the United States virtually his entire life. The offense of which he was convicted was not so grave that, despite the outstanding equities that favor the grant of discretionary relief, he must be deported. In summary, defendant did suffer prejudice from the procedural defects in the underlying deportation proceedings. The order is affirmed. 

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