The Colorado Lawyer
Vol. 32, No. 11 [Page 145]
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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: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.
Government Appeal—Downward Departure—Degree of Departure
U.S. v. Cordova, No. 02-2193, 8/12/03, D.N.M., Judge McConnell.
The government appeals the district court’s granting of a downward departure at defendant’s sentencing. Defendant pled guilty to two counts of distribution of crack cocaine. The parties stipulated to certain sentence reductions. At sentencing, the district court granted defendant’s request for a fifteen-level downward departure, and sentenced her to time served in jail. The departure was based on defendant’s reduced mental capacity and her physical and mental condition. The government objected, and filed this appeal, challenging the degree of the departure.
The Tenth Circuit Court of Appeals vacates the sentence. The primary reason the court departed this far downward was so that defendant could avoid incarceration and continue to benefit from support from her family and therapist. This sort of justification is expressly forbidden. This departure is lacking in references to the sentencing guidelines, and is inconsistent with its goals. The sentence is vacated, and the case is remanded for determination of the appropriate degree of departure.
Government Appeal—Downward Departure—Notice to Government of Intent to Depart Downward—Extent of Departure—Methodology for Deciding on Extent of Departure
U.S. v. Fuentes, No. 02-2292, 8/29/03, D.N.M., Judge Seymour.
The government appeals the sentence imposed on defendant, alleging error in the court’s granting a downward departure. Defendant pled guilty to one count of illegal reentry after deportation. The parties entered into a plea agreement under Fed.R.Crim.P. 11(e)(1)(c). The court refused to accept the plea agreement. The court then, without notice, departed downward from the guideline range that was contemplated in the plea agreement. The government argues that the sentencing court erred by failing to give it notice of its intent to depart downward. The government also argues that the court abused its discretion by departing twenty-seven months without specifically finding exceptional circumstances, without stating its reasons for the departure, and by failing to explain its methodology for the degree of departure.
The Tenth Circuit Court vacates the sentence and remands for resentencing. In a question of first impression, the Court holds that the government is entitled to notice that the court is considering a downward departure so that it can develop a full record and make arguments on the propriety of the departure. Here, the district court did not provide adequate notice, so the sentence is vacated. In addition, the court erred by failing to make appropriate findings, and state its reasons and methodology behind the departure and the degree of departure. If the sentencing court again rejects the plea agreement on remand, it must comply with the procedure in Rule 11(c)(5) for rejecting a Rule 11(e)(1)(c) plea agreement. The sentence is vacated and the case remanded.
Habeas Corpus—Reasonable Doubt Instruction—Right to Fair Trial
Wansing v. Hargett, No. 01-7163, 8/29/03, E.D.Okla., Judge McConnell.
Petitioner killed his former employee. He was convicted in Oklahoma state court of first-degree manslaughter. The issue on appeal is the burden of proof applied by the jury in reaching its verdict. Oklahoma law does not allow jury instructions on the meaning of "reasonable doubt." During voir dire, a prospective juror asked for guidance as to the meaning of that standard. The trial judge offered an explanation, comparing it to the serious doubt that would cause a person to call off a wedding at the last minute, or not do so. Defense counsel’s motion for mistrial based on this anecdote was denied. On appeal to the state court, the Oklahoma appellate court affirmed by a divided vote, concluding that petitioner was not denied his right to a fair trial. His writ of habeas corpus sought in the federal court was denied.
The Tenth Circuit Court reverses. The Court notes that the trial court was not attempting to adopt this hypothetical anecdote as a definition of the reasonable doubt standard. However, even though this was not a mandatory definition of reasonable doubt, the judge’s discourse misleadingly suggested to the prospective jurors that they had a degree of leeway broader than the Constitution permits. The district court’s decision is reversed and remanded.
Sanctions for Failure to Comply with Court Rules and Orders —Associate Local Counsel—Respond to Discovery—Sufficient Appellate Argument
LaFleur v. Teen Help, Nos. 02-4160, 02-4161 & 02-4177, 9/3/03, D.Utah, Judge Kelly.
In each of these three cases considered together, plaintiffs sued a treatment facility for troubled teenagers, based on abuses suffered at the facility by their respective children. Each case was dismissed as a sanction for failure to comply with court rules and orders.
The Tenth Circuit Court affirms all of the dismissal orders. In the first case, plaintiff’s out-of-state attorney failed to associate local counsel, in spite of a clear order and ample time to do so. In the second, plaintiff failed to comply with discovery requests, in spite of repeated orders to do so. In the third case, the Tenth Circuit Court declines to consider three appellate claims, because they were not supported by any argument or legal authority. The court did not consider plaintiff’s argument that she filed her amended complaint in a timely fashion, because she did not challenge the district court’s finding that allowing the complaint to be amended would have been futile. Finally, the Tenth Circuit Court reminds the attorney who represented all plaintiffs that by filing an appellate brief he certified that the issues presented were warranted by the law and the factual contentions were supported by the record. The district court’s judgments of dismissal are affirmed.
Bankruptcy—Relief from Discharge Order—Duty on Debtors to Inform Trustee—Income Tax Refund
Midkiff v. Stewart (In re Midkiff), No. 02-8004, 9/4/03, Bankruptcy Appellate Panel, Judge Henry.
The bankruptcy debtors challenged an order of the bankruptcy court setting aside their discharge to permit the bankruptcy trustee to retain their federal income tax refund. The debtors’ Chapter 13 plan provided that income tax refunds to which they would be entitled while the plan was in effect were to be submitted to the Trustee. Shortly after the Trustee filed her final accounting and the bankruptcy court entered the debtors’ discharge, the Trustee moved to vacate the discharge so she could retain the debtors’ federal tax refund as part of the bankruptcy estate. It is undisputed that the tax refund fell within the time frame of the plan. The bankruptcy court vacated the discharge order to permit the trustee to collect and disburse the income tax refund in accordance with the plan. The Bankruptcy Appellate Panel affirmed.
The Tenth Circuit Court first discusses the apparent tension between Bankruptcy Rule 9024 (permitting relief for mistake, surprise, and newly discovered evidence) and 11 U.S.C. § 1328(e) (permitting a discharge to be revoked only if unknown fraud is found). The court finds that § 1328(e) was not controlling because the order in question "vacated" rather than "revoked" the discharge. Accordingly, the bankruptcy court properly altered the discharge to provide limited relief that was appropriate under the circumstances. The Tenth Circuit Court rejects the debtors’ claim that the trustee should have investigated any future tax refunds, so this was not the kind of mistake warranting relief under Rule 9024. Rather, the debtors had a duty to inform the trustee of relevant developments in their financial situation, including the income tax refund. The decision of the Bankruptcy Appellate Panel is affirmed.
Sovereign Immunity—Family Medical Leave Act—Self-Care Provision—Collateral Estoppel—Rehabilitation Act—Award of Costs
Brockman v. Wyoming Dep’t of Family Services, No. 01-8046, 9/4/03, D.Wyo., Judge Henry.
Plaintiff was employed by the Wyoming Department of Family Services ("DFS") until she was discharged. She claimed her discharge was improperly based on her job-induced post-traumatic stress disorder. Following a state administrative hearing, the hearing officer ruled that plaintiff was fired for cause. Plaintiff did not appeal the administrative ruling. She filed suit in federal court, alleging her employer and various coworkers violated her rights under the self-care provisions of the Family Medical Leave Act ("FMLA"), the Rehabilitation Act, and state law. The district court entered summary judgment in favor of the defendants and awarded costs against plaintiff.
The Tenth Circuit Court holds that the doctrine of sovereign immunity barred plaintiff’s FMLA claims against the DFS, a subdivision of the state of Wyoming, but not against the individual defendants. The FMLA claims against the individual defendants, however, were barred by the doctrine of collateral estoppel. The state hearing officer’s decision was preclusive because the state courts would give it preclusive effect.
Turning to plaintiff’s Rehabilitation Act claims, the Tenth Circuit Court determines that the state had waived sovereign immunity. Plaintiff was not a "qualified individual," however, because she was unable to be in attendance at her job and attendance is generally and "essential function" of any job. Therefore, summary judgment was properly entered against her on her claims under the Rehabilitation Act. After rejecting her state-law claim, the Tenth Circuit Court upholds the district court’s award of costs against her, finding insufficient her unsupported argument that the award was an unconscionable injustice. The district court’s judgment is affirmed.
Diversity Jurisdiction—Amount in Controversy—Arbitration
Woodmen of the World Life Insurance Society v. Manganaro, No. 02-2040, 9/9/03, D.N.M., Judge Murphy.
Several individuals who held certificates of insurance issued by plaintiff-appellant ("Woodmen") filed suit in a New Mexico state court alleging various breaches of the insuring agreements. Woodmen then sued those individuals in federal court, invoking diversity jurisdiction and seeking to compel arbitration of their claims under an arbitration clause incorporated into the insuring agreements. The district court granted the individuals’ motion to dismiss, because the amount in controversy was less than the jurisdictional minimum of $75,000.
The Tenth Circuit Court notes that a case may not be dismissed unless it appears to a legal certainty that the claimants cannot recover the jurisdictional amount. Woodmen had the burden to establish jurisdiction. The strong presumption favoring the amount alleged by a plaintiff was modified to accommodate the posture of this case. Consequently, the inquiry was whether an arbitrator could award the individual claimants at least $75,000. After examining the claims in light of all available remedies under state law, the Tenth Circuit Court concludes that it was not legally certain that an arbitrator would award less than $75,000. The district court’s judgment of dismissal is reversed and remanded.
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