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TCL > January 2004 Issue > Tenth Circuit Summaries

January 2004       Vol. 33, No. 1       Page  129
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.


Americans with Disabilities Act (Title I)—No State Law Statute of Limitations—Effect of Suit Dismissed Without Prejudice—EEOC Not Limited in Remedies

Equal Employment Opportunity Comm’n v. W.H. Braum, Inc., No. 02-7046, 10/28/03, E.D.Okla., Judge Kelly.

Eva Willis claimed that defendant failed to hire her because of her disability. She filed a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). She filed suit before the EEOC issued a right-to-sue letter. She dismissed the case without prejudice, however, before defendant answered. The EEOC subsequently filed this suit on Willis’s behalf, but Willis never re-filed her federal claim under the Americans with Disabilities Act ("ADA"). Defendant claimed that Willis’s ADA claim was time-barred and, therefore, the EEOC was also barred from seeking individual relief on her behalf. The district court agreed and, in doing so, applied a state statute of limitations to the ADA claim.

The Tenth Circuit Court recognizes that Willis claimed employment discrimination on the basis of disability, thus implicating Title I of the ADA. Title I incorporates the powers, remedies, and procedures of Title VII, as well as Title VII’s timing rules. Because there are no gaps in Title VII requiring use of a state statute of limitations, there is also none in Title I of the ADA. Because Willis had complied with the statutory timing requirements, she did not default her ADA claim. Accordingly, the district court erred in barring Willis’s ADA claims.

In addition, the fact that Willis had filed suit on her ADA claim did not affect the EEOC’s suit on her behalf, because the earlier suit, dismissed without prejudice before a responsive pleading, left the parties as though the action had never been brought. As a result, the EEOC was not limited in the relief available, including claims for both individual relief and injunctive relief. The district court’s order is reversed and remanded.


Driving While Intoxicated—Enhancement Under U.S.S.G. § 2L1.2(b)(1)—Crime of Violence Under 18 U.S.C. § 16(b)

U.S. v. Lucio-Lucio, No. 03-2025, 10/28/03, D.N.M., Judge McConnell.

Defendant appeals his sentence. He pled guilty to one count of illegally reentering the United States. Because he had a prior Texas conviction for driving while intoxicated ("DWI"), which had been charged and sentenced as a felony, his offense level was subject to enhancement under U.S.S.G. § 2L1.2(b)(1). Defendant argued for the court to apply the four-level enhancement for having a past felony conviction. The court instead applied the eight-level enhancement for aggravated felonies. The court ruled that DWI is a crime of violence, therefore an aggravated felony under the Sentencing Guidelines.

The Tenth Circuit Court of Appeals reverses. The issue is whether DWI is an offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, which is the definition of crime of violence under 18 U.S.C. § 16. This is a question of first impression. Other Circuits have held that DWI, by itself, is not a crime of violence. The Tenth Circuit Court agrees with the other Circuits, holding that DWI is not within the ambit of § 16(b). This decision is limited to
§ 16(b) cases, in which the statutory offense does not involve actual injury to others. The district court’s application of the eight-level enhancement is reversed, and the case is remanded for resentencing.

Waiver of Right to Direct Appeal—Ineffective Assistance of Counsel—Knowing and Voluntary Waiver—Plain Error

U.S. v. Edgar, No. 02-6195, 10/30/03, W.D.Okla., Judge Tacha.

Defendant pled guilty to drug and gun offenses. In his plea agreement, he waived his right to appeal his conviction and sentence. Defendant then filed a notice of appeal. The Tenth Circuit Court concludes that defendant validly waived his right to direct appeal, and dismisses this case.

On appeal, defendant argues that the Court should not enforce his waiver of appellate rights, because he received ineffective assistance of counsel, and his waiver was not knowing or voluntary. On the claim of effective assistance of counsel, the Court holds that defendant must raise this claim in a collateral proceeding, not on direct appeal. The Court thus refuses to consider the claim now. On the knowing and voluntary nature of defendant’s waiver of his right to appeal, the Court holds that the district court erred in failing to discuss the appellate waiver during defendant’s Rule 11 colloquy. Review is for plain error under Fed.R.Crim.P. 52(b). While the district court’s failure to discuss the appellate waiver provision was obvious error, the waiver was nevertheless knowing and voluntary. Because defendant did not satisfy the third prong of plain error review, his appeal is dismissed.


Attorney Misconduct—Appellate Jurisdiction—Pro Hac Vice Admission—No Abuse of Discretion—Prior Notice for Subpoena of Documents Means Prior to Service

Butler v. Biocore Medical Tech., Inc., No. 00-3181, 11/4/03, D.Kan., Judge Holloway.

Movant-Appellant Butler, a member of the New York and Connecticut Bars, was admitted pro hac vice to appear on behalf of plaintiff in the underlying lawsuit. Defendant Biocore moved to disqualify him for violating the Federal and Kansas Rules of Civil Procedure, as well as the Kansas model rules and local rules of professional conduct. The district court concluded that Butler had violated several rules, and ordered that those findings of professional misconduct be mailed to every court where Butler had been admitted to practice. Butler appealed.

The Tenth Circuit Court first examines its jurisdiction, noting that an attorney must be "directly aggrieved" by the order being appealed to invoke appellate jurisdiction. The Court holds that an order, such as this one, finding attorney misconduct but not imposing other sanctions, is appealable, but warns that not every negative comment or observation is appealable.

Turning to the merits, the Tenth Circuit Court upholds the district court’s finding that Butler had violated Canon 9 (avoid the appearance of impropriety) by hiring one of defendant’s disgruntled employees who had knowledge of confidential matters, to organize discovery obtained from defendant. The Court also declines to reverse the finding, based on violations of various rules of procedure, that Butler violated the model professional code prohibiting a lawyer from engaging in conduct that adversely reflects on his fitness to practice law. In reviewing Butler’s conduct, the Court holds that the "prior notice" required when serving a subpoena for documents means prior to service, rather than prior to production. Finally, the Court rejects Butler’s claim that he was ignorant of the rules, noting that part of the reason for requiring involvement of local counsel is to ensure that attorneys admitted pro hac vice are aware of and comply with local requirements. The district court’s order is affirmed.


Habeas Corpus—Parole Commission’s Arbitrary and Capricious Actions

Peltier v. Booker, No. 02-3384, 11/4/03, D.Kan., Per Curiam.

Petitioner-appellant Peltier is serving life sentences at the U.S. Penitentiary in Kansas for the murders of two FBI agents in 1975. After years of appeals, he applied for parole in 1993. The Parole Commission refused parole and set a fifteen-year reconsideration period. The Regional Commissioners concurred, as did the National Commissioners. The full Parole Commission ("Commission") agreed, but raised his parole guidelines to a minimum of 200 months. In 1995, at a statutory interim hearing, the hearing officer found that there was insufficient evidence to support a finding that petitioner personally shot the agents at point-blank range, but he recommended no change in Peltier’s parole status because he believed that Peltier was a co-conspirator or aider and abettor. The Commission recognized the lack of direct evidence indicating that Peltier personally killed the agents, but found adequate circumstantial evidence of his personal involvement, and denied his parole request. His reconsideration period remained at fifteen years. Peltier appealed to the district court for habeas corpus review of the Commission’s actions, arguing that its decisions were arbitrary and capricious; were based on incorrect information and discriminatory factors; violated ex post facto principles; and amounted to cruel and unusual punishment, in light of his medical condition.

The Tenth Circuit Court affirms. The question whether the Commission gave proper weight to the mitigating evidence is not a question that the Court has authority to review. The Court’s only inquiry in this case is whether the Commission was rational in concluding that Peltier participated in the execution of two federal agents. Based on the record, this conclusion was not arbitrary and capricious. The denial of habeas corpus relief is affirmed.

Involuntary Consent—Reasonable Suspicion to Stop Vehicle—Sufficient Familiarity with English to Grant Consent—Pat-Down Search’s Effect on Previously Given Consent

U.S. v. Manjarrez, No. 03-5017, 11/4/03, N.D.Okla., Judge Baldock.

Defendant entered a conditional guilty plea to a drug offense. He reserved his right to appeal the district court’s denial of his motion to suppress the drugs. On appeal, defendant argues that the initial stop of his vehicle was unjustified, that his consent to questioning was involuntary and not supported by reasonable suspicion, and that the pat-down of his person was unlawful and vitiated any prior consent to search his car. The Tenth Circuit Court affirms.

The Court holds that the district court correctly concluded that the trooper had an objectively reasonable suspicion to stop defendant for violating Oklahoma traffic law, because the trooper observed that defendant twice failed to use his turn signal. Next, the court correctly concluded that defendant had sufficient familiarity with the English language to grant consent to further questioning after the purpose of the stop was complete. The encounter was consensual, despite the presence of a howling drug dog. Finally, the trooper’s pat-down search of defendant was not unlawful and the pat-down did not vitiate defendant’s previous consent to search the car. This minimally intrusive pat-down was lawful, based on defendant’s prior consent to search. In an issue of first impression, the Court holds that the pat-down search does not vitiate previously given consent. The judgment is affirmed.

Civil RICO—Predicate Acts—Injury to Business or Property

Deck v. Engineered Laminates, No. 02-3100, 11/17/03, D.Kan., Judge Hartz.

Plaintiff is a former employee of defendant company. When he began to compete with defendant, it sued him in a state court to stop him from using its proprietary trade secrets. Plaintiff counterclaimed. The parties settled the suit, but defendant failed to make all of the agreed-upon payments to plaintiff. Plaintiff then filed this federal case under the civil RICO statute, alleging that defendant company fraudulently transferred all of its assets to avoid paying him. The federal district court granted a judgment on the pleadings to defendants.

The Tenth Circuit Court examines whether plaintiff had alleged the required two predicate acts, and injury to his business or property as a result of those predicate acts. The Court holds that the following are not RICO predicate acts: tampering with a witness in a state judicial proceeding; and abusive, meritless, or bad-faith litigation. On the other hand, plaintiff’s allegation that defendant promised to pay him a settlement with no actual intent to do so, stated a claim for fraud, which is a RICO predicate act. Also, plaintiff alleged the recognized predicate act of wire fraud by claiming that defendant falsely informed him by mail and fax that the company no longer existed, thereby leading plaintiff not to sue for breach of contract while the company still had assets. Accordingly, the Tenth Circuit Court holds that plaintiff had alleged the required two predicate acts, although it notes that there was a serious question of whether those acts could support the required finding of a pattern of racketeering activity. Finally, the Court holds that the alleged consequences of the state-court settlement were injuries to plaintiff’s business or property. The judgment is reversed and remanded.

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