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TCL > May 2004 Issue > Tenth Circuit Summaries

May 2004       Vol. 33, No. 5       Page  131
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.


Compliance With Fed. R. App. P. 4(c)(1)—Prisoner Mailbox Rule—Interpretation of "May"—Subject-Matter Jurisdiction

U.S. v. Ceballos-Martinez, No. 02-2273, 02/12/04, D.N.M., Judge Tacha.

Defendant seeks to appeal the sentence imposed by the district court. He pled guilty to a drug count. The district court received defendant’s notice of appeal, which he personally filed while in prison, five days after the deadline for filing the notice. His notice of appeal also lacked a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement indicating the date he deposited his notice of appeal with prison officials and that he had prepaid first class postage.

The Tenth Circuit Court holds that defendant’s notice of appeal was not timely filed under the "prisoner mailbox rule." The Court has subject matter jurisdiction only if defendant’s notice of appeal complies with the provisions of Fed. R. App. P. 4(c)(1). His filing lacks both the declaration in compliance with § 1746 and a notarized statement, which are required under Rule 4(c)(1). The jurisdictional question becomes whether defendant can prove the date of deposit and pre-payment of postage by means other than the declaration or a notarized statement. The statute contains the word "may," but the Court holds that when read in context, "may" does not reveal a congressional intent to render the provisions permissive. Interpreting this third sentence of the rule as containing mere suggestions would make large sections of Rule 4(c)(1) meaningless and run contrary to established case law. Instead, the rule provides the mandatory method by which a pro se prisoner, who does not have access to a legal mail system, proves compliance with the mailbox rule. If the prison lacks a legal mail system, the prisoner must submit a declaration or notarized statement. Because defendant did not comply with the rule, his case is dismissed for lack of subject-matter jurisdiction.

Motion to Suppress Evidence—Reasonable Suspicion of Violation of State Traffic Law

U.S. v. Vercher, No. 03-3110, 02/24/04, D.Kan., Judge Lucero.

The government appeals the district court’s decision to grant defendants’ (driver and passenger) motion to suppress evidence seized incident to a traffic stop. A trooper observed defendant driver operating a minivan that was about two car lengths behind the preceding vehicle and traveling at about seventy miles per hour. The trooper believed, based on his training and experience, that this was not a safe distance to follow behind another car, in violation of the Kansas traffic statute for following too closely. He believed that a safe following distance would have been between 100 and 150 feet, not 20 to 25 feet. He pulled over the minivan. After deciding that neither defendant was authorized to drive the minivan, the trooper had it towed and impounded. Cocaine was found inside the door panels. Defendants moved to suppress the evidence, arguing that the traffic stop was not justified at its inception. The district court agreed, holding that the trooper’s observation was insufficient to support a reasonable suspicion that the driver was driving more closely than was reasonable and prudent. The government appealed. The issue on appeal is whether the facts before the Tenth Circuit Court of Appeals are sufficient to support the trooper’s claim of reasonable suspicion that defendants violated a state traffic law.

The Tenth Circuit Court reverses. The question is whether, given the district court’s finding that the trooper did not observe whether the vehicles surrounding the minivan were decelerating, the trooper’s observations of the speed and distance alone may support an objectively reasonable suspicion that the driver was following the preceding car more closely than was reasonable and prudent under Kansas statute. The Court holds that on a rural interstate in Kansas, an officer’s observations of high speed and dangerously close traveling distance provide sufficient objective justification to suspect that the distance between the vehicles is not reasonable and prudent. The trooper need only articulate a basis for a suspicion that a traffic violation might have been occurring. In certain cases, an officer’s observation of a vehicle traveling at a high speed and close distance from the preceding vehicle, although not sufficient to convict, is sufficient to provide a reasonable suspicion to effectuate a traffic stop. Because the trooper had the requisite minimal level of objective justification to suspect that the Kansas statute had been violated, the district court’s order is reversed and the case is remanded.

Expert Opinion Not Reliable—Pyrolysis Fire Theory—Causation Evidence Insufficient—Summary Judgment

Truck Insurance Exchange v. Magnetek, Inc., No. 03-1026, 02/25/04, D.Colo., Judge Tymkovich.

The plaintiff insured Sammy’s Restaurant ("Sammy’s") in Lakewood, Colorado, which was destroyed by fire. In this subrogation case, plaintiff claimed that the fire was caused by a flourescent light ballast manufactured by defendant, and sought to recover more than $1.5 million paid to Sammy’s. The plaintiff proffered the expert testimony of two witnesses, but the district court granted defendant’s motion to exclude their opinions, because they were not based on sufficiently reliable scientific theory. The district court then granted summary judgment in favor of defendant, because without the expert testimony, plaintiff could not establish causation.

The Tenth Circuit Court considers plaintiff’s theory that the fire was caused by the ballast, even though testing showed that the maximum temperature the ballast could have reached was 340 degrees, and the normal wood ignition temperature is 400 degrees. One of plaintiff’s experts proposed to testify about "pyrolysis," which posits that wood can catch fire at temperatures below 400 degrees if it is exposed to such temperatures over a long enough time period. However, three studies, as well as plaintiff’s own expert, cast doubt on the theory’s general scientific reliability, so the Tenth Circuit Court finds no abuse of discretion in the district court’s decision to reject it. The other proffered expert also was properly excluded, because his opinion that the ballast started the fire was based on the unreliable pyrolysis theory or on an unsupported claim that the ballast reached 400 degrees. The Tenth Circuit Court affirms the award of summary judgment, because a jury could not determine the cause of the fire without expert testimony; without its experts’ opinions, plaintiff had no evidence that the ballast caused the fire. The district court’s judgment is affirmed.

Nuisance Abatement—Due Process—Fourth Amendment

Santana v. City of Tulsa, No. 03-5050, 02/25/04, N.D.Okla., Judge McConnell.

Plaintiff failed to respond to a notice from the City of Tulsa ("City") to abate a nuisance consisting of used computer parts and other items in his back yard. After the ten-day notice period expired, the City removed the items. Plaintiff sued, claiming the City violated his constitutional rights by clearing out his back yard. The district court entered summary judgment in favor of the City.

The Tenth Circuit Court rejects plaintiff’s substantive due process claim, holding that he failed to allege the requisite deliberate, conscience-shocking action by the City. The court also denies plaintiff’s procedural due process challenge, because he was provided notice of the City’s proposed action and was offered an opportunity for a hearing.

Turning to the charge that removing the items from his back yard violated plaintiff’s Fourth Amendment right to be free from an unreasonable seizure, the court holds that as long as procedural due process standards are met and no unreasonable municipal actions are shown, a nuisance abatement action does not violate the Fourth Amendment. The district court’s judgment is affirmed.

Motion to Suppress Evidence Seized—Good Faith Exception—Double Counting

U.S. v. Rice, No. 02-6401, 02/26/04, W.D.Okla., Judge Anderson.

Defendant appeals the court’s denial of his motion to suppress evidence seized from his home, after he pled guilty to four counts involving child pornography. He also appeals his sentence. Pursuant to a state search warrant, officers seized computers, hardware and software, discs, videotapes, and digital cameras from defendant’s apartment. These materials contained child pornography. He was charged in federal court with four counts involving child pornography. Defendant moved to suppress the evidence seized under the search warrant. The district court held that the search warrant was supported by probable cause and that, even if it was not, the good faith exception under United States v. Leon, 468 U.S. 897 (1984), applied. Defendant pled guilty, reserving his right to appeal. The court sentenced defendant to 262 months in prison. On appeal, defendant argues that the district court should have granted his motion to suppress the evidence because the affidavit in support of the search warrant failed to establish probable cause, the warrant was too broad, and the good faith exception did not salvage the search. He also argues that the court erroneously double-counted at sentencing when it used the same prior conduct to both increase his base offense level and increase his criminal history, and the court should have granted him a downward departure for acceptance of responsibility.

The Tenth Circuit Court holds that, applying Leon, the affidavit in this case is not such a bare-bones and conclusory affidavit that it would render belief in the existence of probable cause entirely unreasonable. The evidence seized from defendant’s apartment, therefore, need not be suppressed. On the sentencing issue, however, the Court reverses. The second count involved transporting a videotape containing child pornography across state lines. The video was one that defendant produced in Mississippi of himself and a young girl. Because defendant caused a minor to engage in sexually explicit conduct in order to produce the video that he then transported from Mississippi to Oklahoma, his base offense level increased from 17 to 27 under USSG § 2G2.1. The court then used the same conduct to depart upward and increase defendant’s criminal history category under § 4A1.3. This constituted impermissible double counting, so defendant’s sentence is reversed. Finally, the court did not clearly err in denying defendant a downward adjustment for acceptance of responsibility. The denial of the motion to suppress is affirmed and the case is remanded for resentencing.

Civil Rights—Qualified Immunity—Constitutional Violation—General Common Law Tradition—Clearly Established Law

Pierce v. Gilchrist, Nos. 02-6241 & 02-6351, 03/02/04, W.D.Okla., Judge McConnell.

Plaintiff was imprisoned for fifteen years for a rape he did not commit. He was released from prison when DNA analysis proved he could not have been the perpetrator. He sued the forensic chemist and the district attorney for compensatory and punitive damages, claiming they violated his constitutional rights when they fabricated inculpatory evidence and disregarded exculpatory evidence to convict him of the rape. Defendants moved to dismiss on the ground that they were entitled to qualified immunity. The district court denied the motion.

The Tenth Circuit Court first notes its jurisdiction over this appeal from an order denying qualified immunity, because the issues presented were purely legal ones. It then evaluates whether plaintiff had stated a claim for a constitutional tort. Defendants argued that plaintiff was required to show all of the elements of the common law tort of malicious prosecution, and because he could not satisfy all of the requirements of that tort as defined by state courts, his complaint must fail. The Tenth Circuit Court rejects the argument that a constitutional tort must fit precisely within the state court’s specific formulation of the tort. Rather, state law serves as the starting point for the analysis of a claim under 42 U.S.C. § 1983, but the ultimate question is whether plaintiff can prove a constitutional violation. To evaluate a constitutional tort, courts use the common law as an analogy. The common law in this context refers not to the specific terms of the tort law of any particular state, but to the general principles of common law among the several states.

The Tenth Circuit Court holds that plaintiff’s complaint stated a constitutional claim under the Fourth Amendment right to be free from unreasonable seizures and the Fourteenth Amendment right not to be deprived of liberty without due process of law. The allegation that defendants fabricated evidence that resulted in charging and convicting plaintiff stated a malicious prosecution claim. Moreover, the court held that the law was clearly established, rejecting defendants’ argument that there was not a published case on precisely these facts at the time the evidence was fabricated. The law prohibited falsifying or omitting evidence, and defendants had fair warning that doing so would violate an accused’s constitutional rights. Therefore, defendants were not entitled to qualified immunity. The district court’s order is affirmed.

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