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TCL > October 2004 Issue > Tenth Circuit Summaries

October 2004       Vol. 33, No. 10       Page  159
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.


Aiding and Abetting Jury Instruction—FDIC Insurance—Law Library Access—Sentencing Under "Three-Strikes" Law

U.S. v. Cooper, No. 03-4019, 7/19/04, D.Utah, Judge Seymour.

Defendant appeals his conviction and sentence. He was charged with bank robbery and using a firearm while committing a crime of violence, and a jury found him guilty on both counts. He challenges the sufficiency of the evidence that the bank was insured by the FDIC, challenges the district court’s aiding and abetting instruction, contends that he was unconstitutionally denied access to a law library, and argues that the district court erred in imposing a life sentence under the "three-strikes" law.

The Tenth Circuit Court of Appeals affirms, holding that the district court did not abuse its discretion in ruling on objections to the testimony presented by two witnesses, and in admitting a particular exhibit. No rational juror could have found beyond a reasonable doubt that the bank did not have FDIC insurance at the time of the robbery. The district court did not err in instructing the jury that defendant could be found guilty for aiding and abetting the commission of the robbery, even though he was the only person charged with the robbery. It was defendant, not the government, who presented the idea that defendant did not actually rob the bank himself. The district court correctly determined that defendant’s wish to proceed pro se was voluntary, and that he was not entitled to law library access.

Defendant was sentenced to life under the federal "three-strikes" law, due to his commission of at least two prior violent felonies. This sentence was correct, and there was no impermissible shifting of the burden of proof. The government introduced certified copies of convictions from at least two prior serious violent felonies committed by defendant, and he offered no testimony or evidence that the prior convictions were not his or did not satisfy the definition of "serious violent felony." The conviction and sentence are affirmed.


Mailing Threatening Communications—Law of the Case—Sufficiency of Evidence—Letters’ Salutations and Envelopes—Government Official as "Person" Under 18 U.S.C. § 876—Harmless Error

U.S. v. Williams, No. 02-1519, 7/20/04, D.Colo., Judge Murphy.

A jury convicted defendant of seven counts of mailing threatening communications. Defendant’s motion for judgment of acquittal under Fed.R.Crim.P. 29 was denied and he was sentenced to seventy-eight months in prison. He appeals the court’s denial of his Rule 29 motion, and the court’s admission of three letters under Fed.R.Evid. 404(b).

Defendant sent mailings that included bomb and sexual mutilation threats. He disguised the letters as "legal mail." The letters were addressed, on the face of the envelope, to the U.S. Attorney and the Clerk of Courts, not to named individuals.

The Tenth Circuit Court affirms. The jury was instructed that the addressee on the face of the envelope controls, and that an agency of the federal government is not a person under 18 U.S.C. § 876. Defendant argues that because of this instruction, the jury’s verdict cannot be justified on the basis of the letters’ salutations or contents. The law of the case doctrine does not apply, because the government objected to this instruction. The appeal presents two questions of first impression: whether one can look at both the envelope and salutation to determine if the letter is "addressed to any other person" as required by the statute; and whether a government official can be a person under the statute.

The Court holds that a juror can look, at a minimum, at both the envelope and the salutation of a letter in deciding whether the letter is addressed to "any other person." In addition, a government official is a person within the meaning of § 876. The threatening communications addressed to government officials, and defendant’s admission to mailing them, presented sufficient evidence to support defendant’s convictions. The Court also holds that even if the trial court erroneously admitted three letters under Rule 404(b), any error was harmless, because the evidence of guilt was overwhelming. The conviction is affirmed.

Personal Jurisdiction—Specific or General Jurisdiction—Minimum Contacts—Traditional Notions of Fair Play and Substantial Justice—Business Contacts with Forum State

Benton v. Cameco Corp., No. 02-1548, 7/23/04, D.Colo., Judge Henry.

Plaintiff, a Colorado resident, entered into an agreement with defendant, a Saskatchewan company ("Cameco"), whereby plaintiff would purchase uranium from defendant. The agreement was conditioned upon several factors, one of which was a due-diligence review by Cameco of some uranium contracts between plaintiff and utility companies. Defendant sent employees to Colorado to conduct the required due-diligence review. Thereafter, defendant declined to proceed with the deal. Plaintiff filed suit in the Colorado federal court for breach of contract and tortious interference with business relationships. The district court dismissed the case for lack of personal jurisdiction over defendant.

On appeal, plaintiff asserts that the Colorado court had both specific and general jurisdiction over defendant. The Tenth Circuit Court evaluates whether there existed specific jurisdiction, which applies where the non-resident defendant has purposefully directed his activities to the forum and the litigation arises from those activities. There are two criteria: minimum contacts and traditional notions of fair play and substantial justice. Here, although defendant had sufficient minimum contacts with Colorado, after weighing the factors pertaining to fairness, the Court concludes that an exercise of personal jurisdiction over defendant in the Colorado court would be inconsistent with traditional notions of fair play and substantial justice.

The Tenth Circuit Court considers the issue of general jurisdiction, which addresses the non-resident defendant’s general business contacts with the forum state and requires plaintiff to demonstrate defendant’s continuous and systematic general business contacts. Plaintiff failed to meet this "high burden," so the Court declines to exercise general personal jurisdiction over defendant. The district court’s dismissal for lack of personal jurisdiction is affirmed.


Habeas Corpus Under 28 U.S.C. § 2255—Child Pornography—Actual Innocence—Procedural Bar

U.S. v. Cervini, No. 03-6144, 8/11/04, W.D.Okla., Judge Kelly.

Defendant appeals the district court’s denial of his motion to vacate under 28 U.S.C. § 2255. He was charged with shipping child pornography, and possessing child pornography that was transported in interstate commerce by means of a computer. He pled guilty and his convictions were affirmed on direct appeal. After appeal, the Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which invalidated certain provisions of the Child Pornography Prevention Act. Those provisions included, in the definition of child pornography, virtual or morphed images created without the use of actual children. The Supreme Court held that prohibiting virtual child pornography violated the First Amendment.

Defendant filed this 28 U.S.C. § 2255 motion seeking to have his conviction vacated on the basis that Free Speech Coalition should be applied to him retroactively. The district court found that defendant did not make a sufficient showing to overcome the procedural bar in a habeas action that precludes a court from reaching the merits of an otherwise defaulted claim.

The Tenth Circuit Court granted a certificate of appealability on the two questions of whether defendant has made a sufficient showing of actual innocence to overcome the procedural bar, and whether the Supreme Court’s decision in Free Speech Coalition is retroactively applicable to defendant for collateral relief. The Tenth Circuit Court affirms, holding that defendant’s claims are subject to a procedural bar. He pled guilty, and did not raise his claims of constitutional error at trial or on direct appeal from his sentence. In trying to overcome procedural bar, defendant alleges that he is actually innocent of the crime to which he pled guilty. He asserts that in light of Free Speech Coalition, no reasonable juror would have found him guilty of possession of actual child pornography, because it would have been impossible to tell whether the images he was convicted of possessing were of actual or virtual child pornography.

The evidence presented by defendant is not powerful enough to convince a court that no reasonable juror would have voted to convict. Defendant’s admission in the plea agreement is specific that actual minors, not morphed images, were used. The images were purportedly of actual children, and there were no facts alleged that would probably prevent any reasonable juror from finding, beyond a reasonable doubt, that the images were exactly what they purported to be.

Defendant has not made a showing of actual innocence sufficient to overcome the procedural bar against consideration of defaulted claims, so the second issue of retroactivity is not addressed. The district court judgment denying defendant’s § 2255 motion is affirmed.

ERISA—Admitted Conflict of Interest—Pre-existing Condition—Sliding Scale Review

Fought v. UNUM Life Insurance Co., No. 02-2176, 8/13/04, D.N.M., Per Curiam.

On panel rehearing, the Tenth Circuit Court revises the sliding scale standard of review for a plan administrator’s denial of disability coverage under ERISA that it had announced in an earlier opinion. Plaintiff challenged UNUM Life Insurance Company’s ("UNUM") decision to deny her application for long-term disability benefits. UNUM’s policy excluded coverage for a pre-existing condition. Plaintiff had a pre-existing coronary condition for which she underwent surgery. During the surgery, the doctors discovered conditions that later prevented plaintiff’s incision from healing properly and resulted in a disabling staph infection.

UNUM denied coverage on the ground that plaintiff’s disability was based on the pre-existing coronary condition. UNUM admitted that it had a conflict of interest because it was both administrator and payor. The district court entered summary judgment for UNUM.

The Tenth Circuit Court holds that where the plan administrator operates under a conflict of interest, the plaintiff must prove the existence of the conflict. If she cannot establish a serious conflict of interest, the court will consider any dual role as one factor in evaluating whether the denial of benefits was arbitrary and capricious. If, however, the plan administrator (1) operates under an inherent conflict of interest (as both insurer and administrator), (2) operates under a proven conflict of interest, or (3) when a serious procedural irregularity exists, the burden shifts to the plan administrator to prove that its interpretation of the plan is reasonable and that its application of the plan to the claimant is supported by substantial evidence. The Tenth Circuit Court considers the intervening stages between plaintiff’s pre-existing heart condition and her disabling staph infection, and concludes that denial of coverage was not supported by substantial evidence. The district court’s judgment is reversed.

Federal Tort Claims Act—Discretionary Function Exception—United States Dismissed as Defendant—Diversity—Pendent Jurisdiction Over State Law Claims

Estate of Harshman v. Jackson Hole Mountain Resort Corp., No. 02-8046, 8/16/04, D.Wyo., Judge Lucero.

Plaintiffs’ son suffered fatal injuries on a snowboard jump at Jackson Hole Mountain Resort. They brought negligence and wrongful death claims against the resort, as the operator of the snowboard run, and against the United States, as the owner of the property. The district court dismissed the claims against the United States under the discretionary function exception to the Federal Tort Claims Act ("FTCA"), and entered summary judgment in favor of the resort. Plaintiffs appealed.

Rather than review the summary judgment, the Tenth Circuit Court examines whether federal jurisdiction continued after the United States was dismissed. Plaintiffs were Wyoming residents and the resort was a Wyoming corporation. Therefore, because those parties were not diverse, the only jurisdiction was supplemental to the jurisdiction over the United States.

The Tenth Circuit Court determines that although sovereign immunity was waived by the FTCA, the discretionary function exception applied, because the government’s refusal to regulate the daily operations of the resort was entirely within its discretion and was a matter of public policy. Therefore, the United States was dismissed for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1), because the discretionary function exception operates as a jurisdictional bar. Consequently, once the United States was dismissed, the district court had no basis for federal jurisdiction and no proper basis to retain supplemental jurisdiction over the state law claims. The district court exceeded its authority by adjudicating the claims between plaintiffs and the resort. Accordingly, the district court’s judgment is vacated, and the appeal is dismissed.


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