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TCL > December 2004 Issue > Tenth Circuit Summaries

December 2004       Vol. 33, No. 12       Page  169
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.


Entrapment by Estoppel—Government Agents—Firearms Dealer—Local Police Department as Government Agent—False Statements

U. S. v. Hardridge, No. 03-3186, 8/17/04, D.Kan., Judge Hartz.

Defendant appeals his convictions of felon in possession of a firearm and knowingly making a false statement in connection with the purchase of a firearm. He argues that the district court erred in rejecting his entrapment by estoppel defense to the felon-in-possession charges, and in finding that he knowingly made false statements. The prior felonies forming the basis of the federal charges are two state convictions for aggravated battery.

The offenses were committed when defendant was 17. He was prosecuted as an adult and served time in an adult facility. He testified that he had not been present at the state hearing adjudicating him as an adult, and that his attorney told him this was a juvenile conviction. The felony conviction was not entered into the National Crime Information Center ("NCIC") database. When defendant requested a records check from the local police department, it stated "no records found."

When a police officer found a firearm in a vehicle traced to defendant, the background check came up with no records and police returned the firearm to defendant. When defendant purchased guns from a local firearms dealer, he was told that he did not have to report any juvenile convictions. When the firearms dealer ran an NCIC check, the dealer was told that the sale could proceed. However, police arrested defendant on an outstanding warrant and found a firearm in his vehicle. Other firearms were found when officers executed a search warrant on defendant’s home.

Defendant was indicted in federal court on these charges arising from the firearms. After a bench trial, the district court rejected defendant’s proffered defense of entrapment by estoppel to the felon-in-possession counts and found him guilty.

The Tenth Circuit Court of Appeals affirms. Entrapment by estoppel requires that the actions of actors representing various government entities mislead a person into believing that it was legal for him to purchase and possess firearms, thereby estopping the government from prosecuting him on the unlawful possession counts.

Here, the Court holds that a licensed firearms dealer is not a government agent for purposes of establishing this defense. The state sentencing judge’s statement regarding defendant’s prohibition from carrying a firearm after his release is not construed to mean that defendant could possess a gun after the completion of his post-release supervision. The police department, which provided him with a clear criminal history record check and later returned his firearm to him, was not a government official or agency responsible for interpreting, administering, or enforcing the law defining the offense. Regarding the false statement convictions, the evidence is sufficient. The judgment is affirmed.

Escape from Halfway House—Custody of Attorney General—Custody as Result of District Court Order

U.S. v. Sack, No. 03-2253, 8/17/04, D.N.M., Judge Murphy.

Defendant appeals the district court’s conclusion that he was in custody for purposes of the escape statute while residing in a halfway house. After his initial arrest, defendant was ordered by the district court to reside at a halfway house. After one day of work, defendant failed to return to the halfway house as required by the court’s order. He was later indicted for his role in a bank robbery, and for escape. The district court denied his motion to dismiss the escape charge. Defendant pled guilty to escape, reserving the right to seek review of the district court’s order. He argues on appeal that he was not in custody for purposes of the escape statute when he left the halfway house, because he was not in the custody of the Attorney General.

The Tenth Circuit Court of Appeals affirms. Defendant was charged with escape under 18 U.S.C. § 751. The statute applies to escapees who were originally confined or in custody under federal law, in the sense that they were held in the custody of the Attorney General, or in custody by an order or process issued under U.S. laws by a competent court or official. Here, defendant was in the custody of the halfway house as the result of a district court order, so he was in custody under the statute. The language of the statute is unambiguous. The court’s control of defendant’s liberty was premised on his arrest for a felony, not for a violation of pretrial release conditions. The order is affirmed.

Safety Valve Reduction Under U.S.S.G. § 5C1.2—Sentence Enhancement for Possession of Dangerous Weapon Under U.S.S.G. § 2D1.1

U.S. v. Zavalza-Rodriguez, No. 03-2247, 8/17/04, D.N.M., Judge Lucero.

The government appeals the district court’s decision that relief under U.S.S.G. § 5C1.2 is permissible. The issue on appeal is whether the district court erred in finding that, on one hand, a sentence enhancement applied because "a dangerous weapon was possessed," and that, on the other hand, for purposes of a downward departure under § 5C1.2, the defendant did not possess a firearm or other dangerous weapon in connection with the offense. The government argues that if a gun is possessed for purposes of sentence enhancement, it necessarily is possessed to preclude application of a sentence reduction.

When a search warrant was executed, police found a pistol in the bedroom where defendant was staying. Defendant pled guilty to a drug offense. The plea agreement stipulated to a two-level sentence enhancement for the presence of the gun in the bedroom where he was staying.

The issue at sentencing was whether defendant was eligible for the "safety valve" sentencing reduction under 18 U.S.C. § 3553(f)(1)-(5). The district court found that defendant met his burden of showing by a preponderance of the evidence that the gun was not connected to the offense. Finding that he satisfied the other safety valve criteria, the court sentenced defendant without regard to the statutory minimum sentence.

The Tenth Circuit Court of Appeals affirms. Defendant explicitly stipulated in the plea agreement that the two-level enhancement for possession of a firearm was appropriate. He admits that he constructively possessed it, although he did not actually possess or touch it. The only issue under the safety valve provision is whether the district court erred in finding that defendant satisfied these criteria: whether he did not use violence or credible threats of violence; or possess a firearm or other dangerous weapon in connection with the offense. Under the safety valve provision, the Court focuses on defendant’s own conduct for purposes of evaluating eligibility, and there is a distinction between "constructive" and "actual" possession.

The term "possessed" is used in two different senses in the two provisions. A closer degree of connection is necessary to preclude application of the safety valve than is necessary for a finding of possession under § 2D1.1(b)(1). Also, there is a difference in evidentiary standards when applying the two provisions. A defendant need only show, by a preponderance of the evidence, eligibility for the safety valve; however, he must show that it is clearly improbable that a gun was not used in connection with the offense to avoid the § 2D1.1 sentence enhancement. Thus, sentence enhancement under § 2D1.1(b)(1) does not foreclose sentence reduction under the safety valve provision. The sentence is affirmed.

No-Knock Search Warrant—Nighttime Warrant—Judge’s Authorization of Correction of Defective Search Warrant

U.S. v. Katoa, No. 03-4202, 8/23/04, D.Utah, Judge Seymour.

Defendant appeals the district court’s denial of his motion to suppress evidence. He entered a conditional guilty plea, preserving his right to appeal the district court’s denial of his motion to suppress evidence.

A detective prepared an affidavit in support of a search warrant for narcotics and paraphernalia at defendant’s residence. In the affidavit, the detective specifically requested a search warrant authorizing unannounced day or night execution. The warrant itself, however, provided for only a daytime search. The judge read and signed the affidavit and warrant.

After 10 p.m., police executed the no-knock warrant by ramming the door of defendant’s residence. The detective then noticed that the search warrant read "day time service," and called the judge to notify him of the drafting error. The judge told the detective that he had understood the warrant to be for nighttime service, and directed the detective to write "nighttime service" on the warrant and indicate that he was doing so on the judge’s authority. The judge later signed the changes.

Defendant argues that the nighttime search of his home violated the Fourth Amendment, because it was unreasonable for police to execute, at night, a warrant containing an express daytime limitation. He argues that the judge’s belated authorization was insufficient to overcome the daytime limitation on the face of the warrant.

The Tenth Circuit Court of Appeals rejects this argument. The district court’s findings in this regard are not clearly erroneous. While the Fourth Amendment requires search warrants to particularly describe the place to be searched and the person or things to be seized, there is no requirement that a warrant indicate the appropriate time of day for execution. The judge’s clarification by telephone of "nighttime service" removed any ambiguity from the face of the warrant, so that it is not necessary to construe the language of the affidavit in order to interpret the warrant.

The Tenth Circuit Court holds that when the face of a warrant contains a drafting defect or omission regarding a subject not specifically named in the Constitution, the warrant is made valid if the issuing judge authorizes correction of the defect or omission via telephone during the search and subsequently confirms the authorization in writing. The order denying the motion to suppress is affirmed.

Separate Judgment—Time to Appeal—150 Days After Entry in Civil Docket

Funk v. LFLM Defendants, No. 04-4122, 8/23/04, D.Utah, Per Curiam.

The district court entered an order directing that a declaratory judgment be entered, but did not issue a separate judgment until almost eight months later. Following entry of the separate judgment, defendants filed a notice of appeal. The Tenth Circuit Court dismisses the appeal because the notice of appeal was filed too late.

Fed.R.Civ.P. 58 requires that a separate judgment be entered and, if it is not, that judgment is deemed entered when 150 days have run from entry in the civil docket. Here, the time to file the notice of appeal began to run 150 days after entry in the civil docket. The time to appeal therefore expired before the notice of appeal was filed and, indeed, before the separate judgment was entered. Consequently, the appeal was untimely, so it is dismissed.

Employment Discrimination—Retaliation—Adverse Employment Action—Harm to Future Employment Prospects

Hillig v. Rumsfeld, No. 01-1102, 8/27/04, D.Colo., Judge Holloway.

Plaintiff, an African-American, filed this employment discrimination action against her employer, alleging that employer retaliated against her for filing two race-discrimination complaints during her employment. She claimed that her supervisors gave negative references to a prospective employer, causing prospective employer not to hire her.

A jury returned a verdict in plaintiff’s favor on her Title VII retaliation claim, even though it found that she had not proved that but for the unlawful retaliation, she would have been offered the new job. Based on that finding, the district court entered judgment as a matter of law in employer’s favor, because plaintiff had not established that she suffered an "adverse employment action," which is part of a prima facie case of Title VII retaliation.

The Tenth Circuit Court reverses, holding that plaintiff was not required to prove that but for the negative references, she would have been offered the new job. The act by employer, however, must do more than de minimis harm. The employer’s conduct must be materially adverse to plaintiff’s job status, which can be shown other than by a tangible employment action. Rather, the harm may be harm to future employment prospects. Here, plaintiff’s evidence was sufficient to meet these criteria. Accordingly, the judgment is reversed and the case is remanded with directions to reinstate the jury verdict in plaintiff’s favor.

Untimely Notice of Appeal—District Court Without Authority to Extend Time After Appellate Court Denied Extension—Ignorance of Rules Not Excusable Neglect

Delta Airlines v. Butler, No. 04-601, 8/30/04, D.Utah, Per Curiam.

Petitioner filed its notice of appeal two days after the ten-day deadline to challenge the district court’s order granting class certification. The Tenth Circuit Court dismissed the appeal for lack of jurisdiction. Petitioner then asked the district court for an extension of time to appeal, which it granted.

The Tenth Circuit Court rules that the district court did not have authority to grant the post-dismissal extension of time, because Fed.R.App.P. 26(b) foreclosed it. In addition, even if the district court had authority, it abused its discretion in granting the extension based on counsel’s mistaken reading of the rule allowing a three-day grace period for mailing. Inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect. The motion to reinstate the appeal is denied.

Internal Revenue Service—Date of Mailing—Proof—Evidence—Mailbox Rule

Sorrentino v. IRS, Nos. 02-1114 & 02-1137, 9/14/04, D.Colo., Judge Baldock.

Plaintiffs-taxpayers filed suit to recover a tax refund. The IRS disallowed their refund claim because they had not filed their administrative refund claim by the deadline; the IRS received the claim seven months after the due date. The district court applied the common-law mailbox rule and afforded taxpayers a rebuttable presumption that they timely filed their refund claim based on their testimony that they had mailed it in time to be delivered to the IRS before the deadline.

The Tenth Circuit Court reverses and dismisses the case for lack of jurisdiction, based on the taxpayers’ failure to file a timely refund claim. The court discussed the relationship between the common-law mailbox rule (proof of mailing raises the presumption that the item reached its destination in the regular time and was received by the person to whom it was addressed) and Internal Revenue Code § 7422(a) (an official postmark is deemed the date of delivery).

The Tenth Circuit Court holds that, absent some proof of an actual postmark or dated receipt, a presumption that tax documents allegedly mailed to the IRS were in fact received does not arise based solely on a taxpayer’s self-serving testimony. Here, the only evidence that the claim was mailed timely was taxpayers’ own testimony, which was insufficient. Judgment is reversed and the case is remanded with instructions to dismiss the taxpayers’ refund suit for want of subject-matter jurisdiction.

Conditional Guilty Plea—Right to Appeal Under 28 U.S.C. § 2255—Involuntary Guilty Plea—Misadvisement of Consequences of Guilty Plea—Allocution

U.S. v. Rodriguez-Gonzales, No. 03-4254, 9/2/04, D.Utah, Judge McWilliams.

Defendant appeals his conviction, based on his guilty plea. He was charged with offenses arising from possession of drugs and a gun. He moved to suppress the evidence obtained in a search of his residence. The district court denied his motion to suppress.

Defense counsel moved for defendant to enter a so-called unconditional guilty plea on both counts. Counsel failed to ask to enter a conditional plea, which would have reserved defendant’s right to a direct appeal of the district court’s denial of his motion to suppress.

The court allowed defendant to plead guilty to both counts. At sentencing, defendant advised the court and the attorneys that he desired to appeal the court’s denial of his motion to suppress. Counsel stated, however, that defendant was waiving his right to a direct appeal of his suppression motion. Counsel incorrectly stated that defendant could obtain appellate review in a collateral proceeding under 28 U.S.C. § 2255. The district court acquiesced. The government attorney was noncommital as to defense counsel’s statement regarding collateral review. On appeal, defendant argues that his guilty plea was not knowingly and voluntarily made, and that he should be allowed to withdraw his guilty plea.

The Tenth Circuit Court of Appeals agrees with defendant and reverses. Defendant was led to believe that he could raise the suppression issue in a § 2255 proceeding when, in fact and in law, he could not. When defendant pled guilty, he waived his right to a direct appeal, and the issue could not be raised later in a § 2255 proceeding. A plea may be involuntary when an attorney materially misinforms the defendant of the consequences of his plea. The district court also erred in denying defendant his right of allocution. The judgment is reversed and the case is remanded for vacation of defendant’s sentence and to allow him to withdraw his guilty plea.

Colorado Workers’ Compensation—Scope of Employment—Subject-Matter Jurisdiction—Waivable Defense—Jury Question

Radil v. Sanborn Western Camps, Inc., No. 03-1343, 9/22/04, D.Colo., Judge Tymkovich.

Plaintiff was seriously injured in an automobile accident during an outing with her coworkers. She was employed by defendant as a camp counselor, whose duties included being generally on-site and on-call. She was injured en route to a river-raft outing in a vehicle driven by a coworker. After she was denied Colorado workers’ compensation benefits, plaintiff filed this diversity action against her employer. The district court dismissed the case for lack of federal subject-matter jurisdiction, because plaintiff’s injuries were covered by the Colorado workers’ compensation scheme. In making this pre-trial jurisdictional determination, the district court decided that plaintiff’s participation in the raft trip was within the scope of her employment.

The Tenth Circuit Court holds that the employer’s claim that workers’ compensation provided plaintiff’s exclusive remedy was a waivable, affirmative defense. As a waivable defense, it did not implicate the court’s subject-matter jurisdiction. Thus, under Colorado law, where the parties dispute whether workers’ compensation provides the exclusive remedy, the issue must be determined by the trier of fact. Here, the parties hotly disputed whether plaintiff’s injuries arose in the course of her employment. Consequently, the employer should have been required to prove to a jury its affirmative defense that plaintiffs’ claims were barred by the workers’ compensation scheme. The Tenth Circuit Court rejects the employer’s claim that plaintiff waived her argument by agreeing to have the district court decide the jurisdictional issue. The district court’s decision is reversed and remanded.

Downward Departure—Authority to Depart—Jurisdiction

U.S. v. Dias-Ramos, No. 01-2378, 10/6/04, D.N.M., Judge Seymour.

Defendant appeals his sentence, arguing that the district court erroneously held that it lacked the authority to depart downward from the sentencing guidelines. Defendant sought a downward departure on the basis that because he was only a drug courier, he lacked knowledge of the type and quantity of the contraband he was transporting. The district court denied the requested departure.

The Tenth Circuit Court affirms. The district court was ambiguous with respect to its authority to depart based on a drug courier’s lack of knowledge of the type and quantity of contraband he was carrying. The record does not show unambiguously whether the court denied the departure because it considered defendant’s lack of knowledge and determined that the facts placed him in the heartland, or that the court believed it lacked legal authority to depart whenever a courier seeks a departure based on lack of knowledge. It appears that the court may have denied this request on both bases. Because the court did not unambiguously state that it lacked authority to depart from the guidelines, the Court of Appeals lacks jurisdiction to review the sentence. The appeal is dismissed.

Long-Arm Jurisdiction—Declaratory Judgment—Minimum Contacts—Foreseeability

Bell Helicopter Textron, Inc. v. Heliqwest Int’l Ltd., No. 03-4115, 10/7/04, D.Utah, Judge McConnell.

This litigation arose from the crash of a helicopter in Utah. Various parties with interests in the helicopter sued each other in Utah and Canada. Plaintiff in his case manufactured the helicopter and was sued in a Canadian court. It, in turn, sued these defendants, the helicopter’s lessor and operator, in a Utah federal court. The district court dismissed for lack of personal jurisdiction one of the defendants, Copter Lease, a New Mexico corporation that was a corporate affiliate of a non-party Canadian corporation. The court declined to take jurisdiction over the declaratory judgment action against the other defendant, Heliqwest, because the requested ruling would not settle the controversy. None of the plaintiff’s adversaries in the Canadian litigation were parties to this action, so they would not be bound by a decision of the Utah court, and Heliqwest was no longer a party to the Canadian litigation.

The Tenth Circuit Court addresses whether Copter Lease had sufficient minimum contacts with Utah to satisfy due process, recognizing that in the products-liability context, foreseeablity is relevant. Plaintiff asserted specific jurisdiction over Copter Lease, meaning that it had purposely directed its activities at Utah residents. The Tenth Circuit Court disagrees and rejects plaintiff’s contention that by leasing the helicopter to the party that brought it to Utah, Copter Lease purposely availed itself of the privilege of conducting business in Utah. The evidence that Copter Lease sought to do business in Utah was too remote to create personal jurisdiction. Therefore, the Tenth Circuit Court holds that dismissal of Copter Lease was correct. It also affirms the district court’s decision not to take jurisdiction over the claims against Heliqwest. The district court’s judgment is affirmed.

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