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TCL > August 2005 Issue > Tenth Circuit Summaries

August 2005       Vol. 34, No. 8       Page  177
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 accessible from the CBA website, http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.

Plain Error—Motion to Withdraw Guilty Plea—Sentencing Under U.S. v. Booker, 125 S.Ct. 738 (2005)

U. S. v. Yazzie
, No. 04-2152, 5/20/2005, D.N.M., Judge Tacha.
Defendant pled guilty to sexually assaulting a juvenile. Before he was charged, he confessed to the FBI. He later recanted and moved to withdraw his plea. At sentencing, defendant unsuccessfully objected to a two-level enhancement for having custody, care, or supervisory control over the victim.
The Tenth Circuit Court of Appeals affirms. The Circuit holds that the district court properly denied defendant’s motion to withdraw his guilty plea, made prior to sentencing. There was no abuse of discretion.
Regarding the argument that error occurred under U.S. v. Booker, 125 S.Ct. 738 (2005), there was no objection in the district court, so review is for plain error. There was no constitutional error here, because if the enhancement had been omitted, defendant’s offense level would have been reduced to 108–135 months. He, in fact, received a 135-month sentence, which the court could impose without the enhancement.
Regarding non-constitutional Booker error, the Circuit holds that 18 U.S.C. § 3553(b)(2), which is the governing statute, should be excised in order to remedy the underlying Sixth Amendment violations of the U.S. Sentencing Guidelines. The Supreme Court’s failure to excise this portion of the statute was an oversight. Treating the Guidelines as mandatory when sentencing a defendant under § 3553(b)(2) is error.
However, defendant does not satisfy the fourth prong of plain error review. There is no support in the record for defendant’s argument that the fourth prong is satisfied. Defendant has not met his burden to demonstrate that allowing his sentence to stand is either particularly egregious or otherwise constitutes a miscarriage of justice such that the fairness, integrity, or public reputation of judicial proceedings would be undermined. The judgment is affirmed.

Failure to Respond to Request for Admissions—Deemed Admitted—Amendment Permitted—Resolve Action on Merits—No Showing of Prejudice

Raiser v. Utah County
, No. 04-4019, 6/1/2005, D.Utah, Judge Hartz.
Plaintiff sued defendant for alleged civil rights violations. Defendant served plaintiff with a request for admissions, which he did not answer within the required thirty days. Therefore, the matters in the request were deemed admitted. Plaintiff moved to amend the admissions and to file a late response. The district court denied plaintiff’s request, and entered summary judgment in defendant’s favor based on the admitted matters. Plaintiff appealed.
The Tenth Circuit Court holds that the district court abused its discretion in denying plaintiff permission to file a late response to the request for admissions. Fed.R.Civ.P. 36(b) provides that amendment of the admissions should be granted if doing so would promote presentation of the case on the merits, unless the opposing party shows that it would be prejudiced by allowing amendment. Here, permitting plaintiff to amend the admissions would further the case on the merits. Defendant failed to show prejudice, which requires more than being required to prove its case. The district court’s judgment is reversed and the case is remanded.

Determination of Drug Quantity—Sentence in Violation of U.S. v. Booker, 125 S.Ct. 738 (2005)—Plain Error Test

U. S. v. Dalton
, No. 04-7043, 6/1/2005, E.D.Okla., Judge Anderson.
Defendant pled guilty to conspiracy to distribute methamphetamine. He appeals his 150-month sentence, arguing that the district court erred at sentencing in estimating the drug quantity used, and that his sentence is in violation of Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738 (2005), because it was based on a judicial finding of drug quantity.
The Tenth Circuit Court affirms. The court determined that defendant was responsible for manufacturing at least 350 grams of methamphetamine. The Circuit holds that the district court’s drug quantity estimation was not clearly erroneous. As to the alleged Booker error, defendant argues that his sentence should be reversed and the case remanded.
Defendant argues that without the district court’s drug quantity finding based on the testimony of an unreliable witness, he would have been responsible only for the 50 grams charged in the indictment. Reviewing for plain error under the four-prong test, the Circuit concludes that defendant has not shown that it should exercise its discretion under the fourth prong. If the case were remanded, the district court would not likely impose a lighter sentence. The sentence is supported by sufficient evidence. The factors in 18 U.S.C. § 3553(a) do not support a lesser sentence. The sentence is affirmed.

Voluntary Manslaughter—Involuntary Manslaughter—Jury Instruction Lacking Requisite Mental State Element

U. S. v. Serawop
, No. 04-4082, 6/6/2005, D.Utah, Judge Ebel.
Defendant was charged with second-degree murder. At trial, the court instructed the jury on this offense, as well as on the lesser-included offenses of voluntary and involuntary manslaughter. The jury convicted defendant of voluntary manslaughter. Defendant argues that the jury instructions failed to charge the jury with the proper mental state required for voluntary manslaughter and therefore prevented the jury from considering whether he should, instead, have been convicted of the less serious offense of involuntary manslaughter.
The Tenth Circuit Court reverses, holding that the instruction on voluntary manslaughter failed to articulate any mental state element for voluntary manslaughter other than “in the heat of passion.” Thus, the jury erroneously could have convicted defendant of voluntary manslaughter even if it believed he had a less culpable mental state than murderous intent or recklessness. In other words, with the erroneous instruction, the jury could have convicted defendant for heat of passion, which can include mere negligent or grossly negligent acts. Instead, juries should be specifically instructed that voluntary manslaughter requires either an intentional or reckless killing. Because defendant was not given such an instruction, his voluntary manslaughter conviction is reversed and the case is remanded for further proceedings.

ERISA—Arbitrary and Capricious Action—Imposition of Additional Condition—Equitable Relief—Attorney Fees

Gorman v. Carpenters’ & Millwrights’ Health Benefit Trust Fund
, No. 03-1526, 6/8/2005, D.Colo., Judge Stewart.
Plaintiff was a beneficiary under defendant’s ERISA plan (“Plan”). He was injured in a motorcycle accident and sought to have his medical expenses paid by the Plan. As a condition of paying plaintiff’s medical expenses, the Plan required him to sign an agreement to bring a third-party action at his own expense. This requirement was not included in the Plan, although it was added after plaintiff’s rights vested. The district court held that in imposing this requirement, the Plan acted arbitrarily and capriciously. The court entered summary judgment, plus attorney fees, in favor of plaintiff. The Plan appealed.
The Tenth Circuit Court holds that the amendments to the Plan made after plaintiff’s claim did not make the later Plan applicable to him because his benefits vested when performance was due. The Plan attempted to materially broaden its rights by conditioning benefits on plaintiff’s agreement to file a third-party suit at his own expense. This added an entirely new requirement and was arbitrary and capricious. The district court’s award of equitable relief was authorized by the ERISA statute; it restored the parties to the positions they would have occupied had the Plan not acted arbitrarily and capriciously. Finally, the Tenth Circuit holds that because the Plan did not challenge in the district court the award of attorney fees to plaintiff, it could not raise this issue on appeal. The district court’s judgment is affirmed.

Inconsistent Verdict—Special or General Verdict with Answers to Interrogatories—Waiver

Johnson v. ABLT Trucking Co.
, No. 03-3052, 6/152005, D.Kan., Judge McConnell.
Plaintiff was injured in an automobile accident involving defendant’s employee. He sued, alleging negligence. The case was submitted to a jury. The jury was given a verdict form asking whether either party was at fault and, if so, the percentage of fault attributable to each party, as well as the amount of damages plaintiff sustained for past and future economic and non-economic loss. The jury found that defendant’s employee was 90 percent at fault. It also wrote on the form the amounts it found plaintiff was due for his past and future economic loss. The jury did not award plaintiff any amount for non-economic loss.
Neither party raised a contemporaneous objection to the verdict. Later, defendant moved for a new trial on the ground that the verdict was internally inconsistent. It claimed that the jury’s failure to award plaintiff damages for future pain and suffering was inconsistent with its award of substantial damages for future economic loss. The district court denied the post-trial motion. Defendant appealed.
The Tenth Circuit first determines that the verdict was a “special verdict,” rather than a “general verdict” with answers to interrogatories. A special verdict requires the jury to decide specific facts, to which the court applies the law and enters judgment. In contrast, a general verdict permits the jury to decide who wins. The determination that this verdict was a special verdict also decided the issue of whether the defendant had waived its right to seek a new trial by failing to object. No objection to a special verdict is required, but a failure to object to a general verdict will waive the issue.
The Tenth Circuit holds that the verdict was not irreconcilably inconsistent because, under Kansas law, if a plaintiff’s injuries cause pain that prevents him from working, the appropriate damage award is an award for loss of earning capacity, or future economic loss. The judgment is affirmed.

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