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TCL > November 2005 Issue > Tenth Circuit Summaries

November 2005       Vol. 34, No. 11       Page  141
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.

Right of Association—Retaliation—Absolute Immunity—Indian Tribal Gas Distributor

Perez v. Ellington, No. 04-2181, 08/22/2005, D.N.M., Judge McKay.

Plaintiffs are a faction of the Nambe Pueblo Indian Tribe entitled to take advantage of the gas tax deduction for Indian tribal distributors. They entered into a contract with the gas distribution organization Gasplus to manage gasoline distribution. Defendants are officials of the state tax and revenue department, who have power to regulate gasoline distribution.

Upon the urging of a political opponent of plaintiffs to investigate the Gasplus contract, defendants issued a jeopardy tax assessment and a lien against plaintiffs’ property. Later, defendants determined that the Gasplus contract was not illegal, but they did not remove the lien on plaintiffs’ property for more than a year. Plaintiffs sued, asserting that defendants violated their civil rights. The district court granted summary judgment to defendants on all claims except plaintiffs’ claims based on their right of association. The district court declined to grant absolute immunity to defendants.

The Tenth Circuit Court determines that plaintiffs’ right-of-association claim was based on their assertion that they were unconstitutionally discouraged from associating with non-tribal members because of defendants’ retaliatory action. The court holds that defendants’ conduct was sufficiently egregious to put an official on notice that his conduct would deter an ordinary person from continuing his association. Defendants should have known that their quick decision to issue a jeopardy tax assessment could discourage a reasonable person from associating with an outside distributor who happened to be at odds with defendants. In addition, defendants’ extreme delay in lifting the lien on plaintiffs’ property evidences a retaliatory motive. Accordingly, the district court properly declined to grant summary judgment to defendants on this claim.

Turning to defendants’ claim that they should be granted absolute immunity, the Tenth Circuit notes that defendants were asking to be treated like prosecutors, who are absolutely immune from suit while fulfilling their duties as officers of the court. Defendants acted merely in an investigatory capacity and are not entitled to absolute immunity. The district court’s judgment is affirmed.

Confrontation Clause of the Sixth Amendment—Harmless Beyond a Reasonable Doubt—Fed. R. Evid. 404(b) & 608(b)

U.S. v. Montelongo & McCalvin, Nos. 04-2215 & 04-2241, 08/24/2005, D.N.M., Chief Judge Tacha.

Defendants Montelongo and McCalvin were driving a truck when they were stopped at a border patrol checkpoint. McCalvin consented to a canine search. Officers found marijuana and arrested the defendants. In a separate incident a few months before defendants’ arrest, truck drivers Brown and Hernandez were similarly charged in a case with several facts in common. That truck was owned by Gomez, as was this one.

In this case, defendants moved in limine to exclude evidence of the earlier case involving Brown and Hernandez, and the court granted the motion. Both defendants contended that Gomez was the mastermind behind a marijuana trafficking scheme and that they had no knowledge of it. Defendants also sought to cross-examine Gomez about the facts of the other case in order to bolster their argument that Gomez was operating a drug ring of which they were unaware. The district court ruled that Fed. R. Evid. 404(b) and 608(b) precluded defendants from cross-examining Gomez about the prior case. Montelongo was convicted on one charge; McCalvin was convicted of both charges. They appeal.

The Tenth Circuit reverses. Defendants argue that the court’s refusal to let them cross-examine Gomez was a violation of their rights under the Confrontation Clause of the Sixth Amendment. The evidence that defendants sought to elicit on cross-examination was relevant to their defense that they had no knowledge of the marijuana in the truck. The relevance of the proffered evidence is not substantially outweighed by the risk of confusing the jury or the potential for waste of time. The district court erroneously applied Fed. R. Evid. 608(b) and erred in preventing defendants from cross-examining Gomez based on Fed. R. Evid. 404(b). This error violates the protections afforded by the Sixth Amendment. Finally, the government has not met its burden to demonstrate that the error was harmless beyond a reasonable doubt. The Circuit reverses the convictions and remands the case to the district court.

Felony Driving Under the Influence—Crime of Violence—U.S.S.G. § 4B1.2—Ambiguity of Nevada DUI Statute

U. S. v. Moore, No. 04-8091, 08/30/2005, D.Wyo., Judge Ebel.

Defendant pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence report ("PSR") noted that defendant had a prior Nevada felony conviction for driving under the influence ("DUI"). Defendant’s conviction was a felony because it was his third or subsequent offense within seven years. The PSR deemed this prior conviction to be a crime of violence under U.S.S.G. § 4B1.2, resulting in an enhancement in Moore’s base offense level under U.S.S.G. § 2K2.1(a)(4)(A). Moore objected, arguing that a DUI is not a crime of violence under § 4B1.2. The issue on appeal is whether a Nevada felony DUI is a crime of violence under that section.

The Tenth Circuit orders a remand. Felony DUI is a crime of violence under U.S.S.G. § 4B1.2. This is due to the plain language of the stentencing guideline, which includes offenses involving conduct that presents a serious potential risk of physical injury to another. However, the Nevada statute encompasses such nonviolent conduct as sleeping inside a locked car and other similar non-driving conduct. Sleeping in a car does not present the same substantial risk of injury as DUI. Thus, the statute is ambiguous, because it covers both violent and nonviolent conduct. The record contains none of the documents permitted for review. The case is remanded to the district court to determine, based on a proper record, (1) whether defendant was actually convicted of DUI, and (2) whether a crime of violence enhancement is warranted.

Firearms Offense—Conviction Under California Statute Prohibiting Possession of a Weapon

U.S. v. Martinez-Hernandez, No. 04-2101, 09/02/2005, D.N.M., Judge McConnell.

Defendant pled guilty to illegally entering the United States after deportation. He had been convicted of violating California’s statute prohibiting possession of any of a lengthy list of weapons. The only issue below, and on appeal, is whether defendant’s prior conviction was a "firearms offense" meriting a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The district court relied on the police report, which indicated that defendant was convicted for possessing a short-barreled shotgun, and imposed the sixteen-level enhancement.

The Tenth Circuit remands the case to the district court with instructions to vacate defendant’s sentence and to resentence him. There are two approaches. First, when the language of the enhancement confines the court’s inquiry to the terms of the statute, courts use a "categorical approach," looking only to the terms of the underlying statute. This approach, however, allows the court to look beyond the statute of convictions under certain circumstances. When the underlying statute reaches a broad range of conduct, some of which merits an enhancement and some of which does not, courts resolve the resulting ambiguity by consulting reliable judicial records, such as the charging document, plea agreement, or plea colloquy. The second approach requires courts to look at the specific facts underlying the prior offense, considered the "factual approach," which permits the court to look at the terms of the statute, but also at the underlying facts. Here, the Circuit is limited to the categorical approach.

The Circuit concludes that defendant’s prior conviction was not a firearms offense as defined under U.S.S.G. § 2L1.2(b)(1)(A)(ii). It cannot be determined, based solely on the terms of the very broad California statute, whether defendant’s prior conviction was a firearms offense. Official judicial records do not shed light on the type of weapon defendant possessed. The case is remanded with instructions to vacate defendant’s sentence and resentence him in keeping with the opinion.

Notice of Appeal—Timeliness—Entry on Docket—Interlocutory Order—Bankruptcy

Faragalla v. Access Receivable Mgmt. (In re Faragalla), No. 04-1464, 09/12/2005, D.Colo., Judge Hartz.

The bankruptcy debtors filed a notice of appeal to the district court from the bankruptcy court’s order denying their motion for default judgment and granting a motion to strike one of their pleadings. The order was signed on September 10, 2004, and entered on the docket on September 13. The district court ruled that their notice of appeal dated September 21 was untimely because it was filed more than ten days after the September 10 order. The district court dismissed the appeal and the debtors appealed that dismissal to the Tenth Circuit.

The Circuit holds that the ten-day period for filing a notice of appeal from an adverse ruling of a bankruptcy court begins to run on the date the order is entered on the docket, rather than on the date it is signed. Here, because the order was entered on September 13, the notice of appeal filed September 21 was timely.

The creditors also challenged the appeal on the ground that the order appealed from was interlocutory and debtors had not obtained the required permission to file an interlocutory appeal. Because the district court erroneously dismissed the appeal as untimely, it did not determine whether leave should be granted for an interlocutory appeal. Accordingly, on remand, the district court should address this question. The district court’s dismissal is reversed and the case is remanded.

ADEA—Older Workers Benefit Protection Act—Burden of Proof—Release of Claims Ineffective

Kruchowski v. Weyerhaeuser Co., No. 04-7118, 09/13/2005, E.D.Okla., Judge Briscoe.

Plaintiffs are former employees of defendant who lost their jobs as part of a reduction in force ("RIF"). In exchange for a severance package, each plaintiff signed a release waiving the right to assert a claim under the Age Discrimination in Employment Act ("ADEA"). Plaintiffs filed suit, claiming that the releases were unenforceable because they did not receive the information required by the Older Workers Benefit Protection Act ("OWBPA"). The district court granted summary judgment to defendant, finding that the releases complied with OWBPA.

On appeal, the Tenth Circuit determines that the district court had properly placed the burden on defendant, as the party asserting the validity of the waiver, to show that the execution of the waiver was knowing and voluntary. The court next evaluated the releases under OWBPA, noting that the act’s purpose is to protect the rights and benefits of older workers. To execute a valid waiver under OWBPA, an individual must receive the information required by statute. Included in that information are the "decisional unit" affected by the RIF, which refers to the group of persons considered for termination, and the eligibility factors, which are the factors used to determine who is subject to a RIF. Because neither of these types of information was included in the notices given to plaintiffs, the Circuit holds that the waivers were invalid as a matter of law. Accordingly, the releases did not prevent plaintiffs from pursuing claims under the ADEA. The district court’s judgment is reversed and the case is remanded.

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