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TCL > December 2005 Issue > Tenth Circuit Summaries

December 2005       Vol. 34, No. 12       Page  191
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).

Federal Tort Claims Act—Medical Negligence—Federal Subject-Matter Jurisdiction—Notice—Lack of Informed Consent

Staggs v. United States, No. 04-7138, 10/04/2005, E.D.Okla., Judge McConnell.

Plaintiff filed a medical negligence claim under the Federal Tort Claims Act ("FTCA") against the United States based on treatment she received at an Indian hospital. In her administrative claim, she listed ten deviations from the standard of care, but did not mention lack of informed consent. The district court precluded evidence on this topic at trial because it was not raised in the administrative claim, and entered judgment on the merits against plaintiff. She appealed the issue of lack of informed consent.

The Tenth Circuit Court notes that to invoke federal jurisdiction under the FTCA, a claimant must provide the appropriate federal agency with a written statement sufficiently describing the injury and stating a sum certain damages claim. Here, the court evaluated whether plaintiff’s administrative claim served due notice of her lack-of-informed-consent claim. Concluding that it did not, the Tenth Circuit holds that nothing in the administrative notice suggested that plaintiff consented to medical treatment without being informed of her options and the risks. Therefore, the federal court was without jurisdiction over this claim. The judgment is affirmed.

Downward Departure—Discouraged and Irrelevant Factors—Plain Error

US. v. Serrata, Nos. 03-2011, 03-2012, 03-2019 & 03-2036, 10/06/2005, D.N.M., Judge Henry.

These three cases are the related appeals of three former correctional officers. They were charged with criminal offenses arising from their assault of an inmate.

The Tenth Circuit Court rejects the defendants’ issues regarding alleged trial error. The evidence is sufficient, work boots were properly designated as dangerous weapons, the jury instructions were proper, and cross-examination regarding the victim’s second adult arrest was not reversible error.

As to sentencing, the Circuit reverses the downward departure given to each defendant. The district court relied on discouraged and irrelevant factors. Likewise, each of the three defendants established plain error, because each sentence violates the U.S. v. Booker, 125 S.Ct. 738 (2005), prohibition against increasing a sentence based on facts found by a preponderance of the evidence. The sentences are vacated and the case is remanded for resentencing.

Order Certifying Appeal of Claims—Federal Appellate Jurisdiction—Finality—No Just Reason for Delay—Analysis Required

Stockman’s Water Co., LLC v. Vaca Partners, L.P., No. 04-1088, 10/12/2005, D.Colo., Judge Baldock.

In this diversity action, the district court dismissed some claims. Plaintiff/Intervenor then filed a motion under Fed. R. Civ. P. 54(b) seeking certification of the adjudicated claims, even though not all of the claims had been adjudicated. The district court entered an order adopting the arguments made in the motion and granted 54(b) certification.

The Tenth Circuit holds that Rule 54(b) requires a district court to state in its certification order its reasons, even briefly, supporting a determination that the claims in question are final, and that there is no just reason for delay. In this case, the district court’s order merely incorporated by reference intervenor’s arguments and conclusion. This approach did not comply with the rule. Accordingly, the district court’s certification order did not provide appellate jurisdiction. The appeal is dismissed.

Commerce Clause—Activity Substantially Connected or Related to Interstate Commerce—Challenge to Constitutionality of Statute as Applied

U.S. v. Jeronimo-Bautista, No. 04-4137, 10/12/2005, D.Utah, Judge Seymour.

Defendant was indicted, in part, for coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct using materials that have been transported in interstate and foreign commerce. Defendant moved under Fed. R. Crim. P. 12(b)(3)(B) to dismiss the indictment.

Defendant and other men took a 13-year-old girl into a vacant residence, where she became unconscious. They sexually assaulted her and took photographs of their actions. The victim was not transported across state lines in connection with the acts charged in the indictment. The photos, which were taken to a photo lab, were never disseminated, stored or transmitted electronically, or otherwise crossed state lines.

The district court agreed with defendant that the charged activity was not of a type demonstrated to be substantially connected or related to interstate commerce. The district court dismissed the indictment, concluding that this offense under 18 U.S.C. § 2251(a) exceeded Congress’s authority under the Commerce Clause. The government appeals.

The Tenth Circuit reverses. The issue is whether defendant’s local production of pornographic images of a child substantially affect interstate commerce. The Supreme Court’s decision in Gonzales v. Raich, 125 S.Ct. 2195 (2005), supports the conclusion that defendant’s production of the images in this case is economic in nature. The intrastate production of child pornography could, in the aggregate, have a substantial effect on the interstate market for such materials. Section 2251(a) is within Congress’s commerce power because production of the commodity (such as child pornography) meant for home consumption has a substantial effect on supply and demand in the national market for the commodity. Defendant’s challenge to the statute’s constitutionality as applied to him is rejected. On this appeal by the government, the case is reversed and remanded.

Federal Subject-Matter Jurisdiction—Child Custody—Improperly Removed from State Court—Remand

Hunt v. Lamb, No. 04-3366, 10/14/2005, D.Kan., Judge McConnell.

Plaintiff and defendant were granted a divorce from each other in a Kansas state court. Disputes over the custody of their children ensued, and the state court eventually entered a custody order unacceptable to plaintiff. Plaintiff then removed the case to the federal district court, seeking custody of the children. The federal district court dismissed the case, holding that it was required to abstain from granting relief.

The Tenth Circuit Court determines that a state court action may be removed to federal court only if the case could have been filed originally in federal court. Federal courts do not have jurisdiction over child-custody cases. Therefore, since this case could not have been filed in federal court in the first place, the district court did not have jurisdiction, and was required to remand it to the state court. The district court’s dismissal order is vacated and the case is remanded with directions to remand the case to state court.

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