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TCL > January 2006 Issue > Tenth Circuit Summaries

January 2006       Vol. 35, No. 1       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 accessible from the CBA website, http: // (United States Courts link to the Tenth Circuit).

Sexual Assault on a Child—Crime of Violence—Booker Error—Consent

U.S. v. Austin, No. 04-1387, 10/14/2005, D.Colo., Judge Brorby.

Defendant pled guilty to possession of a firearm by a prohibited person. His sentence was enhanced based on his prior Colorado conviction for attempted sexual assault on a child. He argues that the district court improperly characterized that conviction as a crime of violence, in violation of United States v. Booker, 125 S.Ct. 738 (2005), and the U.S. Sentencing Guidelines. In response to defendant’s objection, the court considered the statutes, the charging documents, and defendant’s admissions at his plea and sentencing hearing. The court rejected defendant’s arguments.

The Tenth Circuit Court of Appeals affirms. Sexual abuse of a statutorily-protected, specific age group of minors, including abuse through sexual contact, is generally, by its nature, a crime of violence. The Circuit cannot consider defendant’s act to be consensual, because Colorado, the state of conviction, has determined that a person under the age of 18 is incapable of such consent. Regarding defendant’s argument under Booker as to his sentence, his sentence length must be remanded for reconsideration because: (1) he objected in the district court; (2) the district court mandatorily applied the U.S. Sentencing Guidelines; and (3) defendant was sentenced at the bottom of the range. Defendant’s sentence is affirmed in part and reversed in part.

Age Discrimination in Employment Act—Cooperate with EEOC—Exhaust Administrative Remedies—Jurisdiction

Shikles v. Sprint/United Mgmt. Co., No. 03-3326, 10/20/2005, D.Kan., Judge Ebel.

Plaintiff sued his former employer under the Age Discrimination in Employment Act ("ADEA"), alleging that it had unlawfully terminated him on the basis of his age. He filed a charge with the Equal Employment Opportunity Commission ("EEOC"), but did not cooperate in any way with that agency’s investigation. As a result, the EEOC dismissed the charge. Plaintiff then filed suit. The district court granted defendant’s motion for summary judgment, holding that the EEOC filing requirement would be reduced to a formality if plaintiff were allowed to proceed with an ADEA suit after failing to cooperate with the EEOC. Plaintiff appealed.

The Tenth Circuit Court holds that (1) the ADEA requires a private sector claimant to cooperate with the EEOC to exhaust his or her administrative remedies; (2) a plaintiff’s exhaustion of administrative remedies is a jurisdictional prerequisite to suit under the ADEA; and (3) a plaintiff’s failure to exhaust his or her administrative remedies requires dismissing the case for lack of jurisdiction, rather than entering summary judgment. The district court’s judgment was vacated with instructions to dismiss the case for lack of jurisdiction.

Bankruptcy—Financial Advisor—Professional Fees—Reasonableness—Lodestar Analysis

Houlihan Lokey Howard & Zukin Capital v. Unsecured Creditors’ Liquidating Trust (In re Commercial Fin. Servs., Inc.), No. 03-5161, 10/25/2005, Bankuptcy Appellate Panel, Judge O’Brien.

The appellant firm ("Houlihan") challenged the bankruptcy court’s award of professional fees for financial services it provided to a group of bankruptcy creditors. Early in the proceedings, the bankruptcy court issued a standing order requiring all professionals to file interim reports containing the hourly rate charged for services rendered. Houlihan proposed to charge a monthly fee, but the bankruptcy court reiterated its order that professionals were required to record their time on an hourly basis. Ultimately, Houlihan requested professional fees of $1,920,967.74, based on a monthly rate. The bankruptcy court reduced the amount to $904,000, based on an adjusted lodestar analysis. The Bankruptcy Appellate Panel affirmed the award, and Houlihan appealed.

The Tenth Circuit Court notes that the applicable statutes required the bankruptcy court to determine a reasonable professional fee based on the amount of time spent on a project. The bankruptcy court did not err by requiring Houlihan to track and report the number of hours it worked, and to base the fee award on that information in evaluating the reasonableness of the requested professional fees. The Tenth Circuit also approves the bankruptcy court’s calculation of a reasonable fee based on rates charged by other financial advisers working in the same proceedings. The bankruptcy court’s fee order is affirmed.

Arbitration Agreement—Nonappealability Clause Enforceable—Patent Royalties—No Appellate Jurisdiction

MACTEC, Inc. v. Gorelick, Nos. 03-1290 & 03-1378, 10/26/2005, D.Colo., Judge Ebel.

The parties disagreed about payment of royalties for a patented invention. Pursuant to their arbitration agreement, they arbitrated the dispute. The arbitrator found in favor of defendant Gorelick and awarded him $4.5 million. Plaintiff MACTEC then filed suit in federal court to vacate the arbitration award. The district court denied relief, and the plaintiff appeals.

The Tenth Circuit Court holds, as matter of first impression, that a nonappealability clause in an arbitration agreement that forecloses judicial review of an arbitration award beyond the district court level is enforceable. Because the instant arbitration agreement contained such a clause, the appellate court did not have jurisdiction over plaintiff’s appeal from the district court’s order denying the application to vacate the arbitration award. The appeal is dismissed.

District Court Testifying as a Witness—Modification of Trial Procedures—Appearance of Bias—Relevant and Exculpatory Evidence—Sufficiency of Evidence—Resentencing Under U.S. v. Booker

U.S. v. Nickl, No. 04-3499, D.Kansas, 11/01/05, Judge Murphy.

Defendant was charged with offenses arising from bank fraud. He raises various issues on appeal. The judge, during defense counsel’s re-cross examination, answered a question posed to a witness and voiced his opinion as to an ultimate factual issue. To find defendant guilty of aiding and abetting, the prosecution was required to prove beyond a reasonable doubt that Paula Steward acted with intent to injure or defraud National Bank of Andover. Her intent was an element of defendant’s crime. During her testimony, the judge interrupted and answered a question meant for her, expressing his opinion as to an ultimate factual issue.

The Tenth Circuit Court reverses in part. F.R.E. 605 prohibits judicial testimony. The judge’s comment constituted impermissible testimony and was in violation of Rule 605. The remarks on the issue of Steward’s intent were not harmless, and there was no specific curative instruction. As a result, defendant’s aiding and abetting conviction is reversed and remanded.

Defendant cannot show that he was prejudiced by the district court’s modifications to the trial procedures. The judge was not obliged to recuse himself, even though he ordered defendant’s partner removed from the courtroom and referred to the partner as defendant’s "wife." The court did not erroneously exclude evidence, or erroneously deny defendant’s motion for a judgment of acquittal.

As to defendant’s claim for resentencing, he argues that his case must be remanded due to prejudicial, non-constitutional error under U.S. v. Booker, 125 S.Ct. 738 (2005). The Circuit agrees that it cannot say the district court’s error was harmless, and remands for resentencing.

The aiding and abetting conviction is reversed and remanded. The case is remanded for resentencing, and the other rulings are affirmed.

Brief Under Anders v. California—Appeal Waiver—Enforcement of Appeal Waiver—Plea Agreement Under Rule 11(c)(1)

U.S. v. Calderon, No. 05-4011, D.Utah, 11/07/2005, Judge McConnell.

Defendant pled guilty to a drug offense. In his plea agreement, he waived his right to appeal his sentence. When defendant appealed, his attorney filed a brief under Anders v. California, 386 U.S. 738 (1967), and moved to withdraw.

The Tenth Circuit dismisses the appeal and grants defense counsel’s motion to withdraw. On appeal, defense counsel filed an Anders brief and moved to withdraw as counsel. Defendant submitted a response, raising arguments to the Circuit.

The government declined to file any response and thus did not mention defendant’s appeal waiver. The "waiver is waived when the government utterly neglects to invoke the waiver in this court." Here, the government has not sought enforcement of defendant’s plea agreement, so the Circuit refuses to enforce the appeal waiver. Defendant’s arguments are rejected. However, because the appeal is wholly frivolous, the appeal is dismissed and counsel’s motion to withdraw is granted.

Violation of Clean Water Act—Discharge of Pollutant—Judgment of Acquittal—Ordinary Negligence—Sentence Enhancements

U.S. v. Ortiz, No. 04-1228, 11/01/2005, D.Colo., Judge Lucero.

After a jury convicted defendant of violating the Clean Water Act ("Act") by negligently discharging a pollutant into a river, the district court entered a partial judgment of acquittal. The court ruled that an individual is not guilty of negligently discharging a pollutant unless he knows that the pollutant’s path terminates in protected water. The court thus granted the judgment of acquittal as to count one.

This is also an appeal from the court’s decision not to apply two sentence enhancements. The government appeals.

The Tenth Circuit Court reverses because the court’s conclusion is at odds with the plain language of the Act, which criminalizes any act of ordinary negligence that leads to the discharge of a pollutant into the navigable waters of the United States.

Defendant was charged with violation of the Act. As to count one, the court held that, regarding negligent discharge, he would not be guilty in the absence of his knowledge that using the toilet would result in the discharge to the river. Defendant argues that he had no reason to suspect that his toilet was connected to the storm drain, so he could not have been negligent in flushing dangerous chemicals down the toilet. The Circuit disagrees and the judgment of acquittal on count one is reversed.

Second, the district court erred in refusing to apply a sentence enhancement for discharge without a permit. The Circuit also reverses the district court’s decision not to apply an enhancement for ongoing, continuous, or repetitive discharge under the U.S. Sentencing Guidelines. The judgment of acquittal is reversed. The sentence is vacated and remanded for resentencing.

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