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TCL > March 2006 Issue > Tenth Circuit Summaries

March 2006       Vol. 35, No. 3       Page  129
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 Katherine 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).

Employment Discrimination—Summary Judgment—Affidavit—Personal Knowledge—Opinion, Pretext, Dominant Reason for Discharge

Bryant v. Farmers Insurance Exchange, No. 03-3234, 12/20/2005, D.Kan., Judge Ebel.

Plaintiff sued her former employer for age and gender discrimination after she was fired. Defendant stated it terminated her employment because her department failed several performance audits. To oppose defendant’s motion for summary judgment, plaintiff filed an affidavit stating that the audit standards were not intended to be mandatory and giving averages culled from her review of 103 audit reports from other departments throughout the country. The district court granted summary judgment in favor of defendant. In doing so, it held that plaintiff’s affidavit was inadmissable because it was not based on her personal knowledge and it contained opinions even though plaintiff had not been qualified as an expert. The district court further held that plaintiff had failed to show that the reason for her discharge—poor performance—was pretextual.

The Tenth Circuit Court determines that plaintiff’s affidavit was admissible on summary judgment because it contained information based on her personal knowledge. Her statements based on the audit reports were admissible because those records would be admissible at trial as statements of a party offered against that party or as business records. Plaintiff’s mathematical calculations were not complex; therefore, she was not required to engage an expert to make them. The figures were more aptly characterized as a lay opinion.

The Tenth Circuit concludes that plaintiff had proffered sufficient evidence of pretext to create a factual dispute concerning the stated reason she was fired. In addition to the evidence in her affidavit, plaintiff produced evidence that her subordinate, who replaced her after she was fired, had manipulated the files to produce negative audit reports.

In response to defendant’s showing that it gave further reasons for discharging plaintiff, the Tenth Circuit holds that the audit results were the dominant reason for discharging plaintiff. Her showing that this reason was pretextual was sufficient to withstand summary judgment. The district court’s judgment is reversed.

Employment Discrimination—Prima Facie Case—Discovery—Post-Judgment Motion—Award of Costs

Sorbo v. United Parcel Service, Nos. 03-1455, 04-1251 & 05-1016, 12/28/2005, D.Colo., Judge Anderson.

Plaintiff sued his former employer under various theories of employment discrimination. The district court granted summary judgment to defendant, denied plaintiff’s post-judgment motion filed under Fed. R. Civ. P. 60(b), and awarded more than $52,000 in costs against plaintiff. The plaintiff appealed.

In affirming the summary judgment, the Tenth Circuit Court emphasizes that a prima facie case of discrimination does not require a showing that comparable employees who were not in a protected class did not receive comparable adverse employment action. Rather, the required showing generally is circumstances giving rise to an inference of discrimination. The Tenth Circuit rejects plaintiff’s complaints about discovery, and affirms the district court’s order denying his post-judgment motion, which was filed too late. The Circuit holds, however, that the district court’s award of costs against plaintiff included unauthorized expenses. Absent some other statutory authorization, costs available to a prevailing party under Fed. R. Civ. P. 54(d)(1) are limited to those specified in 28 U.S.C. § 1920. Therefore, the cost award should not have included such expenses as expert witness fees and expenses, travel and other incidental expenses, and computer assisted legal research. The district court’s judgment is affirmed, but the cost award is reversed. The case is remanded.

Speedy Trial—Length of Delay—Reason for Delay—Prejudice—Assertion of Right to Speedy Trial

U.S. v. Batie, No. 04-4299, 01/04/2006, D.Utah, Judge McConnell.

Defendant was charged with armed bank robbery and brandishing a firearm. After three mistrials, the district court granted defendant’s motion to dismiss the indictment with prejudice for violations of his constitutional rights to a speedy trial and due process. The government appeals.

The Tenth Circuit Court reverses. The Sixth Amendment to the U.S. Constitution guarantees the right of criminal defendants to a speedy and public trial. In determining whether a delay violates a defendant’s right to a speedy trial, the Court must balance the length of the delay and the reason for it, defendant’s assertion of his right, and any prejudice to the defendant. Regarding the length of the delay, defendant was indicted more than seventeen months before the district court dismissed the indictment, which is a delay that is presumptively prejudicial. Less delay is tolerated for ordinary street crimes, while more delay is tolerated for complex conspiracy charges. Here, the length of delay weighs in defendant’s favor, because the government should not have needed more than seventeen months to prepare a case for armed bank robbery and brandishing a firearm.

The reason for a delay weighs against the government in proportion to the degree to which the government caused the delay. Here, the delays attributable to the government must be considered, even though they do not weigh heavily against it. Whether defendant has actively asserted his right to a speedy trial weighs against defendant. Defendant has not shown prejudice. Taken together, these factors do not require dismissal.

There was sufficient evidence to support the charges against defendant, and he will not be prejudiced by a fourth trial. The district court’s decision is reversed and the case is remanded for a new trial.

United States Sentencing Guidelines—Application Notes—Different Interpretations

U.S. v. Smith, No. 04-5085, N.D.Okla., 01/04/2006, Judge McConnell.

Defendant pled guilty to possession of a firearm and ammunition after a former conviction of a felony. The Presentence Investigation Report calculated defendant’s base offense level under U.S.S.G. § 2K2.1(a)(2), which provided for a base offense level of twenty-four, due to two prior felony convictions of a crime of violence or a drug offense. Defendant objected to the classification of his prior conviction under an Oklahoma statute for receiving or acquiring proceeds derived from illegal drug activity. The district court overruled defendant’s objection and, after a three-level reduction for acceptance of responsibility, found his offense level to be twenty-one. Defendant appeals his sentence.

The Tenth Circuit Court affirms the sentence. This case presents the question of how to interpret the Sentencing Guidelines when the application notes suggest a broader interpretation than the plain language. The application note to § 4B1.2 explains that the definition of "controlled substance offense," as found in the Sentencing Guidelines, also encompasses crimes for aiding and abetting, conspiring, and attempting to commit a controlled substance offense. If the guideline is given a strict and narrow interpretation, violations of this Oklahoma statute do not fall within it. Defendant’s conviction must be assessed in light of an interpretation of the phrase"informed by" in the application notes.

The Circuit must look to the charging documents, the judgment, the plea agreement, plea colloquy, and other findings of fact. After looking at these items, the Circuit concludes that defendant committed a controlled substance offense under this guideline. The sentence is affirmed.

Eighth Amendment Prohibition Against Cruel and Unusual Punishment—Equal Protection—Search Warrant—Suppression of Evidence

U.S. v. Angelos, No. 04-4282, D.Utah, 01/09/2006, Judge Briscoe.

Defendant was convicted of multiple drug-related offenses and sentenced to a prison term of fifty-five years. He presented arguments that the mandatory minimum sentences under 18 U.S.C. § 924(c) violated the prohibition against cruel and unusual punishment and equal protection. The district court rejected those arguments.

The Tenth Circuit Court affirms. As to defendant’s convictions, the Circuit holds that the warrant, on its face, contained no defects, and there was no ambiguity in its terms. The officers did not act reasonably, because they reasonably should have noticed the warrant’s limited scope and could have contacted the issuing judge to try to receive authorization to expand the scope of the search to include the entire premises. The Circuit holds that only the seized evidence that exceeded the scope of the search warrant and that was not covered by the plain smell/view exception should have been suppressed. The circumstances, considered together, justified the seizure of the duffle bags.

The admission of evidence that was improperly seized during the search of a house was harmless beyond a reasonable doubt. The district court did not err in refusing to admit contemporaneous law enforcement reports of the first two controlled purchases.

Regarding defendant’s challenge to his sentence, he is joined by a group of former federal judges, U.S. Attorneys General, and Department of Justice officials in arguing that the district court erred in concluding that the fifty-five-year sentence mandated by § 924(c) did not violate the Eighth Amendment. The Circuit rejects the argument, holding that this is not an extraordinary case in which the sentences are grossly disproportionate to the crimes for which they were imposed. Defendant’s firearm possession facilitated his possession and distribution of illegal drugs. Because defendant had three convictions under § 924(c), the statute required the fifty-five-year sentence. The convictions and sentence are affirmed.

Fair Debt Collection Practices Act—Standing—Injury in Fact—Attempt to Collect—Failure to Present Issues—Waiver

Robey v. Shapiro, Marianos & Cejda, L.L.C., No. 04-5163, 01/18/2006, N.D.Okla., Judge Seymour.

Defendants in this case filed a state foreclosure action against plaintiff, seeking attorney fees, in addition to foreclosure. While that case was pending, plaintiff filed the underlying federal case alleging that the attempt to collect attorney fees violated the Fair Debt Collection Practices Act ("FDCPA") and state laws. Ultimately, the foreclosure action was dismissed, and plaintiff did not pay any attorney fees. The federal district court dismissed plaintiff’s complaint.

On appeal, defendants argue that plaintiff lacked standing because he did not pay any of the attorney fees sought in the foreclosure action. The Tenth Circuit Court discusses federal-court standing, distinguishing between constitutional and statutory standing. It noted that the FDCPA prohibits a creditor from attempting to collect a debt by unfair or unconscionable means. Accordingly, plaintiff asserted the requisite injury in fact for constitutional standing by claiming that defendants had attempted to collect unauthorized attorney fees in violation of the FDCPA.

On the merits, the Tenth Circuit affirms the district court’s decision to dismiss the FDCPA claims for failure to state a claim upon which relief may be granted. Plaintiff’s other claims were deemed waived for failure to raise them in the appeal or in the district court. The district court’s judgment is affirmed.

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