Vol. 35, No. 9
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: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit).
Attorney Fees—Prevailing Party—Private Settlement—Consent Decree—Success on Merits
Bell v. Bd. of County Comm’rs, No. 05-3224, 6/20/2006, D.Kan., Judge Lucero.
Plaintiff sued his former employer, claiming it had violated his civil rights by terminating his employment. A jury returned a verdict in his favor on one of his three claims, but awarded only nominal damages. Plaintiff filed a motion for attorney fees under 42 U.S.C. § 1988. The district court awarded reduced attorney fees, reflecting the limited success of the plaintiff’s claims. Plaintiff appealed both the judgment and the attorney fee award. While the case was on appeal, plaintiff secured a money settlement from the defendant, in return for which he agreed to dismiss his merits appeal. The district court denied plaintiff’s subsequent motion to reconsider the attorney fee award in light of his success in obtaining a settlement. Plaintiff appealed that order, as well as the original attorney fee order.
The Tenth Circuit Court first noted that an attorney fee award should be reassessed when the prevailing party’s overall success has been altered on appeal. A private settlement, however, does not justify an award of attorney fees, because it does not involve judicial approval and continuing judicial oversight, as is the case with a consent decree. Therefore, if a court does not incorporate a private settlement into an order and retain jurisdiction to enforce it, the settlement does not bear any of the marks of a consent decree and does not confer prevailing-party status. Accordingly, the Circuit affirmed the order denying reconsideration of the initial attorney fee award.
The Circuit also affirmed the initial award of a reduced attorney fee, concluding that the district court had considered the proper factors, properly emphasizing the degree of success achieved. The judgment was affirmed.
Criminal Defendant’s Right to Represent Himself—Timely Motion Made Before Voir Dire—Automatic Reversal
U.S. v. Tucker, No. 05-3259, 06/28/2006, D.Kan., Judge McConnell.
A jury convicted defendant of being a felon in possession of ammunition and acquitted him of being a felon in possession of a firearm. After numerous delays and a change in attorneys, but before voir dire began, defendant advised the court that he wished to represent himself. The district court denied that request. After voir dire and before opening statements, the judge changed his mind and ruled that defendant could represent himself. The judge found that defendant had clearly and unequivocally asserted his intention to represent himself, and that his waiver of the right to counsel was knowingly and intelligently made. The court did not find the motion to be untimely.
On appeal, defendant argues that the district court erred by not allowing him to represent himself during voir dire. The Tenth Circuit reverses defendant’s conviction on the ammunition count and remands the case for a new trial.
A criminal defendant’s right to waive counsel and represent himself includes the right to participate in voir dire. If a defendant properly invokes the right to self-representation, the denial of this element is a denial of the right to self-representation. Deprivation of the right to self-representation requires automatic reversal. Because defendant properly invoked his right to self-representation prior to voir dire, the district court’s summary denial of his request to proceed pro se before voir dire violated his Sixth Amendment right to represent himself. He met the four requirements: (1) he clearly and unequivocally informed the court of his intention to represent himself; (2) his request was timely and not for the purpose of delay; (3) the court conducted a comprehensive formal inquiry to ensure that defendant’s waiver was knowingly and intelligently made; and (4) defendant was able and willing to abide by the rules of procedure and courtroom protocol. The conviction was reversed and the case was remanded for a new trial.
Americans with Disabilities Act—Compulsory Counterclaim—Claim Preclusion—Right-to-Sue Letter—Matured Claim
Stone v. Dep’t of Aviation, No. 04-1019, 07/06/2006, D.Colo., Judge Ebel.
Plaintiff Stone was employed by the City and County of Denver’s ("City") Department of Aviation as a heavy equipment service technician. Due to medical problems, he was unable to maintain his commercial driver’s license. Rather than transfer him to another position, the City terminated his employment. Stone appealed his dismissal to the Career Service Authority, which ruled in his favor. The City appealed that decision to a Colorado district court.
After he was served in the state court action, Stone filed a charge with the Equal Employment Opportunity Commission ("EEOC"), claiming that the City had violated the Americans with Disabilities Act ("ADA"). A month later, he filed his answer in the state court proceeding. Four months after that, he received a right-to-sue letter from the EEOC, and then filed suit in federal court on his ADA claim. The federal district court ruled that Stone was required to pursue his ADA claim as a compulsory counterclaim in the state court action, and dismissed the federal case. Stone appealed.
Applying Colorado law, the Tenth Circuit Court held that Stone’s ADA claim was not a compulsory counterclaim because it had not matured by the time he filed his answer in the state court proceeding. He could not have pursued litigation in any court before he received a right-to-sue letter. The Tenth Circuit noted that a plaintiff must join all claims against a defendant, even those that arise during the course of the litigation. A defendant, on the other hand, must join only a compulsory counterclaim. Accordingly, Stone was not precluded from bringing his ADA claim in federal court. The district court’s judgment was reversed and the case was remanded.
Jury Verdict—In Limine Ruling Reevaluated in Trial Context—Evidentiary Error Not Prejudicial—Time Limit on Jury’s Deliberations—Comparative Negligence
Weaver v. Blake, Nos. 03-1398 & 03-1436, 07/11/2006, D.Colo., Judge Armijo.
This litigation arose from an two-car accident that occurred on a rural dirt road. A jury found that both drivers were equally at fault and awarded no damages. Prior to trial, the district court ruled in limine that the investigating police officer was prohibited from stating his opinion on the cause of the accident. At trial, the officer testified that tracks from plaintiff’s car had crossed over the center of the roadway. Plaintiff claimed that this statement violated the pre-trial ruling prohibiting opinion testimony. He also asserted that the district court erred in refusing to instruct the jury that the 13-year- old defendant was negligent per se because he did not have a driver’s license, and by placing a time limit on the jury’s deliberations. Plaintiff further objected to the verdict form that permitted the jury to find that he was entitled to no damages before it determined the comparative fault of the parties.
On appeal, the Tenth Circuit Court stated that even though the officer’s testimony had been analyzed rigorously before trial, his testimony was heavily dependent on the trial context. Therefore, counsel correctly renewed his objections during the testimony, rather than relying on the pre-trial ruling to preserve error. Nevertheless, any deviation from the pre-trial ruling was harmless, because allowing the police officer’s testimony did not affect plaintiff’s substantial rights.
The Tenth Circuit next rejected plaintiff’s claim that defendant’s lack of a driver’s licence was negligence per se, because possession of a valid driver’s license is irrelevant to whether the driver was driving negligently. The court also rejected plaintiff’s claim that the verdict was coerced because the district court placed a time limit on the jury’s deliberations. The district court informed the jurors that they would not be allowed to deliberate into Friday evening, but it kept open options for resuming deliberations the following week. Finally, the Tenth Circuit determined that the jury’s failure to first determine the amount of plaintiff’s damages before deciding that both drivers were equally at fault, while incorrect, was harmless, because their apportionment of fault was dispositive. Where a plaintiff’s negligence is equal to or greater than that of the defendant’s, Colorado’s comparative negligence law dictates a judgment for the defendant. The district court’s judgment was affirmed.
Classification of Colorado State Third-Degree Assault Misdemeanor Convictions as Crimes of Violence Under the United States Sentencing Guidelines—Waiver of Right to Counsel—Error Under U.S. v. Booker
U.S. v. Krejcarek, No. 04-1531, 07/11/2006, D.Colo., Judge Holloway.
Defendant challenges the classification of his two prior Colorado state third-degree assault misdemeanor convictions as "crimes of violence" under the United States Sentencing Guidelines ("Guidelines"). The classification resulted in defendant’s having a higher base offense level at sentencing. Defendant pled guilty to possession of a firearm by a restrained and prohibited person, pursuant to a plea agreement. The trial court increased defendant’s offense level by six points, based on its classification of his two prior third-degree assault misdemeanor convictions under Colorado law as "crimes of violence" under the Guidelines. The defendant argues that the crimes involved in the prior state convictions were not crimes of violence as defined by U.S.S.G. § 4B1.2(a); that the third-degree assault misdemeanor convictions should not have been used to enhance his base offense level because they were entered pursuant to a streamlined program known as the "FAST TRACK" program, and he did not have counsel; and that the district court committed error under United States v. Booker, 125 S.Ct. 738 (2005), by using these prior convictions to enhance his sentence.
The Tenth Circuit Court affirmed. First, based on the Colorado statute and the Colorado court’s definition of third-degree assault, such an assault presents risk of physical injury. Because the conduct necessary to sustain the defendant’s state court convictions presents a serious potential risk of physical injury to another, these third-degree assault misdemeanor convictions involve crimes of violence for purposes of U.S.S.G. § 4B1.2(a)(2).
Second, regarding his asserted denial of right to counsel, the record shows that defendant had a clear and correct understanding of the Sixth Amendment right to counsel that he was waiving in both cases. The record also supports the district court’s findings to that effect by determining that defendant’s rights under the Sixth Amendment were not violated.
Third, defendant argues that the district court erroneously sentenced him under a mandatory sentencing regime. The Circuit holds that once the sentencing court decided to grant a discretionary departure from the Guidelines, there was nothing of a mandatory nature in the Guidelines that determined the extent of that departure. The judgment was affirmed.
Fourth Amendment Violation—Drug-Sniffing Dog—Trooper’s Order to Roll Up Car Windows and Open Vents
U.S. v. Ladeaux, No. 05-8097, 07/12/06, D.Wyo., Judge Ebel.
Defendant argues that two requests made of him by a highway patrolman during a traffic stop violated his Fourth Amendment rights, so that the contraband discovered during the stop must be suppressed. The trooper pulled over a vehicle for following too closely and failing to signal. The trooper also cited defendant, who was a back-seat passenger, for not wearing a seatbelt. The driver seemed very nervous, but the trooper did not have a reasonable suspicion that drugs were in the vehicle; he merely had a "hunch." The trooper called for a second trooper to respond with a drug-sniffing dog. The second trooper ordered the parties to step out of the vehicle, and to roll up the windows and open the vents. The dog alerted to the trunk, where marijuana and cocaine were found. Defendant unsuccessfully moved to suppress the evidence obtained during the traffic stop. He entered a conditional guilty plea, preserving his right to appeal that ruling.
The Tenth Circuit Court affirmed in part and reversed in part the district court’s denial of defendant’s motion to suppress. The case was remanded to the district court for consideration of whether the evidence obtained during the stop should be suppressed based on the trooper’s request to close the car windows and open the vents. As to the request to exit the vehicle, the Circuit held that because defendant had not challenged the stop itself, this argument failed. As to the order to roll up the windows and open the vents, the district court relied on Maryland v. Wilson, 519 U.S. 408 (1997), for the proposition that this request by the trooper was proper. However, Wilson deals only with ordering occupants out of the vehicle.
The case therefore was remanded for the district court to consider in the first instance whether the evidence obtained during the stop should be suppressed based on the trooper’s request to close the windows and open the vents. On remand, the district court must follow the burden-shifting scheme set out in United States v. Nava-Ramirez, 210 F. 3d 1128 (10th Cir. 2000). It is unclear whether the trooper directed his request at defendant, or only at the front-seat passenger. Second, the character of the trooper’s request is unclear. The order was affirmed in part and reversed in part.
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