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TCL > October 2006 Issue > Tenth Circuit Summaries

October 2006       Vol. 35, No. 10       Page  137
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 Frank Gibbard 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).

Constructive Possession—Necessity Defense—Transitory Possession Defense—Use of Misdemeanor Criminal Mischief Conviction for Impeachment Purposes

U.S. v. Al-Rekabi, No. 03-4158, 07/17/2006, D.Utah, Judge O’Brien.

A jury convicted defendant of possession of a stolen firearm. Defendant’s 12-year-old brother stole a pistol from a parked car and carried it home with him. Defendant was on probation and knew that he was not allowed to possess the pistol; however, he also wished to keep his younger brother from possessing it. There was much conflicting evidence over whether defendant actually or constructively possessed the pistol before it eventually was turned over to the police. Except for defendant’s version of events, all versions had defendant either handling the pistol or directing its disposition.

On appeal, defendant challenged the constructive possession instruction given to the jury. The Tenth Circuit ruled that the evidence, although conflicting, was sufficient to support a constructive possession instruction. The language of the instruction given, however, was problematic for several reasons. First, to engage in constructive possession, defendant need not have the right to control the contraband, only the ability to do so. Second, he need not exercise physical control over the contraband. Finally, he need not have an intent to control the contraband, only a knowing ability to do so. Because the constructive possession instruction given was actually more favorable to defendant than it should have been, and because the evidence of at least constructive possession was overwhelming, any instructional error was harmless.

Defendant also challenged the trial court’s refusal to instruct on his proposed necessity and transitory possession defenses. Both defenses were based on the idea that defendant possessed the pistol briefly, only to take it away from his brother. The Circuit ruled that defendant failed to meet his burden of establishing a necessity defense, because he failed to show that he had no legal alternative to possession of the pistol, that the claimed threat was imminent, and that his actions were reasonably calculated to prevent the harm posed by the circumstances. The transitory possession defense was so closely tied to the necessity defense that where the necessity defense failed, it could not form the basis for a separate defense to the possession charge.

Finally, the Circuit held that the district court did not err in excluding evidence of an adverse witness’s conviction for criminal mischief, because criminal mischief is not a "misdemeanor crime of domestic violence" that would allow use of the conviction for impeachment purposes. Defendant’s conviction was affirmed.

Miranda—"Fruit of the Poisonous Tree"—Use of Victim Photographs—Sentencing Guidelines—Upward Departures

U.S. v. Pettigrew, No. 05-2187, 07/27/2006, D.N.M., Chief Judge Tacha.

Defendant was convicted of involuntary manslaughter and assault, as the result of a rollover accident he caused while driving drunk. While in custody after the accident, prior to receiving Miranda warnings, defendant made three incriminating statements. In an issue of first impression, the Tenth Circuit held that the third statement was not excludable as a "fruit of the poisonous tree," even if the defendant felt increased psychological pressure as the result of having "let the cat out of the bag" with the first two statements, which had been made in violation of his Miranda rights. The third statement, it reasoned, was admissible, because it was volunteered and was voluntarily made under all the circumstances.

Defendant also challenged the government’s displaying of a photograph of the victims to the jury during several phases of the trial. The Tenth Circuit upheld the use of the photograph, reasoning that its probative value in establishing the identities of the victims was not substantially outweighed by the danger of unfair prejudice.

Finally, at sentencing, the district court departed upward two offense levels, based on defendant’s extreme recklessness, and upward one criminal history category, based on the seriousness of his prior offense history. The Tenth Circuit upheld the upward departures, holding that an upward departure for extreme recklessness is permissible in the case of the general intent crime of assault, and that an upward criminal history departure based on the seriousness of defendant’s criminal history was permissible based on his prior second-degree murder conviction. The Circuit affirmed the defendant’s conviction and sentence.

Search and Seizure—Use of Ruse—Abandonment

U.S. v. Ojeda-Ramos, No. 04-5118, 07/31/2006, N.D.Okla., Judge O’Brien.

Defendant pled guilty to drug charges that arose during a routine luggage screening at a bus stop. After a drug dog alerted to a suitcase in a cargo bay, a police officer posing as a Greyhound employee ordered passengers to exit the bus and to claim their luggage. When defendant disclaimed ownership of the offending suitcase, even though it was marked with a tag containing the same name as his bus ticket, officers took him and the suitcase to a storage room, where they opened the suitcase and discovered the drugs.

Defendant appealed the denial of his motion to suppress the drugs, contending that he was unlawfully seized when ordered to leave the bus and to claim his luggage; that any abandonment of the suitcase was involuntary, because it came as a result of the unlawful seizure; and that the warrantless search of the suitcase was unlawful. The Tenth Circuit rejected each of his arguments.

The officer did not seize defendant, the Circuit concluded, because a reasonable person would have felt free to refuse the request to claim his luggage, whether or not he knew he was actually dealing with a police officer. Because there was no seizure, defendant’s abandonment of the suitcase was voluntary. Finally, a warrantless seizure of abandoned property is not unreasonable under the Fourth Amendment. The judgment was affirmed.

Employment Discrimination—Deadline to File Charge with EEOC—Charge Required for Each Adverse Employment Action

Haynes v. Level 3 Communications, No. 04-1307, 08/08/2006, D.Colo., Judge O’Brien.

Plaintiff sued her former employer, claiming she was discharged in violation of Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Over the course of almost two years, her sales accounts were transferred to a male employee, causing her to miss her sales quotas. As a result, she was placed on a performance improvement plan ("PIP") and later discharged as part of a reduction in force ("RIF"). The district court granted summary judgment in favor of defendant, because plaintiff had not complied with the timeliness requirements for filing a charge with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff appealed.

The Tenth Circuit observed that discriminatory employment acts are not actionable if the employee failed to complain to the EEOC within 300 days from the adverse employment action. The Circuit determined that the alleged discriminatory acts occurred outside the time limitations period and therefore were barred. Plaintiff was required to file an EEOC charge within 300 days after each of her accounts was transferred, because those actions directly caused a significant change in her employment status and benefits. However, placing her on a PIP was not an adverse employment action, because it did not significantly change plaintiff’s employment status. Finally, the Tenth Circuit rejected plaintiff’s claim that the discharge itself was discriminatory, because she produced no evidence to refute the claim that the RIF was based on neutral factors. The district court’s judgment was affirmed.

First Amendment—Free Speech—Public Employee’s Rights—Government’s Interests—Role of Judge and Jury—Factual Issues

Weaver v. Chavez, No. 04-2110, 08/10/2006, D.N.M., Judge Tymkovich.

Plaintiff was fired from her position as an assistant city attorney after she complained about patronage hiring in her department. The district court held a jury trial on her retaliation claim. The court directed the jury to decide if plaintiff’s political speech had disrupted the work environment, and jury found that it had. Plaintiff asserted that the issue of disruption was part of the court’s evaluation and that it was improper to submit the question to the jury. Based on the jury’s finding, the district court entered a judgment in favor of defendants.

On appeal, the Tenth Circuit noted that the task was to balance the government employee’s free speech rights against the interest of the employer in the efficient delivery of public services. The court reaffirmed the rule that the judge is to conduct the balancing of interests. It then held that in doing so, the judge may ask the jury to decide underlying contested issues of fact. Here, the district judge, rather than the jury, properly balanced the interests. The district court’s judgment was affirmed.

Employment Discrimination—Causation—Retaliation—Pretext—Same Actor Inference

Antonio v. Sygma Network, Inc., No. 05-1374, 08/16/2006, D.Colo., Judge Brorby.

Plaintiff sued her former employer for race discrimination, alleging her employment was terminated because she complained about one remark her supervisor made allegedly disparaging her African culture. When plaintiff did not call or appear at her job for four days, defendant construed her absence as job abandonment and terminated her employment. The district court entered summary judgment in favor of defendant.

The Tenth Circuit Court first determined that plaintiff had presented no evidence of a causal connection between her objection to the offensive remark and the termination. Therefore, she did not make out a prima facie case of retaliation. Addressing plaintiff’s claim that defendant relied on job abandonment as a pretext for discrimination, the Tenth Circuit noted that the same committee that had hired plaintiff later terminated her employment. The court held that in cases where the employee was hired and fired by the same person within a relatively short time span, there is a strong inference that the employer’s stated reason for taking adverse action against the employee is not pretextual. This premise is known as the "same actor inference." Here, plaintiff’s evidence was insufficient to refute the inference. The district court’s judgment was affirmed.

"Arbitration—Attorney Fees—Amend Arbitration Agreement—Extend Arbitrators’ Authority—Manifest Disregard of Law

Hollern v. Wachovia Secs., Inc., Nos. 05-1253 & 05-1300, 08/16/2006, D.Colo., Judge Murphy.

Defendant was the stock broker for a trust plaintiff administered. After the trust’s value suffered a decline, plaintiff sought arbitration, claiming defendant had breached its fiduciary duties. Both sides requested attorney fees, pursuant to CRS § 13-17-102. The arbitration panel denied plaintiff’s request and awarded attorney fees to defendant. Plaintiff filed suit in federal court to set aside the attorney fee award. The district court vacated the award, and defendants appealed.

The Tenth Circuit applied the very deferential standard of review appropriate to an arbitration award. Although the parties’ initial agreement did not contemplate an attorney-fee award, their subsequent submissions to the arbitrators seeking fees amended the original arbitration agreement to expressly authorize attorney fees. Therefore, the arbitrators did not exceed their powers. The Tenth Circuit further concluded that the arbitrators did not act in manifest disregard of the law. The district court’s judgment was reversed, and the case was remanded with instructions to reinstate the arbitration award.

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