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TCL > November 2006 Issue > Tenth Circuit Summaries

November 2006       Vol. 35, No. 11       Page  149
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).

Salary Discrimination Based on Gender—Title VII—Equal Pay Act—Different Burdens of Proof—Retaliation—Family Medical Leave Act

Mickelson v. New York Life Insurance Co., No. 05-3049, 08/28/2006, D.Kan., Chief Judge Tacha.

The plaintiff sued her former employer under Title VII and the Equal Pay Act ("EPA"), claiming she was paid less than male employees for comparable work. She also claimed that her employer retaliated against her for complaining about the wage disparity by refusing to permit her to work part-time while on leave under the Family Medical Leave Act ("FMLA"). The district court granted summary judgment to the employer.

The Tenth Circuit Court compared the two ways a plaintiff can claim salary discrimination on the basis of gender: (1) intentional discrimination under Title VII; and (2) wage discrimination under the EPA. The differences in the parties’ burdens under each statute are significant. Under Title VII, the plaintiff always bears the burden of proving that the employer intentionally paid her less than a similarly situated male employee. Under the EPA, however, the plaintiff does not have to prove that the employer acted with discriminatory intent. Rather, once the plaintiff shows that employees of the opposite sex were paid differently for substantially equal work, the burden of persuasion shifts to the employer to prove that the wage disparity was justified. Here, after reviewing the evidence, the Tenth Circuit concluded that the employer’s reasons were not so compelling that no rational jury could find in the plaintiff’s favor. Accordingly, summary judgment was not appropriate on the EPA claim.

The Tenth Circuit also held that the employer was not entitled to summary judgment on the Title VII claim, because the plaintiff presented sufficient evidence that the stated reasons for paying her less than males were a pretext for discrimination. Similarly, summary judgment was not warranted on the plaintiff’s retaliation claim based, in part, on the employer’s refusal to permit her to work part-time while taking FMLA leave. The Tenth Circuit held that the plaintiff was not required to bring a claim under the FMLA to show that the employer’s failure to adhere to the mandates of the FMLA, without sufficient justification, was actionable conduct under Title VII. The judgment was reversed and the case was remanded.

Sentencing—Child Pornography—Sentencing Disparities Between State and Federal Courts

U.S. v. Branson, No. 06-3038, 08/29/2006, D.Kan., Judge Hartz.

The defendant pled guilty, without a plea agreement, to one count of possession of child pornography. After receiving testimony from a number of witnesses, the district court sentenced the defendant at the bottom of the sentencing range, to fifty-one months’ imprisonment, but refused to grant the downward variance requested by the defendant.

On appeal, the defendant challenged his sentence as unreasonable on numerous grounds. The Tenth Circuit held that he had failed to rebut the presumption of reasonableness of his sentence. His first three contentions were that: (1) a sexual-offender evaluation showed that he was not a threat to public safety; (2) he accepted responsibility for his crime and cooperated fully with the investigation of the offense; and (3) the government’s expert testimony was not persuasive because the experts had not personally evaluated him. These represented nothing more than a disagreement with the district court concerning the weight and evaluation of the evidence pertaining to the sentencing decision. The defendant failed to show that the district court’s assessment of the facts was clearly erroneous.

The defendant’s contention that the district court failed to discuss the sentencing factors on the record was unavailing, both because the court did address the factors as it explained its sentencing decision, and because it was not required to do so. Finally, the sentence called for by the federal sentencing guidelines was not unreasonable, even though it was harsher than a state sentence would be for a comparable crime. The sentencing guidelines are concerned only with disparities between federal sentences. Adjusting for state sentences actually could create disparities between federal sentences awarded in different forum states.

Contingent Attorney Fee Agreement—Choice of Law—Factors—California Law Governs

Hoiles v. Alioto, No. 05-1376, 09/05/2006, D.Colo., Judge Murphy.

The plaintiff, a Colorado resident, hired the defendant, a California attorney, to assist him in selling stock he owned in a private, family-owned media company. The plaintiff went to California, where the parties made an oral contingent fee agreement. The defendant then reduced the agreement to writing and faxed it to the plaintiff, who signed it in Colorado.

Two years later, for reasons the parties dispute, the media company was recapitalized, which permitted the plaintiff to exchange his shares for $141,869,380.67 in cash. The defendant then demanded a contingent fee of $28.4 million. The plaintiff sued, seeking a declaratory judgment that the defendant was not entitled to a contingent fee. A Colorado district court ruled that Colorado law governed and the fee agreement was not enforceable. The case proceeded to trial on the defendant’s quantum meruit claims, and a jury awarded him $1,150,000.

On appeal, the Tenth Circuit considered whether the contingent fee agreement should be governed by Colorado or California law. The Circuit applies the choice of law rules of the state in which it sits—in this case, Colorado. Colorado’s approach for resolving conflict of laws questions in contract cases is to determine which state has the most significant relationship to the transaction and the parties. The Tenth Circuit then applied the seven applicable factors. In doing so, the court held that California law governed, in part, because it could better fulfill the parties’ expectations by determining that the fee agreement was valid, given that the agreement admittedly was unenforceable under Colorado law. The judgment was reversed and remanded.

Sufficiency of Evidence—Carjacking Statute—Constitutionality of "Three Strikes" Provision

U.S. v. Gurule, No. 04-4317, 09/06/2006, D.Utah, Judge Holloway.

The defendant was convicted after a jury trial of violating the federal carjacking statute. Because the trial court found he had two prior serious violent felony convictions, it sentenced him to life imprisonment under a "three strikes" provision. On appeal, the defendant contended that there was insufficient evidence to support his conviction, and that the imposition of a life sentence in his case was unconstitutional.

The carjacking statute, 18 U.S.C. § 2119, requires the government to prove that the defendant "with the intent to cause death or serious bodily injury [took] a motor vehicle . . . from the person or presence of another by force and violence or by intimidation." The defendant, after committing a theft at a gas station, entered the victim’s home, forced her at knifepoint to drive him away from the home in her car, threatened her, drove the car with the victim in the passenger’s seat, and then stopped and fled from the vehicle. He argued that he had no intention of "taking" the car and therefore could not be convicted of carjacking.

The Tenth Circuit held, first, that the defendant’s purpose or state of mind had no bearing on whether he "took" the car for purposes of the statute. The defendant’s concession that he used force and intimidation to acquire the vehicle was sufficient to satisfy the statute’s "taking" requirement. The jury instructions, which informed the jury that the intent requirement was satisfied if the defendant "possessed the intent to seriously harm or kill the driver if necessary to steal the car," did not require the government to prove that he intended to "steal" the car, only that he would have seriously harmed or killed the victim had she refused to turn over her vehicle.

With regard to his life sentence, the Tenth Circuit held that the prosecution’s decision to seek a sentencing enhancement bearing a mandatory life sentence did not violate the separation of powers doctrine, because Congress has the power to determine punishments and may withdraw sentencing discretion from the judicial branch altogether. A life sentence was not cruel and unusual punishment, given the defendant’s two prior serious violent felony convictions. Finally, the prosecution’s decision to file charges in federal court and to seek the mandatory enhancement did not violate due process, even though such a prosecution resulted in the burden being shifted to the defendant to show that his prior convictions should not count as "strikes."

Pre-Answer Motion—Alternative Motion to Dismiss or for Summary Judgment—Adequate Notice of Conversion—Rule 56(f) Affidavit

Marquez v. Cable One, Inc., No. 05-2257, 09/08/2006, D.N.M., Judge McConnell.

The plaintiff sued his former employer, alleging he was fired in retaliation for filing an earlier discrimination claim. Before filing an answer, the employer filed a "Notice of Motion and Motion to Dismiss the Complaint for Failure to State a Claim or for Summary Judgment," with an accompanying memorandum setting forth evidence that the plaintiff illegally had provided free cable service off the books. The plaintiff objected, asserting that the pleading was not a proper motion to dismiss because it included evidence outside the pleadings. The plaintiff also asserted it was not a proper summary judgment motion because the plaintiff had not filed an answer. In addition, the plaintiff stated that he had not had an opportunity to discover information necessary to oppose a summary judgment motion. The district court granted the motion and entered summary judgment in favor of the employer, because the plaintiff did not refute the non-discriminatory reasons for firing him.

On appeal, the Tenth Circuit held that a motion for summary judgment may be filed at any time, even before an answer is filed. Although a summary judgment motion does not toll the time for filing an answer, the employer’s motion also was styled as a motion to dismiss, so the time was tolled until the court converted it to a summary judgment motion. Further, the plaintiff had adequate notice that the motion would be converted to a summary judgment motion, given its title and the fact that it included evidentiary materials outside the complaint.

Finally, the Tenth Circuit rejected the plaintiff’s argument that summary judgment was inappropriate before discovery could be completed, because he had not filed a Rule 56(f) motion explaining why he could not present evidence opposing the motion and requesting a continuance. The plaintiff did not contend that the judgment was otherwise improper on the merits. Accordingly, the district court’s judgment was affirmed.

Search and Seizure—Consent—Detention—Rights of Passengers in Motor Vehicles

U.S. v. Guerrero-Espinoza, No. 05-8031, 09/15/2006, D.Wyo., Judge Ebel.

A jury convicted the defendant of several drug offenses after the trial court denied his motion to suppress a state trooper’s discovery of the drugs found in the defendant’s minivan during a traffic stop. The Tenth Circuit, finding that the trooper had violated the defendant’s Fourth Amendment rights, remanded the case to the district court with instructions to vacate the defendant’s convictions.

The trooper stopped the minivan after his radar gun clocked it traveling on a Wyoming interstate highway nearly ten miles per hour over the posted limit. The defendant, who owned the van, was seated in the front passenger seat. The driver produced a California driver’s license while the defendant searched through papers in the glove box, looking for the vehicle’s registration. The trooper offered to help the defendant find the registration, and then took the driver and the papers to his patrol car. He issued a warning for speeding to the driver, and located the registration. The trooper was unable, however, to locate any insurance papers for the van. He went to the passenger side of the van to verify that the defendant was the van’s owner and to ask him about the insurance. The defendant indicated that his brother was supposed to pay the insurance on the van, and was unable to produce any proof of insurance. The trooper went back to his patrol car, and allowed the driver of the van to exit the patrol car. As the driver was walking away, the trooper asked if he could ask additional questions. After the driver agreed, the trooper questioned him about his travel plans and his relationship to the defendant.

In the defendant’s own words, he "pretty much" agreed that the trooper could ask him more questions, as well. The defendant was asked if he had any guns or illegal drugs in the vehicle; the defendant stated he did not. The trooper then asked twice if he could search the vehicle; the defendant told him both times that he could. The trooper began by searching the undercarriage of the van, where he noticed tooling marks and other apparent alterations on and near the gas tank. After a drug-sniffing dog arrived, the trooper asked if the dog could search the van. The defendant gave his permission, and the troopers discovered a hidden compartment in the gas tank, containing the drugs.

The Tenth Circuit noted that once the purpose of a routine traffic stop has been satisfied and the underlying reasonable suspicion dispelled, the driver’s detention generally must end without undue delay. The government did not argue that the trooper had a reasonable suspicion of any additional criminal activity after the warning ticket was issued, but justified the search by pointing to the district court’s finding that the defendant had consented to additional questioning. This finding, however, was clearly erroneous. Although the trooper’s actions in issuing a warning, returning the driver’s license to him, and opening his patrol car door so that the driver could leave would have indicated to the driver that the stop was over and he was free to leave, there was no indication that a reasonable person in the defendant’s position would have believed he was free to leave. There was no indication that the defendant was aware that the driver had consented to the further questioning after he left the patrol car; that the driver, who was standing on the roadway after he left the patrol car, was free to return to the van; or that the trooper was satisfied with the defendant’s story explaining his lack of proof of insurance. A reasonable person would not have felt free to decline to answer the trooper’s questions, and would not have known that the trooper no longer could lawfully detain him because the traffic stop was finished. Therefore, the defendant’s consent to the search was not voluntary, and the evidence should have been excluded as a fruit of the poisonous tree.

Judge Tymkovich dissented. He would have concluded that the search was permissible under the Circuit’s "bright-line rule," which permits a search with consent after a traffic stop has ended and the driver is no longer being detained.

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