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TCL > December 2006 Issue > Tenth Circuit Summaries

December 2006       Vol. 35, No. 12       Page  145
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).


Sentencing Guidelines—Sufficiency of the Evidence of Prior Conviction

U.S. v. Martinez-Jimenez, No. 04-2324, 09/29/2006, D.N.M., Judge Ebel.

The defendant pled guilty to illegal reentry by a deported alien previously convicted of an aggravated felony. The district court sentenced her to fifty-seven months’ imprisonment. This sentence was based in part on a total of ten criminal history points the district court allocated to her, resulting in a category V criminal history.

On appeal, the defendant argued that there was insufficient evidence to prove her prior conviction for attempted criminal possession of a controlled substance, and that she should have received a criminal history category score of IV instead of V. The district court had relied on two pieces of evidence to prove the conviction. First, the probation office had provided a computer printout from the National Crime Information Center (NCIC) indicating that in 1989, "Maralina Martinez" had pled guilty in New York to attempted criminal possession of a controlled substance, receiving a sentence on January 2, 1990 of eighteen months’ to three years’ imprisonment. This printout also indicated that Maralina Martinez had used several aliases, including "Susana Cabajar." Second, the New York County Clerk of Court had provided a letter advising that "Susana Cabajar" had pled guilty to attempted criminal possession of a controlled substance and had been sentenced on January 2, 1990 to one-and-one-half to three years’ imprisonment.

The Tenth Circuit began by noting that even though the defendant could have received the same fifty-seven months’ imprisonment sentence under either criminal history category IV or V, because of overlapping sentencing ranges, the alleged error was not harmless. The district court had not explicitly stated that it would have given the defendant the same sentence if her criminal history category had been IV not V.

The Tenth Circuit held that the district court had not clearly erred in finding that the evidence establishing defendant’s prior conviction was sufficiently reliable. The defendant had not denied that she was the person referred to in the NCIC report; nor had she provided evidence to show that the alleged conviction never occurred. The Tenth Circuit further relied on testimony that NCIC data is entered based on the defendant’s fingerprints, taken at the time of arrest; on the consistency of the NCIC printout with the clerk of court’s letter; and on numerous unpublished cases from the Tenth Circuit and other circuits approving the use of NCIC reports to establish prior convictions. The defendant’s sentence was affirmed.

Sixth Amendment Right to Speedy Trial Act—Due Process—Dismissal—Expert Testimony—Production of Documents

U.S. v. Abdush-Shakur, No. 05-3147, 10/04/2006, D.Kan., Judge O’Brien.

The defendant, who stabbed a prison guard, was convicted of attempted murder and possession of a homemade knife by a prison inmate. He was sentenced to 240 months’ imprisonment. On appeal, the defendant raised numerous trial errors.

The defendant contended that his indictment should have been dismissed for violation of the Speedy Trial Act and his Sixth Amendment and Due Process rights. A trial date had been set on a first indictment, but it had been dismissed over the defendant’s objection, due to the illness of the government’s counsel. Approximately four months later, the government filed a second indictment, which the district court dismissed without prejudice for violation of the defendant’s speedy trial right. Five-and-one-half months after the filing of the second indictment, the government filed a third indictment. The defendant filed a motion to dismiss this indictment, which the district court denied.

Noting the district court’s broad discretion concerning whether to dismiss an indictment with or without prejudice, the Tenth Circuit held that the district court did not err in dismissing the second indictment without prejudice, thus permitting the running of a new speedy trial period once the third indictment was filed. The Tenth Circuit considered each of the factors for determining the nature of dismissal in 18 U.S.C. § 3162(a). The defendant conceded that murder was a serious offense. The government’s behavior was not egregious, and there was no evidence that it had acted in a dilatory manner. Some of the delay had been due to continuances requested by the defendant. Reprosecution of the case had not adversely affected the administration of justice, because the defendant had been incarcerated throughout the proceedings for another crime, and because the district court had acknowledged that it was responsible in part for the delay. Finally, there was insufficient evidence of prejudice to the defendant resulting from the delay; his conclusory allegation that an alleged witness to the crime "could not be found" did not show specific prejudice.

The Tenth Circuit also ruled that the delay had not violated the defendant’s Sixth Amendment right to a speedy trial. The defendant’s own three requests for continuance, and the lack of prejudice shown from the delay, weighed against a finding of a Sixth Amendment violation. A Fifth Amendment due process argument was not viable, because the defendant failed to show both (1) substantial prejudice to his rights, and (2) that the government intentionally delayed the prosecution so as to gain a tactical advantage.

Turning to the defendant’s other claims, the Tenth Circuit held that the defendant was not entitled to expert testimony of a "corrections consultant" who would have testified to the "culture of violence" in federal penitentiaries. Such testimony would neither excuse the attack on a corrections officer, nor negate any of the elements of the charged crime. The defendant was not entitled to production of documents under Fed. R. Crim. P. 17, including all incident reports for a five-year period involving inmate-on-inmate stabbings and inmate-on-guard stabbings, the officer’s complete personnel records, his own prison file, and a list of policies and procedures involving treatment of the Muslim prison community. Absent a more specific showing of relevance, the district court properly rejected application of the rule to these documents. Finally, the Tenth Circuit upheld the prosecution’s use of a peremptory challenge to exclude an African-American venire member from the jury, where that prospective juror (1) had a brother incarcerated at the same facility where the stabbing took place; (2) had worked in prison ministry at that facility; and (3) stated she had "heard a lot of things that go on behind the doors from the inmates’ point of view." The government had stated legitimate, non-discriminatory reasons for excluding the juror, which the defendant failed to show were a pretext for discrimination. The Tenth Circuit affirmed the defendant’s conviction.

Collateral Review—Second or Successive Motions Under 28 U.S.C. § 2255

U.S. v. Nelson, No. 06-6071, 10/06/2006, D.Okla., Judge Hartz.

The defendant pled guilty to a drug offense in the U.S. District Court for the Western District of Oklahoma. He did not file a direct appeal. He later filed a motion under 28 U.S.C. § 2255 seeking to vacate his sentence. The defendant argued that his sentence violated United States v. Booker, 543 U.S. 220 (2005), a case involving application of the U.S. Sentencing Guidelines. The district court denied the motion, holding that Booker did not apply retroactively to cases on collateral review.

Ten months later, defendant filed a motion pursuant to Fed. R. Civ. P. 15(a) and (b), seeking to amend and supplement his § 2255 motion to assert three claims relating to his sentence: an ineffective assistance of counsel claim, a downward departure claim, and another Booker claim. The district court denied the Rule 15 motion, finding that the defendant had failed to show grounds for setting aside its previous order.

On appeal, the Tenth Circuit, relying on Gonzales v. Crosby, 125 S.Ct. 2641 (2005), held that the defendant’s Rule 15 motion actually was a "second or successive" § 2255 motion, because it asserted grounds for release under § 2255 based on unlawfulness of defendant’s sentence, rather than constituting a procedural attack on the disposition of the § 2255 motion itself. Because the motion was a second or successive § 2255 motion, it could be filed only with authorization from the Court of Appeals. The district court therefore lacked jurisdiction to resolve it on the merits.

Vacating the district court’s disposition, the Tenth Circuit next turned to the question of whether leave should be granted defendant to file a second § 2255 motion. It concluded that the defendant had not established that he met the criteria for leave to file such a motion, detailed in 28 U.S.C. § 2244 and incorporated into § 2255. He asserted neither newly discovered evidence, nor a new rule of law that applied retroactively. The Tenth Circuit denied the defendant leave to file a second motion.

First Amendment—Sexually Oriented Business—Regulation—Unconstitutionally Vague—Prior Restraint—Time–Place–Manner—Secondary Effects—Customers’ Privacy Rights

Doctor John’s, Inc v. City of Roy, No. 04-4270, 10/10/2006, D.Utah, Judge Ebel.

The plaintiff, a sexually oriented business (SOB), moved into the defendant City of Roy (City), thus prompting the City to enact an ordinance regulating SOBs. The ordinance required SOBs and their employees to acquire licenses and restricted employee licenses for persons previously convicted of sex-related crimes. The plaintiff brought suit, claiming the ordinance was unconstitutional. The district court entered summary judgment in the City’s favor, and the plaintiff appealed.

The Tenth Circuit determined that the ordinance was not unconstitutionally vague, because most people and businesses would know if it applied to them. The court also held that the ordinance was not an impermissible prior restraint on First Amendment activity, finding that it did not give unbridled discretion to government officials or allow the City to indefinitely delay granting a license.

The court then addressed the plaintiff’s time–place–manner challenge, noting that an ordinance may target the secondary effects of SOBs if it is content neutral, is narrowly tailored, and leaves open ample alternative channels of communication. Because it was unclear what evidence the district court considered in evaluating the evidence of secondary effects, the Tenth Circuit ordered a remand to permit it to do so. Next, the court upheld the provision prohibiting an SOB from employing someone who had been convicted of a specified crime, because this was enacted to combat the secondary effects of SOBs and the prohibition lasted for a limited time. Finally, the Tenth Circuit rejected the plaintiff’s claim that the ordinance restricted its customers’ sexual privacy rights, because once the plaintiff was granted an SOB licence, there was no limit on the amount of merchandise it could sell. The district court’s judgment was affirmed in part and remanded in part.

Race Discrimination—Employment—Time Limitations—Discriminatory Act—Reiteration of Previous Act

Brown v. Unified School District 501, No. 05-3378, 10/12/2006, D.Kan., Judge Anderson.

The plaintiff, a black male, was employed by the defendant school district from 1980 to 1996, when he relocated to another state. In 2000, he returned and applied for employment. Due to his past employment record, the defendant declined to rehire him. The defendant’s decision was conveyed to the plaintiff by a letter in August 2001. The plaintiff continued to correspond with the school district but the school district did not relent. It told the plaintiff repeatedly that it would not rehire him. On May 23, 2003, the defendant sent the plaintiff a letter reiterating its refusal to consider him for employment. Shortly after receiving that letter, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After the EEOC issued him a right-to-sue letter, he filed this action, asserting race discrimination and retaliation. The district court dismissed the case as untimely. The plaintiff appealed.

The Tenth Circuit held that the plaintiff’s failure to file a complaint with the EEOC within 300 days of the discriminatory act barred his lawsuit. The court rejected the plaintiff’s argument that the EEOC complaint was filed within 300 days of the May 2003 letter. That letter merely reiterated the school district’s 2001 decision not to rehire him. After reviewing the pertinent time limitations, the Tenth Circuit ruled that an employer’s mere reiteration of a broad decision not to consider an applicant for any employment does not revive its initial statement of that decision. The district court’s judgment was affirmed.

Colorado Auto Insurance—Diminished Value—No Fault Act—Class Action—Diversity Jurisdiction—Amount in Controversy—Aggregated Claims

Lovell v. State Farm Mutual Auto. Ins. Co., No. 04-1429, 10/18/2006, D.Colo., Judge Johnson.

The plaintiff filed a class action suit in state court for declaratory relief, requiring the defendant insurance company (State Farm) to pay for diminished value to a damaged car as part of its collision coverage under the No Fault Act. State Farm removed the action to federal court based on diversity jurisdiction. The plaintiff challenged the amount in controversy, claiming that each individual class member’s damages did not meet the $75,000 minimum. State Farm responded with evidence that requiring it to pay for diminished value would cost it at least $75,000 for each plaintiff, because it would have to revamp its business practices. The federal district court took jurisdiction and entered a judgment in favor of State Farm.

On appeal, the Tenth Circuit held that the court had diversity jurisdiction, even though the claims of the individual plaintiffs could not be aggregated, because the cost of compensating one plaintiff met the $75,000 requirement. On the merits, the court rejected the plaintiff’s argument that the No Fault Act requires a collision policy to pay for diminished value. Moreover, the plaintiff’s policy excluded payment for diminished value and the court declined to rewrite the contract. Accordingly, she could not recover. The district court’s judgment was affirmed.

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