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TCL > January 2007 Issue > Summaries of Selected Opinions

January 2007       Vol. 36, No. 1       Page  127
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Katherine Campbell and Frank Gibbard, 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).

Drug Possession—Downward Departure for Acceptance of Responsibility—U.S.S.G. § 3E1.1(b) Motion

U.S. v. Blanco, No. 05-4087, 10/24/2006, D.Utah, Judge McConnell.

The defendant pled guilty to one count of possession of cocaine base after he was observed throwing a plastic bag containing a green substance and a yellow rock substance onto the roof of a building. The yellow rock substance later tested as 6.1 grams of cocaine base. The defendant agreed to plead guilty, in exchange for the government’s promise to recommend a two-level decrease in his offense level for acceptance of responsibility.

Prior to his guilty plea, the defendant’s attorney moved to have the cocaine base re-weighed at an independent testing facility. The government made the drugs available for re-weighing, but due to its costs in doing so, it declined to move for an additional one-level downward departure for acceptance of responsibility under U.S.S.G. § 3E1.1(b).

In U.S. v. Moreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005), the Tenth Circuit held that although a prosecutor’s decision to recommend a § 3E1.1(b) motion is discretionary, a court can review a refusal to file such a motion if the refusal was animated by an unconstitutional motive, or not rationally related to a legitimate government end. The defendant argued that the government had no rational reason to deny him the departure merely because he sought to re-weigh the drug sample, a right the government conceded he had. The government, however, argued that because re-weighing takes up government time, resources, and the energy of agents, its policy is not to move for § 3E1.1(b) departures in such cases.

The Tenth Circuit found nothing impermissible about the government’s reasoning. Ensuring efficient resource allocation is a legitimate government end, and a prosecutor’s decision not to make a § 3E1.1(b) motion on behalf of a defendant who requests independent re-weighing is rationally related to that end. The Tenth Circuit also rejected the defendant’s argument that the prosecutor’s decision unconstitutionally interfered with his discovery rights based in due process. This argument was based on a misperception of the issue, which is whether the prosecutor’s decision was animated by an unconstitutional motive, such as discrimination based on race, religion, or gender, not whether it had some effect on the exercise of a constitutional right. The Tenth Circuit further noted that any form of plea bargaining involves the exchange of a right for favorable consideration at sentencing; thus, it is not unconstitutional to require the defendant to exchange his right to re-weigh the evidence for the filing of a motion for a § 3E1.1(b) departure.

ERISA—Preemption—Equitable Relief—Make-Whole Relief Excluded—No Leave to Amend Complaint if Futile

Lind v. Aetna Health, Inc., No. 05-5055, 10/31/2006, N.D.Okla., Judge McConnell.

The plaintiff was diagnosed with multiple sclerosis, which was successfully treated with medication. The defendant-insurer required him to try a different drug, over the objection of his treating neurologist. On the new drug, the plaintiff’s symptoms returned and proved irreversible, even after he went back on the first drug. The plaintiff sued in state court, alleging state causes of action, such as medical negligence and tortious interference with doctor-patient relationship, and seeking punitive damages. The insurer removed the case to federal court, where the district court denied the plaintiff’s motion to amend his complaint to include claims under ERISA, and dismissed the action as preempted by ERISA. The plaintiff appealed both rulings.

The Tenth Circuit Court reviewed the law holding that all state-law claims relating to an employee-benefit plan are preempted by ERISA. This rule applies to nearly all state claims against covered health insurers. The issue here was whether the plaintiff’s claims "related to" the plan. The Tenth Circuit held that they did, because the plaintiff complained about the denial of benefits. Accordingly, ERISA preempted the plaintiff’s claims.

The Tenth Circuit further held that the district court properly denied the plaintiff’s request to amend his complaint to include ERISA claims for equitable relief. Such equitable relief precludes most forms of make-whole monetary restitution. Instead, it is to restore to the plaintiff particular funds or property in the insurer’s possession and is measured by an employee’s loss rather than an insurer’s gain. Here, the plaintiff’s claims for lost wages, pain and suffering, and punitive damages were not available as equitable relief under ERISA. Consequently, even if the plaintiff had amended his complaint to add these ERISA claims, he could not have prevailed, so the district court’s denial of leave to amend was not error. The district court’s judgment was affirmed.

ADEA—Ruling to Exclude Evidence—"Same Supervisor Rule" Not Applicable to Reduction in Force—Evidence Entitled to Maximum Probative Value

Mendelsohn v. Sprint/United Mgmt. Co., No. 05-3150, 11/01/2006, D.Kan., Judge Baldock.

The plaintiff alleged that her employer violated the Age Discrimination in Employment Act (ADEA) when it laid her off as part of a reduction in force (RIF). At trial, the district court excluded testimony from other older former employers on the ground that they did not have the same supervisor as the plaintiff. A jury returned a verdict in favor of the employer.

On appeal, the Tenth Circuit addressed the "same supervisor rule," whereby evidence about how other employees had been treated was admissible only if they had the same supervisor as the plaintiff. It held that this rule applies only to discriminatory disciplinary actions. The court declined to extend that rule to a company-wide RIF. Because the testimony of other former employees concerning how the employer treated them was relevant to the company’s intent, that testimony should have been admitted.

The Tenth Circuit rejected the employer’s argument that the testimony should be excluded as prejudicial under F.R.E. 403. The court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. The fact that the employer would have to rebut the testimony of the other former employees was not in itself sufficient to outweigh the probative value of the evidence. The judgment was reversed and the case was remanded for a new trial.

Admissibility of Evidence—State Law or Federal Procedure—Policy—Federal Rules of Evidence—Diversity—Late-Endorsed Witness

Sims v. Great American Life Insurance Co., No. 04-5135, 11/07/2006, N.D.Okla., Judge Tymkovich.

The plaintiff’s husband died when his speeding car ran off a rural road. She sought payment on his life insurance policy issued by the defendant. The insurance company denied the claim, having concluded that the husband’s death was a suicide. The wife filed the underlying diversity action claiming breach of contract and bad faith. At trial, the district court excluded some of the defendant’s proffered evidence based on Oklahoma state law, rather than applying the Federal Rules of Evidence (F.R.E.). A jury found the death was accidental and awarded the plaintiff $1.4 million in compensatory and punitive damages. The defendant appealed.

 The Tenth Circuit examined the interplay between the Erie doctrine, as set forth in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), and the F.R.E. It noted that under Erie, the rule in diversity cases is to apply state law to substantive issues and federal law to procedural issues. But because Erie does not apply to congressional acts, and because the F.R.E. were created by Congress, Erie is inapplicable and the court first applies the F.R.E.

Under F.R.E. 401, however, to be admissible, evidence must be probative and properly provable in the case. The "properly provable" inquiry turns on state-law substantive policy considerations, so the court must look to those considerations to determine if the evidence is admissible.

In this case, the district court erred in applying state law to exclude the following evidence: (1) expert reports from state officials, (2) the investigating officer’s opinion that the victim had committed suicide, and (3) testimony that the victim was not wearing a seat belt. These rulings were harmless error, however, because even under the F.R.E., the expert opinions were inadmissible as unnecessary to aid in the interpretation of the evidence, and the seat-belt evidence would not have produced a different result, given the jury’s award of both bad-faith and punitive damages.

The Tenth Circuit further held that the evidence was insufficient to sustain the awards for bad faith and punitive damages under Oklahoma law. Finally, the court ruled that the district court did not err in excluding an expert witness because he was endorsed too late. The district court’s judgment was affirmed in part and reversed in part.

Sentencing Guidelines—Upward Departure—Collateral Challenge to Prior Order of Deportation

U.S. v. Valtiera-Rojas, No. 05-3390, 11/09/2006, D.Kan., Judge Ebel.

The defendant entered a conditional guilty plea to one count of illegal re-entry after deportation for an aggravated felony. He reserved for appeal his contention that the offense for which he previously had been deported—involuntary manslaughter DUI—was not an "aggravated felony." On appeal, he also challenged the district court’s upward departure from the advisory guideline range at sentencing.

The evidence showed that the defendant had been convicted of Involuntary Manslaughter While Driving Under the Influence of Alcohol for striking and killing a motorcycle driver. After serving his sentence on this offense, he was deported to Mexico. He re-entered the United States illegally less than four months later. After his re-entry, he was convicted of several traffic crimes, including two DUIs, and was ordered to undergo substance abuse counseling. The defendant obtained treatment for his alcohol abuse, attended Alcoholics Anonymous meetings, and claimed not to have consumed alcohol since April 2003.

The district court rejected the recommendation in the defendant’s pre-sentence report that his offense level be enhanced by sixteen levels, based on his prior manslaughter conviction, finding that involuntary manslaughter DUI is not a "crime of violence" for purposes of the Sentencing Guidelines. This left the defendant with an advisory guideline range of twenty-one to twenty-seven months. The district court imposed a sentence of sixty months, however, finding that the defendant’s extensive history of alcohol-related problems and DUIs, his "demonstrated propensity for returning to the United States," and the risk that he would again "re-enter the United States and commit acts giving rise to a substantial risk of serious injury," justified a sentence above the guideline range.

The Tenth Circuit Court upheld the sixty-month sentence. Sentences falling outside the guideline range are not presumptively unreasonable. The greater a sentence diverges from the advisory guideline range, however, the more likely it is to be unreasonable. Although defendant’s sentence diverged upward by 122 percent from the high end of the range, an extraordinary departure, the actual divergence amounted to only thirty-three months. This was not an unreasonable divergence given the reasons cited by the district court. The Tenth Circuit rejected the defendant’s contention that the district court’s reasoning was untenable because he had re-entered the country once, and had quit drinking.

As to the issue reserved for appeal in the defendant’s plea agreement, the defendant acknowledged that this issue had been foreclosed by the Tenth Circuit’s recent decision in United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. 2005), foreclosing collateral challenges to underlying deportation orders, except under the statutory criteria outlined in 8 U.S.C. § 1326(d), which did not apply here.

Drug Possession—Elements of Offense—Marijuana Plants

U.S. v. Montgomery, No. 05-3263, 11/14/2006, D.Kan., Judge Kelly.

The plaintiff appealed from an order of the district court granting the defendant’s motion for acquittal and vacating the jury’s verdict based on insufficiency of the evidence. The defendant was charged with one count of possession, with intent to distribute, of 100 or more marijuana plants.

The evidence showed that Drug Enforcement Agency agents counted 101 marijuana plants with fully developed root systems, stems, and leaves, in the space that defendant rented from a friend. Two of these plants, contained in a separate room, were "mother plants," mature marijuana plants used to produce clippings from which new plants are grown. In granting the verdict of acquittal, the district court reasoned that the government had failed to prove that the defendant intended to distribute marijuana from these mother plants. Thus, the government could prove only possession with intent to distribute from ninety-nine plants, one shy of the amount needed to satisfy all elements of the offense charged. In the alternative, the district court ruled that the defendant was entitled to a new trial, because the instructions did not correctly reflect its understanding that the jury must find that the defendant intended to distribute marijuana from each of the 100 or more marijuana plants, and because the jury should have been instructed that it could not consider plants held for purposes other than distribution in the total plant count.

The Tenth Circuit disagreed with the district court’s analysis. It noted that the statutory definition of the offense required only that the government prove that the defendant possess with intent to distribute a controlled substance "involving . . . 100 or more marijuana plants regardless of weight." The word "involving," meaning "to contain as a part or to include," was broad enough to encompass the use made of all 101 plants at issue in this case. The Tenth Circuit specifically distinguished prior cases involving a finite amount of processed narcotics kept for personal use, which were segregated from the quantities to be distributed.

Finally, the Tenth Circuit also noted that because the defendant had moved only for a judgment of acquittal, the district court lacked jurisdiction to award a new trial. The judgment is reversed, the verdict is reinstated, and the case is remanded for resentencing.

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