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TCL > April 2007 Issue > Tenth Circuit Summaries

April 2007       Vol. 36, No. 4       Page  119
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of Selected Opinions

Summaries of selected Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) 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 CBA and are not the official language of the Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website,   (United States Courts link to the Tenth Circuit).

No. 05-2170. U.S. v. Sinks. 01/23/2007, D.N.M., Judge Lucero. Prejudicial Effect of Evidence—Omission of Interstate Commerce Element in Indictment—Delay in Preparation of Pre-Sentence Report.

The defendant was convicted by a jury of knowingly possessing stolen explosive materials and of being a felon in possession of explosives, after police found a box containing dynamite in a stolen truck he was driving. Several of the sticks were taped together with wires protruding from the top of the bundle, and others had what appeared to be sparklers sticking out of them. Defendant maintained that the jury should be prevented from seeing photographs of the dynamite wrapped in tape with protruding wires, or from hearing the dynamite referred to as an "improvised explosive device." The dynamite lacked a detonator that would have been required to cause it to explode.

The district court permitted testimony, however, that one of the policemen who assisted with removal of the dynamite had been wearing a protective bomb suit, and that police had checked the vehicle for other incendiary devices or explosives. Other factors kept the notion of a "bomb" before the jury. On one of the mornings of defendant’s trial, there was an unspecified threat at the courthouse, which the U.S. Marshals used as an opportunity to conduct a bomb-threat drill. The judge instructed the jury that the search was a training exercise, unrelated to the trial. Finally, as the prosecutor was introducing exhibits, he misidentified exhibit "9-L" as "9-11." The court immediately corrected him.

After the jury found defendant guilty, the probation office was not notified on a timely basis of his conviction. As a result, his presentence report was not prepared until sixteen months after he was convicted, and his sentencing was delayed.

On appeal, the defendant first contended that the district court should not have admitted photographs of the taped and wired dynamite, or permitted testimony mentioning "other incendiary devices" or of bomb squad procedures. The Tenth Circuit held that the photos were relevant to show defendant’s possession of the dynamite. The bomb squad evidence was relevant to show that the dynamite in the truck was an explosive, a fact that defendant refused to stipulate. This evidence was not used to portray the defendant as a "mad bomber"; rather, it had a minimal role in the trial and its admission fell within the trial court’s discretion. In light of the substantial evidence against defendant, he failed to show that a witness’s use of the phrase "incendiary devices" on the day the court received the unspecified threat substantially influenced the jury’s verdict.

Defendant next urged error because the indictment did not charge, and the jury did not find, that the dynamite had been shipped or transported in interstate or foreign commerce. The government responded that this issue had been waived by defendant’s failure to object before the district court. The Tenth Circuit first noted that the failure to allege an interstate commerce nexus, although not a jurisdictional defect, may be raised for the first time on appeal as a failure to charge a federal offense. Such an attack, however, is reviewed only for plain error. The error here did not rise to the level of plain error, because there was uncontroverted evidence that the dynamite had crossed state lines, thus satisfying the interstate commerce requirement.

The defendant also challenged his sentence, contending that the district court erred in failing to consider as a sentencing factor the sixteen months he spent in county jail awaiting the preparation of his presentence report. The Tenth Circuit concluded that the mere fact of the sixteen-month delay did not render defendant’s sentence unreasonable.

No. 05-2287. U.S. v. Walker. 01/31/2007, D.N.M., Judge Hartz. Fourth Amendment—Warrantless Search—Exigent-Circumstances Doctrine—Protective Sweeps Related to Officer and Victim Safety.

The defendant pled guilty to being a felon in possession of firearms and ammunition, reserving the right to appeal the denial of his motion to suppress evidence. On appeal, he contended the police had violated his Fourth Amendment rights by searching his home. The police asserted that exigent circumstances existed to justify the search for victims in need of immediate aid.

The police contact began when an anonymous caller telephoned 911, stating that two men had guns at defendant’s house and were threatening to kill each other. The dispatch alert stated that the two men were the defendant and his son. The sheriff’s deputy who arrived on the scene, however, learned that defendant’s son was at the police station. The deputy knocked several times on the storm door, announced himself, but received no response. He opened the storm door to knock on the inner wooden door, which was ajar. He again announced "Sheriff’s Office" and heard defendant’s voice reply, "Yeah, and I got a goddamn gun." The deputy and two other officers entered the house, subdued the defendant, handcuffed him, and took him to the front porch. They then conducted a protective sweep of the house, during which they located firearms in plain view in two of the bedrooms. After the police determined that several of these firearms were stolen, they arrested defendant.

On appeal, the defendant argued that the evidence from his home should be suppressed because both the warrantless entry into his home and the protective sweep had been unlawful. The Tenth Circuit held that opening the storm door to knock on the inner door did not itself constitute a Fourth Amendment intrusion, because it did not violate the defendant’s reasonable expectation of privacy. The officers’ entry into the home, however, did constitute an intrusion for Fourth Amendment purposes. To justify this intrusion, the government relied on the exigent-circumstances doctrine. The Tenth Circuit agreed that exigent circumstances (the threatening remark from defendant) justified the officers’ entry.

The protective sweep of the home, however, could not be justified as a sweep incident to an arrest for officer safety. When it occurred, defendant was not yet under arrest. The government also argued, in both the district court and on appeal, that the sweep could be justified by the risk of danger to others, such as the person with whom defendant had allegedly been fighting. Because the district court had not addressed this rationale, the Tenth Circuit remanded for a determination of whether the warrantless sweep of defendant’s home was permitted under the exigent-circumstances doctrine as it relates to victim safety.

Nos. 05-1325, 05-1441, 05-1447, 05-1465, 05-1521, and 05-1523. US Fax Law Ctr., Inc. v. IHire, Inc.; Consumer Crusade, Inc. v. Sunbelt Communications and Marketing, LLC; Consumer Crusade, Inc. v. Scientific Research Group, Inc.; Consumer Crusade, Inc. v. Avalona Communications; Consumer Crusade, Inc. v. Live Leads Corp.; and Consumer Crusade, Inc. v. IHire, LLC. 02/07/2007, D.Colo., Judge Kelly. Telephone Consumer Protection Act—Diversity Jurisdiction—Representational Standing.

Plaintiff took assignments from Colorado individuals and businesses who received junk faxes that violated the Telephone Consumer Protection Act (TCPA). Plaintiff then pursued those claims in federal court, seeking statutory awards for each fax from $500 to $1,500. The district court dismissed the case based on lack of jurisdiction and standing. Plaintiff appealed.

The Tenth Circuit Court held that claims under the TCPA can be brought in federal court under diversity jurisdiction because there is no express congressional intent to preempt diversity jurisdiction and because the diversity jurisdiction statute and the TCPA are not irreconcilable.

The court next considered whether the claims were assignable. After determining that Colorado state law governed the issue, the Tenth Circuit held that the claims were not assignable because they were in the nature of personal injury, privacy claims. Finally, the Tenth Circuit held that the plaintiff lacked the "injury in fact" necessary for standing, because the assignments were invalid and the plaintiff had received no faxes from the defendants. The district court’s judgment of dismissal was affirmed.

No. 05-2383. U.S. v. Medley. 02/09/2007, D.N.M., Judge Hartz. Sentencing Guidelines—Vindictive Resentencing.

The defendant was convicted in 2002 of numerous counts of wire fraud and other crimes. At sentencing, the probation office applied the 2001 version of the Sentencing Guidelines in preparing the presentence investigation report (PSR). The PSR arrived at a total offense level of 24 and a criminal history Category of I. The applicable Sentencing Guidelines range, given these scores, was fifty-one to sixty-three months, but the PSR opined that the criminal history score did not adequately reflect her background, which included numerous incidents of fraud and disobedience to court orders. Accordingly, the government filed a motion for upward departure to at least Category V. The district court departed upwardly to a criminal history Category III, leading to a sentencing range of sixty-three to seventy-eight months’ imprisonment. It then sentenced defendant to seventy-eight months’ imprisonment.

In a prior appeal from the seventy-eight-month sentence, defendant contended the district court had erred in applying the 2001 version of the Sentencing Guidelines, which resulted in a three-level increase in the offense level that would not have been present under the 2000 Guidelines. The government warned in its appellate brief that if the 2000 Guidelines were applied, defendant could face an increased sentence because of other Sentencing Guidelines factors. Defendant also sent a letter to the Tenth Circuit, raising a supplemental argument that her sentence violated U.S v. Booker, 543 U.S. 220 (2005), which held that the Sentencing Guidelines must be treated as advisory rather than mandatory. The Tenth Circuit remanded for resentencing in light of Booker.

On remand, the government raised additional objections to the PSR that required an increased sentence for the defendant. The probation office prepared a revised PSR incorporating these objections. Based on a criminal history Category I, the new Sentencing Guidelines range was seventy-eight to ninety-seven months. Notwithstanding the defendant’s argument that any increase in her sentence would represent a vindictive punishment for having taken a successful appeal, the district court again granted an upward departure to criminal history Category III, and adopted the revised Sentencing Guidelines range, resulting in a range of ninety-seven to 121 months’ incarceration. It then sentenced defendant to ninety-seven months, nineteen more months than she had received before her appeal.

On appeal, defendant argued that the increased sentence created a presumption of vindictiveness that the government had failed to rebut. The Tenth Circuit noted that reversal is required only where there is a reasonable likelihood that the increased sentence was the product of actual vindictiveness. Here, the court reasoned, the district court acted in compliance with the mandate of Booker to compute correctly the Sentencing Guidelines sentencing range and then to consider that range in exercising its discretion under the sentencing statute, 18 U.S.C. § 3553. Moreover, even if the Tenth Circuit were to impose a presumption of vindictiveness, that presumption was clearly rebutted by the district court’s explanation for the changes in its Sentencing Guidelines calculation.

The defendant also argued that the district court had failed to follow the Tenth Circuit’s mandate on remand to resentence in light of Booker, because it had not explained why the prior, vacated sentence was unreasonable. The Tenth Circuit rejected this argument, noting that under Booker, there may be a substantial range of reasonable sentences for the defendant. The district court can properly select any term within that range and need not explain why it did not choose another reasonable sentence. The sentence was affirmed.

Nos. 06-9514 and 06-9518. NLRB v. King Soopers, Inc. 02/13/2007, NLRB, Chief Judge Tacha. National Labor Relations Act—Enforcement—Exception—Contempt.

The National Labor Relations Board (NLRB) petitioned for enforcement of an order issued against King Soopers for failing to provide documents to two separate unions. King Soopers did not contest the content of the NLRB’s order; rather, it opposed enforcement by the court. King Soopers asserted that because it already had complied with the order, court enforcement was unnecessary and inappropriate.

The Tenth Circuit stated the general rule that the NLRB is entitled to have its orders enforced by the court. None of the exceptions to this rule applied, so the court would order enforcement. Even though King Soopers already had complied, an order by the NLRB imposes a continuing obligation and any resumption of the unfair practice is barred by an enforcement decree. The Tenth Circuit dismissed King Soopers’ fear that the NLRB would threaten contempt proceedings in the event of any subsequent allegation that King Soopers failed to provide information to the unions. Contempt is a legitimate enforcement tool for subsequent similar violations. King Soopers’ argument that the NLRB might abuse contempt proceedings is speculative. Moreover, any contempt proceedings for an act unrelated to this order would be clearly outside the law, and King Soopers could defend it in contempt proceedings. The Tenth Circuit enforced the NLRB’s order.

No. 05-1559. Mann v. Boatright. 02/15/2007, D.Colo., Judge Porfilio. Rooker-Feldman Doctrine—Inextricably Intertwined—Seal File—Public Access to Judicial Records—Prolix Complaint Subject to Dismissal.

Plaintiff filed a federal suit against thirty-seven Jefferson County, Colorado officials, including judges and other government personnel, seeking to enjoin various orders of a state probate court appointing Gayle King as conservator and guardian for the plaintiff’s elderly father. In the federal proceeding, plaintiff requested that the file be sealed and/or the pleadings be withheld from the court’s Web-based filing system. The district court denied the request to seal the file and dismissed the case for lack of jurisdiction under the Rooker-Feldman Doctrine, which bars federal courts from reviewing final orders of a state court (Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)).

On appeal, the Tenth Circuit determined that the district court lacked jurisdiction under Rooker-Feldman over most of the plaintiff’s claims. The plaintiff asserted that the probate proceedings were not final and will continue until her father dies or the guardianship/conservatorship is terminated. Under Colorado law, however, a probate court order is final if it ends the particular action brought in the petition. Therefore, the probate court case ended when that court issued orders granting King’s petitions for guardianship and conservatorship, and no appeal was taken to the state appellate courts. Accordingly, the district court properly dismissed the plaintiff’s challenges to the probate court orders and the claims inexplicably intertwined with those orders. Any claims not precluded by Rooker-Feldman were properly dismissed due to the plaintiff’s disregard of the pleading requirements mandated by Fed. R. Civ. P. 8 (short and plain statement of the claim showing entitlement to relief).

The Tenth Circuit also affirmed the order denying plaintiff’s request to seal the court file on the grounds that releasing the pleadings to the public would profoundly embarrass her and her father and invade their privacy. Finding no abuse of discretion in the district court’s decision, the Tenth Circuit acknowledged the strong presumption in favor of public access to judicial records, a presumption plaintiff’s privacy concern did not overcome. The district court’s judgment was affirmed.

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