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TCL > May 2007 Issue > Tenth Circuit Summaries

May 2007       Vol. 36, No. 5       Page  141
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 (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, http: // (United States Courts link to the Tenth Circuit).

No. 04-1274. Pfannenstiel v. Merrill Lynch, Pierce, Fenner & Smith. 02/20/2007, D.Colo., Judge Siler. Arbitration Award—Untimely Motion to Set Aside—Equitable Tolling, Arbitral Immunity.

Plaintiff Pfannenstiel alleged that defendant Merrill Lynch owed him compensation due to accounting errors. Merrill Lynch refused his demands. The dispute was submitted to a National Association of Securities Dealers (NASD) arbitration panel. The panel denied plaintiff’s claims. Two months later, plaintiff tried to retrieve a document he had presented at the arbitration hearing and discovered that the record was missing. He sued in federal court to vacate the arbitrators’ ruling and for damages for the lost materials. The district court dismissed the case, holding that plaintiff had filed his motion to vacate too late and that the claims were barred by the doctrine of arbitral immunity.

The Tenth Circuit Court held that the motion to set aside the award was untimely because it was not filed within the required three months after the award. Plaintiff was not entitled to equitable tolling, because he discovered one month before the deadline that the file had been lost and had ample opportunity to serve defendants in a timely fashion.

The Tenth Circuit further held that arbitrators are entitled to immunity from liability for claims arising out of a decisional act. After reviewing plaintiff’s complaint, the court determined that it was a veiled attack on the arbitrators’ decision. Accordingly, the NASD was entitled to arbitral immunity. The district court’s judgment was affirmed.

No. 05-1350. Adair Group, Inc. v. St. Paul Fire & Marine Insurance Co. 02/26/2007, D.Colo., Judge McKay. Colorado Insurance Law, Covered Occurrence, Subcontractors’ Faulty Workmanship.

Adair Group, Inc. (Adair) sought indemnity on a commercial general liability insurance policy issued by defendant (St. Paul). An arbitration panel had awarded $2.5 million against Adair for construction deficiencies in work done by Adair’s subcontractors. St. Paul denied coverage because no covered "event" under the policy had occurred. The district court granted summary judgment to St. Paul.

Applying Colorado law, the Tenth Circuit Court rejected Adair’s argument that the covered event was the unanticipated failure of Adair’s subcontractors to perform their work in a workmanlike manner. The court noted that Adair sought indemnity only for the construction deficiencies, not for any damages resulting from the poor workmanship. Consequently, the court applied the Colorado rule that poor workmanship constituting a breach of contract is not a covered occurrence. Moreover, a general contractor should not be able to turn its failure to complete construction according to the contract into a covered event by bootstrapping on its subcontractors’ negligence.

The Tenth Circuit held that the deficient performance of Adair’s subcontractors was not in itself a triggering event, and that the summary judgment in favor of St. Paul was correct. The district court’s judgment was affirmed.

No. 06-4155. U.S. v. Lara-Garcia. 03/06/2007, D.Utah, Judge Baldock. Probable Cause for Detention—Miranda Warnings—Suppression of Evidence.

Defendant was charged with one count of illegal reentry into the United States after a fingerprint check revealed his identity and the fact that he was a previously deported alien. He entered a conditional guilty plea, reserving the right to challenge the denial of his motion to suppress the evidence of his identity and immigration status.

When stopped on suspicion of reckless driving by a Utah police officer, defendant could not produce a driver’s license or any other type of identification and could not remember his social security number. He gave two different names: "Juan Garcia" and "Juan Fierro," and stated his birthday as February 2, 1972. While the officer who stopped him was preparing a citation for driving without a license, a call from dispatch informed him that a "Juan Garcia" from California, with a date of birth of February 2, 1973 and a physical description somewhat matching that of defendant, was wanted for parole violation. After several calls back and forth to dispatch, the officer was unable to confirm whether defendant was the "Juan Garcia" wanted in California, so he handcuffed defendant and took him to the police station. This occurred approximately ninety minutes into the stop.

A federal agent from Immigration and Customs Enforcement (ICE) arrived at the station. Without reading defendant his Miranda rights, the agent questioned defendant concerning his name, date and place of birth, and immigration status. Defendant stated that his name was "Juan Garcia" and that he was an illegal immigrant from Mexico. Following the interview, the arresting officer informed the ICE agent that the description of defendant’s scars or tattoos did not match the "Juan Garcia" wanted in California. The police then turned defendant’s custody over to ICE.

At ICE headquarters, the ICE agent fingerprinted defendant and ran his prints through the ICE database. The database recognized the prints and reported defendant’s name as "Oscar Lara-Garcia," a previously deported alien. Defendant then was charged with illegal re-entry into the United States, and entered his conditional plea.

On appeal, the defendant argued that the ICE agent did not have a sufficient basis to detain him to investigate his immigration status, and that all evidence obtained as a result of his detention therefore should be suppressed. The Tenth Circuit disagreed. It focused, first, on whether defendant had been lawfully detained at the time of the ICE agent’s questioning. Defendant’s only argument was that there was a lack of probable cause to suspect him as an illegal immigrant, which he claimed was the "real" reason for his detention. The officer’s subjective motivation for the detention, however, was irrelevant, as long as the detention was objectively reasonable. Under Utah law, driving without a license justified the detention, so this requirement was satisfied.

Defendant also argued that the Fifth Amendment required that he be read his Miranda rights before being questioned about his immigration status. The Tenth Circuit held that it need not resolve this issue. Even assuming a Fifth Amendment violation, physical evidence need not be suppressed merely because of a failure to give a Miranda warning. Therefore, the district court properly denied defendant’s motion to suppress his identity and status as an illegal immigrant as revealed by his fingerprints and immigration file.

No. 06-3062. Campbell v. Gambro Healthcare, Inc. 03/09/2007, D.Kan., Judge Lucero. Family and Medical Leave Act—Retaliation—Interference—Required Showings—Burdens of Proof.

Plaintiff worked as one of two patient care technicians (PCTs) for defendant’s clinic (employer). In addition to caring for patients, she had duties as an inventory technician and secretary. During the time plaintiff worked at the clinic, defendant’s business declined and employer reduced the number of hours both PCTs worked.

In late 2003, plaintiff sustained a back injury that required her to take leave from work under the Family and Medical Leave Act (FMLA). During her absence, employer discovered that plaintiff had not followed company policy in her duties as inventory technician and secretary, charges plaintiff did not dispute. Shortly after plaintiff returned to work, employer terminated her employment due to further loss of business and because of plaintiff’s failings as an inventory technician and secretary. Employer elected to retain the other PCT instead of plaintiff.

Plaintiff sued, asserting two alternate claims under the FMLA: (1) employer interfered with her right to take FMLA leave, and (2) when plaintiff returned to work, employer retaliated against her for taking FMLA leave. The district court entered summary judgment in favor of employer, and plaintiff appealed.

The Tenth Circuit Court held that a plaintiff may bring both interference and retaliation claims under the FMLA. The two theories require different showings and burdens of proof. In an interference claim, plaintiff must show that she was entitled to FMLA leave, that some employment action interfered with her right to take FMLA leave, and that employer’s action was related to the exercise of her FMLA rights. In contrast, for a retaliation claim, plaintiff must show that she took FMLA leave, employer took an adverse employment action, and there exists a causal connection between the protected activity and the adverse action. The burden then shifts to employer to show a legitimate, nondiscriminatory reason for firing plaintiff. If the employer does so, the burden shifts back to plaintiff to show that employer’s stated reason was unworthy of belief and was a pretext for firing her.

In this case, employer’s reasons for terminating plaintiff’s employment were unrelated to her use of FMLA leave, so summary judgment was affirmed on the interference claim. Similarly, the retaliation claim was properly dismissed due to a lack of evidence that the legitimate reasons for termination were pretextual. The district court’s judgment was affirmed.

No. 06-1045. U.S. v. Helmstetter. 03/13/2007, D.Colo., Judge Hartz. Equal Protection—Discriminatory Use of Peremptory Challenges—Right to Cross-Examine Co-Defendant—Due Process.

Defendant was charged with counterfeiting. After his motions for severance were denied, he was tried with one co-defendant. The district court granted the co-defendant’s motion in limine to prevent the government from introducing evidence of her drug use.

During jury selection, the government used preliminary challenges to strike two potential jurors with Hispanic surnames. When defendant objected, the government offered race-neutral explanations for the strikes. The government justified striking one of the jurors because she was only 20 years old and had a lip piercing.

During his opening statement, defendant’s counsel acknowledged that defendant had passed counterfeit bills, but stated that he did so unknowingly. He explained that the co-defendant had a "drug problem," and so defendant had taken control over co-defendant’s finances to prevent her from buying drugs. If co-defendant passed any counterfeit bills, he contended, it was with money that defendant had given her for shopping, not because defendant was trying to use her to pass counterfeit bills.

After the prosecution finished its case-in-chief, co-defendant took the stand. She admitted, under cross-examination by defendant, that defendant had doled out money to her in an effort to control her expenditures. Defendant did not ask her about drug abuse. When defendant testified, his counsel asked him about co-defendant’s drug abuse. Co-defendant objected to this testimony. The district court ruled that defendant could testify in generic terms about his concerns about co-defendant’s ability to manage money, but could not go into her drug abuse.

The jury convicted defendant of all counts, but acquitted his co-defendant. On appeal, defendant argued that the government’s use of a peremptory challenge on the basis of youth denied him equal protection and violated the separation-of-powers clause. The Tenth Circuit held that jury-selection procedures discriminating on the basis of age do not violate equal protection. The court further rejected defendant’s argument that permitting the government to strike jurors based on age would invade the legislative power Congress exercised by permitting persons older than 18 to serve as jurors, holding that defendant had waived this argument by failing to raise it in the district court.

Defendant next argued that his Sixth Amendment right to cross-examine witnesses was violated when the district court prevented him from examining his co-defendant regarding her drug abuse. The Tenth Circuit held that defendant had waived this argument by failing to examine the co-defendant at trial on this subject. Because the order in limine applied only to the government, defendant should have attempted to examine his co-defendant if he wanted to test the relevance of this line of inquiry.

The Tenth Circuit also rejected defendant’s argument that the district court infringed his right to due process by preventing him from testifying about his co-defendant’s drug abuse. Defendant argued that it made him look bad in the eyes of the jury when jurors heard that he controlled his co-defendant’s finances without hearing why. Any prejudice from this evidence was defendant’s own fault, the Tenth Circuit ruled, because he introduced the evidence and argument about his control of co-defendant’s finances. Given that there was little relevance in defendant’s explanation of why he controlled his co-defendant’s finances, and that evidence of her drug use could be quite prejudicial to her, the district court did not abuse its discretion in excluding the evidence. The judgment of the district court is affirmed.

No. 04-2283. U.S. v. Valenzuela-Puentes. 03/15/2007, D.N.M., Judge Seymour. Competency to Stand Trial; Forcible Medication—Liberty Interest and Due Process.

Defendant was charged with reentering the United States after being previously deported following a conviction for an aggravated felony. The district court found him incompetent to stand trial and ordered him sent to a federal medical center for a four-month evaluation. After hospitalization failed to restore him to competency, the district court held a hearing, then granted the government’s motion to permit involuntary medication. Defendant appealed.

Shortly after his arrest, a physician assessed defendant as incompetent and concluded that his amenability to treatment was questionable due to his low intellectual level. Subsequent evaluations assessed him as suffering from a "psychotic disorder, not otherwise specified." These evaluations also assigned him IQ scores with single digit percentile ranks, meaning that more than 90 percent of the population would score higher than he did on an IQ test.

Defendant’s psychosis took the form of believing that he could not be facing federal immigration charges because he was employed as a "federal runner" by the U.S. government and either had some form of dual citizenship or was a citizen of the "United States of Mexico," a single country composed of the United States, Canada, and Mexico. The doctors testified at the hearing that defendant’s psychosis did not represent a danger to himself or others, but was deeply ingrained. The physicians differed in their opinions, however, concerning whether administration of antipsychotic medication would permit him to regain competency. They also differed concerning whether the benefits of the medication would outweigh its possible health risks.

The Tenth Circuit noted that involuntary medication of a non-dangerous defendant to render him competent to stand trial should be rare. In Washington v. Harper, 494 U.S. 210 (1990), the Supreme Court recognized that defendants possess a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs, and set out a rule that allowed the government to request an order of involuntary medication only on a showing that the defendant was dangerous to himself or others. In Sell v. United States, 539 U.S. 166 (2003), however, the Supreme Court adopted a four-part test to be applied in cases of involuntary medication, even for a nondangerous defendant.

On appeal, defendant contended that before considering the Sell factors, the district court was required to make preliminary findings concerning his dangerousness to himself or others under Harper. Because dangerousness was not an issue, however, the Tenth Circuit did not require the district court to perform a Harper inquiry or to make Harper findings.

Defendant next contended that the government failed to show, as required by Sell, by clear and convincing evidence that the government’s interest in medicating him outweighed his constitutional interest in refusing medication. The district court did not set forth in its order what standard of proof it had followed. The Tenth Circuit found this troubling.

Addressing defendant’s specific arguments concerning the Sell factors, the Tenth Circuit agreed with the district court that the reentry charge was a "serious crime." The fact that defendant had been incarcerated for a significant period of time did not lessen the government’s interest to the point where it was outweighed by that of defendant.

The district court had not made sufficient findings, however, to determine whether involuntary medication would significantly further the government’s interest in prosecuting defendant. This required two subsidiary findings: that administration of the drugs would be substantially likely to render defendant competent to stand trial, and that the medication would be substantially unlikely to have side effects that would interfere significantly with defendant’s ability to assist his counsel at trial. These factors had to be proved by clear and convincing evidence.

In its order, the district court had stated that one of the doctors had testified, without dispute, that the administration of antipsychotic medication was substantially likely to render defendant competent to stand trial. The Tenth Circuit noted that this fact was far from being "without dispute," because other doctors had testified that medication would not render defendant competent, due to his low intellectual functioning and the ingrained nature of his delusions; that the medication was less likely to work with someone over the age of 40; and that regular doses of the medication could produce an intoxicated state in a person with low mental functioning, making it difficult to assist his attorney at trial.

The Tenth Circuit reversed and remanded for further proceedings. It instructed the district court to apply the clear and convincing test to determine whether it is constitutionally permissible to forcibly medicate defendant, and to consider his extremely low intelligence and the deep entrenchment of his delusional thought patterns and beliefs in assessing whether medicating him would make him competent to stand trial.

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