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TCL > June 2007 Issue > Tenth Circuit Summaries

June 2007       Vol. 36, No. 6       Page  115
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 at http: // (select the "United States Courts" link).

No. 06-2069. Martinez v. Carr. 03/27/2007, D.N.M., Judge Gorsuch. Fourth Amendment—Seizure—Citation—Required Signature Under Penalty of Arrest.

Defendant, a New Mexico police officer, issued a citation to plaintiff following an altercation at the New Mexico State Fair. Officer Carr told plaintiff that he had to sign the citation, promising to appear in court, or he would be arrested. Plaintiff signed the citation and was escorted off the fairgrounds.

Plaintiff sued Officer Carr, asserting that the threat of jail if he did not sign the citation violated his Fourth Amendment right against being seized unreasonably. Officer Carr claimed qualified immunity, but the district court rejected the defense, holding that the sign-or-go-to-jail nature of the citation was unlawful. Officer Carr appealed.

The Tenth Circuit Court evaluated whether plaintiff had met his heavy two-part burden in response to a qualified-immunity defense: (1) to demonstrate that defendant violated his constitutional or statutory rights, and (2) to show that the right was clearly established at the time. The court held that the issuance of a misdemeanor citation requiring appearance at trial in lieu of arrest is not a "seizure" for Fourth Amendment purposes. Therefore, plaintiff did not meet his burden and judgment in favor of Officer Carr was required. The district court’s judgment was reversed.

No. 06-6274. U.S. v. Barrows. 04/03/2007, W.D.Okla., Judge McConnell. Fourth Amendment—Reasonable Expectation of Privacy—Personal Computer Connected to Office Network.

Defendant entered a conditional guilty plea to child pornography charges, reserving the right to appeal from the district court’s denial of his motion to suppress evidence obtained from his computer’s hard drive. Defendant was treasurer for the city of Glencoe, Oklahoma (city). He occupied a shared workspace in city hall with the city clerk. A counter cordoned off this workspace from the general public, but defendant and the clerk enjoyed little privacy. Other city employees entered their space to use the city’s fax machine and copier, which were located approximately a foot from defendant’s desk.

Defendant shared a city computer with the clerk. Because both of them could not use the same computer at once, defendant brought his home computer to work and connected it via the city network to the shared computer; this way, both he and the clerk could input data simultaneously and access city files from either computer. Defendant conducted all his city work on his personal computer. He did not password-protect his personal files on the computer, or otherwise exclude other city employees from using his computer. He left the computer running at all times, even in evenings when he was away from his desk.

After the two computers were networked, the city clerk began experiencing difficulty opening files on the city computer. During one such problem, she sought assistance from a reserve police officer who happened to be at city hall to send a fax. The officer was a former computer salesman, and had helped the clerk deal with computer difficulties before. The officer suspected that the same file might already be opened on defendant’s computer and, while investigating this possibility on defendant’s computer, he encountered a file-sharing program that was running. As he looked into the program’s file transfer history, the officer observed a series of files with sexually suggestive names. He opened some of them, and discovered child pornography.

The Tenth Circuit considered whether defendant had a Fourth Amendment reasonable expectation of privacy in his personal computer sufficient to forestall the warrantless search that led to the discovery of the pornography. It had to consider whether defendant had a subjective expectation of privacy and whether that expectation was a reasonable one. The ultimate question was whether the claim to privacy from the government intrusion was reasonable, in light of all the circumstances. In the workplace, these circumstances included (1) the employee’s relationship to the item seized; (2) whether that item was in the employee’s immediate control when seized; and (3) whether the employee took actions to maintain his privacy in the item.

Defendant’s ownership of the computer, although an important factor in favor of Fourth Amendment protection, was not dispositive. Ownership alone did not demonstrate a subjective expectation of privacy, or make that expectation reasonable, in light of defendant’s voluntary transfer of his personal computer to a public place for work-related use. Defendant had failed to password-protect his computer, turn it off, or take any other steps to prevent third-party use. Although he did not invite others to use his computer, he networked it to the city computer for the express purpose of sharing files. The computer was in a public area of city hall, visible to city employees and members of the general public, and subject to being mistakenly identified as a city computer. Consequently, defendant did not enjoy a reasonable expectation of privacy, and the officer’s search did not constitute a Fourth Amendment violation.

No. 06-1264. Duran v. AmeriCredit Financial Services, Inc. 04/04/2007, D.Colo., Judge Ebel. Bankruptcy—Automatic Stay—Statute Trumps Rule—No Private Cause of Action for Colorado Crimes.

Before filing for bankruptcy, the debtor financed her purchase of a truck through appellee AmeriCredit Financial Services, Inc. (AmeriCredit), giving AmeriCredit a first lien on the truck. The debtor defaulted on the loan, and AmeriCredit sued in state court to repossess the truck. The day before the scheduled hearing in state court, the debtor filed her bankruptcy petition. On November 9, 2004, AmeriCredit filed a motion in the bankruptcy court for relief from the automatic stay provided by 11 U.S.C. § 362(a) on actions by a creditor to recover from the debtor. The bankruptcy court granted relief from the stay on December 9, 2004. On December 18, 2004, AmeriCredit repossessed the truck.

The debtor appealed to the district court, where she lost. She appealed further to the Tenth Circuit Court, which adopted the district court’s order as its own. The debtor argued that AmeriCredit’s repossession of her truck violated the automatic stay of Bankruptcy Rule 4001(a)(3). Under the rule, an order is stayed for ten days after the order granting a motion for relief from stay. In contrast, 11 U.S.C. § 362(e) provides that the automatic stay may be terminated thirty days after a request for relief from the automatic stay is filed. Here, the conditions were met to lift the automatic stay, pursuant to § 362(e). Because a rule cannot affect any substantive right and AmeriCredit’s interest in its collateral was a substantive right, § 362(e) prevailed over Rule 4001(a)(3). Consequently, the repossession did not violate the automatic stay.

The Tenth Circuit also rejected the debtor’s attempts to prosecute the crimes of aggravated motor vehicle theft and theft by receiving under Colorado statutes, because the statutory proscriptions do not provide for private causes of action. Similarly, the debtor could not collect damages under Colorado’s rights in stolen property statute because there was no showing of a criminal act. The district court’s judgment was affirmed.

No. 04-1496. Mink v. Suthers. 04/16/2007, D.Colo., Judge Tymkovich. Colorado Criminal Libel Statute—First Amendment—Standing and Mootness—Privacy Protection Act—Prosecutorial Immunity.

As a student at the University of Northern Colorado (UNC), plaintiff created and published an Internet journal called The Howling Pig. It included a column parodying a UNC professor. The professor pursued criminal charges under the Colorado criminal libel statute, which prohibits publication of any statement tending to denigrate a person and expose him to public hatred, contempt, or ridicule. After an assistant district attorney (ADA) approved a search warrant application, a warrant was obtained and authorities seized plaintiff’s computer and some written materials pertaining to The Howling Pig. Plaintiff filed suit, alleging that the criminal libel statute is unconstitutional, and sought damages under the federal Privacy Protection Act, as well as damages against the ADA. Shortly thereafter, the prosecutor dropped the investigation and issued a "No File" decision, stating that the statements published in The Howling Pig could not be prosecuted under the statute. The district court dismissed the case.

On appeal, the Tenth Circuit Court held, in light of the prosecution’s "No File" decision, that the First Amendment claim was properly dismissed, because plaintiff lacked standing and the issue was moot. On the standing question, the court ruled that plaintiff faced no credible threat of prosecution under the statute; therefore, there was no live controversy to confer standing. Similarly, plaintiff’s First Amendment claims were moot, because he could show no reasonable expectation that the wrong would be repeated.

The Tenth Circuit then addressed plaintiff’s claim for damages against the ADA under the federal Privacy Protection Act, which creates a right of action for the improper seizure of media materials. Because the ADA did not participate in the search of plaintiff’s home, the act did not apply to her. Finally, the court considered plaintiff’s claims against the ADA for damages based on her review of the search warrant application. The court discussed the distinction between a prosecutor’s advocacy and investigation functions, concluding that the actions at issue here were more akin to investigation, for which a prosecutor is not entitled to absolute immunity. Instead, qualified immunity may be available to the ADA, and the case was remanded for the district court to consider this issue. The district court’s judgment was affirmed in part and reversed in part, and the case was remanded.

No. 06-2093. U.S. v. Goode. 04/16/2007, D.N.M., Judge Hartz. Felon in Possession of a Firearm—Interstate Nexus—Erroneous Jury Instruction—Plain Error.

Defendant was convicted by a jury of being a convicted felon in possession of a firearm. The firearm was recovered from his vehicle after he was arrested on unrelated charges in Capitan, New Mexico. The evidence at trial showed that the firearm was manufactured in Spain. An agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified that because no firearms are manufactured in New Mexico, the gun must have traveled in interstate or foreign commerce.

The statute under which defendant was charged, 18 U.S.C. § 922(g), required that the firearm be possessed "in or affecting commerce." The jury instructions at defendant’s trial, however, required the prosecution to prove specifically that the firearm had "moved from one state to another." The jury sent the district court a note during deliberations, asking whether a gun that was not manufactured in New Mexico must have traveled in interstate or foreign commerce. The district court responded that this presented a factual question for the jury to decide.

On appeal, defendant argued that because the weapon could have arrived in New Mexico without passing through another state (by traversing the Mexican border), the prosecution failed to satisfy its burden of proof under the instruction given at his trial. Under the "law-of-the-case" doctrine, the Tenth Circuit explained, the government must prove the elements contained in jury instructions to which it did not object, even if such a requirement goes beyond the statutory requirements. Here, the sufficiency of evidence to prove that the firearm had "moved from one state to another" was questionable. But defendant’s argument was foreclosed by the "plain error" doctrine.

Defendant had moved for a judgment of acquittal at trial, but not on the basis raised on appeal. He had argued only that there was not a sufficient legal nexus between the weapon and him to meet the element of possession. Therefore, the Tenth Circuit stated, the interstate nexus issue would be examined only for plain error. Under the plain error test, defendant had to show (1) an error, (2) that is plain, meaning clear or obvious under current law, and (3) that affects substantial rights. If he demonstrated such an error, the court could exercise its discretion to correct the error, provided that it seriously affected "the fairness, integrity, or public reputation of judicial proceedings." Assuming the first three elements were met here, the Tenth Circuit held there was no such showing of a serious effect on the fairness, integrity, or public reputation of judicial proceedings in this case. To have arrived in Mexico, the firearm must have traveled either in interstate or international commerce, thus meeting the statutory requirement of 18 U.S.C. § 922(g). Because the statutory requirements were met, there was no miscarriage of justice sufficient to satisfy the final requirement of the plain error doctrine.

Defendant also argued that he should be resentenced, because the district court failed to verify that he and his attorney had read and discussed his presentence report (PSR). Although defendant denied reading the report, he contradicted himself to some extent by making assertions that suggested he was familiar with it. Moreover, his attorney declared that defendant had read the PSR and that they had discussed it. Defendant’s conviction and sentence therefore were affirmed.

No. 06-6199. U.S. v. Hudson. 04/17/2007, W.D. Oklahoma, Judge McKay. Restitution—Appeal Waiver—Necessity of Actual Loss—Copyright Infringement.

Defendant pled guilty to conspiracy to infringe a copyright. The district court sentenced him to a one-year term of imprisonment, and ordered him to pay restitution to Microsoft in the amount of $321,663. On appeal, he challenged the restitution order, contending that Microsoft suffered no actual loss from his copyright infringement.

Defendant and his co-conspirators had transmitted fax advertisements for a "Microsoft Closeout Sale," offering steep discounts on various Microsoft products. A company in Maryland responded to the offer by placing an order for 537 copies of Microsoft Office 2000 Professional Edition, at a total price of $85,383. When the software arrived, the company became suspicious and contacted Microsoft, which confirmed that the software was counterfeit. The Maryland company refused to pay for the software, and turned over all copies to the government.

The presentence report calculated the amount of loss resulting from the offense at $322,194.63, based on an estimated retail value of $599.99 for each counterfeit copy of the software. Microsoft arrived at a figure of $321,663 for its loss. The district court made no factual finding regarding Microsoft’s actual loss, but imposed restitution equal to Microsoft’s calculation.

As a threshold issue, the Tenth Circuit considered whether defendant had waived his right to appeal the amount of restitution awarded. His plea agreement contained a waiver of his right to appeal. This waiver, however, did not extend to challenges to an illegal sentence. The court concluded that defendant did not waive his right to appeal the legality of his restitution order, which would be an "illegal sentence" if it exceeded the amount provided for by statute.

Turning to the merits, the Tenth Circuit began with the principle that a court lacks jurisdiction to award restitution in excess of the actual loss suffered by the victim. Here, it was only theoretical that Microsoft would have sold 537 authentic copies of its software at full price, had the copyright infringement not occurred. Microsoft had not established a lost sale, because the Maryland company had turned over the counterfeit software to the government almost immediately, and still could purchase the authentic Microsoft software if it so desired. Because Microsoft failed to prove an actual loss, no restitution should have been ordered. The Tenth Circuit therefore vacated the order of restitution.

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