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TCL > July 2007 Issue > Tenth Circuit Summaries

July 2007       Vol. 36, No. 7       Page  149
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 this 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. 06-5138. U.S. v. Rice. 04/23/2007. N.D.Okla., Judge Tymkovich. Search and Seizure—Third-Party Consent—Computer Files.

Defendant pled guilty to possession of child pornography, reserving the right to appeal from the denial of his motion to suppress evidence seized from his computer’s hard drive. The police became interested in defendant while investigating a company that provided subscribers access to websites containing child pornography. The company had a customer identified with defendant’s name, address, and credit card number. The e-mail address associated with this customer, however, belonged to defendant’s father, who lived with defendant.

The officers conducted a "knock and talk" interview to see if they could obtain consent for a search of the residence. Defendant’s father permitted the officers to enter the home and signed a consent form agreeing to a search of the premises and any computers on the premises. Using forensic software, a computer expert working with the police department obtained direct access to the hard drive on defendant’s computer. Only later did he discover that the computer’s files were protected by a user name and password. As a result of his examination, the expert located .jpg picture files with names suggesting child pornography.

At this point, defendant’s father informed the officers that the computer in defendant’s bedroom was the only one in the house. They suspended the search and called the defendant at work. After defendant returned home and his consent to a search of his bedroom and computer was obtained, the search continued.

Defendant’s suppression motion did not focus on his own, belated grant of consent for the search. Rather, he argued that the search was invalid ab initio because his 91-year-old father lacked authority to consent to a search of the computer. The Tenth Circuit Court concluded that the father had apparent authority to give consent to a search of the computer. As a general matter, a computer is analogous to a container like a suitcase or a footlocker that commands a high degree of privacy. Although the defendant argued that the password protection associated with the computer required the officers to inquire further before searching it, under all the circumstances, the officers’ belief that defendant’s father had authority to permit the search was reasonable. Defendant’s father had access to the room containing the computer; at the time officers performed their search, he had said nothing to indicate that he did not use it. He paid the bills for Internet access and defendant used his father’s e-mail address to register his access to the child pornography website. The computer was in plain view in the bedroom and appeared available for use. Therefore, the district court properly denied the suppression motion.

No. 06-2215. U.S. v. Cachuca. 04/26/2007, D.N.M., Judge Hartz. Sentencing Guidelines—Upward Departure—Breach of Plea Agreement.

Defendant pled guilty to involuntary manslaughter in Indian country. He entered into a plea agreement that anticipated a sentence of not more than sixteen months’ imprisonment, based on a stipulated offense level of 12 under the U.S. Sentencing Guidelines. At sentencing, the prosecutor expressed distress at such a short sentence, and made several statements implying that an offense level of 12 was too low. The district court, making reference to the sentence that defendant would have faced under state law and under an amended version of the Guidelines that took effect after his crime, sentenced defendant to thirty months’ imprisonment. After the government conceded that defendant had not received notice that the district court was considering an upward departure, the district court heard defendant’s argument that the sentence violated the ex post facto clause and, making reference to defendant’s prior tribal convictions, it again sentenced him to thirty months’ imprisonment.

On appeal, defendant challenged his sentence on several grounds. The Tenth Circuit considered only his challenge to the government’s breach of the plea agreement. The court noted the government’s concession that it promised not to seek a higher offense level or an upward variance from the Guidelines range stipulated to in the plea agreement. By complaining about the Guidelines range, however, the prosecutor did exactly w hat he had agreed not to do. The court also was troubled by the government’s assertion in its motion for re-sentencing that the sentence was properly supported by the grounds the district court previously had stated. These statements, the Tenth Circuit concluded, even though not repeated at the second sentencing hearing, undermined the prosecutor’s promises to the defendant in his plea agreement. The court therefore remanded for resentencing by a different judge.

No. 06-3164. U.S.A. v. $252,300.00 in United States Currency. 04/30/2007, D.Kan., Judge Lucero. Civil Forfeiture—Currency Factors—Substantial Connection—Controlled Substance—Preponderance of Evidence.

During a legitimate traffic stop of a tractor-trailer truck driven by Levonzell Nowden on I-70, Kansas patrol officers discovered in excess of $250,000 in cash that was bundled, wrapped, and hidden in a locked storage compartment in the truck. The government sought forfeiture of the money, claiming it had a substantial connection to a controlled substance. The currency gave off a noticeable odor of marijuana and a drug dog alerted on the packages. Nowden appeared nervous and he and his passenger gave inconsistent stories about the source of the cash. The evidence Nowden produced to substantiate his claim of ownership was neither credible nor supported by documents. Following a Bench trial, the district court ordered the currency forfeited to the government.

On appeal, the Tenth Circuit Court evaluated the factors relevant to the inquiry of whether the government had established by a preponderance of the evidence a substantial connection between the currency and a controlled substance. The court found Nowden’s nervousness, the fact that the currency was concealed, and the characterization of I-70 as a known drug route only minimally probative. Factors the court weighted heavily were the inconsistent and changing statements relating to the money; the amount of cash and the way it was packaged (bills of various denominations, bundled in stacks held by rubber bands, wrapped in cellophane); the lack of evidence to support the claimed source of the funds; and the odor of marijuana on the currency. The district court’s judgment was affirmed.

No. 06-3087. Barfield v. Commerce Bank, N.A. 05/01/2007, D.Kan., Judge McConnell. Race Discrimination—Contract Consideration—Financial Value Not Required—Amendment Properly Denied—Insufficient Factual Allegations.

Plaintiffs, who are African-Americans, requested change for a $50 bill at the defendant bank, but were denied because they were not account holders. Their white friends, however, were given change without being asked if they had accounts. Plaintiffs sued under 42 U.S.C. § 1981, which prohibits racial discrimination in the ability to make and enforce contracts, among other things. The district court denied plaintiffs’ motion to amend the complaint and certify the case as a class action, and granted the bank’s motion to dismiss.

The Tenth Circuit Court observed that a customer’s offer to do business in a retail setting falls within § 1981. Plaintiffs’ offer to exchange money at a bank is a contract offer: they offered to give up something of value (a large-denomination bill) in exchange for something they valued more (smaller-denomination bills). The court rejected the bank’s argument that it was not a contract because it involved no consideration, holding that Kansas state law does not require consideration to have a quantifiable financial value. To the contrary, profit-making establishments often offer to engage in transactions with no immediate gain so as to induce customers to engage in other, more lucrative transactions. Such offers may be contractual and do not lack consideration. The bank’s actions in extending bill-exchange services to persons of one race and not to persons of another, came within the ambit of § 1981. Accordingly, the dismissal was improper.

The Tenth Circuit also addressed the district court’s denial of plaintiffs’ motion to amend the complaint and certify the case as a class action. It held that the proposed amended complaint was properly denied because it did not provide sufficient facts to inform defendant of the grounds for plaintiffs’ allegations. The district court’s order to dismiss was reversed, its order denying permission to amend the complaint was affirmed, and the case was remanded for further proceedings.

No. 06-5027. U.S. v. Butler. 05/07/2007, N.D.Okla., Judge O’Brien. Possession of Firearm by Convicted Felon—Justification—Jury Instructions.

A jury convicted defendant of being a felon in possession of a firearm and an armed career criminal in possession of a firearm and ammunition. The district court denied his request for an instruction on justification for possession of the firearm. On appeal to the Tenth Circuit, he challenged the denial of the justification instruction.

The evidence in support of defendant’s theory showed that two men came to his door with a "business proposition." He knew one of the men, so he let them into his apartment. The men told him they needed defendant to kill a man named Alvin who had become a problem. One of the men gave him a gun and told him to use it to kill Alvin. Defendant testified that he had no choice but to agree to perform the killing because the man who handed him the gun pointed it at him while discussing the "Alvin" problem, had another gun, and spoke in a threatening tone of voice. Defendant was afraid that if he refused, the men would kill him and his family.

Defendant did not take the gun immediately to the authorities because he was afraid the men would turn violent if they returned and he no longer had the gun. Rather, he tried to sabotage the plot by talking to the men on a cell phone they believed was unsecure. Finally, the men called off the murder plot, and let him keep the gun. Defendant had been talking with some officers about an unrelated matter and knew they were due to return to his apartment. He waited two to four days until they showed up at his apartment, then surrendered the gun to them. The total time he was in possession of the firearm was four to six weeks.

On appeal, the Tenth Circuit considered the four-factor test applicable to a defense of justification. The first factor, concerning imminent harm, was dispositive. That factor asks whether the defendant "was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury." The threat would have to continue during the entire length of the possession. Here, the district court found that by the time defendant surrendered the gun to the officers, the danger of imminent harm had already evaporated. The Tenth Circuit upheld this finding, thus sustaining the denial of the justification instruction.

Although the defendant’s failure to establish imminent harm was sufficient for denial of the instruction, the Tenth Circuit also noted that defendant failed the third factor, as well: he failed to show that he "had no reasonable, legal alternatives to possessing the gun." Defendant could have given the officers the gun when he met with them a week earlier. His claim that he did not trust the officers to protect him from the men who gave him the gun did not justify his continued possession of the gun. While defendant’s alternatives were difficult, it would not have been impossible for him to make a more prompt surrender of the gun. The Tenth Circuit therefore upheld his convictions.

No. 06-4029. Gillman v. Ford (In re Ford). 05/17/2007, BAP (Utah), Judge Tymkovich. Bankruptcy—Personal Injury Settlement—Concealed in Bad Faith—Burden of Proof—Preponderance of Evidence—No Clear Error.

Prior to filing for bankruptcy, the bankruptcy debtor was injured in an automobile accident. After filing suit based on her injuries, she hired a different lawyer to file her bankruptcy case, but she did not reveal her pending personal injury suit on her bankruptcy asset schedules. After her injury suit was settled and she learned that she could not get the settlement money until the bankruptcy court released it, she amended her bankruptcy schedules and requested that the settlement be deemed exempt. The bankruptcy court determined that the debtor had concealed her pending personal injury claim in bad faith and denied the exemption. She appealed to the Bankruptcy Appellate Panel, who reversed and granted the exemption. The bankruptcy trustee appealed that decision.

The Tenth Circuit Court noted that all claims, including those that are contingent, must be disclosed in a bankruptcy proceeding. Although a personal injury settlement may be exempt from creditors, a debtor’s bad faith can be grounds for denying the exemption. In assessing this case, the Tenth Circuit first determined that a preponderance-of-the-evidence standard applied to a trustee seeking to establish a debtor’s bad faith to deny an exemption. The burden to establish bad faith rests on the party challenging the exemption; the burden to establish that omitting the asset in the first place was inadvertent lies with the debtor.

Next, the court stated that bad faith is a question of fact, reviewed only for clear error. The bankruptcy court’s finding that the debtor intentionally concealed her potential litigation interest and that the concealment prejudiced the bankruptcy estate were not clearly erroneous. The debtor’s shifting explanations of why she failed to disclose this asset supported the bankruptcy court’s ruling. The bankruptcy court’s judgment was affirmed.

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