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TCL > September 2007 Issue > Summaries of Selected Opinions

September 2007       Vol. 36, No. 9       Page  131
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 (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:

No. 06-2056. U.S. v. Ahidley. 05/25/2007, D.N.M., Judge Holmes. Sentencing—Restitution—Sufficiency of Evidence as to Amount—Immediate Payment.

Defendant pled guilty to assault with a dangerous weapon and assault resulting in serious bodily injury, both committed in Indian Country. While intoxicated, defendant became angry with his girlfriend and stabbed her. The knife wound injured her liver, kidney, and ascending colon. Defendant’s sister drove the girlfriend to a local hospital, from which she was airlifted to a hospital in Texas for treatment and surgery.

The Presentence Report (PSR) characterized defendant as a high school dropout with no specialized skills or training. He had no credit history, was living with and supported by family members and, according to the PSR, had no means to pay a fine. Nevertheless, under the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 1153, the probation office recommended that defendant be ordered to pay restitution to physicians and to the New Mexico Human Services Department (NMHSD). Accepting this recommendation, the district court ordered defendant to pay restitution of $22,537.13. Although the district court was silent at the sentencing hearing regarding the payment schedule for the restitution, in its written judgment it ordered that the restitution be paid immediately.

On appeal, defendant argued that there was insufficient evidence to support restitution in the amount requested by NMHSD. He contended that the letter from NMHSD did not detail the actual medical services provided to the victim or establish that the medical services provided were limited to injuries resulting from the stabbing. The Tenth Circuit rejected these arguments, stating that nothing in the record would have given the district court a reason to question the loss claimed. Moreover, the amount claimed was consistent with the amount of medical expenses anticipated for this kind of injury.

Defendant also challenged the requirement that payment be made immediately. The MVRA requires the district court to determine a payment schedule by considering such factors as defendant’s financial resources, his other assets, his earnings and other income, and his financial obligations. Here, nothing in the record indicated that the district court considered these statutory factors on the record. Because defendant did not object to the payment schedule in district court, however, resentencing would be required only if the district court’s failure to consider defendant’s ability to pay constituted plain error. The Tenth Circuit found that the error did constitute plain error, particularly because the statutory language unambiguously requires the district court to consider defendant’s resources in determining the repayment schedule. Accordingly, the Tenth Circuit vacated the requirement that payment be made immediately and remanded for further consideration of the MVRA factors and imposition of an appropriate payment schedule.

No. 06-6111. U.S. v. Allen. 05/31/2007, W.D.Okla., Judge McConnell. Sentencing Guidelines—Upward Departure of Variance—Uncharged Conduct.

Defendant pled guilty to a single count of possession of methamphetamine with intent to distribute, a crime that carried a sentence of ten years to life imprisonment. At an evidentiary hearing related to his sentencing, a dancer at an adult club testified that defendant told her that he preferred girls as young as 8 years old and that defendant tried to recruit her to help him carry out his plan to kidnap, rape, and murder a young girl.

The dancer presented her concerns to the FBI, who investigated defendant’s background and found that he previously had been convicted of raping a 15-year-old girl. The dancer recorded her conversations with defendant asking for her help in kidnapping a young girl and stating he would like to target the daughters of another dancer who worked at the club. The FBI also uncovered a witness who identified defendant as the man who had propositioned her young daughter at a Wal-Mart store.

When the FBI proved unsuccessful in discovering sufficient evidence to arrest defendant for a sexual offense with minors, it turned to his suspected dealing of illegal narcotics. An undercover agent obtained defendant’s agreement to sell methamphetamine "fronted" by the agent. Once defendant took possession of the drugs, the FBI arrested him. In defendant’s apartment, they found drug paraphernalia and files on his computer containing photographs of missing-children posters and stories about raping young girls.

The probation department prepared a Presentence Report that contained an advisory Sentencing Guideline range of 120 to 135 months’ imprisonment. The government initially requested an upward departure to a range of 121 to 151 months, contending that his conduct with the dancer and at the Wal-Mart store could have resulted in convictions for solicitation of murder and attempted abduction, so points should be added to his criminal history. At sentencing, the government asked the district court to depart upward to an advisory Guideline range of 235 to 293 months, based on the offense level applicable if defendant had been convicted of the solicitation and abduction crimes. The district court noted defendant’s degree of dangerousness, the severity of his threatened conduct, and his likelihood of recidivism, and concluded that a substantial upward departure from the Guidelines was warranted. It imposed a sentence of 360 months.

On appeal, defendant challenged his sentence as both unreasonable and in violation of the Eighth Amendment. The Tenth Circuit reached only the reasonableness challenge and held that a variance of 225 months, or 167 percent, was sufficiently extreme that it could be upheld only based on a compelling justification.

The Tenth Circuit examined whether the district court’s upward departure was the result of treating his actions as attempted crimes (an offense characteristic), or the result of an assessment of defendant’s criminal history and future dangerousness (an offender characteristic). Either way, it stated, the district court’s reliance on this conduct was problematic.

The conduct could not be used to enhance the advisory Guideline range for two reasons: (1) the conduct was insufficiently related to the offense of conviction to be used as an offense characteristic; and (2) the "crimes" never were formally adjudicated and did not fit within the Guideline exceptions for criminal history points that significantly underrepresented defendant’s criminal history score. Accordingly, the Tenth Circuit vacated defendant’s sentence and remanded for resentencing.

No. 06-4014. In re Kunz: Rupp v. United Security Bank. 06/05/2007, BAP (Utah), Judge Holloway. Bankruptcy—Preferential Transfers—"Insider"—Director Emeritus—Two Categories.

Bankruptcy law provides that a transfer made by the debtor within ninety days before the bankruptcy petition was filed may be set aside. In addition, a transfer made within one year of filing may be set aside if it was made to an "insider," as defined by bankruptcy law. In this case, within one year of filing for bankruptcy protection, the debtor made a transfer to a bank for which he served as a director emeritus. The bankruptcy trustee claimed that the debtor’s status as a director emeritus made the bank an insider and requested that the pre-petition transfer to the bank be set aside. The bankruptcy court agreed, holding that a director emeritus is a "director." Under the bankruptcy code, a transfer is to an insider if made by a director of the transferee. The Bankruptcy Appellate Panel reversed.

The Tenth Circuit noted that as a director emeritus, the debtor had no authority to control the bank or to attend its board meetings. There are two types of insiders: (1) those entities specifically listed in the bankruptcy code, such as "relative" or "partnership"; and (2) those not listed but who have a sufficiently close relationship with the debtor to gain an advantage attributable to affinity. Here, the debtor’s position as director emeritus was not the same as "director," given the lack of control the debtor exercised over the bank. Accordingly, the bank was not automatically an insider of the first type, but the bankruptcy court was free on remand to determine whether the bank was an insider of the second type. The bankruptcy court’s ruling was reversed and remanded.

No. 05-7130. U.S. v. Holly. 06/12/2007, E.D.Okla., Judge Murphy. Sexual Assault—Force and Fear—Instructional Error—Harmless Error.

Defendant, a county sheriff, was indicted for crimes relating to sexual assaults perpetrated against inmates, employees, and a daughter of an employee at a county jail. A jury convicted him of fourteen criminal counts, including five counts of felony deprivation of rights under color of law involving aggravated sexual abuse.

On appeal, defendant challenged the five counts of felony deprivation of rights, contending that the jury was improperly instructed as to those counts. Testimony presented at trial showed that defendant had nonconsensual sex with four inmates, and attempted to have sex with another inmate who successfully resisted him. All of the victims testified that they were frightened at the time of the assaults and that defendant was wearing a gun prior to the sexual assaults and had it within reach while the incidents occurred. Only one victim testified that defendant specifically threatened her.

The statute governing "aggravated sexual abuse" required the government to prove that defendant caused his victims to engage in a sexual act either by using force against the victim or by placing her in fear of being subjected to death, serious bodily injury, or kidnapping. On appeal, defendant contended that the district court’s instructions improperly relieved the government of its burden of proving that his actions had threatened the victims with serious bodily harm through force or fear.

The district court instructed the jury that the use of force, for purposes here, could be "implied from a disparity in coercive power or in size between defendant and the victim." Defendant argued this instruction essentially directed a guilty verdict against him, because a sheriff necessarily has a disparity in power over his prisoners. The Tenth Circuit rejected this argument, holding that the district court properly instructed the jury that force could be established by a showing of restraint sufficient to prevent the victim from escaping the sexual conduct, and that the instruction permitted but did not require the jury to conclude that a disparity in coercive power or size established such a restraint.

The Tenth Circuit agreed with defendant that the use of the phrase "some bodily harm" reduced the degree of fear necessary to sustain a conviction. A conviction for aggravated sexual abuse requires proof that the victim was placed in fear of being subjected to death, serious bodily injury, or kidnapping. The district court’s instruction that fear of "some bodily harm" was sufficient reduced the heightened degree of fear required to support a conviction for aggravated sexual abuse, and therefore was improper.

The Tenth Circuit addressed whether the error was harmless. The jury could have found defendant guilty if he employed either "force" or "fear" to compel his victims to submit. The "force" portion of the district court’s instruction was proper; only the "fear" portion was defective. If it was clear beyond a reasonable doubt that the jury would have found that defendant placed the victims in fear of death, serious bodily injury, or kidnapping, notwithstanding the erroneous instruction, then the error was harmless.

Applying this test, the Tenth Circuit determined that the error was harmless as to Count V of the indictment. The victim in this count presented uncontroverted testimony that defendant threatened to harm her 9-year-old sister and that he repeatedly looked at his gun prior to engaging in the sexual assault.

As to the remaining counts, the evidence was less clear. The victims involved in three of these counts testified that defendant had made no threats to kill or seriously injure them, and admitted to having sex with defendant at least in part to obtain privileges from him. As to the fourth count, although the evidence could have supported a jury verdict finding the requisite degree of fear, the quantum of proof was insufficient to make the error harmless beyond a reasonable doubt. Accordingly, the Tenth Circuit affirmed defendant’s conviction on Count V and reversed and remanded to the district court to vacate the remaining counts of conviction.

No. 06-1092. Wilder v. Turner. 06/12/2007, D.Colo., Judge Baldock. DUI Stop—Civil Rights—Probable Cause to Arrest—Roadside Sobriety Test Refused—Qualified Immunity—Federal Law Controls.

This civil rights action arose from a traffic stop and arrest of plaintiff Wilder for driving under the influence of alcohol (DUI). The arresting officer, defendant Turner, stopped Wilder for speeding and then noticed that he had an odor of alcohol on his breath, pinkish and watery eyes, a flushed face, and spoke unusually slowly and deliberately. Wilder refused Officer Turner’s requests to perform a roadside sobriety test. Consequently, Officer Turner arrested him and charged him with DUI. The DUI charge was later dismissed. Wilder sued, claiming that Officer Turner violated his Fourth Amendment rights by arresting him without probable cause. The district court denied Officer Turner’s claim of qualified immunity, applying Colorado state law holding that refusing to take a roadside sobriety test cannot itself establish probable cause to arrest. The case proceeded to trial, resulting in a jury verdict in Wilder’s favor. Officer Turner appealed.

The Tenth Circuit held that federal law governs. Violations of state law cannot give rise to a federal civil rights claim; only violations of federal law done under color of state law will support such a claim. Under federal law, Officer Turner’s initial observations of Wilder’s condition supported a conclusion that he had an objectively reasonable and articulable suspicion of criminal activity to justify detaining Wilder for further investigation. From this detention, probable cause to arrest developed when Wilder twice refused to participate in a field sobriety test. Consequently, Wilder failed to establish that Officer Turner violated his Fourth Amendment rights. The district court’s judgment was reversed and the case was remanded with instructions to enter judgment in favor of Officer Turner on the basis of qualified immunity.

No. 06-5068. Banks v. United States. 06/18/2007, N.D.Okla., Judge Holloway. DNA National Database—Fourth Amendment—Compulsory Extraction—Government’s Interest Outweighs Privacy Interest.

Plaintiffs were convicted of nonviolent felonies. Under the DNA Analysis Backlog Elimination Act of 2000 (Act), they were required to provide samples of their DNA for inclusion in a national database. They refused and instead filed this lawsuit, asserting that the Act violated their Fourth Amendment privacy rights. They argued that there was no reason to believe that they committed additional crimes of the type usually solved by using DNA evidence, such as sexual assaults, so they should not be required to give a DNA sample. The district court held that the Act is constitutional and dismissed plaintiffs’ case.

The Tenth Circuit applied a totality-of-the-circumstances test in which the reasonableness of a search is determined by balancing the degree to which it intrudes on an individual’s privacy against the degree to which it is needed for the promotion of legitimate governmental interests. Convicted felons on supervised release, such as the plaintiffs, are not entitled to the full panoply of rights and protections possessed by the general public. In addition, a DNA profile currently involves a minimal intrusion because the Act severely restricts the uses to which DNA profiles may be put. The legitimate governmental interests in accurately identifying offenders, solving past and future crimes, and combating recidivism outweigh the plaintiffs’ privacy interests. Accordingly, the Act passes constitutional muster. The district court’s judgment was affirmed.

No. 06-1296. U.S. v. Spear, 06/26/2007, D.Colo., Judge Tymkovich. Embezzlement of Government Funds—Sentencing Guidelines—"Abuse of Public Trust"—Sua Sponte Departures.

Defendant pled guilty to two counts of embezzlement of government funds in excess of $1,000. She worked as a federal immigration employee responsible for the intake of applications from aliens seeking to change their immigration status. The applications were accompanied by a fee. Defendant kept the checks submitted for the fee, altering the checks slightly to make herself the payee, and discarded the applications.

Her embezzlement came to light after several immigrants complained that their checks had been cashed but nothing had been done about their applications. At sentencing, the district court applied a two-level enhancement to the advisory guideline range for "abusing a position of public trust." This doubled defendant’s maximum Guideline sentence, from six months to twelve months. The court then sua sponte departed upward from the maximum, citing the damage defendant had done to the immigration process, and sentenced her to fourteen months in prison.

On appeal, defendant argued that the district court erred by applying the abuse of public trust enhancement. The Tenth Circuit noted that the U.S. Sentencing Guidelines’ definition of a position of "public trust" referred to a position "of public or private trust characterized by professional or managerial discretion." As such, the enhancement has little to do with trustworthiness, and much to do with authority and discretion. The enhancement is concerned with the fact that persons with substantial authority and discretion, who are not closely supervised, may abuse their position to commit or conceal fraud.

The Tenth Circuit conducted a functional analysis of defendant’s job duties, and found that none of them implicated substantial discretionary authority. Rather, her duties as an Examinations Assistant were ministerial. Her embezzlements did not flow from any authority invested in her, nor did her job significantly facilitate the crime or its concealment. The district court’s focus on the sophistication of her duties was misplaced; the focus instead should have been on whether her job afforded her substantial discretionary authority. The district court should not have relied on a letter from a supervisor indicating that defendant took an oath to perform her job "with honor." Finally, the district court’s focus on the harm defendant caused to the immigration system was similarly misplaced, because the issue was the nature of defendant’s authority, not the harm she caused.

The Tenth Circuit reversed and remanded for resentencing. This disposition mooted defendant’s challenge to reasonableness of her sentence. Addressing defendant’s final challenge to the sua sponte departure, the Tenth Circuit required the district court on remand to notify the parties in advance if it planned to sentence above or below the relevant Guideline sentencing range.

No. 06-5209. U.S. v. McKerrell. 07/05/2007, N.D.Okla., Judge Holloway. Search and Seizure—Joint Property Owners—Lack of Consent to Search.

Officers received information from an anonymous caller that defendant had outstanding arrest warrants, was using methamphetamine, and possessed an assault rifle and a shotgun. The officers verified the outstanding warrants and defendant’s address. After receiving a second tip that defendant was at home, they surrounded his residence and announced their presence. In response, defendant barricaded himself inside the home.

Defendant’s wife exited the residence. Defendant eventually surrendered, was arrested, and was taken to police headquarters. After the arrest, officers obtained permission from his wife to search the home. During the search, they found four firearms. Defendant pled guilty to unlawful possession of firearms after a prior felony conviction, reserving the right to appeal the denial of his motion to suppress based on the allegedly illegal search of his residence.

On appeal, defendant first contended that barricading himself in the home conveyed his objection to the search, thereby precluding the officers from relying on his wife’s consent to search the home. A joint occupant of a residence who is present during an attempted search may deny the police permission to search the residence, notwithstanding consent provided by another joint occupant. The Tenth Circuit held, however, that this principle did not extend to defendant’s "implicit" denial of consent in this case, for three reasons. First, defendant’s expressed concern in excluding the officers was to avoid arrest, not to prevent his home from being searched. Second, the principle applies only when defendant expressly denies consent for the search. Third, the outstanding arrest warrants gave the officers cause to enter the residence even if excluded by defendant.

Defendant also argued that the search was unconstitutional because the officers removed him from the scene to prevent him from denying consent to search his residence. The Tenth Circuit rejected this argument, for lack of evidence. The mere fact that the police arrested defendant and brought him to the police station did not support a conclusion that they did so to prevent him from denying consent to search.

No. 05-8106. Eastman v. Union Pacific Railroad Co. 07/06/2007, D.Wyo., Judge Baldock. Bankruptcy—Debtor Concealed Personal Injury Suit—Judicial Estoppel.

Prior to filing a Chapter 7 bankruptcy petition, debtor Gardner sustained an injury while in the employ of the Union Pacific Railroad. He sued the railroad, represented by a personal injury attorney. While his personal injury case was pending, Gardner filed for bankruptcy protection, but did not list his injury claim in the petition and, in fact, checked "none" in the section listing all contingent and unliquidated claims. He did not tell his personal injury lawyer that he had filed for bankruptcy protection.

At the meeting of creditors, Gardner told the trustee that he did not have a personal injury suit pending and stood by as his bankruptcy lawyer indicated that his injury claim was an exempt workers’ compensation claim. The trustee characterized the bankruptcy as a "no asset" case and the bankruptcy court granted Gardner a discharge and closed the case. A year later, Gardner’s personal injury lawyer discovered the bankruptcy and promptly notified the trustee, who intervened in the personal injury case. There, the district court held that Gardner was judicially estopped from proceeding against Union Pacific due to his concealment of his personal injury claim in the bankruptcy case.

The Tenth Circuit explained that the doctrine of judicial estoppel prevents improper use of judicial machinery. Three factors typically apply: (1) a party’s subsequent position must be clearly inconsistent with its former position; (2) the suspect party succeeded in persuading a court to accept his former position, creating at least a perception that the first or second court was misled; and (3) the party seeking to assert an inconsistent position would gain an unfair advantage unless estopped. The Tenth Circuit rejected Gardner’s claim of ignorance, concluding that the evidence demonstrated that he knew of his pending lawsuit and did not disclose it to the bankruptcy court to benefit from any proceeds free and clear of his creditors. The court also rejected the argument that if Gardner’s creditors were paid, he should not be estopped from pursuing his personal injury claims, because such a holding would diminish a debtor’s incentive to truthfully disclose his assets. Finding no abuse of discretion in the district court’s ruling, the Tenth Circuit affirmed the judgment.

No. 06-1224. Colorado Judicial Department v. Sweeney (In re Sweeney). 07/11/2007, Bankruptcy Appellate Panel (Colo.), Judge McKay. Bankruptcy—Juvenile Restitution Order Dischargeable—Juvenile Delinquency Status.

At the age of 12, the bankruptcy debtor was adjudicated a delinquent and ordered to pay approximately $89,000 in restitution for arson. Eleven years later, he filed for Chapter 13 bankruptcy protection, listing the $85,000 restitution balance due as a dischargeable debt. The Colorado Judicial Department filed an adversary proceeding to prevent the discharge, arguing that restitution included as part of a criminal sentence is not dischargeable. The bankruptcy court held that the restitution was not dischargeable. The Bankruptcy Appellate Panel (BAP) reversed.

On appeal, the Tenth Circuit noted that dischargeability in bankruptcy is a question of federal law. Under federal law, juvenile delinquency is defined as a violation of a law by one under the age of 18, which would have been a crime if committed by an adult. Therefore, juvenile delinquency is a status, not a criminal conviction. Similarly, Colorado law separates juvenile delinquency from criminal conviction. Accordingly, the debtor’s restitution debt was dischargeable because it was not part of a criminal conviction but, rather, the result of a determination of status. The BAP’s judgment was affirmed.

No. 05-4317. MacArthur v. San Juan County. 07/18/2007, Judge Kelly. Frivolous Appeal—Rules Violations—Pleading Deficiencies—Insufficient Appellate Argument—Appeal Dismissed.

Plaintiffs filed suit alleging discriminatory treatment by defendant hospital. At a pretrial conference, the district court dismissed plaintiffs’ federal claims due to pleading deficiencies and declined to exercise jurisdiction over their state claims. Plaintiffs appealed, claiming that the judgment was procured by fraud, the district court abused its discretion in dismissing their claims, and defendant raised a qualified immunity defense too late.

The Tenth Circuit first determined that plaintiffs’ appellate briefs violated several of the federal appellate rules, including those requiring a brief statement of the nature of the case, a statement of relevant facts, an argument with citations to the record and supported by legal authority or reasons to depart from existing authority, and a statement of the applicable standard of review. The court stated that any one of these inadequacies was sufficiently egregious to justify dismissing the appeal. Instead, however, the court exercised its discretion to consider the merits, concluding that the appeal was frivolous because plaintiffs’ appellate arguments were insufficient and their claims were not supported by the substantive law. The appeal was dismissed.

No. 06-4144. U.S. v. Contreras. 07/18/2007, D.Utah, Judge McConnell. Fourth Amendment—Reasonable Suspicion—Sentencing Guidelines—Obstruction of Justice.

Defendant was stopped for too closely following the car ahead of her. The officer noticed she was pale and shaking. He asked her about her travel plans. She explained that she had driven from Nebraska to Las Vegas two days ago to visit family, and was on her way back to Nebraska. The officer indicated he was not going to give her a ticket, and told her to "drive safe." He then asked for and received permission from defendant to search the trunk of her car. Noticing that the spare tire was not properly seated in its well, he obtained her permission to check it and discovered that it contained something other than air. Through a series of negotiations, she reluctantly agreed to accompany the officer to a service station, where it was discovered that the spare tire contained methamphetamine.

Defendant was arraigned on state drug charges and then released on bail. She fled to Mexico. During her absence she was indicted on federal drug charges and a warrant was issued for her arrest. The state court also issued a warrant for her arrest, for failure to appear on the state drug charges. Approximately nine months later, she was stopped at the border while attempting to enter the United States and arrested on the federal warrant. She later pled guilty to the federal drug charges, reserving her right to appeal. At sentencing, the district court enhanced her sentence for obstruction of justice, based on her failure to attend her state-court hearing.

On appeal, defendant first argued that the search of her car was illegal because reasonable suspicion was lacking and her consent was tainted. The Tenth Circuit disagreed. Several factors gave the officer reasonable suspicion to search the car, including her nervous behavior, her implausible travel itinerary, wrappers from a California restaurant the officer spotted, and the fact that she was driving a rental car—drug traffickers often use rental cars because they cannot be seized.

Defendant also argued that the district court improperly enhanced her sentence for obstruction of justice. Under the U.S. Sentencing Guidelines, obstruction of justice had to relate to the "instant offense"—that is, the federal indictment. Conduct that only obstructed her state court proceeding therefore could not be used to enhance the federal sentence. Defendant argued that because the obstructive conduct (fleeing to Mexico after her arraignment in state court) occurred before she was indicted in federal court, she could not have obstructed federal justice. The Tenth Circuit disagreed, holding that conduct that obstructs both a state and a federal prosecution counts as obstruction of justice for Sentencing Guideline purposes.

At the time defendant fled to Mexico, she did not yet know whether the prosecution she was obstructing eventually would proceed in state or federal court. Conduct that results in a state prosecution frequently forms the basis for a subsequent federal prosecution. Moreover, her flight to Mexico did obstruct the federal prosecution, because federal authorities could not proceed until she returned to the jurisdiction. The Tenth Circuit therefore upheld her conviction and sentence.

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