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TCL > November 2007 Issue > Summaries of Selected Opinions

November 2007       Vol. 36, No. 11       Page  167
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: (click on Opinions/Rule/Statutes).

No. 06-8020 U.S. v. Cano-Varela. 08/10/2007. D.Wyo. Judge McConnell. Guilty Pleas—Negotiations—Involvement of District Court.

Defendant was charged with various offenses involving conspiracy to distribute illegal drugs and to launder the proceeds. He wrote two letters to the district court expressing his dissatisfaction with court-appointed counsel. During a telephone conference ten days before the scheduled trial, counsel informed the court that although defendant initially had been prepared to sign a plea agreement, he now wished to fire his counsel and proceed to trial. After inquiring of counsel and the government concerning the nature of the proposed plea agreement, the district court scheduled an in-court status conference with defendant present.

At the in-court conference, counsel informed the district court that defendant was dissatisfied with the terms of the plea agreement and believed that he could get a better deal from the government if he had a different attorney. In response to the district court’s inquiry, the prosecutor stated that under the terms of the plea agreement, the government would recommend application of the safety-valve guideline, resulting in a sentence of seventy months versus the 120 months that he might receive if he went to trial. The prosecutor further stated that the government would not offer defendant a better deal even if he changed counsel. The district court then admonished defendant to take the deal, stating that he stood to get a much better deal than if he were found guilty, in which case he would be facing a ten-year sentence. It warned defendant that if he were found guilty at trial, the resulting sentence would be a harsh one. The district court also stated that if defendant did not plead guilty and insisted on seeking new counsel, it would not again consider a change of plea from defendant. Defendant signed the plea agreement and pled guilty.

Defendant’s pre-sentence report indicated that he was eligible for application of the safety-valve guideline. At sentencing, however, the government refused to move for the safety-valve departure, indicating that defendant had failed to cooperate adequately with its investigation. The district court, rejecting application of the safety-valve guideline, imposed a sentence of 120 months.

On appeal, defendant argued that the district court violated F.R.C.P. 11. Rule 11(c)(1)(C) forbids a district court from participating in plea discussions. The Tenth Circuit noted that not all judicial comments relating to plea negotiations violate the rule. For example, it is not violated when the parties already have "hammered out" their agreement and the district court questions defendant about the agreement or provides him with information concerning it. Also, a judge is not forbidden from requiring a defendant to make a decision by a plea deadline. The key purpose of the rule is to prevent the district court from pressuring a defendant to accept a plea agreement on terms favored by the judge. Accordingly, the circuits that have considered the issue specifically forbid the district court from discussing the penal consequences of a guilty plea with defendant as compared to going to trial.

Although the district court did not violate the rule in defendant’s case by stating its plan to require defendant to go to trial if he wanted a new lawyer, it crossed into forbidden territory by informing defendant that he would serve at least ten years in the penitentiary if he did not plead and was found guilty at trial, and by warning him that a post-trial sentence would be a harsh one. Even if the district court had defendant’s best interests at heart, its comparison of a post-trial sentence to a post-plea sentence was inherently coercive. The Tenth Circuit accordingly vacated defendant’s guilty plea and sentence and remanded for proceedings before a different judge.

No. 05-3383. Lewis v. Circuit City Stores, Inc. 08/31/2007. D.Kan. Judge Ebel. Arbitration—Claim Preclusion—Challenge to Arbitration Agreement Waived—Public Policy—Frivolous Appeal—Attorney Sanctioned.

When Circuit City hired plaintiff, it required him to sign an agreement to arbitrate any future disputes. After plaintiff was injured on the job, he sought workers’ compensation benefits. Claiming he later was fired for seeking benefits, plaintiff submitted his claim of retaliatory discharge to arbitration. Circuit City responded that it had fired plaintiff for violating its policy against bringing firearms to work. An arbitration hearing was held and the arbitrator ruled in favor of Circuit City. Plaintiff then filed suit, bringing the very same claim of retaliatory discharge. The district court entered summary judgment in favor of Circuit City.

On appeal, the Tenth Circuit Court held that plaintiff’s judicial claims were barred by the doctrine of claim preclusion, which prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment. Applying state law, the Tenth Circuit ruled that claim preclusion applied to litigation subsequent to final and valid arbitration awards. The court then held that plaintiff had waived his argument that the arbitration agreement was unenforceable because he had proceeded through arbitration without clearly objecting prior to or during the arbitration proceeding. His statement that he did not want to arbitrate was insufficient. The Tenth Circuit also rejected plaintiff’s argument that the arbitration award was against public policy, because controlling precedent from the U.S. and Kansas Supreme Courts rendered this argument meritless.

The Tenth Circuit determined that the appeal was frivolous because counsel persisted in the face of contrary controlling legal precedent, he repeatedly relied on facts not in the record, and his legal arguments were often vague and incoherent. The court declined to sanction plaintiff and also declined to award attorney fees to Circuit City as a sanction. Instead, the court ordered plaintiff’s attorney to pay $500 in damages. The district court’s judgment was affirmed.

No. 06-3080. U.S. v. Schaefer. 09/05/2007. D.Kan. Judge Holmes. Interstate Commerce Nexus—Necessity of Proof—Internet Downloads.

Defendant was convicted after a Bench trial of receipt and possession of child pornography that had been mailed, shipped, or transported in interstate or foreign commerce. After receiving a tip from Immigration and Customs Enforcement officials, authorities executed a search warrant at defendant’s home. They seized a desktop computer, CDs, and documents. Testing revealed that defendant had subscribed to child pornography websites and that child pornography images were stored in the computer’s unallocated clusters and temporary Internet cache files. The CDs also contained images of child pornography and defendant admitted to seeking out such images on the Internet.

The district court did not convict defendant for the images found in the Internet cache files or on the allocated clusters, reasoning that the government did not offer any evidence that defendant knew the computer contained these images, or that he exhibited control over them. It relied instead on the images found on the CDs in his home. At trial, the government presented no evidence that defendant had downloaded these images via computer and placed them on the CDs. There was no evidence presented about where the images on the CDs came from, or who placed them on the CDs. No evidence showed where the websites defendant accessed were based, where their servers were located, or where defendant’s Internet provider’s server was housed.

On appeal, defendant argued that the government had presented insufficient evidence of the interstate nexus requirement of the statute. The Tenth Circuit reviewed the issue for plain error because defendant did not preserve it in the district court. It agreed with defendant. The key issue, it stated, was whether an Internet transmission, standing alone, satisfied the interstate commerce requirement of the statute. The court determined that it did not. Although the Internet is an international network, the court refused to assume that any particular image found on a CD that may have been downloaded from the Internet had traveled in interstate or foreign commerce, absent specific proof of that fact. The language of the statute specifically required proof that the image was transported in interstate commerce, and no such proof was presented. The error was clear and plain and created a manifest injustice. Therefore, defendant’s conviction was reversed for insufficient evidence.

Nos. 06-1184 & 07-1182. Simpson v. University of Colorado, Boulder. 09/06/2007. D.Colo. Judge Hartz. Title IX Discrimination—Football Recruiting Program—Deliberate Indifference—Obvious Need for Correction in Program—Violations Likely.

Plaintiff sued the University of Colorado (CU) under Title IX, claiming she was sexually assaulted by CU football players and recruits. The district court granted summary judgment to CU.

The Tenth Circuit Court stated that Title IX provides that no person on the basis of sex shall be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. After discussing the elements of a Title IX claim, the court ruled that an institution can be held liable if an injury was caused by an official policy, where the official policy was one of deliberate indifference to the need for adequate training or guidance that obviously is necessary to implement a specific program.

CU’s recruiting program used player-hosts and female "ambassadors" to show visiting potential football recruits a "good time." A football player asked plaintiff if four football players could come to her apartment that evening. Plaintiff agreed. About twenty players and recruits arrived. Plaintiff alleged that during the evening, she and her co-plaintiff were sexually assaulted by several recruits and players. The question in this case was whether the risk of such an assault during recruiting visits was obvious. The Tenth Circuit ruled that the evidence could support such a finding.

The Tenth Circuit reviewed the CU football program’s history of sexual assaults, retaliation for reporting such assaults, resistance to official directives to correct the problem, and evidence that then-coach Gary Barnett was undermining the efforts at correction. The court concluded that the evidence would support findings that by the time plaintiff was assaulted, (1) Barnett, whose rank was sufficient to bind CU, knew that there was a serious risk of sexual assault during recruiting efforts; (2) Barnett knew that sexual assaults had in fact occurred during recruiting activities; (3) Barnett nevertheless kept in place an unsupervised player-recruit program to show recruits a "good time"; and (4) Barnett knew that there had been no change since a 1997 sexual assault that would make such misconduct less likely. A jury could infer that the need for correction in the recruiting program was so obvious, and the inadequacy so likely to result in Title IX violations, that Barnett could be said to have been deliberately indifferent to the need. Therefore, summary judgment was inappropriate. The district court’s judgment was reversed.

Nos. 06-1199 & 06-1218. Garner v. US West Disability Plan. 09/07/2007. D.Colo. Judge Hartz. ERISA—Remand to Plan—Order Not Final—No Appellate Jurisdiction.

Plaintiff sued her disability plan (Plan), claiming it violated the Employee Retirement Income Security Act (ERISA) by terminating her long-term disability benefits. The district court ruled that the Plan’s failure to consider plaintiff’s mental disability was arbitrary and capricious. The court remanded the claim to the Plan for further administrative review and closed the case subject to reopening with good cause. Both parties appealed.

The Tenth Circuit noted that appellate courts generally have jurisdiction only over final district-court decisions and that the finality of ERISA remand orders is made on a case-by-case basis. Here, plaintiff’s eligibility for benefits, if any, was to be determined on remand, as were her requests for attorney fees, costs, and any appropriate additional relief. Therefore, the order remanding the claims to the Plan was not a final order.

The Tenth Circuit held that the district court’s characterization of the order as final, subject to reopening, was not dispositive, because it is the nature of the remand that controls. Moreover, the remand order did not qualify as an injunction, which would be immediately appealable. Finally, the court rejected plaintiff’s late-raised argument that jurisdiction was based on the practical finality rule, providing that finality is necessary to ensure that the appellate court is able to review an important legal question that the remand made effectively unreviewable. The appeal was dismissed.

No. 06-1510. U.S. v. Conlan. 09/06/2007. D.Colo. Judge Seymour. Sentencing Guidelines—Downward Variance—Presumption of Reasonableness.

Defendant pled guilty to one count of filing a false income tax return. He admitted participating in a fraudulent tax shelter program. The applicable U.S. Sentencing Guidelines range called for a sentence of fifteen to twenty-one months’ imprisonment. At sentencing, the U.S. Probation Office recommended a downward variance from the Guidelines to a sentence of three years’ probation, with the first six months to be served in home detention. The government objected to the variance, contending that a sentence within the Guidelines range was presumptively reasonable and that defendant would have to overcome this presumption to benefit from a downward variance. Adopting the presumption of reasonableness, the district court sentenced defendant at the bottom of the Guidelines range, to fifteen months’ imprisonment.

On appeal, defendant contended that his sentence was both procedurally and substantively unreasonable. The Tenth Circuit held that the sentence had been arrived at in an unreasonable manner and therefore could not be considered reasonable. The presumption of reasonableness accorded to a sentence within the Guidelines, it stated, only applies when an appellate court is reviewing a sentence imposed by the district court that falls within the Guidelines range. The district court’s job is not to impose a "reasonable" sentence, but to impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)(2). Whether the sentence is a "reasonable" one comes into play only on appellate review.

The government argued that any error by the district court was harmless. The Tenth Circuit disagreed. Because defendant was sentenced at the very bottom of the advisory Guideline range, there was a distinct possibility that the district court would have granted a variance, had it not been under the mistaken impression that the "presumption of reasonableness" existed. Accordingly, the Tenth Circuit reversed and remanded for resentencing.

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