Summaries of selected Tenth Circuit 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. They 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://www.cobar.org (click on "Opinions/Rule/Statutes").
No. 05-2247. Miller v. Monumental Life Insurance Co. 09/25/2007. D.N.M., Judge Henry. ERISA—Social Security Disability—Ambiguous Plan—Doctrine of Contra Proferentem.
Plaintiff sustained an on-the-job injury. Eventually, he applied for long-term disability benefits under Monumental Life Insurance Company’s (Monumental) disability plan (Plan). The Plan defined total disability as being unable to perform any work, and required applicants to present proof of a social security disability award.
Plaintiff applied for social security disability benefits. He was denied benefits under Title II, which is an insurance program, because he had not accrued sufficient quarters of coverage to be eligible for benefits. He was granted benefits under Title XVI, which is a welfare plan, because he had no income and was found to be totally disabled.
Monumental denied plaintiff’s claim because he had not been awarded social security disability benefits under Title II. The district court applied state law and granted summary judgment to Monumental, finding the policy provided that a Title XVI award was not a social security disability award.
The Tenth Circuit held that ERISA preempts state rules of statutory construction, so the Plan should be interpreted under federal common law. Accordingly, the court considered the common, ordinary meaning of the Plan’s terms. Because the Plan did not retain the authority to interpret ambiguous provisions in the Plan, the court reviewed it de novo. The Plan was ambiguous because a reasonable Plan participant could easily conclude that a Title XVI award, coupled with a finding of physical disability, would constitute a social security disability award for the purposes of the long-term benefit.
The Tenth Circuit then applied the doctrine of contra proferentem, which construes all ambiguities against the drafter. Construing the Plan in favor of plaintiff, the court held that his Title XVI award, coupled with a finding of disability, satisfied the Plan’s requirement of a social security disability award. The district court’s judgment was reversed.
No. 06-7082. United States v. Chisum. 09/25/2007. E.D.Okla. Judge Hartz. Admission of Evidence—Prejudicial Effect—Sentencing Enhancements—Leader and Organizer of Criminal Scheme.
Defendant was charged with assisting a client in creating a sham trust to conceal income from the client’s business from the Internal Revenue Service (IRS). A jury convicted him of aiding and abetting tax evasion. Defendant represented himself at trial with the assistance of standby counsel. On appeal, his appointed counsel filed a brief under Anders v. State of California, 386 U.S. 738 (1967), noting several meritless arguments defendant wished to pursue, and also raising two non-Anders arguments on his behalf.
The first non-Anders argument involved the admission of evidence of defendant’s prior suits against tax court judges who had issued opinions declaring his trusts to be shams. The government introduced this evidence after defendant claimed that he had acted in good faith in creating the trust for his client. Counsel argued that the prejudicial effect of this evidence outweighed its probative value. The Tenth Circuit disagreed. Because the government was required to prove that defendant voluntarily and intentionally violated the tax laws, evidence that he had sued tax court judges for ruling that income from his trusts was taxable was highly relevant to show a lack of good faith.
The district court enhanced defendant’s sentence under U.S. Sentencing Guideline (U.S.S.G.) § 3B1.1(c), based on his role as a leader and organizer of a criminal scheme. In his second non-Anders argument, counsel contended that this U.S.S.G. enhancement was improper, because the district court had not made a finding that he had "organized, led, managed, or supervised" at least one criminally responsible person. The Tenth Circuit agreed, and remanded for a further finding. It could not be assumed that defendant’s client was a criminally responsible person for purposes of the U.S.S.G. enhancement, absent a specific finding by the district court.
The Tenth Circuit disposed summarily of the remaining arguments in the Anders brief. Defendant’s Speedy Trial Act claim was waived because he did not move for dismissal before trial. His claim that the federal district court had no jurisdiction within the state of Oklahoma’s sovereign territory was a "hackneyed tax protester refrain" that had long since been rejected by the federal courts. He had no defense under the Paperwork Reduction Act, because his offense did not involve failure to file a form but rather the filing of a tax form containing false information. There was sufficient evidence presented at trial to uphold the conviction. The IRS introduced "Certificates of Assessments" that established the propriety of the tax assessments against defendant’s client. Finally, the indictment was sufficient, notwithstanding its failure to mention the specific statute underlying the client’s tax liability. The Tenth Circuit affirmed the defendant’s conviction, but reversed his sentence and remanded for further proceedings regarding the U.S.S.G. 3B1.1(c) enhancement.
Nos. 05-4114 & 05-4123. Holman v. U.S. 10/01/2007. D.Utah. Judge Henry. IRS Tax Lien—Quiet Title—Nominee—Transfer of Title—Property Interest Under State Law.
Mrs. Holman brought a quiet title action against the United States after the Internal Revenue Service (IRS) filed a tax lien against real property she held title to with Hyrum Smith, her husband’s friend. Mr. Holman provided the funds to purchase the property from Smith and lived in the house, but never held legal title to it.
The IRS recorded the tax lien after obtaining a judgment against Mr. Holman for almost $900,000 in unpaid federal employment taxes. The district court ruled that Smith held the property as a nominee for Mr. Holman; however, Mrs. Holman could not be considered Mr. Holman’s nominee because he had never transferred legal title to her.
The Tenth Circuit stated that property of a taxpayer that may be used to satisfy a tax deficiency may include property held by a third party if the third party holds the property as a nominee of the delinquent taxpayer. Reversing the district court, the Tenth Circuit held that a transfer of legal title is not a prerequisite to a finding that one holds as nominee for another. Instead, a third party may hold property as a taxpayer’s nominee if the taxpayer pays for the property and enjoys the benefits of ownership, even though the third party holds legal title and the taxpayer never held legal title.
Application of the nominee doctrine involves questions of both state and federal law. State law determines what rights the taxpayer has in the property the IRS seeks to reach. If the taxpayer has a property interest under state law, then federal law determines whether that interest qualifies as "property" under the tax-lien statutes. Here, because the district court did not determine what interests the parties held in the property under state law, the case was remanded for further findings. The district court’s judgment was reversed and remanded.
No. 06-2059. U.S. v. Mancera-Perez. 10/01/2007. D. N.M. Judge Ebel. Guideline Sentencing—Reasonableness—Invited Error.
Defendant pled guilty to illegal re-entry into the United States by an alien previously deported for an aggravated felony. He received a sentence of forty-six months’ imprisonment. On appeal, he argued that the length of his sentence was substantively unreasonable. The Tenth Circuit concluded, however, that he had not invited any error regarding the length of his sentence, and that his claim, raised for the first time on appeal, therefore was waived.
The presentence report (PSR) prepared by the probation department recommended a U.S. Sentencing Guideline (U.S.S.G.) range of forty-six to fifty-seven months’ imprisonment. Defendant did not file any objection to the PSR. At sentencing, the district court indicated it believed a sentence on the low end of the U.S.S.G. range was appropriate. The government agreed. Asked to comment, defendant’s counsel indicated that he also agreed and had "nothing further to present to the Court." Defendant also indicated that he had nothing to add to his counsel’s statement.
On appeal, defendant argued that his sentence was substantively unreasonable, because the aggravated felony at issue involved statutory rape, and (1) he was barely 18 years old when he committed the offense; and (2) the state where he was convicted, Indiana, criminalizes conduct that would not be punishable in many other states, leading to an unwarranted sentencing disparity in the federal proceedings. Although he had not raised these challenges in district court, defendant argued that under prior Tenth Circuit precedent, he was not required to object to preserve issues involving only the reasonableness of the length of his sentence.
The Tenth Circuit held that these cases apply only where defendant raises an objection prior to imposition of sentence but fails to renew the objection after the sentence has been imposed. They do not apply in a case where the defendant never presented his reasonableness argument to the district court and, in fact, agreed with the district court that the sentence imposed was reasonable. In such a case, any error involving the reasonableness of the length of the sentence was invited and waived. The Tenth Circuit therefore affirmed defendant’s sentence.
No. 05-2154. U.S. v. Romero-Hernandez. 10/16/2007. D.N.M. Chief Judge Tacha. Sentencing Guidelines—"Crime of Violence"—Categorical Approach—Use of Force.
Defendant pled guilty to illegal re-entry following his removal from the United States for commission of an aggravated felony. At sentencing, the district court applied a sixteen-level upward adjustment to his sentence, concluding that he previously had been removed following a felony conviction for a crime of violence.
The sentencing adjustment was based on a Colorado conviction for misdemeanor sexual contact. Defendant had received a sentence of 720 days’ imprisonment for this offense. In the federal proceedings after he re-entered the United States, the conviction was treated as a felony for sentencing purposes, because it was punishable by a term of imprisonment in excess of one year. Defendant did not contest this felony classification on appeal. He did argue that the adjustment was improper, because his prior state conviction did not involve a "crime of violence" within the meaning of the U. S. Sentencing Guidelines (U.S.S.G.).
The Tenth Circuit observed that the relevant application note to the U.S.S.G. defines "crime of violence" to include "forcible sex offenses." The court looked solely to the statutory language rather than the specific facts of conviction to determine whether the definition of defendant’s Colorado offense fit the definition in the U.S.S.G.
The court noted that the relevant Colorado statute permits a conviction based on nonconsensual sexual contact that is not necessarily achieved through the use of physical force, such as when a defendant has involuntarily intoxicated the victim or subjects the victim to sexual conduct during a medical examination in a manner inconsistent with reasonable medical practices. The Tenth Circuit held that a conviction based on such conduct could be considered a "forcible sex offense."
Although other circuits have split on this issue, the Tenth Circuit concluded that a sexual offense is "forcible" as long as it is nonconsensual. Thus, a sex offense is "forcible" even if consent is lacking only because the victim is legally or medically unable to consent. The concept of forcible injury typically involves the use of compulsion sufficient to overcome "opposition or resistance"; however, such "opposition or resistance" need not be active. A legal right to be free from the nonconsensual sexual contact is sufficient. Moreover, "force" need not involve actual physical force; it may involve other forms of exercise of power, pressure, dominance, or control.
Finally, the Sentencing Commission’s failure to use the modifier "physical" in defining the force necessary to trigger the enhancement supports an application that does not require the use of physical force. Because the state statute’s use of disparities in situational power or influence meets this definition of force, the offense for which defendant was convicted is categorically a crime of violence, and the district court did not err by enhancing his sentence.