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TCL > March 2008 Issue > Summaries of Selected Opinions

The Colorado Lawyer
March 2008
Vol. 37, No. 3 [Page  129]

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From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

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: www.cobar.org (click on "Opinions/Rules/Statutes").


No. 07-4008. Jones, Waldo, Holbrook & McDonough v. Cade. 12/21/2007. D.Utah, Judge McKay. Interpleader—Scope of Jurisdiction—Amount in Fund.

Defendant Cade was entitled to an award from Zions Bank in the amount of $1.75 million. After various creditors made claims on Cade’s award (including the Internal Revenue Service (IRS)), Zions filed an interpleader motion and deposited the funds with the court. The district court approved an agreement among the creditors to divide the award. The IRS received $575,000; its full claim was for $792,000. Cade appealed the district court’s order denying his motion to declare his debt to the IRS satisfied in full.

The Tenth Circuit explained that the court’s jurisdiction in an interpleader action is limited to the fund in question. An exception is where a party has asserted a compulsory counterclaim, a circumstance not present here. Accordingly, the district court could adjudicate only claims related to the fund. The government was not barred from independently seeking to satisfy its claim for the balance of Cade’s tax debt. The district court’s judgment was affirmed.

No. 06-4208. U.S. v. Rakes. 12/26/2007. D.Utah, Judge Gorsuch. Sufficiency of Evidence—Conspiracy—Disclosure of Evidence Used at Sentencing—Use of Analogous Sentencing Guidelines.

Defendant was charged with mailing a threatening communication and conspiring to impede or injure a government officer. The government alleged he was involved with writing or sending a threatening letter to an assistant U.S. Attorney who was conducting a RICO (Racketeer Influenced and Corrupt Organizations) Act prosecution of a white supremacist group. Defendant agreed to plead guilty to a single count of misprision of a felony, which carried a recommended sentencing guideline range of eighteen to twenty-four months, on the understanding that the government would recommend a sentence of only nine months’ imprisonment. The district court conditionally accepted his plea, subject to its receipt of the presentence report and a sentencing hearing.

Prior to sentencing, the district court received a victim impact letter from the prosecutor who had been victimized by the threatening letter. The court did not disclose the existence of this letter to either defense counsel or the government. At sentencing, however, it expressed doubt about the recommended sentence, stating that it was concerned about the impact of the threatening letter on the prosecutor and her family. Having rejected the sentence recommended in the plea agreement as too lenient, the district court permitted defendant to withdraw his plea and to proceed to trial. After the government presented its case at trial, the district court granted a judgment of acquittal on the charge of mailing a threatening communication, and the jury convicted defendant of conspiring to impede or injure an officer. The district court sentenced him to sixty-three months’ imprisonment on this count.

On appeal, defendant argued that the government presented insufficient evidence that he had conspired with another person to prevent the prosecutor from discharging her duties by the use of force, violence, or intimidation. His alleged co-conspirator, who actually wrote the letter, had testified that she was coerced into writing it. Defendant argued she therefore could not have "conspired" with him to write the letter. The Tenth Circuit noted that the co-conspirator gave several accounts of how she came to write the letter. Because at least one of the accounts was consistent with a conspiracy, the jury had sufficient evidence before it to return a verdict against defendant. Moreover, there was evidence from other witnesses that supported the government’s conspiracy theory.

Defendant also argued that the district court should have disclosed the victim impact letter during the sentencing hearing on the parties’ plea agreement. It would have been preferable for the court to have done so, but it was not under an obligation to do so. Although the Rules of Criminal Procedure require district courts to articulate their reasons for rejecting plea agreements, any error in this respect was harmless.

Defendant attacked the application of the advisory U.S. Sentencing Guidelines. There is no guideline for the offense of conspiring to impede or injure an officer, so the district court chose what it found to be the most analogous guideline—§ 2A6.1(a)(1), which deals with threatening or harassing communications. Defendant argued that the most analogous guideline was § 2A2.4, which pertains to obstructing or impeding an officer and carries a lesser guideline range than § 2A6.1(a)(1). The Tenth Circuit disagreed; § 2A6.1(a)(1) was most analogous because it better captured the element of a letter seeking to threaten or intimidate a public official. The conviction and sentence therefore were affirmed.

No. 06-1094. Estate of Larsen v. Murr. 01/02/2008. D.Colo., Judge Tymkovich. Police Shooting—Excessive Force Claim—Qualified Immunity—No Constitutional Violation—No Municipal Liability.

The family of Lyle Larsen sued two Denver police officers and the City and County of Denver, claiming the officers used excessive force when they shot and killed Larsen during an incident in April 2003. The claims against the municipality asserted that it had adopted an unconstitutional policy or practice on the use of deadly force, and that it failed to train or supervise the officers involved in the shooting. The district court granted summary judgment to defendants, holding that they were entitled to qualified immunity.

The Tenth Circuit observed that when a defendant raises a qualified-immunity defense, the plaintiff must establish a constitutional violation and then demonstrate that the right was clearly established. If the plaintiff fails to do so, the defendant is entitled to summary judgment.

The inquiry in an excessive-force claim is whether the force used was objectively reasonable from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The analysis is based on the totality of the circumstances.

Here, the officers were faced with a man who had phoned 911 after midnight, threatening to kill someone or himself. Larsen was standing on his porch holding a very large knife. The officers told him to drop the knife, but Larsen raised the knife, faced one of the officers, and took a step toward him. Fearing for his life, the officer fired his weapon, killing Larsen.

The Tenth Circuit held that deadly force is justified if a reasonable officer would have had probable cause to believe there was a threat of serious physical harm to himself or others. Further, an officer is justified in using more force than in fact was needed if he or she reasonably, but mistakenly, believed that a suspect was likely to fight back.

Under the circumstances presented to these officers, the amount of force was not unreasonable, and no constitutional violation occurred. Therefore, the officers were entitled to qualified immunity and summary judgment. The municipal defendant also was entitled to summary judgment because plaintiffs’ failure to establish an underlying constitutional violation doomed the claims against the municipality. The district court’s judgment was affirmed.

No. 07-7018. U.S. v. Collins. 01/04/08. E.D.Okla., Judge Briscoe. Sentencing Guidelines—Acceptance of Responsibility.

Defendant was charged with possession of marijuana and cocaine with intent to distribute. He offered to plead guilty to simple possession, but the government rejected his offer. At trial, the jury convicted him of simple possession of cocaine and marijuana. In calculating his sentence, the district court denied him a reduction in his offense level for acceptance of responsibility.

On appeal, defendant argued that the district court should have granted him the reduction for acceptance of responsibility. The evidence presented at trial showed that police had stopped defendant’s vehicle for speeding and tailgating. He consented to a search of the U-Haul truck he was driving and the Lexus towed behind it. The officers found no contraband. After they released him, however, they listened to a recording of defendant and his passenger speaking to each other while they were seated in the patrol car. During this recording, defendant told his passenger that the drugs were in the dog food. Based on this information, the officers stopped the vehicle again. Defendant again denied having any drugs. Officers searched the vehicles, and this time found cocaine and marijuana in the dog food. Defendant attempted to flee, but the officers caught him and placed him under arrest. He once again denied knowledge of the drugs and even accused the officers of planting them.

At trial, defendant admitted to possessing the drugs but challenged the government’s theory that he had possessed them with intent to distribute. Testimony showed that the marijuana and cocaine had been divided. A set of digital scales was found with the drugs. Defendant contended that he was transporting a comparatively large quantity of drugs for personal use, because he was moving to a small town where he was concerned about finding a source of supply for his drug habit. He stated that he kept the scales to measure his doses to avoid an overdose. The jury convicted him only of possession, not of possession with intent to distribute.

Defendant argued that he was entitled to a reduction for acceptance of responsibility because he had offered to plead guilty to simple possession, and because he admitted at trial that he possessed the drugs. He contended that this was one of those rare situations where a defendant can demonstrate acceptance of responsibility, even though he chooses to exercise his constitutional right to go to trial. The Tenth Circuit disagreed.

In determining whether a defendant has accepted responsibility, the district court must consider not only what occurred at trial, but also a defendant’s pretrial statements and conduct. Here, defendant offered to plead guilty only after consulting with counsel, who likely advised him that the case against him as to simple possession was overwhelming. The district court could reasonably have concluded that the offer to plead guilty and his admissions at trial were strategic rather than evidencing a true acceptance of responsibility. The district court could have granted the reduction, but its decision to deny it under the facts of this case was not clearly erroneous.

Defendant also argued that because the Sentencing Guidelines apply the same base offense level to simple possession as to intent to distribute, he received no benefit from going to trial. If defendants in his situation are not given the benefit of acceptance of responsibility, they will be forced to plead guilty falsely to secure a reduction. The Tenth Circuit rejected this argument. Defendant did derive a benefit from going to trial. Although the base levels for simple possession and possession with intent to distribute are the same on the cocaine count, the same is not true of the marijuana count. Also, a conviction for possession with intent to distribute carries collateral consequences that are more severe than those arising from a conviction for simple possession. Moreover, in this case, given defendant’s pretrial conduct, other circumstances besides the absence of a guilty plea were involved in calculating whether the reduction should apply. The Tenth Circuit affirmed defendant’s sentence.

No. 07-6061. U.S. v. Gachot. 01/10/2008. W.D.Okla., Judge Lucero. Jurisdiction—Superseding Indictment—Indian Country.

Defendant initially was indicted on three counts stemming from his involvement in the operation of a cockfighting facility in Indian Country. The first two counts charged him with violations of Oklahoma state law prohibiting the keeping of a place of cockfighting, or servicing or facilitating a cockfight. The federal government sought to enforce these state law provisions under the Indian Country Crimes Act and the Assimilative Crimes Act. The third count charged him with violating federal law prohibiting the sponsorship of an animal fighting venture.

Defendant pled guilty to all counts and moved to dismiss the indictment for lack of jurisdiction. He contended that the charges should be dismissed because the government cannot prosecute victimless crimes committed by Indians in Indian Country. After the district court denied the motion, defendant reached a plea agreement with the government that required the government to dismiss the original indictment in exchange for defendant’s plea of guilty to a federal offense not charged in the original indictment—that is, operating an illegal gambling business. The district court sentenced him to a year of probation for this offense, and he appealed.

On appeal, defendant argued that the district court lacked jurisdiction over the original indictment against him. The Tenth Circuit concluded that because that indictment had been dismissed in connection with his guilty plea, his argument was moot. Addressing, sua sponte, the question of the district court’s jurisdiction over the actual offense to which defendant pled guilty, the Tenth Circuit concluded that the district court had jurisdiction. That offense had no exception related to crimes committed in Indian Country. The Tenth Circuit therefore affirmed defendant’s conviction.

No. 07-3034. U.S. v. Hill. 01/15/2008. D.Kan., Judge Murphy. Felon-in-Possession of a Firearm—Qualifying Prior Felony.

Defendant pled guilty in federal court to being a felon in possession of a firearm. As part of his guilty plea, he reserved the right to appeal whether he was actually a "felon" in possession; that is, whether his underlying Kansas state conviction for criminal possession of a firearm was a qualifying felony.

A conviction qualifies if it is punishable by imprisonment for a term in excess of a year under state law. On appeal, defendant argued that because his prior state conviction carried a maximum sentence of only eleven months, he was not prohibited from possessing a firearm. Under Kansas law, the crime to which defendant pled guilty, "criminal possession of a firearm," is classified as a severity level VIII felony. The sentencing range for that class of felonies is from seven to twenty-three months. Based on defendant’s criminal history, his presumptive sentence range was nine to eleven months. No aggravating factors were found by a jury, and so the state court could not depart upward from the presumptive range. Defendant received a sentence of ten months’ imprisonment, which was suspended, and was given eighteen months’ probation.

The Tenth Circuit began its analysis by noting that whether a prior conviction is a qualifying felony is determined with reference to state law. The Circuit then analyzed the recent revisions to the Kansas Sentencing Guidelines Act to determine whether defendant’s conviction qualified. The Kansas Guidelines use a sentencing grid, in which the vertical axis lists the severity of the current offense, and the horizontal axis classifies the defendant’s criminal history. To determine the presumed sentence, the court consults the grid box at the intersection of these two axes. Acting on the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Kansas Supreme Court held in 2001 that upward departures from the presumptive grid no longer would be allowed based on judicial fact-finding. The legislature accordingly amended the sentencing statutes to permit an upward departure only when requested by the prosecution and where the jury unanimously found the necessary factual predicate.

The issue in this case was whether defendant’s crime should be considered punishable for a term in excess of a year, given that upward departures in Kansas once again are constitutional but require any aggravating factor to be proved beyond a reasonable doubt. Here, defendant could not have faced a sentence in excess of eleven months, because a sentencing court in Kansas has no discretion to depart upward from the maximum presumptive sentence under that state’s sentencing guidelines absent the required motion and finding by a jury, neither of which was present in this case.

The government argued, however, that the federal courts should look only to the maximum punishment possible for the conviction of the prior state crime, regardless of where defendant falls on the criminal history axis. The Tenth Circuit rejected this argument, stating that under Kansas law, the appropriate punishment for a felony conviction depends on both axes of the sentencing grid. The Tenth Circuit follows a defendant-centered approach to this question, rather than a crime-centered approach. Under this approach, defendant never was subject to a sentence greater than one year for his state conviction, so he did not have a qualifying conviction for purposes of the federal offense. The Tenth Circuit accordingly reversed his conviction and remanded to the district court with instruction to vacate defendant’s conviction of felon in possession of a firearm.

No. 06-1482. New England Health Care Employees Pension Fund v. Woodruff. 01/16/2008. D.Colo., Judge Kelly. Qwest Class Action Settlement—Securities Fraud—Challenge by Nonparties—Standing—Remand for Findings.

Defendants-appellants Nacchio and Woodruff, the former CEO and CFO of Qwest, respectively, appealed the district court’s approval of a class action settlement of a securities fraud case. Both defendants have agreements with Qwest that require Qwest to indemnify them for any reasonable amounts they might pay in settlement of a lawsuit against them as former officers. Defendants were not included in the settlement agreement, which included provisions for payment to the plaintiff class that affected defendants’ rights under the indemnity agreements. In rejecting defendants’ challenges, the district court simply overruled the objections and adopted the reasoning stated by Qwest in its reply brief.

Responding to Qwest’s challenge to defendants’ standing to appeal, the Tenth Circuit held that they did have standing. To establish standing, a party must show an injury in fact that is fairly traceable to the challenged action, and then it must demonstrate a likelihood that the injury will be favorably redressed. When a nonsettling party challenges a settlement, he or she must demonstrate prejudice by the settlement. The Tenth Circuit determined that the settlement stripped defendants of their contribution and indemnification rights, in addition to certain independent claims. Thus, they had standing.

The Tenth Circuit concluded that the district court’s analysis was not sufficient for appellate review. The district court adopted the reasoning of Qwest’s brief, which consisted of many pages of complex legal argument, without indicating the path it followed in reaching its decision. Accordingly, the Tenth Circuit remanded the case to permit the district court to show how, and on what basis, it analyzed defendants’ objections. The case was remanded for further proceedings.

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