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TCL > April 2008 Issue > Summaries of Selected Opinions

April 2008       Vol. 37, No. 4       Page  125
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: (click on "Opinions/Rules/Statutes").

No. 06-1525. U.S. v. Pethick. 01/17/2008. D.Colo. Judge Holloway. Appellate Jurisdiction—Consent to Entry of Final Judgment by Magistrate Judge.

Defendant was convicted of a misdemeanor offense of driving under the influence of alcohol on the Fort Carson Military Reservation in Colorado. He was charged under the Assimilative Crimes Act, which incorporates state law to punish crimes committed in federal enclaves. He was convicted by a jury and sentenced to fifteen days’ imprisonment and payment of a fine.

The case presented an unusual issue of appellate jurisdiction. A magistrate judge handled the initial proceedings in the case, but a district court judge presided over the case beginning at an early stage. This district judge issued several important pretrial rulings, presided over the jury trial, and denied defendant’s motion for a new trial before the judge became too ill to continue. Defendant then agreed to have judgment and sentence issued by a magistrate judge. He appealed from this judgment and sentence to the Tenth Circuit.

The Tenth Circuit noted that by statute, appeals from the judgment of a magistrate judge in a criminal case are to the district court, not to the Tenth Circuit. The appeal was taken from a judgment entered by a magistrate judge, but the rulings that formed the basis of the appeal all were made by the district judge during the time he presided over the case. Defendant argued, accordingly, that the appeal in substance was one from the orders of the district court. He further argued that he never consented to trial by a magistrate judge, and that because all of his objections were to pretrial and trial-based rulings of a district court judge, he should be permitted to appeal directly to the Tenth Circuit. The Tenth Circuit disagreed. It focused on the actual final judgment in the case, which was entered by consent by a magistrate judge. Given the nature of this final judgment, defendant should have appealed to the district court. Accordingly, the Tenth Circuit dismissed the appeal, noting that even though the notice of appeal was docketed in the Tenth Circuit, it was sufficient to vest jurisdiction in the district court to consider and determine the appeal.

No. 07-4057. U.S. v. Chee. 01/29/2008. D.Utah. Judge Kelly. Miranda Rights—Preservation of Sentencing Issues—Sentencing Enhancements for Use of Force, Vulnerable Victim, and Abuse of Position of Trust.

Defendant is a Navajo "medicine man" who performed traditional healing ceremonies for the victim at her grandmother’s request. The victim, a 28-year-old woman, has mental and physical disabilities, including seizures, partial paralysis, mental retardation, and other physical anomalies. Defendant entered the grandmother’s home when only the victim was present and sexually assaulted her. He was convicted of one count of aggravated sexual abuse within Indian country and was sentenced to 253 months’ imprisonment, followed by a life term of supervised release.

After the victim’s grandparents reported the sexual abuse incident to the authorities, an FBI agent asked to speak with defendant about a firearm defendant found in a car he had purchased at a government auction months before. Defendant met with the agent and an investigator from the Navajo Nation Department of Public Safety at police department headquarters, where he was interviewed in the police chief’s office. The officers were in plainclothes and did not have any visible firearms or handcuffs. Defendant was not handcuffed or restrained in any way, but the door was closed and his wife was excluded from the room.

The FBI agent told defendant he was not under arrest or in any trouble, he could leave if he wanted, and he did not have to talk. The agent questioned defendant about the firearm found in his car, then asked him about the sexual assault. Defendant was reluctant to talk about the assault at first; however, after the agent said they had obtained DNA evidence from the scene, defendant admitted that he had sex with the victim against her will. At the agent’s suggestion, defendant wrote a letter of apology to the victim and her grandmother. He then gave a DNA sample and left the station.

On appeal, defendant argued that the district court should have suppressed his oral and written confessions because they were obtained in violation of his Miranda rights. The district court concluded that Miranda was not violated, because defendant was not in custody when he made the statements and they were not involuntary. The Tenth Circuit affirmed this determination. Defendant went voluntarily to the police station, was informed that he was not under arrest, and left voluntarily after the interview. Contrary to defendant’s argument, the interview environment did not change once the topic shifted to sexual assault. A reasonable person in defendant’s circumstances would not have believed he was effectively under arrest.

Defendant also argued that the district court failed to make adequate findings about whether he had an "extraordinary physical impairment" at the time of sentencing that would justify a downward departure from the U.S. Sentencing Guidelines. The Tenth Circuit concluded that defendant had failed to preserve this issue by raising a specific allegation of factual inaccuracy concerning this issue at the time of sentencing. Scattered statements about defendant’s physical condition at the time of sentencing were insufficient to trigger the district court’s duty to make findings as required by Rule 32 of the Rules of Criminal Procedure.

Defendant contended that the district court erred in enhancing his base offense level for the use of force during the sexual assault, for assaulting a vulnerable victim, and for abusing his position of trust as a medicine man. The Tenth Circuit upheld each of these enhancements. The Tenth Circuit therefore affirmed defendant’s judgment and sentence.

No. 06-1511. Coalition for Equal Rights, Inc. v. Ritter. 01/29/2008. D.Colo. Judge Briscoe. Colorado’s Indoor Smoking Ban—Equal Protection—Rational Relationship to Legitimate State Interest.

Plaintiff represents various Colorado businesses affected by the Colorado Clean Indoor Act (CCIA), which bans smoking in indoor areas. The CCIA exempts from the ban separately ventilated bars and restaurants at Denver International Airport (DIA). Plaintiff sued various Colorado officials, asserting that the CCIA’s distinction between DIA establishments and those not located at DIA violated their right to equal protection. The district court granted summary judgment to the Colorado officials, holding that the distinctions made by the state in enacting the CCIA were not irrational or unrelated to any conceivable policy goal.

Noting that the CCIA does not involve fundamental rights or inherently suspect characteristics, the Tenth Circuit considered whether the CCIA was rationally related to a legitimate state interest. The Circuit concluded that the state offered a rational basis for distinguishing between airport smoking concessions and the establishments represented by plaintiff. The DIA concessions are exempt from the CCIA because they are all located at the only airport in the state offering regular domestic and international commercial flights. Most of the DIA visitors are not Colorado residents and are in the state for only a short time. Without smoking facilities at DIA, airline passengers would have no option as to where they can smoke, unlike the patrons of other establishments. Finally, the DIA concessions are owned and operated by the City and County of Denver, a home-rule city and county having independent authority to take action to protect the public from second-hand smoke, which it has done.

The Circuit rejected plaintiffs’ claim that the proper rational-basis standard is the "fair and substantial relation" test. The district court’s judgment was affirmed.

No. 06-1449. U.S. v. Taylor. 01/29/2008. D.Colo. Judge Gorsuch. Prosecutorial Misconduct—Curative Instructions—Plain Error Review.

A jury convicted defendant of one count of assault resulting in serious bodily injury, or aiding and abetting such an assault. The case arose from a fight at an outdoor party on the Ute Indian Reservation. During the party, defendant’s ex-wife told defendant that the victim had made lewd comments to her and groped her. Defendant ran over to the victim’s car and struck him twice in the face. He then opened the car door and dragged the victim out of his car. The victim ended up on the ground on his hands and knees, where he was repeatedly kicked in the face and ribs to the point of unconsciousness. His wallet, cell phone, belt, and cocaine were stolen. He was later taken to a hospital for treatment of his injuries.

During the opening statement at defendant’s trial, the prosecutor urged the jury to "end the cycle of violence out there" by convicting defendant. Defense counsel objected that the remark was "inappropriate." The district court admonished the jury that statements of counsel are not evidence and that the case must be decided on the evidence. Defense counsel did not move for a mistrial or indicate any dissatisfaction with the district court’s curative instruction. On appeal, defendant argued for the first time that the district court’s instruction was insufficient to cure the prejudice created by the prosecutor’s remark and that a new trial was necessary.

The Tenth Circuit determined the appropriate standard of review. Had defendant lodged no objection at all, plain error review clearly would have been appropriate. Although defendant did object, he did not move for a mistrial or further object to the district court’s curative instruction. Plain error review therefore also was appropriate here, notwithstanding the initial objection. Defendant’s objection was to the modicum of uncured prejudice sufficient to imperil his right to a fair trial, and he failed to alert the district court to the existence of such uncured prejudice. There was no indication that the district court would not have taken further corrective action had it been notified of defendant’s lingering concerns.

Applying the plain error standard, the Tenth Circuit concluded that the test was not met, because there was no "error" that could reasonably be described as "plain." An error is "plain" when it is contrary to well-settled law. Defendant pointed to no authority to show that the asserted error was well-settled in the law. Moreover, the district court’s instruction was reasonably designed to address defendant’s concern that the prosecutor was urging the jury to use the trial to correct a broad social problem. The district court required the jury to look only to the evidence, not to the prosecutor’s admonition to end the cycle of violence. Defendant therefore failed to show plain error, and the Tenth Circuit affirmed his conviction.

No. 06-1424. U.S. v. Lozano. 01/30/2008. D.Colo. Judge Henry. Sentencing Guidelines—Acceptance of Responsibility—Harmless Error.

A jury convicted defendant of two counts of distribution of less than 5 grams of cocaine base, but acquitted her of a charge of conspiracy to distribute more than 50 grams of crack cocaine. The government presented evidence that defendant had sold cocaine base twice to an undercover police officer. It also presented testimony by several witnesses that defendant, who acted as a motel manager, accepted crack cocaine or monies derived from the sale of crack cocaine in exchange for hotel rent payments.

The presentence report (PSR) assigned defendant a total offense level of 26, based on 5.72 grams of crack cocaine and a criminal history category of III, resulting in a U.S. Sentencing Guidelines (SG) range of seventy-eight to ninety-seven months’ imprisonment. Defendant objected to the PSR’s failure to recommend a two-level reduction for acceptance of responsibility. She argued that the reduction was appropriate because (1) she admitted to the police she had distributed the cocaine base, and (2) she would have entered a guilty plea but the government had been unwilling to accept a plea to the distribution charges alone. She also asserted that she had not offered evidence at trial to rebut the distribution charges. The government presented a different version of events, contending that defendant had never offered to plead guilty solely to the distribution charges.

The district court accepted defendant’s version of events and reduced the adjusted offense level by one point, for "partial" acceptance of responsibility. It also found that criminal history category III over-represented the seriousness of defendant’s criminal history, because all of her prior convictions were misdemeanor convictions for minor offenses. Accordingly, the court applied an offense level of 25 and a criminal history category of II, resulting in an advisory SG sentence of sixty-three to seventy-eight months on each count. The district court rejected defendant’s plea for a downward departure and sentenced her at the bottom of the SG range, to sixty-three months on each count, to be served concurrently.

On appeal, defendant argued that the district court erred by not reducing her advisory SG range by two levels for "partial" acceptance of responsibility. The parties agreed that the one-level downward departure was inappropriate; the only issue was whether the error was harmless. Defendant argued that her case was an unusual case, where a defendant who proceeds to trial is entitled to a reduction for acceptance of responsibility. She further argued that if her position on the reduced SG range was correct, and two points had been awarded for acceptance of responsibility, her new range would be fifty-seven to seventy-one months, and that the Tenth Circuit could not assume the district court would have imposed the same sentence on remand, even though it was within the reduced SG range. The Tenth Circuit agreed that the error was not harmless. Had the district court understood that its choice was between awarding two points for acceptance of responsibility and zero points, it might have selected two points. In the alternative, it could have achieved the same result as a two-point reduction by applying other sentencing factors. Accordingly, the Tenth Circuit vacated the sentence imposed and remanded for resentencing.

No. 05-3478. Adamson v. Multi Community Diversified Servs., Inc. 02/01/2008. D.Kan. Judge Kane. Title VII—Age and Sex Discrimination—Reverse Sex Discrimination—Evidence of Pretext Not Substitute for Prima Facie Case—"Familial Status" Not Protected—Disparate Impact as Proof of Disparate Treatment.

Plaintiffs—husband, wife, and daughter—sued their former employer under Title VII and the Age Discrimination in Employment Act, asserting they were terminated based on their genders, husband’s age, and the fact that they were members of the same family. The employer had an anti-nepotism policy that plaintiffs asserted was applied discriminatorily against them because the employer assumed that husband, "as a man," would exert undue influence over the women, and because other parent-child employees were not terminated. The employer produced evidence that plaintiffs were terminated for legitimate business reasons. In turn, plaintiffs asserted that those reasons were a pretext for discrimination. The district court granted summary judgment in the employer’s favor.

The Tenth Circuit rejected plaintiffs’ argument that evidence of pretext can substitute for establishing a prima facie case. Proof of pretext will not automatically transform an inactionable claim into an actionable one. The Circuit then held that husband did not make a prima facie case of age discrimination, because he was replaced by an older female, and he did not produce evidence showing that he was terminated because of his age.

Regarding the family’s claim of discrimination based on their "familial status," the Circuit held that Title VII does not protect one from discrimination on this basis. Accordingly, this claim did not state a cognizable cause of action under Title VII.

The Circuit evaluated plaintiffs’ claims independent of their familial status argument. It rejected husband’s claim of reverse sex discrimination, concluding that he failed to adduce any evidence that defendant was an unusual employer who discriminates against the majority. As for the sex discrimination claims of wife and daughter, the court concluded that the women’s claim that the anti-nepotism policy had a disparate impact on women was insufficient to establish a disparate impact. Therefore, it also was insufficient to establish an inference of sex-based discrimination in a wrongful discharge case. The district court’s judgment was affirmed.

No. 06-4287. Bradford v. Wiggins. 02/20/2008. D.Utah. Per Curiam. Civil Rights—Unlawful Arrest—Judicial Estoppel—Qualified Immunity.

When called to their adult son’s residence, plaintiffs found police officers attempting to arrest him. Although the police told plaintiffs to stay out of the way, they rushed toward their son and were restrained by police officers. As a result, plaintiffs were charged with rioting. They later entered no-contest pleas to the lesser charge of disorderly conduct; on payment of a fine and service of twelve months’ probation, the charges would be dismissed.

At the plea hearing, plaintiffs admitted that the police asked them to leave and that they refused. They sued the police officers, claiming that the officers violated their constitutional rights in restraining and charging them. The district court granted summary judgment to the officers, holding that plaintiffs’ claims were barred by judicial estoppel and qualified immunity.

The Tenth Circuit applied the doctrine of judicial estoppel, but cautioned that the doctrine does not apply automatically when a plaintiff enters a no-contest plea. Rather, the doctrine is to be applied narrowly to avoid harsh results. Here, plaintiffs’ civil rights claims clearly were inconsistent with the earlier court proceeding in which they entered no-contest pleas; they admitted that the police asked them to leave and they refused. In addition, permitting plaintiffs to change their story would create a perception that one court was misled. Finally, plaintiffs would derive an unfair advantage on the deputies if not estopped, because they received the benefit of their no-contest pleas.

The Circuit held that the officers were entitled to qualified immunity on plaintiffs’ claims that they unlawfully seized and detained them. Under the stressful and dangerous conditions facing the officers, even assuming plaintiffs were seized, the seizure was reasonable to prevent them from interfering with the arrest of their son. Because the seizure was reasonable, no Fourth Amendment violation occurred; therefore, qualified immunity applied. The district court’s judgment was affirmed.


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