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TCL > July 2008 Issue > Summaries of Selected Opinions

July 2008       Vol. 37, No. 7       Page  159
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. 07-2060. United States v. Vigil. 04/29/2008. D.N.M. Judge Kelly. Sufficiency of Evidence—Hobbs Act—Extortion.

Defendant was convicted by a jury of attempted extortion, in violation of the Hobbs Act, which prohibits obstruction of commerce by use of extortion. On appeal to the Tenth Circuit, he challenged the sufficiency of the evidence supporting his conviction.

The evidence showed that defendant was the New Mexico State Treasurer. Everage, an employee of the Treasurer’s office, proposed to raise income for the office through a securities lending program. Everage then left the Treasurer’s office and created a business entity called SECSYS, LLC, which submitted a proposal to the Treasurer’s office to act as manager of the program, from which SECSYS would receive approximately $100,000 in gross proceeds.

Before Everage left the Treasurer’s office, defendant told Everage that he had a friend whose wife, Ms. Sais, needed a job. He asked Everage to hire her. When Everage met with Sais, she stated that she expected $55,000 per year in compensation, even though she apparently had no knowledge of the securities lending business. She later demanded 40 percent of his gross proceeds, for essentially no work. She told Everage that defendant owed her husband for past favors.

Defendant told Everage that if he did not hire Sais, the deal would not go forward. When Everage nevertheless submitted his proposal without Sais, defendant called him and said that he would get nowhere unless he accommodated her. Defendant continued to pressure Everage, suggesting that he would get nothing unless he met Sais’s demands. Eventually, when Everage refused to hire Sais, the Treasurer’s office terminated negotiations with him and awarded the management contract to an individual who knew nothing about securities lending but who agreed to hire Sais as a condition of receiving the contract.

Defendant argued that his conduct was not wrongful within the meaning of the Hobbs Act, because it involved hard bargaining or political patronage. The Tenth Circuit disagreed; defendant was entitled to evaluate proposals on behalf of the state, but was not entitled to direct the disposition of the income from the contract or to specify who was to be hired to perform it. Notwithstanding the fact that Everage had not yet received money or property under the contract, defendant could be found guilty of attempting to obtain tangible property, in the form of expected proceeds, and intangible property, in the form of Everage’s ability to make business decisions free from outside pressure. Moreover, the extortion was made "under color of official right," because the evidence would permit the jury to conclude that the award of the contract was conditioned on hiring Sais. The conduct also satisfied the requirement that interstate commerce be affected, because the securities transactions would have involved multi-state lending agents. Finally, defendant took substantial steps toward completion of the crime, terminating negotiations only after Everage refused to include Sais in the contract. The Tenth Circuit upheld defendant’s conviction and sentence.

No. 06-8074. Trujillo v. PacifiCorp. 05/07/2008. D.Wyo. Judge Seymour. Americans with Disabilities Act—Association Clause—Employee Health-Care Costs—Prima Facie Case—Pretext—Interference With ERISA Benefits.

Plaintiffs were longtime employees of PacifiCorp at the Jim Bridger Power Plant in Wyoming. They received health-care benefits through their employer. Those benefits also covered their son, who had a brain tumor. On May 30, 2003, the son suffered a relapse and required aggressive medical treatment costing $62,000 over six weeks. He died in 2004.

On June 10, 2003, eleven days after the relapse, the employer began an investigation of suspected time theft by plaintiffs. The employer used gate-entry records to demonstrate the times plaintiffs came and went from work, even though those records were not reliable. Mr. Trujillo was discharged on June 19, 2003; Ms. Trujillo was discharged on August 25, 2003. The total time they allegedly stole was forty hours. They sued, claiming that their former employer discharged them because of the health-care costs associated with their son’s illness, in violation of the Americans with Disability Act’s (ADA) association clause and ERISA. The district court held that plaintiffs did not establish a prima facie case and entered summary judgment in favor of the employer.

On appeal, the Tenth Circuit noted that the employer was bound by the ADA’s prohibition against discriminating on the basis of an employee’s relationship with a person having a known disability. Plaintiffs’ relationship to their son was protected by the association provision. The Tenth Circuit then evaluated whether plaintiffs had established the only contested element of the prima facie case. The court held that they had, given the evidence of the employer’s concerns about the cost of the son’s illness and the temporal proximity between the son’s relapse and the terminations. There was a reasonable inference that their son’s disability was a determining factor in firing them. Because the employer’s proffered reason for the terminations was facially nondiscriminatory, the court considered plaintiffs’ evidence that the stated reason was a pretext for discrimination.

The court held that plaintiffs showed pretext through evidence of disparate treatment of other similar employees who were given progressive discipline, while they were discharged immediately. In addition, plaintiffs showed that the employer had failed to interview key witnesses and that the time-theft investigation was based on unreliable evidence. Therefore, the Tenth Circuit held that a jury could infer that plaintiffs were discharged in violation of the ADA.

No. 07-8028. United States v. Reeves. 05/07/2008. D.Wyo. Judge Murphy. Fourth Amendment—Warrantless Seizure of Person—Constructive Entry Doctrine.

Defendant entered a conditional guilty plea to the charge of being a felon in possession of a firearm and a felon in possession of ammunition, reserving his right to appeal the district court’s denial of his motion to suppress evidence seized during a search of his motel room. The evidence showed that officers responded to an aggravated assault call at approximately 9:30 p.m. They interviewed an emergency medical technician (EMT) who treated the victim and who also was a clerk in a liquor store. The EMT told the officers that she had heard defendant say, "Sometimes you gotta do what you gotta do and God tells you to do it." The assault victim heard her assailant make a similar comment. The officers, who knew that defendant was a felon, also had received reports that he was in possession of a handgun.

At 2:43 a.m. the next day, the officers arrived at the motel where defendant had been living for the past three months. The motel manager placed several calls to defendant’s room, but there was no response. The officers then knocked on the door and window to the motel room for approximately twenty minutes, using their metal flashlights and yelling and identifying themselves as police officers. Finally, defendant came to the door. The officers observed that he was wearing a holster, but could not determine if it held a gun. One of the officers withdrew his taser and aimed its target light at defendant. Defendant surrendered and was taken into custody. Some .44 caliber rounds were found in his pocket. On performing a protective search of the room, officers observed guns and ammunition. The officers read defendant his Miranda rights. He initially consented to a search of the room, then withdrew his consent. He was taken into custody, interrogated, and tested with a sexual assault kit at a hospital. Finally, at 8:20 a.m., he signed a consent-to-search form for his motel room. During the search, the officers found rifles and a handgun.

On appeal, defendant argued that he was arrested inside his home, in violation of the Fourth Amendment, and that the evidence subsequently obtained was tainted by the arrest and should be suppressed. The Tenth Circuit agreed. Opening the door to one’s house is not voluntary if one is ordered to do so under the color of authority. In that circumstance, under the "constructive entry doctrine," the individual is considered to have been seized inside his or her home. Here, defendant would not have felt free to ignore the officers’ implicit demands to open the door. The arrest was not justified by probable cause and exigent circumstances. The officers argued they had to arrest defendant before he left for California; however, the evidence showed that they found out about his travel plans only after they arrested and handcuffed him. The danger posed by defendant wearing a holster became apparent only after defendant submitted to the officers’ show of authority and was seized. The government failed to demonstrate a break in the causal connection between his unlawful arrest and his subsequent consent to the search, so the search was tainted by the arrest. The Tenth Circuit therefore reversed the district court’s denial of defendant’s motion to suppress.

No. 06-8093. United States v. Friday. 05/08/2008. D.Wyo. Judge McConnell. First Amendment—Eagle Protection Act—Religious Defense to Prosecution—Religious Freedom Restoration Act.

The government charged defendant, a member of the Northern Arapaho Tribe of Wyoming, with shooting an eagle without a permit, a crime under the Bald and Golden Eagle Protection Act. The district court dismissed the indictment on the basis that the Religious Freedom Restoration Act (RFRA) precluded the government from prosecuting defendant, because he killed the eagle for use in the tribe’s traditional religious ceremony. The government appealed from the dismissal of the indictment.

Evidence showed that the eagle was used in the Sun Dance ritual, which required the tribe to raise an offering to the Creator on a pole at a structure known as the "offering lodge." The offering includes the eagle’s tail fan. The eagle must be "pure," meaning that the tail fan cannot be reused from year to year, and the eagle must be killed (or "taken") in a ceremonially acceptable manner, rather than dying by electrocution or as roadkill. Congress accommodates Native Americans who require eagles for religious purposes by maintaining a repository of eagles and eagle parts. Some of these animals, however, have died by electrocution on power lines or are roadkill—disqualifying them as pure eagles for ceremonial purposes. Additionally, the demand for these eagles is so high that the wait for a whole tail may be longer than three years. Native Americans also may apply for a permit to take a live eagle, which will be granted only if it does not have an adverse effect on the eagle population. This permit procedure serves as a backup to the repository system; in practice it is used infrequently and is not widely known. Defendant did not apply to the registry and was unaware of the permitting process.

On appeal, the government conceded that defendant’s religious exercise was sincere and defendant conceded that the government had a compelling interest in protecting the bald eagle. Thus, the only issues under the RFRA were whether the ban substantially burdened defendant’s religious exercise and whether that burden was the least restrictive means of protecting the bald eagle. (The government also conceded that, because of the Sun Dance’s purity requirement, the existence of the repository of eagle parts was a nonissue in the case.)

The Tenth Circuit first determined that a ban on killing eagles substantially burdened defendant’s ability to exercise his religion. The court then assumed that the burden was not attenuated by the permitting process and that the requirement of obtaining a permit itself was a substantial burden. The question then became whether the permit process was a reasonable accommodation of defendant’s religious beliefs, and whether it was narrowly tailored to achieve the government’s compelling purposes.

Because defendant did not apply for a permit, the Tenth Circuit held that he could not complain of delays in the permitting process that might have occurred. He could, however, raise several facial and as-applied challenges. Addressing these challenges, the Tenth Circuit first concluded that the permitting process was not futile, even though (1) a permit would be granted only if the registry could not satisfy an individual’s religious needs; (2) the process was not well known; and (3) delays were involved in obtaining a permit. Second, the government had made an adequate showing that the permitting process was necessary to fulfill its compelling interest in protecting eagles. Third, an outreach program to notify Native Americans of the permitting process was not required to make the system the least restrictive means of protecting eagles. Finally, the fact that the government does not criminally prosecute electric companies when eagles die from electrocution on power lines does not mean that a better means is available to protect eagles. The evidence showed that the government enters into voluntary agreements with electric companies designed to protect eagles from electrocution and to give companies an incentive to report eagle deaths. The Tenth Circuit concluded that the prosecution did not violate RFRA. It therefore reversed the district court’s order dismissing the indictment and remanded for further proceedings.

No. 06-4121. Fisher v. Forestwood Co., Inc. 05/12/08. D.Utah. Judge Tymkovich. Title VII—Religious Discrimination—Failure to Hire—Tape Recording Admissible—Direct Evidence of Discrimination.

Plaintiff, a former member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, left his employment with defendant after he was expelled from the church. When he asked for his job back, the company president, plaintiff’s father, stated that plaintiff would not be rehired unless he rejoined the church. Plaintiff sued, alleging unlawful discharge, retaliation for complaining about another employee’s treatment, and failure to hire. The district court entered summary judgment in favor of defendant, concluding that plaintiff did not present evidence that he was discharged or that he was retaliated against. The court further ruled that the only evidence of discriminatory failure to rehire was inadmissible hearsay. Plaintiff appealed.

The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of defendant on the unlawful discharge and retaliation claims, because plaintiff did not produce sufficient evidence of actual or constructive discharge. Turning to the claim that defendant refused to rehire plaintiff because of his religion, the Tenth Circuit stated that Title VII makes it unlawful to refuse to hire any individual because of his or her religion. Plaintiff proffered direct evidence of discrimination in the form of a tape-recorded conversation in which president-father stated that he would not consider rehiring plaintiff unless he rejoined the church. The Tenth Circuit ruled that the district court erred in excluding the tape recording as hearsay, because it was an admission of a party opponent made by defendant company’s president. The Tenth Circuit also ruled that the tape recording could not be excluded because the conversation was between a father and son or because the company president died before trial so he could not be cross-examined. The company president was speaking in his capacity as president, and neither the rules of evidence nor Title VII excepts family-owned businesses or intrafamily disputes. Moreover, the declarant need not be available for cross-examination for an admission by a party opponent to be admissible. Finally, the Tenth Circuit held that the tape recording was sufficient direct evidence of discrimination to preclude summary judgment. The district court’s judgment was reversed and remanded.

No. 07-5101. United States v. Pasillas-Castanon. 05/13/2008. N.D.Okla. Judge Tymkovich. Speedy Trial Act—Civil Removal Proceedings—"Ruse Exception."

Defendant was convicted of knowingly possessing a counterfeit green card. He was civilly arrested on August 5, 2006 after a traffic stop, during which he presented the counterfeit green card to officers. Immigration officials took him into custody and commenced administrative removal proceedings against him. He was held in the Oklahoma County Jail, without bond, while these proceedings were pending. On September 13, 2006, the government filed a criminal complaint against defendant for possession of the counterfeit green card. He was indicted on October 4, 2006 for the offense and removed from Immigration custody. The removal proceedings were dropped. He later moved to dismiss the indictment, contending that the government had violated the Speedy Trial Act by failing to charge him within thirty days of his arrest. After the district court denied his motion, he was convicted of the offense in federal court and sentenced.

On appeal, defendant argued that the indictment should have been dismissed and his conviction overturned, because the deportation proceedings were a mere ruse to keep him incarcerated until the United States could obtain an indictment, and his indictment more than thirty days after his arrest therefore violated the Speedy Trial Act. The Tenth Circuit first held that the Speedy Trial Act requires only that a defendant be charged for criminal offenses within thirty days of the date he or she is arrested in connection with such charges. An arrest for a civil offense, such as a deportation proceeding, does not trigger the Speedy Trial Act. The thirty-day clock therefore began running on October 4, 2006, when the U.S. Marshals Service arrested defendant in connection with the criminal offense.

The Tenth Circuit also rejected defendant’s contention that his civil arrest and detention triggered the Speedy Trial Act because law enforcement authorities colluded with the Immigration officials to detain him as a mere ruse for a later prosecution. The "ruse exception," it explained, is triggered only where the primary or exclusive purpose of a civil detention is to hold the defendant for future criminal prosecution. The mere fact that the authorities are aware that criminal charges are available does not trigger the exception. The evidence here did not show that defendant’s detention was designed primarily to facilitate a criminal prosecution. The Tenth Circuit therefore upheld defendant’s conviction.

Nos. 07-5109 & 07-5112. DaimlerChrysler Fin. Servs. Americas LLC v. Ballard (In re Ballard). 05/19/2008. Bankruptcy Appellate Panel. Judge Tacha. Bankruptcy—Chapter 13—"910 Vehicle"—Secured Interest—Deficiency Under State Law.

Within 910 days of filing a Chapter 13 bankruptcy petition, debtor purchased an automobile (a "910 vehicle") and gave the lender a purchase money security interest. Instead of keeping the car and paying the present value through the bankruptcy proceedings, debtor surrendered the vehicle. The vehicle was worth less than what was owed, and the creditor sought an unsecured claim based on state law for the deficiency. The bankruptcy court and the Bankruptcy Appellate Panel (BAP) ruled that federal law does not allow a deficiency claim. The creditor appealed.

The Tenth Circuit reversed, applying an unnumbered provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), referred to as the "hanging paragraph." The hanging paragraph requires a 910 vehicle claim to be treated as fully secured. The Tenth Circuit considered whether a Chapter 13 debtor’s surrender of a 910 vehicle fully satisfies a creditor’s claim secured by the vehicle and prevents the creditor from filing an unsecured claim for the deficiency based on state law. The court held that it does not. When purchasing the car, the debtor contracted to pay any deficiency remaining after liquidation, and Oklahoma state law permits a creditor to seek payment for any deficiency. BAPCPA does not invalidate this right, so the creditor was entitled to pursue its unsecured claims. The judgment of the BAP was reversed.

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