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TCL > August 2008 Issue > Summaries of Selected Opinions

August 2008       Vol. 37, No. 8       Page  169
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. 07-5035. U.S. v. Manning. 05/16/2008. N.D.Okla. Chief Judge Henry. False Statement Made During Judicial Proceeding—Judicial Function Exception—Statement Made to Probation Officer.

Defendant pled guilty to misappropriating funds. As part of his sentence, he was ordered to pay approximately $26,000 in restitution. In sentencing defendant, the district court relied on a statement of net worth that defendant provided to a probation officer. Defendant, however, omitted from the statement a retirement account worth $40,000. When the government discovered the omission three years later, it charged defendant with making a false statement under 18 U.S.C. § 1001.

The district court determined that the statement to the probation officer fell within an exception to § 1001 for statements made during a judicial proceeding. It therefore dismissed the indictment. The government appealed, arguing that the statement did not fall within the so-called "judicial function exception" to the false statement statute.

The Tenth Circuit agreed. Congress exempted from prosecution under § 1001 statements by parties and their counsel made in judicial proceedings. Judges do not need the power provided by the statute to punish false statements. However, a statement to a probation officer is not the same as a statement made to a judge or the judge’s agent, and thus may be punished under the statute. The Tenth Circuit therefore reversed the dismissal of the indictment and remanded.

No. 06-5234. U.S. v. Hasan. 05/20/2008. N.D.Okla. Judge Gorsuch. Perjury—Incomprehension of Proceedings as Denial of Due Process—Court Interpreters Act.

Defendant, a native of Somalia, was convicted of perjury for lying to a grand jury. He entered this country as a refugee and was granted asylum in 1997. In 2004, an immigration agent interviewed him about statements in his asylum application. He subsequently was brought before two grand juries to testify concerning the truthfulness of his asylum application. The second grand jury indicted him for lying to the first grand jury, for which he was convicted.

On appeal, defendant argued that under the Court Interpreters Act (CIA), he should have been provided with an interpreter during the grand jury proceedings. He contended that the alleged perjury resulted from his inability to understand the proceedings, which were held in English. The district court initially rejected his claim that he should have been provided with an interpreter in the grand jury proceedings, as well as his claim that he should be provided with an interpreter at the perjury trial. It reasoned that defendant’s primary language was English.

The district court later reversed that part of its order denying defendant an interpreter at trial. It emphasized the need for fairness and defendant’s difficulty understanding the proceedings as reasons for granting him an interpreter. However, to grant relief under the CIA, the district court also must have changed its mind about whether defendant’s primary language was English. The district court did not reverse its finding that defendant had not been denied due process by being deprived of an interpreter before the grand jury.

The Tenth Circuit found this position fatally inconsistent. There is no difference between the CIA standard for grand jury and the standard for trial proceedings. Once the district court reversed itself and determined that defendant required an interpreter at trial, it also should have revisited the question of whether he was entitled to an interpreter in the grand jury proceedings. The case would be remanded for a further determination by the district court in the first instance concerning whether defendant was deprived of due process by being denied an interpreter before the grand jury, thus requiring suppression of his statements made during those proceedings. This inquiry, to be made under the CIA standard, would require the district court to determine, at the time of the grand jury proceedings: (1) whether defendant spoke only or primarily a language other than English—the term "primarily" referring to his relative proficiency in that language as compared with English; and, if so (2) whether the lack of an interpreter inhibited his understanding of the proceedings to such a degree as to make them fundamentally unfair. The Tenth Circuit remanded for determination of these questions.

No. 06-2364. U.S. v. Zuniga-Soto. 06/03/2008. D.N.M. Chief Judge Henry. Sentencing Guidelines—Prior Conviction for "Crime of Violence"—Modified Categorical Approach—"Reckless" Conduct.

Defendant pled guilty to illegally reentering the United States. At sentencing, the district court applied a sixteen-level enhancement to his U.S. Sentencing Guidelines (Guidelines) range, finding that he had a prior Texas state conviction for assaulting a public servant that constituted a "crime of violence" for Guidelines purposes. It consulted a presentence report, noting that defendant bit one police officer and kicked another. There was evidence that defendant was intoxicated at the time of his crime. The gravamen of the Texas statute was that defendant "intentionally, knowingly, or recklessly" caused injury to a public servant lawfully discharging his duties.

On appeal, defendant argued that his Texas crime was not a "crime of violence" because it did not include as an element the "use, attempted use, or threatened use of physical force against the person of another." (U.S.S.G. § 2L1.2(b)(1)(A)(ii).) The Tenth Circuit found persuasive his argument that the Texas statute allowed for conviction for reckless conduct and therefore did not require the intentional "use" of physical force for conviction within the meaning of the Guidelines provision.

The Tenth Circuit noted that the sentencing court could determine whether a crime was a "crime of violence" by looking only to the statutory definition of the offense, not to the particular circumstances of the crime. The issue is whether the use of force is "an element" of the statute under which defendant was charged, not whether the facts in his particular case show the use of force. Judicial records pertaining to the specific crime may be used only to determine which portion of a divisible statute was charged and whether that portion relates to a "crime of violence," not to determine what defendant actually did.

Applying this "modified categorical approach," the Tenth Circuit determined that the fact that the Texas statute permitted conviction for "intentionally, knowingly, or recklessly" assaulting a public servant did not require resorting to the actual facts of conviction to determine under which section of the statute defendant was charged. The fact that defendant could be convicted under varying standards of intent did not make this a divisible statute. To convict defendant of the offense charged, it was necessary only to prove that defendant acted at least "recklessly." A person cannot be said, however, to have "used" physical force against another if he or she acted only recklessly rather than intentionally. Under the modified categorical approach, it could not be said that defendant "used" physical force merely because he was convicted of assaulting a public servant. The Tenth Circuit therefore vacated defendant’s sentence and remanded for resentencing.

No. 07-8036. Justice v. Crown Cork & Seal Co. 06/03/2008. D.Wyo. Judge Briscoe. Americans With Disabilities Act—"Regarded as" Disabled—Class of Jobs or Broad Range of Jobs—Direct Threat to Safety.

Plaintiff worked as an electrician at defendant’s plant for many years. After plaintiff suffered a stroke, his physician eventually released him for work, but restricted him from working at heights due to his impaired balance. The employer allowed him to work under his medical restrictions for two years. Following a strike at the plant, the employer required a reevaluation of plaintiff’s condition and ultimately determined, without medical support, that he could not work as an electrician or at any other jobs at the plant, except janitor. Plaintiff alleged that the employer violated the Americans with Disabilities Act (ADA), because it regarded him as disabled. The district court granted summary judgment in favor of the employer, concluding that plaintiff did not establish that he was disabled. The court also held that the evidence showed that he posed a direct threat to workplace safety.

The Tenth Circuit Court first noted that an ADA plaintiff must establish, among other things, that he is disabled under the ADA. Disability includes being "regarded as" having an impairment that limits a major life activity. Plaintiff asserted that his employer mistakenly believed that he was limited in the life activity of working. Therefore, he had to produce some evidence on summary judgment to show that his employer believed that he was significantly restricted in the ability to perform either a class of jobs or a broad range of jobs. The Tenth Circuit noted the difficulty for a plaintiff to prevail on this type of claim, but concluded that the record contained sufficient evidence for a reasonable factfinder to infer that the employer misapprehended the nature of plaintiff’s impairment and the associated risks, and believed him to be restricted in his ability to work. Consequently, the summary judgment was improper.

The Tenth Circuit then addressed the direct threat issue. It is a defense to an ADA claim if an employee presents a direct threat to the health or safety of himself or others. The burden of showing that an employee is a direct threat falls on the employer, but where the safety of others is implicated, the employee has the burden to show that he or she can perform his or her job without endangering others. Here, there was a triable issue of material fact as to whether plaintiff actually posed a direct threat to plant safety. Accordingly, summary judgment was not available on this claim. The district court’s judgment was reversed and remanded.

No. 07-4113. U.S. v. Pikyavit. 06/04/2008. D.Utah. Judge Tymkovich. Fourth Amendment—Consent to Search—Scope of Consent—Search of Home Initiated at Behest of Defendant.

Defendant was convicted of being a felon in possession of ammunition. He was arrested and jailed after he and some other men were found fighting outside his house. He directed the police to go to his house and examine the living quarters for proof that he was not the aggressor in the fight. He believed the evidence would show that the fight broke out inside his home and that he was merely defending himself from aggressors who entered the home. Defendant believed his home was unlocked, but the police found the house locked. They slipped the lock and, after searching the living room and kitchen, found the ammunition in plain view inside a door off the hallway.

On appeal, defendant argued that the police exceeded the scope of his consent to the search by entering the locked house and by searching beyond the living room and kitchen. Applying a clearly erroneous test to the district court’s factual findings, the Tenth Circuit upheld the search. The scope of defendant’s consent to search is determined using an objective reasonableness test. It was objectively reasonable to conclude that defendant intended the officers to search his home, even if it was locked, provided they could enter the home without damaging it. Defendant initiated the process leading to the search and did not condition the search on finding the home unlocked. He also was concerned that the search proceed expeditiously so that he could be exonerated.

It also was objectively reasonable to conclude that defendant gave consent that the entire home be searched. He told officers that the "whole house" showed signs of the violence perpetrated against him, and he did not limit the search to any particular rooms in the house. The district court’s conclusion that the officers stayed within the scope of the search was not clearly erroneous. The Tenth Circuit therefore upheld the defendant’s conviction.

No. 07-5077. Vanguard Environmental., Inc. v. Kerin. 06/09/2008. N.D.Okla. Judge Tacha. Attorney Fees—Rules 54 and 41—No Bad Faith—Exceptional Circumstances Required—No Abuse of Discretion.

Plaintiff sued its former employee alleging violations of Oklahoma laws prohibiting misappropriation of trade secrets and deceptive trade practices. Early in the litigation, plaintiff filed a motion to dismiss with prejudice. The district court granted the motion, but denied defendant’s request for attorney fees, which was made under Fed. R. Civ. P. 54(d)(2) and 41(a)(2).

The Tenth Circuit addressed the Rule 54 claim for attorney fees authorized under Oklahoma statutes, noting that the rule requires the party seeking fees to specify the law authorizing an award. Then the court determined that defendant did not make the required showing of bad faith to be entitled to attorney fees. Turning to the request for fees made pursuant to Rule 41, the Tenth Circuit held that exceptional circumstances are required under this rule. The court rejected defendant’s claim that this situation was exceptional, because this lawsuit resembled a previous action plaintiff filed against another former employee. Accordingly, the Tenth Circuit found no abuse of discretion in the district court’s order denying attorney fees to defendant, and affirmed the order.

No. 06-4222. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc. 06/17/2008. D.Utah. Judge Gorsuch. Copyright—Digital Modeling—Original Creation—Independent and Creative.

Plaintiff was hired to create digital, wire-frame models of Toyota’s vehicles for use in Toyota’s advertising. To accomplish the digital models, plaintiff took thorough measurements of the vehicles and then generated a digital image resembling a wire-frame model. To perfect the image, plaintiff "sculpted" the images to resemble the vehicles as closely as possible, thereby converting the physical three-dimensional measurements into a two-dimensional computer representation. Toyota’s advertising agency then digitally applied color and animation to the models for use in Toyota’s advertisements. Plaintiff claimed defendants used its work in more extensive advertising than the contract provided, and sued for misappropriation of intellectual property in violation of its copyright registration. The district court granted summary judgment to defendants.

Comparing the new, evolving digital-modeling technology to the advent of photography, the Tenth Circuit Court determined that plaintiff’s product was not an independent creation, but rather copies of Toyota’s vehicles. To be amenable to copyright, a work must be an original expression, created independently by its author, and possessing some degree of creativity, as opposed to being copied from other works. Therefore, because plaintiff’s digital models depicted only Toyota’s vehicles, without any original lighting, angle, perspective, or other factors associated with original expression, they were not copyrightable. This conclusion was bolstered by plaintiff’s intent to copy Toyota’s vehicles, rather than to create any original expression. Although this plaintiff was not entitled to a copyright, the Tenth Circuit recognized that digital modeling can be used to create copyrightable expressions. The district court’s judgment was affirmed.

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