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TCL > October 2008 Issue > Summaries of Selected Opinions

October 2008       Vol. 37, No. 10       Page  119
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. 07-1395. Paul v. Iglehart (In re Paul). 07/28/2008. D.Colo. Judge Anderson. Bankruptcy—Discharge Injunction—Discovery—Postpetition Wrongdoing—Objective–Coercion Principle—State Court Should Control State Litigation.

Plaintiff Paul filed an adversary action in his bankruptcy case against defendant Iglehart, alleging she violated the discharge injunction, which prohibits a creditor from collecting a debt discharged in bankruptcy. Paul and Iglehart were partners in a business not included in Paul’s bankruptcy. Iglehart sued in state court to recover assets from the partnership and sought discovery from Paul. She also filed a claim against Paul, alleging postpetition wrongdoing in the wind-up of the business.

The bankruptcy court found that Iglehart’s actions in the state-court case violated the discharge injunction, and sanctioned Iglehart. The district court affirmed.

The Tenth Circuit Court reviewed the three rules governing the discharge injunction: (1) it applies only to actions to collect a discharged debt; (2) it permits suits in which the debtor is a nominal defendant and may require him to comply with discovery; and (3) a creditor cannot use otherwise authorized litigation to harass or coerce the debtor to pay the discharged debt. Here, Iglehart’s state-court litigation activities did not violate the discharge injunction because Paul was a nominal party to it and Iglehart was not seeking to collect a prepetition debt from him. The Tenth Circuit noted that the state court, not the bankruptcy court, was the appropriate court to oversee the conduct of the litigation. Moreover, the allegations of postpetition misconduct against Paul were not barred. The bankruptcy court made no finding that Iglehart’s discovery efforts were a means to coerce payment on any discharged claims. The bankruptcy court’s order sanctioning Iglehart was reversed.

No. 07-8067. U.S. v. Hanson. 07/28/2008. D.Wyo. Judge McConnell. Illegal Possession of Firearm—"Sporting Exception."

Defendant pled guilty to being an unlawful user of a controlled substance in possession of a firearm. While on probation from a state conviction for possession of marijuana and methamphetamine, he purchased a handgun from a pawn shop. The probation order prohibited him from possessing firearms. After he tested positive for methamphetamine on providing a urine sample to his probation officer, defendant admitted that he owned the firearm and told officers where to find it in his trailer. During his sentencing hearing for illegally possessing the firearm, defendant sought a reduction of his total offense level under the "sporting exception" contained in § 2K2.1(b)(2) of the Sentencing Guidelines (Guidelines). He claimed that he purchased the handgun only for shooting cans and jackrabbits. The district court determined that the circumstances of defendant’s possession of the handgun did not qualify him for the reduction.

On appeal, defendant argued that he was entitled to the reduction because he possessed the pistol solely for sporting purposes. The Tenth Circuit Court first rejected the government’s position that shooting at cans was not a "lawful sporting purpose." "Plinking"—shooting at cans and other objects—is a form of target shooting that can be a sporting purpose under the Guidelines; however, the burden was on defendant to prove that he possessed the gun solely for recreational purposes.

The Tenth Circuit held that some factors favored defendant. He did not attempt to conceal his ownership of the gun, claimed to be unaware that his possession of it was illegal, and fully cooperated with authorities when questioned about it. None of his prior offenses involved the use of a firearm. On the other hand, the district court relied on the fact that the type of gun that defendant purchased, a 9mm Ruger, is not typically used for target practice and is a very dangerous semiautomatic weapon commonly used for self-protection. Defendant’s extensive involvement in drugs made the use of the weapon against other persons more likely, particularly because methamphetamine abuse can lead to paranoia and violence. Finally, the district court had discretion to determine whether defendant’s testimony that he intended to use the weapon solely for sporting purposes was credible. Given the facts and circumstances, the district court’s conclusion that defendant failed to show by a preponderance of the evidence that he did not intend to use the gun for nonsporting purposes is upheld. The Tenth Circuit also upheld defendant’s sentence.

No. 07-6166. United States v. Cudjoe. 07/29/2008. W.D.Okla. Judge Murphy. Sentencing—Breach of Plea Agreement—Government’s Agreement to Stand Mute if Defendant "Stayed Factually Accurate" at Sentencing.

Defendant pled guilty to conspiracy to possess with intent to distribute, distribution of a controlled substance, and carrying a firearm during and in relation to a drug trafficking crime. As part of his plea agreement, defendant stated he would ask the sentencing court for a 360-month sentence; the government agreed not to object as long as he "stay[ed] factually accurate." At the change of plea hearing, defendant stipulated that 30 kilograms of crack were attributable to him for Sentencing Guidelines (Guidelines) purposes. He did not stipulate, however, to enhancements recommended in the presentence report (PSR) for a leadership role in the offense or for obstruction of justice. After hearing a number of witnesses called by the government whose testimony pertained to these enhancements, the district court applied the enhancements, resulting in an advisory Guidelines range of imprisonment for 360 months to life.

Defendant requested a thirty-year sentence (twenty-five years on the drug conspiracy count and five years on the firearm count). The government argued that in view of defendant’s conduct, the court’s sentence was appropriate. Defendant objected that the prosecutor had breached the plea agreement by arguing for such a sentence. The district court sentenced the defendant to 360 months for the conspiracy count, to be followed consecutively by sixty months for the firearm count, resulting in a total sentence of 420 months.

On appeal, defendant argued that the government had breached the plea agreement by arguing for the enhancements and advocating a sentence in excess of thirty years. The government contended that by objecting to the PSR, defendant placed the facts in dispute, thereby releasing the government from its obligation to stand mute at sentencing.

Interpreting the plea agreement in accordance with general contract principles, the Tenth Circuit Court determined that when the parties agreed that defendant must stay "factually accurate," they intended that he would not make any factually inaccurate statements in connection with his objections to the PSR or at sentencing. The defendant, however, would be permitted to make legal arguments against the enhancements recommended in the PSR. Although the government asserted on appeal that defendant had made factually inaccurate statements, it failed to identify any particular statement that it contended was false. The district court did not find that defendant had breached the plea agreement by making false statements.

The government did not breach the agreement by arguing for the enhancements. The agreement contemplated that it would make such arguments at sentencing. It did, however, breach the agreement by arguing for a sentence in excess of thirty years. The government argued that the district court "should strongly consider a penalty that will protect society from [defendant] in any and all future events," thus implicitly arguing for a life sentence. It therefore breached the plea agreement. The appropriate remedy was resentencing, not a sentence reduction to a thirty-year sentence. The Tenth Circuit therefore reversed the defendant’s sentence and remanded the case for resentencing.

No. 07-8081. Amphibious Partners, LLC v. Redman. 07/29/2008. D.Wyo. Judge McKay. Contribution From Joint Loan Guarantors—Equitable Considerations—Pretrial Order.

Plaintiff and defendants guaranteed a loan made to Trolley Boats, LLC. When Trolley Boats defaulted, plaintiff asked defendants to pay half; however, they refused, claiming they owed less than half. Plaintiff paid off the loan and then filed suit to collect the full amount from defendants based on their unauthorized takeover of Trolley Boats. The district court held a Bench trial and ordered defendants to pay the full amount of the loan, because they had retained the funds earned by Trolley Boats while excluding plaintiff from the business, thereby destroying plaintiff’s ability to benefit from the loan.

On appeal, defendants argued that the district court erred by considering equitable issues, because those issues were not framed in the order setting the trial. The Tenth Circuit Court responded that the trial-setting order was not an official pretrial order and, even if it were, the trial judge was not prevented from changing his mind about the applicable law of the case. Moreover, defendants’ claim that the equitable issues were not framed in the pleadings was rejected, because they first raised the equitable issue of contribution among coguarantors, so they could not complain that the district court considered other equitable factors. On the merits, the Tenth Circuit held that the record supported the district court’s findings that defendants’ actions caused plaintiff to receive no benefit from the loan. In addition, the district court did not abuse its discretion in requiring defendants to pay the full loan amount, because they received the benefits from the loan. Accordingly, the district court’s judgment was affirmed.

No. 07-1255. Sewell v. Great Northern Insurance Co. 07/31/2008. D.Colo. Judge Kelly. Colorado Insurance—Excess Uninsured/Underinsured Motorist Coverage—Special Relationship—Breach of Contract—Colorado Consumer Protection Act.

Plaintiff purchased a comprehensive insurance policy through defendant Professional Lines Insurance Brokerage, Inc. (PLI), an insurance broker. The policy included automobile coverage. Plaintiff did not request any information concerning excess uninsured/underinsured motorist (UM/UIM) coverage, and the policy plaintiff purchased did not include such coverage. She renewed the policy annually for several years. In late 2003, after Colorado eliminated its no-fault auto liability law, plaintiff inquired whether she needed to increase her coverages. PLI told her she did not. The parties again did not discuss excess UM/UIM coverage.

After her husband was killed in a car accident, plaintiff filed a claim for excess UM/UIM coverage, which the insurer denied because she never purchased it. She sued, alleging various claims. The district court granted summary judgment in favor of PLI.

The Tenth Circuit Court rejected plaintiff’s claims for breach of contract and reformation because she had never requested excess UM/UIM coverage. The evidence showed that plaintiff and PLI had nothing more than a normal insurer–insured relationship, so the agent had no affirmative duty to advise the customer. In addition, PLI had no duty to discuss excess UM/UIM coverage after Colorado repealed its no-fault law. The Tenth Circuit also rejected plaintiff’s claims for breach of fiduciary duty and breach of good faith and fair dealing, because she did not establish that PLI was acting as her fiduciary or that there was any special relationship. Therefore, PLI was required only to obtain the coverages plaintiff requested and answer her questions.

The Tenth Circuit ruled that the Colorado Consumer Protection Act did not apply because there was no evidence that PLI’s alleged practices affected the public, and presumed injury to others was insufficient to resist summary judgment. The district court’s judgment was affirmed.

No. 06-4011. United States v. Kelly. 08/05/2008. D.Utah. Judge Holmes. Venue—Nonspecific Motion for Acquittal as Challenge to Venue—Sufficiency of Evidence—Adequacy of Instructions—Court Reporter’s Act—Failure to Transcribe Verbal Jury Instructions.

Defendant was convicted after a jury trial of two drug-trafficking offenses. He argued on appeal that there was insufficient evidence for a reasonable jury to have found that the charged crimes occurred in the District of Utah.

The Tenth Circuit Court discussed the burden of proof and the standard of review of venue determinations. Although venue is a question of fact ordinarily decided by a jury, the sufficiency of the evidence to support the jury’s finding is a question of law. Venue is not a mere technicality; it is a constitutional consideration and an element of every crime. Unlike other elements of a crime, however, it need be proved only by a preponderance of the evidence and not beyond a reasonable doubt.

The Tenth Circuit determined that defendant had not waived his challenge to the venue determination in his case. The indictment charged that he had committed the crimes in Utah, the district in which he was tried. He could not therefore have been expected to challenge venue until after the prosecution had presented its case, including its evidence concerning venue. Although he filed only a nonspecific motion for acquittal, such a motion is deemed to challenge the sufficiency of each essential element of the government’s case, including venue. Thus, the objection to venue was adequately preserved.

Turning to the merits of the venue question, the Tenth Circuit noted that there was no direct evidence on the venue question, but there need not be. The record contained a significant number of geographical references from which the jury could conclude that the crimes charged occurred within the District of Utah. The law enforcement agents who testified referred to their area of operation and jurisdiction. The non-law-enforcement agents also made geographical references from which the jury could conclude that the crimes occurred within the state of Utah. Finally, there was no evidence that defendant committed any of the crimes outside the state of Utah.

Defendant next contended that the district court should have given an instruction on venue. Because he did not request such an instruction, his challenge was reviewed only for plain error. Because the general instructions on the elements of the crimes charged required the jury to find that they occurred within the District of Utah, there was no plain error.

Finally, defendant claimed prejudicial error because the district court instructed the court reporter not to transcribe the jury instructions as they were read from the Bench. Under the Court Reporter’s Act, all open court proceedings in criminal cases must be recorded verbatim. Here, however, there was no prejudicial error, because the district court made a written copy of the jury instructions part of the trial record. Although defendant asserted that the district court’s verbal instructions to the jury differed from those contained in the written instructions, he failed to detail specific errors that prejudiced him, and did not avail himself of the procedures provided in the appellate rules for reconstructing any gaps in the record. Therefore, his challenge failed, and the Tenth Circuit affirmed his conviction.

No. 07-2145. United States v. Contreras. 08/18/2008. D.N.M. Judge Ebel. Eyewitness Identification—Use of Probation Officer’s Identification Testimony—Lay Witness Opinion—Unfair Prejudice—Right of Confrontation—Sentencing—Due Process Implications of Placing Burden of Proving Affirmative Defense on Defendant.

Following a jury trial, defendant was convicted of bank robbery and received a life sentence. The evidence at his trial showed that a man robbed an Albuquerque, New Mexico branch of the Bank of America. The only evidence of the robber’s identity consisted of the bank’s surveillance video and a teller’s description of him. The bank circulated flyers with pictures of the robber from the surveillance video footage. An officer with the New Mexico Department of Probation and Parole recognized defendant in the flyer photographs. The FBI prepared a photo lineup based on her tip, and the teller identified defendant as the robber.

At trial, defendant sought to exclude the probation officer’s testimony as unduly prejudicial. He expressed concern that he could not effectively cross-examine the probation officer because the examination might reveal that she was his probation officer, thus prejudicing the jury. The district court reserved judgment on the admissibility of her testimony. After defendant successfully impeached the teller’s identification testimony, however, the district court determined that the probation officer’s testimony should be permitted because defendant could cross-examine her about her identification without running a substantial risk of disclosing their relationship. Defendant, however, declined the opportunity to cross-examine the probation officer.

On appeal, defendant argued that the probation officer’s identification testimony violated F.R.E. 701, which governs lay witness opinion testimony. He contended that the testimony was not "helpful" to the jury because the jury could view the surveillance video footage and determine for themselves whether he was the bank robber. The Tenth Circuit Court disagreed. The probation officer’s testimony was helpful, because her repeated interactions with defendant allowed her to make a more sophisticated identification than the jurors could make on their own. Such familiarity with the person identified is a key factor in determining the helpfulness of a witness’s identification. The use of the probation officer’s testimony also did not violate F.R.E. 403, which prohibits unfairly prejudicial evidence. Defendant could have cross-examined the probation officer by limiting his examination to exclude details of their prior relationship and focusing solely on whether her past interactions enabled her to identify him from the photographs. His attorney’s strategic choice not to cross-examine the witness did not result in unfair prejudice, and also did not violate his Sixth Amendment right to confront this witness against him.

Finally, defendant contended that the life sentence he received violated due process, because 18 U.S.C. § 3559(c), under which he was sentenced, imposes a life sentence for any person convicted of a serious violent felony with two prior convictions for serious violent felonies, but provides a safety valve permitting the defendant to demonstrate that a prior conviction should not count as a serious violent felony because of mitigating factors. Defendant contended that the statute improperly assigns the burden of proving such mitigating factors on the accused.

The Tenth Circuit held that the principle that the legislation creating an offense can place the burden of proving affirmative defenses on the defendant remains good law after Apprendi v. New Jersey, 530 U.S. 466 (2000). It therefore upheld the defendant’s conviction and sentence.

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