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TCL > November 2008 Issue > Summaries of Selected Opinions

November 2008       Vol. 37, No. 11       Page  157
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. 07-3200. U.S.A. v. Jarvi. 08/21/2008. D.Kan. Judge McConnell. Search and Seizure—Suppression—Standing to Object—Right of Allocution at Sentencing.

Defendant pled guilty to possession of methamphetamine (meth) with intent to distribute. During a traffic stop, police officers found meth in his truck. Meth also was found in a subsequent search of defendant’s house.

At a suppression hearing, the government conceded that the search of the truck was illegal. However, defendant was unable to persuade the district court that the meth seized in his house should be suppressed, as well. He had no appreciable criminal history, and he received a ninety-month sentence.

On appeal, defendant argued that the meth found in his house should have been suppressed. During the concededly illegal search of his truck, a passenger in the truck was arrested on a dubious basis related to prescription medication. That passenger subsequently told police that defendant kept meth at his house and that she previously had used drugs there. On this basis, police obtained a search warrant, searched the house, and discovered the meth defendant sought to suppress.

The Tenth Circuit held that defendant could not suppress the passenger’s statements, because he could only assert a violation of his own Fourth Amendment rights, not those of his passenger. He presented insufficient evidence to tie the passenger’s allegedly unlawful arrest and detention to any violation of his own rights. There was no showing, for example, that but for the illegal search of defendant’s truck, the passenger would not have made the statement implicating defendant. Therefore, the district court properly denied the motion to suppress.

The presentence report prepared in defendant’s case recommended that cash found in his house be converted to its "meth equivalent" and used to enhance his sentence. It also recommended an enhancement for guns found in the home. Defendant’s counsel argued that he should not receive the gun enhancement, but did not object to the enhancement for the cash.

Defendant filed a pro se objection that raised numerous additional objections, including an objection to the use of the cash as a meth equivalent. Despite the request by defendant’s attorney, the district court refused to rule on defendant’s written motions. The court found that because defendant had an attorney, the pro se objections would not be considered. The court rejected the gun enhancement.

When the court asked defendant whether he had anything further to say concerning his sentence, defendant attempted to argue against the use of cash as a meth equivalent. However, because this was part of his written objection, the district court would not permit him to do so.

The Tenth Circuit held that the district court had denied defendant his right to speak in mitigation of his sentence under the common law principle of allocution, now codified in F.R.Crim.P. 32(i)(4)(A)(ii). Although the district court acted within its discretion in refusing to consider the pro se arguments contained in his written objection, defendant nevertheless had a right to present any evidence in mitigation he chose to bring up during sentencing. The failure to permit defendant to present his arguments required a remand for resentencing.

No. 06-2274. U.S.A. v. Rivas-Macias. 08/25/2008. D.N.M. Judge Baldock. Fifth Amendment Privilege Against Self-Incrimination—Witness’s Guilty Plea and Statements to Police—District Court’s Duty to Continue Trial Pending Witness’s Sentencing.

A jury convicted defendant of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. One of defendant’s coconspirators pled guilty shortly before defendant went to trial. The coconspirator had not been sentenced by the time of defendant’s trial, but he had debriefed the government concerning the conspiracy in an effort to obtain leniency at sentencing. Defendant sought the coconspirator’s testimony at trial to impeach the testimony of another coconspirator who had turned state’s evidence. The district court, however, permitted the coconspirator to assert his Fifth Amendment privilege against self-incrimination, and refused to compel the coconspirator to testify.

On appeal, defendant argued that the district court either should have compelled his coconspirator to testify at his trial, or should have continued the trial sua sponte until after the coconspirator’s sentencing, at which point his Fifth Amendment privilege no longer would apply. The Tenth Circuit noted that this case presented a conflict between a witness’s right to avoid self-incrimination and a defendant’s right to present a defense. If the coconspirator retained his self-incrimination privilege, defendant could not establish that his right to present a defense was unduly impaired.

Defendant argued that the coconspirator had waived his Fifth Amendment privilege against self-incrimination by pleading guilty and through his voluntary admissions to the government. The Tenth Circuit concluded that the coconspirator was subject to an authentic danger of further incriminating himself if he testified prior to sentencing. His prior statements did not represent a waiver of the privilege. A guilty plea does not waive the privilege against self-incrimination, and the coconspirator’s unsworn statements to authorities did not represent a testimonial waiver because they did not occur in the same proceeding in which defendant desired to compel his testimony.

As to defendant’s argument that the district court should have continued his trial until after the coconspirator’s sentencing, defendant did not raise this issue below and it could be considered only for plain error. There was no error, however. A district court is not required to continue a defendant’s trial sua sponte until a witness invoking the Fifth Amendment privilege has been sentenced. The district court’s decision not to continue the trial was not arbitrary or unreasonable. Defendant’s conviction therefore was affirmed.

No. 07-2331. U.S.A. v. Gambino-Zavala. 08/25/2008. D.N.M. Judge Tymkovich. Search and Seizure—Exigent Circumstances—Sentencing—Presumption of Reasonableness.

Defendant pled guilty to unlawful possession of a firearm and ammunition by an illegal immigrant. He reserved his right to appeal the district court’s denial of his suppression motion, in which he argued that the police conducted an illegal search of his apartment.

The police conducted the search after responding to multiple 911 calls reporting gunfire in the area of defendant’s apartment complex. When the police arrived at the complex, they spoke to a neighbor who lived directly below defendant’s apartment. She told the police officers that people living in that unit had been shooting guns inside the apartment. After police knocked on the door for several minutes, defendant opened it. He told the officers there was no one else in the apartment. The police conducted a sweep of the apartment to determine if there was anyone inside who was injured or armed with a gun. While conducting the search, they found a shotgun and ammunition in a bedroom closet.

On appeal, defendant argued that the district court should have granted his motion to suppress the gun and ammunition. The government argued that exigent circumstances justified the search. The Tenth Circuit stated that to rely on this justification for the search, the government must show (1) that the officers had an objectively reasonable basis to believe that there was an immediate need to protect the lives and safety of others; and (2) that the manner and scope of the search was reasonable. Here, based on the gunshots, the interview with the neighbor, and two vehicles in the parking lot that the neighbor identified as belonging to the occupants of the apartment, the police had a reasonable basis to believe an injured victim could be inside the apartment, even though defendant said nobody else was inside. The manner and scope of the search also were reasonable. The search lasted only for one to two minutes, and was limited to a sweep for additional people inside the apartment.

Defendant also argued that his sentence was procedurally and substantively unreasonable. He contended that the district court prejudged the facts of his case and that there was insufficient evidence to support certain enhancements it applied. The government also argued for reversal, on the basis that the district court applied an improper presumption of reasonableness to the Sentencing Guidelines sentence in denying defendant’s request for a variance. The Tenth Circuit rejected all of these arguments. The judge’s comments at sentencing did not reveal a degree of antagonism that made fair judgment impossible. There was sufficient evidence to support the enhancements.

Finally, although the district court erred in applying a presumption of reasonableness when considering defendant’s request for a variance, defendant conceded the error was harmless, and the record showed that it understood its discretion to grant a variance below the Sentencing Guidelines range. Therefore, the Tenth Circuit held the error was harmless and defendant’s sentence was procedurally reasonable. The sentence also was substantively reasonable because the district court did not abuse its discretion in weighing the various factors involved and denying a variance. The Tenth Circuit affirmed defendant’s judgment and sentence.

No. 07-2194. U.S.A. v. Benally. 09/09/2008. D.N.M. Judge Briscoe. Expert Testimony—Voluntariness of Confession—Sentence Not Greater Than Necessary to Accomplish Statutory Purposes.

Defendant was convicted of abusive sexual contact with a child and was sentenced to the statutory maximum of 240 months’ imprisonment. A principal source of evidence against him was his own confession. He sought at trial to present the testimony of an expert witness on false confessions to provide support for his claim that his confession to FBI agents was untrue.

At trial, defendant disavowed his earlier confession, which was given to the agents during an interview at his workplace. Although the interview only lasted one-and-a-half hours and the agents told defendant he was not under arrest, defendant contended that his confession was prompted by coercive tactics. He testified that the agents repeatedly insisted that he was lying when he denied the charges, and would not take "no" for an answer. He also stated that one of the agents engaged in aggressive, leading questioning, and threatened to remove him from his workplace in handcuffs unless he cooperated. He said the agents made him feel he was not free to leave the room unless he cooperated and confessed.

Defendant offered the testimony of a psychology professor as an expert witness on whether false confessions occur and why people falsely confess. The witness had not examined defendant, however, and would not offer an opinion concerning whether he had falsely confessed. The district court held a hearing to determine whether the professor was qualified to testify as an expert under F.R.E. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1996). It determined that the testimony did not meet Daubert’s standards for relevance or reliability.

On appeal, the Tenth Circuit noted the general rule that the credibility of witnesses is generally not an appropriate subject for expert testimony. Defendant argued that this rule did not apply in his case, because the expert did not intend to provide an opinion concerning whether he had falsely confessed. The Circuit determined that the district court could have properly concluded that the testimony was inadmissible because its import would have been to disregard the confession and to credit defendant’s testimony that his confession was a lie. Thus, it would have usurped the jury’s function of determining defendant’s credibility.

The district court also permissibly concluded that the prejudicial effect of the testimony would have substantially outweighed its probative value. Because the witness did not examine defendant and would not discuss the particular circumstances surrounding his confession, it had very limited relevance. The prejudice to the prosecution from testimony that prior confessions could be disregarded because they are equally likely to be true or untrue would substantially outweigh the testimony’s minimal probative value.

Defendant also contended that the district court erred in imposing the statutory maximum sentence of twenty years, without finding that such a sentence was not greater than necessary to accomplish the statutory purposes set forth in 18 U.S.C. § 3553(a)(2). Because he did not object at trial, this alleged error was reviewed only for plain error. Although the district court did not articulate this factor at sentencing, it is presumed to know the law. Defendant failed to identify any authority requiring the district court to enunciate this particular § 3553(a) factor to satisfy its procedural responsibilities at sentencing. The Circuit therefore upheld defendant’s conviction and sentence.

No. 07-5165. Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval). 09/11/2008. N.D.Okla. Judge Ebel. Bail Bond—Bankruptcy—Contract to Reimburse Bondsman—Debt Discharged.

Before filing for Chapter 7 bankruptcy protection, defendant Sandoval signed a contract with plaintiff, a bondsman, whereby if Bonito Yanez failed to appear in court, Sandoval would reimburse the bondsman for the bond forfeited to the state. Yanez failed to appear, the bondsman forfeited the bond to the state, the bondsman sued Sandoval and obtained a judgment, Sandoval filed for bankruptcy protection, and the bondsman claimed the forfeited bail bond was not dischargeable. The bankruptcy court disagreed, and held that the debt was discharged.

On appeal to the Tenth Circuit, the bondsman argued that 11 U.S.C. § 523(a)(7) rendered the bail bond nondischargeable. That section applies to a forfeiture payable to a governmental unit. However, Sandoval contracted to reimburse the bondsman, not to pay the state. Moreover, he was not a party to the bail bond that was forfeited. The debt owed by Sandoval was not payable to or for the benefit of a governmental unit. Therefore, § 523(a)(7) does not apply. The debt owing from Sandoval to the bondsman was dischargeable. The bankruptcy court’s judgment was affirmed.

No. 07-4062. Dummar v. Lummis. 09/12/2008. D.Utah. Judge Hartz. Howard Hughes’s Will—Fraud—RICO—Unjust Enrichment—Statute of Limitations—Issue Preclusion.

Plaintiff Dummar alleged that defendants wrongfully deprived him of his inheritance from the estate of billionaire Howard Hughes. He asserted that defendants conspired to convince a jury in 1978 that a document purporting to be Hughes’s holographic will was invalid.

Dummar claimed that in December 1967, he found a bloodied and disheveled man lying in the road in Nevada and drove him to the Sands Hotel in Las Vegas. The man identified himself as Hughes. Shortly after Hughes’s death in 1976, a holographic will surfaced and was filed for probate. The will listed Dummar as a 1/16 beneficiary of the estate. Several witnesses testified in the 1978 probate proceedings that Hughes never left the Sands Hotel for a period of years, including December 1967.

Thirty years later, Dummar discovered that Hughes’s airplane pilot had flown him to various locations in Nevada, including to a brothel in December 1967, from which Hughes left alone. The district court held that the 1978 determination that the holographic will was invalid precluded Dummar’s present claims, and dismissed the suit.

Dummar appealed, renewing his claims for fraud; violations of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute; Nevada RICO violations; and unjust enrichment. The Tenth Circuit ruled that the three-year statute of limitations barred the fraud claim, holding that Dummar knew in 1978 that defendants lied when they testified that Hughes did not leave the Sands Hotel, because Dummar was certain that the man he picked up was Hughes. Similarly, the four-year limitations period for the federal RICO claim had run, because Dummar was injured, and knew of his injury, in 1978. Furthermore, the circumstances for tolling the RICO limitations period due to fraudulent concealment were not met.

The Tenth Circuit held that Dummar failed to state a claim under the Nevada RICO statute. The Circuit held that Dummar’s unjust-enrichment claim was barred by the jury’s 1978 finding that Hughes died intestate. Because the jury found that defendants were entitled to the estate, their enrichment was not unjust. The district court’s judgment was affirmed.

Nos. 05-2309 & 05-2317. Kelley v. City of Albuquerque. 09/17/2008. D.N.M. Judge Holmes. Title VII—Employee—Protected Participant—Attorney Representing Alleged Violator—Class-of-One Equal Protection—Public Employee.

Plaintiff was terminated from her position as an Albuquerque (City) assistant city attorney. She sued, claiming she was fired in retaliation for representing the City in Equal Employment Opportunity Commission (EEOC) proceedings against a client represented by defendant Chavez before he became the City’s mayor. Once Chavez became mayor, plaintiff was terminated. The district court dismissed plaintiff’s equal-protection claim and submitted the remaining claims to a jury. The jury returned a verdict in plaintiff’s favor.

The City argued that plaintiff was not covered by Title VII of the Civil Rights Act of 1964, because the position of assistant city attorney was that of adviser to the mayor. The Tenth Circuit rejected this argument, holding that plaintiff was covered by Title VII’s definition of employee.

The Circuit considered an issue of first impression relative to plaintiff’s retaliation claim: Does a defense attorney who represented an alleged violator of discrimination laws during an EEOC mediation qualify as a protected participant under Title VII? The Circuit held that she was a protected participant pursuant to the plain and unambiguous language of the statute.

The Circuit also denied plaintiff’s cross-appeal, in which she claimed that the City violated the Equal Protection Clause. She asserted a class-of-one claim that she was treated differently than others in a similar position without any rational basis for the different treatment. The Circuit relied on a recent U.S. Supreme Court ruling that the class-of-one theory of equal protection does not apply in the public employment context. The district court’s judgment was affirmed.

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