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TCL > December 2008 Issue > Summaries of Selected Opinions

December 2008       Vol. 37, No. 12       Page  113
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. 07-6177. United States v. Schane. 09/29/2008. W.D.Okla. Judge Briscoe. Child Pornography—Interstate or Foreign Commerce Requirement—Sufficiency of Evidence—Evidence of Gender or Homosexuality.

A jury convicted defendant of knowingly possessing material that contained an image of child pornography that was produced using materials mailed, shipped, or transported in interstate commerce. During an interview with the Federal Bureau of Investigation, defendant admitted to owning certain screen names thought to be associated with child pornography and consented to a search of his home computer. He and his wife both used the computer, and their usernames were not password-protected. The search revealed images of child pornography. Defendant denied they were his.

At trial, a detective testified that 90 to 95 percent of the pornographic images on defendant’s computer were of young boys. He stated that he had never encountered a woman who trafficked in child pornography showing homosexual acts between males. On cross-examination, he admitted that he never attempted to interview the wife or to search her business computer or defendant’s work computer. The detective stated he assumed that a man looked at the images. He also testified that the images containing child pornography were stored under the husband’s account on the computer, not the wife’s.

On appeal, the Tenth Circuit held that the jury’s determination that the images were produced using materials transported in interstate or foreign commerce did not constitute plain error. The government’s theory was that (1) the computer’s hard drive was manufactured in Singapore; and (2) the images were "produced" when information on that hard drive was displayed on the computer screen. Although the Tenth Circuit rejected that theory as a basis for liability, it concluded that defendant failed to show plain error, because the evidence supported an alternative theory that the images were produced on his hard drive when copied or downloaded to it.

The Tenth Circuit also held that there was sufficient evidence showing that defendant (and not his wife) committed the crime. Defendant admitted that he had access to the accounts on which the images were found and admitted to using one of the screen names. The images appeared during the search only after officers began examining defendant’s account. The trial court did not err in admitting testimony concerning the likelihood of a woman possessing child pornography; this evidence was admitted to show why the agents focused their attention on defendant and not his wife.

The prosecutor’s references to homosexuality, which were used to describe the type of pornography found on defendant’s computer or were singular and isolated references, did not justify a mistrial on the basis of unfair prejudice. Finally, the district court did not abuse its discretion by admitting the images of child pornography for the jury to see, notwithstanding defendant’s willingness to stipulate that they were child pornography. Some of the images were the basis of the charges in the indictment, and the government was entitled to prove its case. Others were introduced to show defendant’s knowledge and intent concerning his crimes. The Tenth Circuit affirmed defendant’s convictions.

Nos. 07-3135 & 07-3143. United States v. Phillips. 10/01/2008. D.Kan. Judge McConnell. Immigration Fraud—Evidence—Rule of Completeness—Best Evidence Rule—Forgery of "Entry Document"—Sufficiency of Evidence.

A jury convicted defendants, husband and wife, of willingly making false statements to a federal agency and immigration fraud. Husband was an attorney and wife served as his secretary. Husband’s firm assisted undocumented workers with preparing and filing applications for permission to remain in the United States for employment purposes. These applications, called ETA-750s, required a sponsoring employer to certify that he or she unsuccessfully attempted to recruit U.S. citizens for the specified position.

On the day of a filing deadline for the forms, wife brought a stack of ETA-750s to the Kansas Foreign Labor Certification Unit, where she worked on them before turning in fifteen to twenty applications that day. The Kansas Certification Unit noticed a number of discrepancies in these applications involving the purported employers’ signatures and pay rates. The U.S. Department of Labor conducted an investigation, which eventually revealed that six of the ETA-750 applications contained forged signatures, purportedly from employers. The Certification Unit also discovered a forged signature on an application for asylum submitted by the firm.

At trial, the six employers for whom the firm submitted the allegedly forged ETA-750s forms testified that they had not authorized the firm to sign the forms on their behalf. The asylum applicant testified that someone forged her signature on an application. None of the witnesses claimed to have met or spoken with husband. A former paralegal from the firm testified that the signatures on the ETA-750s were in husband’s handwriting.

On appeal, defendants raised a number of evidentiary objections. The Tenth Circuit held that the district court did not violate the "rule of completeness" by admitting only portions of the asylum application form. The rule of completeness does not prohibit admission of an incomplete document; it permits the party against whom the document is offered to place the remainder of the document into evidence, which defendants failed to do. Admission of copies of the application did not violate the "best evidence rule," because there was no question as to their authenticity and no unfairness in their admission. The district court did not abuse its discretion in finding that the government exercised reasonable diligence in attempting to obtain an original and, therefore, could introduce a copy instead.

The Tenth Circuit turned to the sufficiency of the evidence to show a violation of 18 U.S.C. § 1546(a). That statute requires a forgery of either an entry document or a document required to be submitted as a prerequisite to receiving an entry document. Because neither the asylum application nor the ETA-750 forms met this requirement, the Tenth Circuit reversed defendants’ convictions under § 1546(a).

Husband also challenged the sufficiency of the evidence of his participation in the forgeries. The Tenth Circuit held that the evidence, which included testimony that his handwriting appeared on the asylum application, that he worked with wife at the firm and the firm profited from her efforts, and that the Certification Unit notified him of the filing of the applications, was sufficient for conviction of husband concerning the asylum application and for his conviction of the remaining counts under an aiding and abetting theory.

No. 07-3181. United States v. Mendoza. 10/01/2008. D.Kan. Judge Lucero. Guideline Sentencing—Downward Departures—Procedural and Substantive Unreasonableness—Plain Error.

Defendant pled guilty to possession of methamphetamine with intent to distribute, conspiracy, and maintaining a place for the purpose of distributing a controlled substance. The presentence report recommended a Sentencing Guidelines (Guidelines) sentencing range of 324 to 405 months’ imprisonment. Defendant moved for a downward departure, arguing that he attempted to cooperate with the government and that his sentence was substantially higher than the sentences his codefendants received. The district court determined that a sentence of 240 months would represent just punishment and would be sufficient but not greater than necessary. It expressed generalized doubts about the deterrent effect of drug sentences. It then imposed concurrent sentences of 240 months’ imprisonment on each of the three counts.

On appeal, the government argued that the sentence was procedurally unreasonable because the district court failed to adequately explain its reasons for imposing a downward variance, and because it failed to record those reasons in a written statement. The Tenth Circuit noted that the government objected in district court only to the substantive reasonableness of the sentence. Therefore, its procedural arguments would be reviewed only for plain error.

When a district court imposes an outside-Guidelines sentence, it must state in open court its reasons for departure from the Guidelines. To satisfy this "verbalization" requirement, the district court must describe the relevant facts of the individual case, including factors particular to the defendant or the crime, and must explain how these facts relate to the sentencing factors contained in 18 U.S.C. § 3553(a).

Here, although the district court recited the § 3553(a) factors, it failed to connect them to any specific facts of the case to explain why it supported a downward variance. This was error, and the error was plain. In cases requiring a showing of plain error, however, the court will not remand unless the error affected a party’s substantial rights. The government failed to explain how a more detailed reasoning process might have led the court to select a higher sentence. Prejudice to the government cannot be assumed in every instance involving noncompliance with the verbal statement requirement of § 3553.

The government’s argument that the district court failed to enter a written statement of reasons also would be reviewed for plain error. The government could have objected by filing a Rule 35(a) motion to correct the sentence after its imposition, but failed to do so. Again, the district court’s error met the first two prongs of plain error review. However, the government failed to show that the entry of a written statement of reasons would have caused the district court to alter its sentencing outcome, particularly in light of the fact that it is the verbal findings that control. The Tenth Circuit therefore affirmed the district court’s sentence.

No. 07-1065. Archuleta v. Wal-Mart Stores, Inc. 10/06/2008. D.Colo. Judge Ebel. Fair Labor Standards Act—Pharmacists—Exemption for Professionals—Plaintiffs’ Evidence Insufficient to Resist Summary Judgment.

Plaintiffs are full-time pharmacists employed by Wal-Mart. The Fair Labor Standards Act (FLSA) generally requires an employer to pay its employees one and one-half times their regular rate of pay for any time worked in excess of forty hours per week. There is an exemption for professional employees. Plaintiffs alleged that Wal-Mart changed their salaries so frequently that it treated them, in effect, as hourly nonexempt employees. The district court granted summary judgment in favor of Wal-Mart.

On appeal, the Tenth Circuit Court recognized the disputed issue as whether Wal-Mart paid its pharmacists on a salary, rather than hourly, basis. Plaintiffs each signed a written policy statement regarding compensation for an agreed-on number of base hours per week. Wal-Mart paid plaintiffs for those base hours, regardless of whether they worked all of them. In addition, Wal-Mart paid for hours worked over the base number, but not as much as the FLSA would require. Plaintiffs asserted that Wal-Mart changed their base hours, and thus their base salaries, so often that it was treating them as hourly employees.

The Tenth Circuit noted that an employer may prospectively change its employees’ salaries without defeating the exemption for professionals, unless the purported salary is a sham and the employees are functionally hourly employees. After reviewing the evidence regarding the frequency of prospective changes to plaintiffs’ work schedules, the Tenth Circuit held that plaintiffs did not present evidence to overcome Wal-Mart’s evidence that its full-time pharmacists were salaried professionals exempt from the FLSA’s overtime requirements.

However, for two pharmacist-plaintiffs, the Tenth Circuit found that Wal-Mart changed their base hours so frequently to reflect the actual hours they worked that they were, in effect, hourly employees. Consequently, those two plaintiffs established a triable issue of fact. The district court’s judgment was affirmed in part and reversed in part, and the case was remanded.

No. 08-3115. United States v. Sharkey. 10/07/2008. D.Kan. Judge Briscoe. Guideline Sentencing—Amendment 706—Use of 18 U.S.C. § 3582(c)(2) for Retroactive Sentence Reduction—Effect of Policy Statements—Career Offender Guidelines.

Defendant pled guilty to one count of distribution of crack cocaine within 1,000 feet of a school. He was sentenced to 188 months in prison. The district court calculated his Sentencing Guidelines (Guidelines) base offense level of 31 by determining that he was a career offender, which carried a base offense level of 34, and by subtracting three levels for acceptance of responsibility. Alternatively, his base offense level determined by the amount of cocaine base, a two-level firearm enhancement, and a three-level acceptance of responsibility reduction, would have been 30. The district court applied the higher base offense level of 31 because of defendant’s career offender status.

Although defendant’s plea agreement reserved his right to appeal certain determinations regarding sentencing, he did not file a direct appeal. He filed a motion to vacate his sentence under 28 U.S.C. § 2255, but it was dismissed as untimely. He then filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) permits the district court to reduce the term of imprisonment based on a sentencing range that subsequently was lowered by the Sentencing Commission. In Amendment 706 to the Guidelines, made retroactive on March 3, 2008, the Commission adjusted downward by two levels the base offense levels assigned to quantities of crack cocaine.

The district court refused to adjust defendant’s sentence downward in accordance with the Amendment. On appeal, the Tenth Circuit affirmed the district court’s refusal to adjust defendant’s sentence downward. A reduction is available under § 3582(c)(2) only when such reduction is consistent with applicable policy statement s issued by the Sentencing Commission. The Commission’s policy statement applicable to an adjustment pursuant to Amendment 706 states that a reduction is unauthorized if it does not have the effect of lowering the defendant’s applicable Guidelines range. Although Amendment 706 would have lowered defendant’s base offense level in the alternative calculation by two levels—to 28—it would have had no effect on the career offender guidelines the district court used in sentencing him. The Tenth Circuit therefore affirmed the district court’s denial of defendant’s § 3582(c)(2) motion.

No. 07-8072. Kellogg v. Energy Safety Servs., Inc. 10/15/2008. D.Wyo. Judge Hartz. Americans with Disabilities Act—Fair Labor Standards Act—Driving not Major Life Activity—Failure to Raise Claim in Motion for Judgment as a Matter of Law or in Postverdict Motion Precludes Appellate Review—Liquidated Damages.

Plaintiff sued her former employer under the Americans with Disabilities Act (ADA) and the Fair Labor Standards Act (FLSA), claiming she was fired after she was diagnosed with epilepsy and that she was not paid for overtime. Defendant employed plaintiff as a safety technician in its business as an industrial safety company. Her job duties included driving to various industrial customers’ locations. After her epilepsy diagnosis, plaintiff was restricted from driving. Defendant declined to employ her in a "safety-sensitive" position, even in the shop, and removed her from the payroll. After a trial, the jury found in plaintiff’s favor and awarded damages. The district court also awarded her prejudgment interest, front pay under the ADA, liquidated damages under the FLSA, and attorney fees. The employer appealed.

Addressing an issue of first impression, the Tenth Circuit held that driving is not a major life activity, and that the district court erred in instructing the jury that it was. Therefore, the court vacated the ADA verdict, because it was impossible to know whether the jury based its verdict on this legally incorrect ground. Accordingly, the front-pay award also was vacated. The Tenth Circuit rejected employer’s claim that plaintiff’s evidence was insufficient to support a verdict on any theory.

The Tenth Circuit ruled that it was precluded from considering the FLSA claim, due to employer’s failure to include it in its motion for judgment as a matter of law at the close of plaintiff’s evidence and at the close of all evidence, or in its postverdict motion. Finally, the Tenth Circuit affirmed the district court’s award of liquidated damages under the FLSA, concluding that employer had not shown it was entitled to the good-faith exception. The district court’s judgment was vacated in part and affirmed in part, and the case was remanded.

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