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TCL > January 2009 Issue > Summaries of Selected Opinions

January 2009       Vol. 38, No. 1       Page  101
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. 07-6273. Tarrant Regional Water District v. Sevenoaks. 10/27/2008. W.D.Okla. Judge Tacha. Federal Jurisdiction—Interlocutory Appeal—Case or Controversy—Eleventh Amendment Immunity—Sovereignty—Official Capacity—Injunctive Relief—Abstention.

In this dispute over Oklahoma water rights, the Tenth Circuit addressed the challenges to federal jurisdiction. Defendants, officials of state water boards that controlled access to public water, brought this interlocutory appeal, asserting that the district court should have granted their motion to dismiss because (1) there was no ripe "case or controversy"; (2) the state officials were immune from suit under the Eleventh Amendment; and (3) the court should abstain pending the outcome of an ongoing administrative proceeding.

The Circuit held that there was a ripe case or controversy because plaintiff challenged the constitutionality of a state statute and showed an appreciable threat of injury flowing directly from the statute. The Circuit also concluded that the state officials were not entitled to immunity from suit under the Eleventh Amendment, which bars federal suits against states and state agencies for money damages. It does not bar suits seeking only prospective, injunctive relief from state officials sued in their official capacities. Here, defendants were state officials within the ambit of the Eleventh Amendment, sued in their official capacities, and the complaint sought only prospective, injunctive relief. The Circuit rejected defendants’ argument that state sovereignty gives rise to immunity, holding that the issue of sovereignty is no longer a part of the Eleventh Amendment immunity analysis.

The Circuit further determined that it did not have appellate jurisdiction to review, on interlocutory appeal, the district court’s decision not to abstain because that decision is reviewable on appeal after final judgment. The district court’s orders were affirmed.

No. 07-7080. United States v. Poole. 10/31/2008. E.D.Okla. Judge Gorsuch. Jury Verdict—Lesser-Included Offense—Ambiguous or Duplicative Verdict—Plain Error.

Defendant was charged with assault resulting in serious bodily injury. At his request, the verdict form at his trial also included the lesser-included offense of simple assault. The verdict form instructed the jury that it first should consider the greater charge of assault resulting in serious bodily injury. If it found defendant guilty of that offense, it should stop deliberating and return its verdict. However, if it acquitted him or could not reach a verdict on the greater charge, it should consider the lesser charge of simple assault.

After deliberating for less than an hour, the jury returned a verdict finding defendant guilty of both assault resulting in serious bodily injury and simple assault. The trial court stated, in the presence of the jury, that it had failed to follow instructions. It then proceeded to declare the lesser, simple assault conviction a nullity. The court next reminded the jury that its verdict must be unanimous, and informed the jurors that it would poll them "to make sure this is your verdict." Each of the jurors responded in the affirmative. The court then asked counsel if they wanted to argue anything further before the jury was discharged. Both the prosecution and defendant’s counsel responded "no," and the jury was discharged. Defendant’s counsel then moved for a mistrial on the basis that the jury’s verdict was ambiguous and uncertain. The trial court invited briefing. Counsel moved for a new trial, which the trial court denied.

On appeal, the Tenth Circuit determined that because defendant had failed to object to the remedial measure taken by the trial court, consideration of the issue was limited to plain error review. Defendant argued that the trial court had committed legal error by failing to take any remedial measures in response to a verdict that was plainly ambiguous or uncertain on its face. The Circuit disagreed, noting that the problem with the verdict was one of double counting rather than inconsistency or ambiguity. The trial court had resolved the double-counting problem by voiding the jury verdict on the lesser-included offense.

It was possible that the jury reached a compromise verdict by convicting defendant of both offenses; however, such a compromise would not be evident from the verdict form and therefore did not require action by the trial court absent a specific objection from defendant. Moreover, the trial court did take remedial action by polling the jury. Defendant failed to show that the use of a poll rather than some other means of ensuring the jury’s verdict constituted plain error. The Circuit therefore affirmed his conviction.

No. 08-6010. United States v. Husted. 11/05/2008. W.D.Okla. Judge Lucero. Sex Offender Registration and Notification Act—Effective Date—Ex Post Facto Clause—Absurdity Doctrine.

Defendant was convicted under the Sex Offender Registration and Notification Act (SORNA) of failing to register as a sex offender after traveling in interstate commerce. In 1993, he was convicted of a crime in Illinois requiring registration as a sex offender. In January 2006, he informed the sheriff’s department in the county where he lived in Illinois that he was moving to Enid, Oklahoma. He registered initially with Oklahoma authorities but then failed to update his registration and fell out of compliance with Oklahoma law. In April 2006, he moved to Missouri without informing the Oklahoma authorities and without registering in Missouri as a sex offender.

On July 27, 2006, SORNA became effective. An Oklahoma grand jury subsequently indicted defendant for failing to register as a sex offender in Missouri after traveling in interstate commerce from Oklahoma. He pled guilty, but reserved the right to appeal the denial of his motion to dismiss the indictment against him.

On appeal, defendant raised a number of issues concerning the validity of the indictment. The Tenth Circuit found one of them meritorious: whether the statute under which he was convicted applies to a defendant whose interstate travel was complete prior to SORNA’s effective date.

Examining the text of SORNA, the Circuit concluded that its plain language did not apply to an individual whose interstate travel was complete before July 27, 2006. The statute refers to one who "travels" in interstate commerce, using the present tense. Thus, it does not refer to one who "traveled" in the past tense.

The Circuit further rejected the government’s argument that giving the statute only a prospective application would achieve an absurd result. SORNA, the government argued, was designed to prevent individuals from avoiding registration requirements by moving from state to state, and this purpose would be frustrated by giving it only a prospective application. The absurdity doctrine, however, applies to an unambiguous statute in only the most extreme circumstances. Giving the statute a prospective interpretation here would not result in an absurdity; in fact, it might forestall a challenge to the statute under the Ex Post Facto Clause. Accordingly, the Circuit reversed defendant’s conviction, vacated his sentence, and remanded to the district court with instructions to dismiss the indictment.

No. 07-6238. United States v. Thompson. 11/12/2008. W.D.Okla. Judge McConnell. Fourth Amendment—Involuntary Search and Seizure

Four patrol cars pulled into the parking lot of a 7-11 convenience store after one of the officers spotted four or five people standing in the store’s parking lot. Defendant was inside the store; his car was parked in the lot. One of the patrol cars parked in such a way that it was unlikely that defendant could have maneuvered his car out to leave without the officer moving his patrol car. Two of the officers entered the 7-11, where they ultimately arrested someone for marijuana possession.

Defendant left the store carrying a drink and a doughnut, walking toward his car. One of the officers, who was fully uniformed, with his weapon holstered, approached defendant—admittedly without any grounds for suspicion—and asked him if he could speak with him. After receiving consent, he asked defendant if he was carrying anything illegal. Defendant became nervous and did not answer the question. The officer told him to relax and repeated the question. Defendant then admitted that he had a gun in his back pocket. The officer reached around, felt the gun through the back pocket, removed the gun, and arrested defendant. After further questioning by the officer, he admitted to being a convicted felon. He later was convicted of being a felon in possession of a firearm.

On appeal, defendant argued that the initial encounter with the officer represented a seizure without reasonable suspicion or probable cause, and that the subsequent search was not consensual. The Tenth Circuit disagreed.

The pertinent question in determining whether the encounter was consensual was whether a reasonable person in defendant’s situation would have felt free to disregard the police and go about his business. Here, the encounter occurred in a public place, in view of other patrons. The officer did not touch defendant until he admitted to possessing a gun. He did not threaten him with any use of force or brandish or display his weapon at any time. Only one of the four officers present on the premises approached defendant. The fact that other officers arrested someone else does not show a lack of consent; if anything, the sight of others being arrested is reassuring rather than alarming, and gives notice of the consequences of answering the officer’s questions. Finally, the officer did not use an antagonistic tone in asking questions.

The fact that the officer did not advise defendant that he was "free to go" did not figure into the analysis of whether the encounter was consensual. More difficult was the fact that one of the patrol cars had effectively blocked defendant’s car from leaving. However, defendant was on foot, not in his car. Where an individual is on foot when approached by the police officer, the fact that his car may be blocked does not necessarily render involuntary his decision to answer questions or consent to a search. Given all the facts and circumstances of this case, the blockage of defendant’s car in the parking lot did not make the encounter nonconsensual. The Circuit therefore upheld defendant’s conviction.

No. 08-4009. United States v. Benally. 11/12/2008. D.Utah. Judge McConnell. Evidence of Jury Deliberations—Federal Rule of Evidence 606(b)—Racial Bias.

A jury convicted defendant, a Native American, of forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon. During voir dire, the trial court asked the jury questions submitted by defendant designed to uncover bias against Native Americans. None of the jurors indicated they had such bias. The case proceeded to trial and the jury found defendant guilty.

The day after the jury convicted defendant, a juror (K.C.) approached defense counsel, claiming that the verdict had been influenced by racist claims about Native Americans during jury deliberations. The jury foreman allegedly asserted that "[w]hen Indians get alcohol, they all get drunk," and that when they get drunk, they get violent. When K.C. disagreed with this, the foreman began arguing with her. Another juror appeared to agree with the foreman. Other jurors stated that the jury needed to "send a message back to the reservation." One juror stated that he had relatives in law enforcement and knew what happened when "people mess with police officers and get away with it." K.C. signed an affidavit in support of her allegations; a second juror corroborated them to an extent, but was unwilling to sign an affidavit.

Defendant moved for a new trial. The district court admitted the juror testimony over the government’s objection, relying on exceptions in Federal Rule of Evidence 606(b)—which generally prohibits jurors from testifying about their deliberations—that allow jurors to testify about "whether extraneous prejudicial information was improperly brought to the jury’s attention" or "whether any outside influence was improperly brought to bear upon any juror." It granted defendant a new trial, finding that two jurors had lied on voir dire when they failed to reveal their past experiences with Native Americans and their preconceptions about Native Americans, and that the jury had improperly considered extrinsic evidence when the juror whose family was in law enforcement related stories that showed the need to "send a message." The government appealed.

The Tenth Circuit concluded that the juror testimony was not admissible under Rule 606(b). The court said the rule is designed to insulate the deliberations of the jury from subsequent second-guessing by the judiciary. It protects the deliberation process and ensures that the jurors take their deliberations seriously because they, not a reviewing judge, are responsible for their verdict.

The Circuit rejected defendant’s argument that the statements fell outside the rule altogether, because they were used only to show that the jurors lied during voir dire; in fact, the sole point of the jurors’ testimony was to obtain a new trial by challenging the validity of the verdict. Although the rule provides certain exceptions, none of the exceptions was applicable here; the evidence disclosed neither "extraneous prejudicial information" nor an "outside influence" on the jury within the meaning of these exceptions.

The Circuit also rejected defendant’s call to recognize an implicit exception for evidence of racial bias. It is the function of Congress, not the courts, to create such exceptions to the rules.

Finally, the Sixth Amendment right to a competent jury generally does not trump the interests served by Rule 606(b), even in the case of racially biased jurors. Accordingly, the Circuit upheld defendant’s conviction.

No. 07-4238. Mosier v. Callister, Nebeker & McCullough. 11/13/2008. D.Utah. Judge Tacha. Doctrine of In Pari Delicto—Plaintiff’s Greater Fault Bars Recovery—Bankruptcy—Trustee Stands in Shoes of Debtor.

The National School Fitness Foundation (NSFF) engaged in an illegal Ponzi scheme whereby it sold physical fitness equipment to schools, and fraudulently promised to reimburse them for their payments with money made from donations and government grants. In fact, NSFF reimbursed the schools by selling equipment to more schools. NSFF applied for tax-exempt status with the Internal Revenue Service. NSFF’s first attorneys repeatedly told it and its board of directors to stop selling more equipment and to pay off its debts, or it risked losing its tax-exempt status. In addition, the attorneys told NSFF that it and its directors could be liable for civil and criminal penalties. NSFF fired the attorneys and continued its Ponzi activities. Later, NSFF sought advice about its exempt status from other attorneys, who are defendants in this case. Defendants did not warn NSFF of its potential liability in operating its Ponzi scheme. Eventually, the scheme collapsed and NSFF filed for bankruptcy. While the bankruptcy case was pending, two of NSFF’s directors were convicted of many felony counts of fraud and money laundering relative to the NSFF Ponzi scheme. The bankruptcy trustee sued the attorney–defendants, alleging professional negligence and breach of fiduciary duty. The district court granted summary judgment in favor of defendants under the doctrine of in pari delicto, holding that the wrongdoing of NSFF was far greater than any wrongdoing of defendants. The trustee appealed.

The Tenth Circuit affirmed, applying the defense of in pari delicto, which provides that a plaintiff’s recovery may be barred by his own wrongful conduct. This doctrine can bar a trustee’s claims against third parties who participated in or facilitated wrongful conduct of the debtor. Therefore, even if defendants failed to advise NSFF to cease its operations or otherwise warn against continuing the Ponzi scheme, NSFF’s misconduct, as evidenced by the actions of its directors (two of whom were convicted of crimes), was greater than defendants’ fault in failing to counsel NSFF. The district court’s judgment was affirmed.

No. 08-3009. Hamilton v. Lanning (In re Lanning). 11/13/2008. Bankruptcy Appellate Panel. Judge Brorby. Bankruptcy—Projected Disposable Income—Forward-Looking Approach.

The Chapter 13 bankruptcy debtor’s income was greater than the median income for a family of one in Kansas, where the debtor lived. Therefore, under the 2005 amendments to the bankruptcy code, she was required to complete a formula to determine her "projected disposable income" to repay her unsecured creditors. At the time she filed for bankruptcy, the debtor’s income was less than it had been a few months before. The bankruptcy court adopted the "forward-looking approach" to evaluate her income and proposed payment plan. Under this approach, the bankruptcy court approved the debtor’s proposed repayment plan. The Bankruptcy Appellate Panel (BAP) affirmed, and the trustee appealed.

The Tenth Circuit affirmed the adoption of the "forward-looking approach." Under this approach, a Chapter 13 debtor’s six-month pre-petition "disposable income" (as defined by statute) is presumed to be the debtor’s "projected disposable income" for purposes of establishing the monthly sum that the debtor must commit to repayment of unsecured creditors to advance a confirmable payment plan and overcome objections to it. The proposed projected disposable income may be rebutted by a showing of special circumstances. Here, this approach took into account both the debtor’s past higher income and her present lower income. The Circuit affirmed the BAP’s decision, which affirmed the bankruptcy court’s decision.

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