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TCL > February 2009 Issue > Summaries of Selected Opinions

February 2009       Vol. 38, No. 2       Page  109
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals 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. 07-6197. Thomas v. City of Blanchard. 12/03/2008. W.D.Okla. Judge McConnell. First Amendment Right to Free Speech—Public Employee—Speech Made Pursuant to Professional Duties—Concerned Citizen’s Speech.

Plaintiff was an Oklahoma building code inspector who was fired for reporting to the Oklahoma State Bureau of Investigation (OSBI) that the city clerk issued a certificate of occupancy for a home that had not been inspected. The home-builder also was the mayor. Plaintiff sued, asserting he was fired in violation of his First Amendment free-speech rights. The district court granted summary judgment in favor of defendants.

On appeal to the Tenth Circuit Court, the principal issue was whether plaintiff’s report to the OSBI was made pursuant to his professional duties and therefore was outside the scope of First Amendment protections under Garcetti v. Ceballos, 547 U.S. 410 (2006). In Ceballos, the Supreme Court held that public-employee speech made pursuant to the employee’s professional duties is not accorded First Amendment protection. Here, the Circuit noted that plaintiff’s job was to inspect houses, not to detect fraud relative to the issuance of certificates of occupancy. Moreover, even if he had a duty to report the irregularity, he went beyond complaining to his supervisor when he reported to the OSBI, an agency outside his chain of command. Consequently, his speech ceased to be merely part of his official duties and became the speech of a concerned citizen.

The Circuit held that plaintiff’s speech was constitutionally protected. The court then considered the other factors relevant to whether a public employee’s discharge violates the First Amendment. It concluded that whether he was fired for his speech was a matter of disputed fact, which could not be resolved on summary judgment. The district court’s judgment was reversed and the case was remanded for further proceedings.

No. 07-4213. Kellogg v. Metropolitan Life Insurance Co. 12/04/2008. D.Utah. Judge Briscoe. ERISA—Accidental Death Policy—Cause of Death—Exclusion for Illness—De Novo Review of Denial Decision.

Plaintiff’s husband was killed when the car he was driving ran off the road and hit a tree. A witness said he looked as if he had a seizure immediately before the accident. The autopsy revealed the presence of prescription drugs in the husband’s blood that could have contributed to a seizure. Defendant-insurer had issued an ERISA-regulated accidental death policy to the husband that excluded coverage for physical illness. The insurer denied payment, saying the death was due to the husband’s seizure, which was a physical illness; therefore, it was not accidental. Plaintiff’s attorney requested documentation from the insurer for an appeal, but the insurer never responded. Eventually, plaintiff filed suit for payment under the policy. The district court granted summary judgment in favor of the insurer.

The Tenth Circuit Court first decided to apply a de novo standard of review to the insurer’s decision to deny coverage, holding that even if the "substantial compliance" standard was still valid, the insurer did not comply at all with plaintiff’s request for documentation and an appeal. The Circuit then rejected the insurer’s attempt to preclude recovery on the basis that the accident would not have happened but for the husband’s illness. The husband’s death was caused by a skull fracture resulting from a car accident, not by physical or mental illness. Therefore, even if a seizure caused the crash, it was not the cause of death. The district court’s judgment was reversed and the case was remanded with directions to enter judgment in favor of plaintiff. The district court also was instructed to consider plaintiff’s demand for prejudgment interest and attorney fees.

No. 08-2111. United States v. Rhodes. 12/05/2008. D.N.M. Judge Briscoe. Sentencing Guidelines—Modification Under Amendment 706 Relating to Cocaine Base—District Court’s Authority to Depart Downward Below Amended Guideline Range.

Defendant pled guilty to conspiracy to possess with intent to distribute more than 50 grams of a mixture and substance containing a detectable amount of cocaine base within 1,000 feet of the real property of a school. Based on his offense level and criminal history category, his Sentencing Guidelines range was 210 to 262 months. On March 30, 1999, the district court sentenced him at the bottom of the range.

On November 1, 2007, the Sentencing Commission promulgated Amendment 706, which provided a two-level reduction in base offense levels for crack cocaine-related offenses. Other amendments to the Guidelines subsequently made Amendment 706 retroactive. Defendant then filed a motion pursuant to 18 U.S.C. § 3582(c)(2), asking the district court to modify his sentence based on Amendment 706. Under the amended Guidelines for crack cocaine-related offenses, defendant’s Guidelines range was from 168 to 210 months. Counsel requested a sentence below the Guidelines range, based on defendant’s extraordinary post-sentencing rehabilitation. The district court rejected counsel’s arguments and sentenced defendant to 168 months’ imprisonment.

On appeal, defendant argued that the district court erred in concluding that it lacked authority in resentencing him under § 3582(c)(2) to impose a sentence less than the minimum of the amended Guidelines range. The government noted that Guideline § 1B1.10 provides that when a defendant is resentenced based on an amended Guideline, the revised sentence cannot be less than the bottom of the Guidelines range, unless the original sentence also was less than the minimum of the range. Defendant argued that this provision is contrary to United States v. Booker, 543 U.S. 220 (2005), which provides that the Guidelines are advisory rather than mandatory.

The Tenth Circuit Court disagreed with defendant’s position. Sentence modification proceedings differ significantly from original sentencing proceedings. Modification proceedings do not constitute a full resentencing of defendant, and require only the substitution of provisions of amended Guidelines. Given the narrow scope of modification proceedings, there is no danger that the district court will make factual findings that will raise defendant’s sentence beyond the level justified under a guilty plea or a jury verdict, the harm that Booker sought to address. Because there is no Booker violation, the district court properly relied on Guideline § 1B1.10 to conclude that it lacked the authority to impose a modified sentence that fell below the amended Guidelines range. Defendant’s sentence therefore was affirmed.

No. 07-1176. United States v. Ford. 12/11/2008. D.Colo. Judge Tymkovich. Entrapment—Brady Violation—Materiality of Evidence Withheld.

Defendant was convicted of illegally selling or possessing a machine gun. After Colorado’s Joint Terrorism Task Force (JTTF) received a tip that defendant was trafficking in automatic weapons, JTTF dispatched an informant to attempt to purchase weapons from defendant. The informant befriended defendant. Over the next eighteen months, the two made contact approximately 100 times by phone, by e-mail, and in person. During this time, the informant sold defendant three machine guns.

Prior to trial, defendant sought discovery of the government’s case files. He specifically requested any e-mails between the informant and him. The government produced some e-mails, but defendant claimed that others existed that would bolster his defense. The government agreed to recheck its records, but did not provide any additional e-mails prior to trial. At trial, defendant presented an entrapment defense, claiming the informant had pressured him to acquire and sell the machine guns, a crime he otherwise was unwilling to commit. The defense relied heavily on the sheer number of contacts initiated by the informant. The jury acquitted defendant of the first two transactions, but convicted him based on the sale of the third machine gun.

Defendant filed a motion for new trial. He subpoenaed the informant’s e-mail provider and obtained one additional e-mail from the informant that had not been previously disclosed. The district court reasoned from some of defendant’s reply e-mails that two other undisclosed e-mails from the informant must exist. It concluded, however, that although the government withheld three e-mails, there was no violation of Brady v. Maryland, 373 U.S. 83 (1963), because the undisclosed e-mails were merely cumulative.

On appeal, defendant argued that the government had violated Brady by withholding the e-mails. The issue, the Tenth Circuit Court stated, was whether the undisclosed e-mails were material to his entrapment defense; that is, whether the content of the e-mails reasonably undermined confidence in the jury’s verdict. Defendant’s entrapment defense required the jury to determine whether he was predisposed to possessing or transferring the weapon in question. Here, other evidence showed that defendant was quite willing to engage in the third transaction and that he hoped to make a "decent profit" from it. In addition, there was plenty of evidence showing that defendant possessed the weapon even before the informant asked to buy it, thus satisfying the "possession" requirement for which the jury could have convicted him regardless of the evidence concerning the sale. The Circuit concluded that the undisclosed e-mails were not material to defendant’s defense. It therefore affirmed the district court’s denial of defendant’s request for a new trial.

Nos. 07-1186 & 07-1202. Rohrbough v. Harris. 12/15/2008. D.Colo. Judge Hartz. Columbine Parents’ Depositions—Preservation—Sealed—Federal Records Act—National Archives and Records Administration—No Review of Incomplete Record on Appeal.

At issue in this litigation were sealed depositions given by the parents of the 1999 Columbine High School shooters. The depositions were taken before a special master, whose permission was required before anyone had access to them. The litigation in which the depositions were taken settled out of court, so the depositions were never used in litigation, filed with the court, or even signed by the respective deponents.

In this case, plaintiffs challenged an order to dispose of the depositions, claiming they should be preserved for historical reasons and for study by a youth violence expert. The district court ruled that the depositions: (1) were covered by the Federal Records Act (FRA); (2) would be stored by the National Archives and Records Administration (NARA); and (3) would remain sealed for twenty years.

Plaintiffs appealed, challenging the continued custody of the depositions by the government and the twenty-year sealing order. They argued that the depositions were not "records" under the FRA, so the district court did not have authority to transfer them to the NARA. The Tenth Circuit Court analyzed the FRA. It held that the depositions were "records," because they met the FRA’s criteria of being received by the court and being appropriate for preservation as containing information of value. In its holding, the Circuit determined that the special master fell under the FRA’s definition of "agency personnel."

Finally, the Circuit affirmed the district court’s discretionary decision to keep the depositions sealed for twenty years. The Circuit held that because the depositions were not included in the record on appeal, review of the district court’s exercise of discretion was impossible. The district court’s judgment was affirmed.

No. 07-3364. United States v. Parker. 12/16/2008. D.Kan. Judge Ebel. Voice Identification Evidence—Lay Opinion—Sentencing—Multiple Threats—Grouping of Counts for Sentencing Purposes.

Defendant was convicted of two counts of using a cell phone to convey false information about alleged attempts to blow up certain buildings. He placed nine 911 calls one morning, using the same cell phone. The first four calls and the ninth call were inaudible. In the other four calls, defendant warned of schools and a City Hall being blown up, and spoke of pipe bombs.

The police located the cell phone by "pinging" it and then calling the phone once they narrowed down its location to defendant’s apartment. The phone was located inside defendant’s recliner.

The government played the 911 tapes at trial. A recording of a police interview with defendant also was played to the jury. On cross-examination, defense counsel asked one of the detectives why he had repeatedly asked defendant to "explain himself" during the interview. The detective responded that he focused on defendant because he was the only one in the apartment and because his voice sounded like the one on the phone calls. Two other witnesses—a woman who had known him for ten or fifteen years and the owner of the phone—also testified that the voice on the tapes was that of defendant.

On appeal, defendant argued that the detective should not have given his opinion about whether the voice on the tape was defendant’s. The Tenth Circuit Court disagreed. A lay witness need be only minimally familiar with a defendant’s voice before offering an identification of it. The detective’s four-hour interview with defendant provided him with the requisite familiarity.

The Circuit further rejected defendant’s argument that there was insufficient evidence that he had made the phone calls. The phone was found in a recliner in defendant’s apartment; a call made from that phone ended only seconds before police knocked on defendant’s door and found him alone in the apartment; and defendant admitted he had been alone in the apartment since at least 7:00 a.m., before the last three calls were made.

Finally, defendant argued that his sentence was procedurally unreasonable because he did not qualify for an enhancement for an "offense involv[ing] more than two threats." He argued that he made at most two threats: one to blow up a school, and one to blow up City Hall. The Circuit held that it is the number of threatening communications that counts, not the number of overall threats. Defendant also argued that the two counts should have been "grouped" for sentencing purposes. Given that there were multiple potential defendants, however, "grouping" was inappropriate here. The Circuit upheld defendant’s conviction and sentence.

No. 07-5117. United States v. Hahn. 12/18/2008. N.D.Okla. Judge Seymour. Calculation of Loss—Use of Bank Deposits in Cash—Supervised Release Conditions (Unrelated to Offense of Conviction)—Sexual Offender Conditions.

Defendant was employed as an ATM technician for the Bank of Oklahoma (BOK). After BOK began noticing shortages in the "straps" of cash placed in its teller machines, it investigated the shortages and discovered that someone had been taking bills out of the straps before placing them in the machines. Further evidence led them to defendant. Defendant was charged with misapplication of financial institution funds.

Several months later, defendant was arrested for an unrelated sexual offense involving a minor. He was convicted in state court and sentenced to consecutive seven- and twelve-year sentences.

After defendant pled guilty to the federal charges, he was sentenced to eighteen months’ incarceration and a five-year term of supervised release, to be served consecutive to the nineteen-year state sentence. The federal court calculated the loss to the BOK at $53,392.75, set restitution in that amount, and imposed a number of sex offender conditions to his term of supervised release.

The district court calculated the amount of loss based on the amount of cash deposited into defendant’s checking account during his employment with BOK. Defendant admitted that he deposited the cash he stole from the ATMs into his bank accounts. (His paychecks were directly deposited into his account and did not represent cash deposits.) The government also presented evidence showing expected or baseline losses before, during, and after defendant’s employment, providing circumstantial evidence of the amount he stole. The Tenth Circuit Court held that the evidence provided a sufficient basis to support the sentencing court’s findings, both as to amount of loss for sentencing purposes, and for calculation of restitution.

The Circuit also upheld the district court’s imposition of a sentence consecutive to defendant’s state court sentence, finding it appropriate under the applicable statute. Finally, the Circuit upheld the imposition of sexual offender conditions. By statute, such conditions must: (1) be reasonably related to the nature and circumstances of the offense and the history and conditions of the defendant; and (2) involve no greater deprivation of liberty than is reasonably necessary to promote certain goals of supervised release. The sex offender conditions, although not relevant to the nature and circumstances of his offense, did relate to his history and characteristics, and were reasonably related to the need to protect the public from further crimes of defendant. The fact that the state court did not impose such restrictions was immaterial, because defendant would be in federal—not state—custody during the period of supervised release. The Circuit therefore affirmed defendant’s conviction and sentence.

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