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TCL > May 2009 Issue > Summaries of Selected Opinions

May 2009       Vol. 38, No. 5       Page  155
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: www.cobar.org (click on "Opinions/Rules/Statutes").


No. 08-2113. United States v. Tafoya. 02/24/2009. D.N.M. Judge Kelly. Retrial After Mistrial—Double Jeopardy—Intent of Prosecutor Affecting Basis for Mistrial.

After the district court denied his motion to dismiss the charge against him on the basis of double jeopardy, defendant pursued an interlocutory appeal. He argued that he could not be retried for his offense (felon in possession of a firearm), because the government had deliberately provoked the mistrial that led to the second prosecution.

The alleged possession of the shotgun occurred on January 14, 2007. Prior to trial, the district court issued an order limiting evidence concerning a separate incident on the next day, January 15, in which defendant allegedly had forcibly entered a home and forcibly detained certain witnesses. The order required the government to call a witness who would testify to the events on January 15, but would limit his testimony to defendant’s observations regarding defendant’s possession of a shotgun, as well as the background information necessary to place those observations in context. Any testimony from other witnesses about these events would be elicited only as necessary to clarify matters raised during the witness’s testimony as it related to defendant’s alleged possession of the shotgun.

During examination of a police witness, the prosecution asked about defendant’s initial departure from the victim’s home on January 14, and then asked the open-ended question: "What happened after that?" The witness stated that he had been dispatched back to the house because defendant and others returned and were battering some of the residents. Defendant moved for a mistrial, contending that this was precisely the information the district court had wanted excluded. The district court granted the mistrial and held an evidentiary hearing to determine whether the case would be retried. It ultimately determined that although the question at issue was negligent, it was not deliberate.

On appeal, defendant argued that the district court had erred in finding that the government had not intended to goad the defense into moving for a mistrial. Defendant asserted that the government had taken this step because counsel was aware that his case was going badly and so provoked a mistrial to save it. The Tenth Circuit disagreed. The evidence showed that the government intended to try its case to completion and wanted to avoid a mistrial, which resulted from mistakes by the relatively inexperienced prosecutor. The district court also did not err in preventing defendant from cross-examining the prosecutor about his subjective intent, given that it found that the prosecutor’s explanation of the events was sufficient and a formal evidentiary hearing was required. Finally, under pertinent Supreme Court authority, the district court was required to examine the prosecutor’s subjective intent when determining whether he goaded defendant into moving for a mistrial, even if this standard was a challenging one for defendant to meet. The district court’s order permitting a retrial therefore was affirmed.

No. 08-8043. United States v. Brown. 02/27/2009. D.Wyo. Judge Briscoe. Crack Cocaine Disparity—Amendment 706—Prior Sentencing Guidelines Variance.

Defendant was convicted on multiple drug charges involving crack cocaine and received a sentence of 165 months’ imprisonment and four years of supervised release. The presentence report prepared in his case recommended an advisory Sentencing Guidelines range of 292 to 365 months’ imprisonment. At sentencing, defendant argued that there was no rational basis for the discrepancy between the Guidelines for crack cocaine versus powder cocaine, and that the district court should grant him a downward variance based on that disparity. After hearing evidence from the government, the district court determined that his advisory Guidelines range was 235 to 293 months. Based on his disparity argument, it granted him a downward variance of his final offense level of four levels, reducing his Guidelines range to 151 to 188 months. The court sentenced him to 165 months.

The Guidelines were subsequently modified, through Amendment 706, to reduce sentencing ranges attributable to crack cocaine. This modification was made retroactive. Defendant filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on this retroactive modification to the Guidelines. The district court denied the modification. On appeal, the Tenth Circuit upheld this denial. The district court’s variance actually gave defendant a lower Guidelines range than he would have received if Amendment 706 had been in place at the time of his sentencing. In addition, the Sentencing Commission has stated that a sentence reduction under Amendment 706 generally is not appropriate if the defendant already has received a downward variance at the original time of sentencing.

The Circuit rejected defendant’s additional arguments. The district court did not actually "resentence" defendant, so it was not obligated to consider all of the statutory sentencing factors required at sentencing. The Supreme Court’s holding in United States v. Booker, 543 U.S. 220 (2005), did not give defendant a right to resentencing under § 3582(c)(2), because that was a modification by the Court, not the Sentencing Commission. Section 3582(c)(2) does not provide the district court with the opportunity to begin the entire sentencing process anew, but its discretionary authority is expressly limited by the scope of the statute. Finally, there is no constitutional right to counsel in § 3582(c)(2) proceedings. The Circuit therefore upheld the denial of defendant’s § 3582(c)(2) motion.

No. 07-6237. United States v. Poe. 03/03/2009. W.D.Okla. Judge Lucero. Fourth Amendment—Suppression—Bounty Hunters as Private Actors.

Defendant was convicted by a jury of possession of a firearm and ammunition after a previous felony conviction; possession of methamphetamine with intent to distribute; and possession of a firearm in furtherance of a drug trafficking crime. He had been pursued by five bounty hunters after he jumped bail in an Oklahoma criminal case. The bounty hunters obtained information from defendant’s ex-girlfriend, with whom he was living, that he planned to sell drugs and that there was a gun in the house. One of the bounty hunters entered the house and wrestled defendant to the ground. In the room, the bounty hunter observed in plain view what he believed to be methamphetamine; methamphetamine-related paraphernalia; and a black nine-millimeter pistol. He then called the Oklahoma City Police Department. After a police officer arrived and read defendant his Miranda rights, defendant admitted that the drugs and the gun were his. The police officer obtained consent from the ex-girlfriend to search her home. During the search, the officer found additional drugs, guns, and ammunition.

On appeal, defendant challenged the denial of his motion to suppress the evidence seized at his ex-girlfriend’s house. The Tenth Circuit concluded that defendant had a reasonable expectation of privacy at her house, where he was a social guest. However, he could not challenge the bounty hunters’ actions as an unreasonable search, because they were acting as private individuals, not as "state actors" for Fourth Amendment purposes. The government did not know of, or acquiesce in, the bounty hunters’ entry and search of the residence. Also, the bounty hunters acted in their own financial interests—their stake in defendant’s bail—rather than to assist state officials.

The Circuit also determined that sufficient evidence supported defendant’s convictions. Addressing the procedural reasonableness of his ten-year term of supervised release for his conviction of possession of methamphetamine with intent to distribute, the Circuit held that the alleged error, to which defendant had not objected in the district court, was not "plain," because the district court’s interpretation was not clearly erroneous. The district court was not required to give notice that it was contemplating a departure from the Sentencing Guidelines range, because it did not actually depart from the Guidelines range, as calculated by the district court. Finally, the Circuit upheld the district court’s application of a two-level enhancement for obstruction of justice, based on defendant’s perjuring himself at trial. Accordingly, it affirmed defendant’s conviction and sentence.

No. 08-5100. In re Williams Securities Litigation—WCG Subclass. 03/03/2009. N.D.Okla. Judge Baldock. Taxing Costs—Transcripts and Copies—Necessary for Use in Case—District Court’s Discretion.

After the district court granted summary judgment to defendants in the underlying securities fraud class-action suit brought by the WCG Subclass, it awarded costs to defendants in the amount of $222,753.78. Plaintiffs challenged the award on the following grounds: (1) defendants failed to prove that various transcripts and copies were necessarily obtained for use in the case; (2) many of the costs were equally attributable to a companion case, so these plaintiffs should not have to pay the full amount; and (3) the amount awarded was unreasonable.

The Tenth Circuit reviewed the costs award under F.R.C.P. 54, noting that the rule presumes costs will be awarded to the prevailing party. The costs statute, 28 U.S.C. § 1920, allows costs for transcripts and copies "necessarily obtained for use in the case." This standard does not allow costs for materials obtained merely for the convenience of counsel or the court, or for materials produced solely for discovery. On the other hand, depositions may be taxable if they were offered into evidence, were not frivolous, and were within the bounds of vigorous advocacy. The need for the materials is based not on hindsight but on the circumstances at the time the expense was incurred. The standard is one of reasonableness and the burden is on the prevailing party to establish the amount of costs to which it is entitled. Noting that a district court has broad discretion in awarding costs, the Circuit held that the award of costs was not an abuse of discretion. The district court’s judgment was affirmed.

No. 07-6288. Chastain v. AT&T. 03/09/2009. W.D.Okla. Judge Tacha. ERISA—Standing to Sue—Spinoff Entity—Colorable Claim to Vested Benefits.

At the time plaintiffs retired from AT&T, they were covered by AT&T’s retirement plan. Later, AT&T spun off a new corporate entity, Lucent Technologies Inc. (Lucent), and transferred plaintiffs to a Lucent retirement plan. Thereafter, Lucent eliminated certain benefits. Plaintiffs sued AT&T based on the elimination of benefits. The district court granted summary judgment in favor of AT&T, holding that plaintiffs did not have standing to sue AT&T under the Employment Retirement Income Security Act of 1974 (ERISA), because they were not participants in an AT&T retirement plan.

The Tenth Circuit noted that plaintiffs’ original complaint listed various claims, including those for breach of contract and breach of fiduciary duty. As the litigation progressed, plaintiffs narrowed their claims to refer only to ERISA. Accordingly, the issue was reduced to whether plaintiffs had ERISA standing to sue AT&T, given that they were no longer covered by AT&T’s ERISA plan. Under ERISA, a party may have standing as an employee currently in covered employment or one who expects to return to covered employment. As retirees, plaintiffs did not rely on these circumstances and argued that they had a "colorable claim to vested benefits." The Circuit rejected this argument, because employees covered under the spinoff plan cannot file suit against the original business entity under ERISA. Plaintiffs were not owed benefits by their original employer; thus, they did not have a "colorable claim to vested benefits" under the original entity’s plan. Consequently, plaintiffs did not have standing to sue AT&T. In response to plaintiffs’ claim that they had "but for" standing—that is, plaintiffs would have been participants in an ERISA plan but for the alleged malfeasance of a plan fiduciary—the Circuit reaffirmed that this Circuit has rejected "but for" ERISA standing. The district court’s judgment was affirmed.

No. 07-6173. Zokari v. Gates. 03/17/2009. W.D.Okla. Judge Hartz. Employment, Race, and National Origin Discrimination—Retaliation—Late-Raised Wage Claim—Proffered Witness—Jury Instruction.

Plaintiff, an African American, sued his former employer under Title VII, asserting that his employment was terminated based on his race and national origin, and in retaliation to his refusal to take an English class suggested by his supervisors, who had expressed concern about his accent. The district court granted summary judgment in the employer’s favor on the retaliation claim, but allowed the discrimination claims to proceed to trial. A jury entered a verdict in the employer’s favor. Plaintiff appealed on various grounds.

The Tenth Circuit held that summary judgment was appropriate on plaintiff’s retaliation claim. He did not establish that his employer knew he had opposed his supervisors’ request to take an English class, or that he believed the request constituted race or national origin discrimination. Turning to plaintiff’s claim that he was not paid for his last day of work, the Circuit held that this theory, not brought to the district court’s attention until the eve of trial (although the complaint mentioned the pay dispute), simply was raised too late to burden the court and defendant with a new theory for relief.

The Circuit rejected plaintiff’s argument that the district court improperly excluded the trial testimony of another African American employee, because the witness did not have personal knowledge of the facts relevant to plaintiff’s case. Finally, the Circuit held that the district court did not abuse its discretion in denying plaintiff’s proffered jury instruction, stating that comments about a plaintiff’s accent may be indirect evidence of discrimination. Other instructions adequately informed the jury of this point. The district court’s judgment was affirmed.

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