Not a CBA Member? Join Now!
Find A Lawyer Directory
Legal Directory

TCL > July 2009 Issue > Summaries of Selected Opinions

July 2009       Vol. 38, No. 7       Page  153
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. 08-3155. United States v. Biglow. 4/20/2009. D.Kan. Judge Baldock. Criminal Case—Fourth Amendment—Sufficiency of Search Warrant Affidavit—Nexus Between Criminal Activity and Place to be Searched.

The government appealed from an order of the district court suppressing evidence recovered as the result of a search of defendant’s home. The search, conducted after a magistrate judge issued a search warrant for evidence relating to defendant’s alleged drug-dealing activities, turned up cash, a scale, packaging material, firearms, ammunition, drugs, and drug paraphernalia. The district court suppressed the evidence because it found the warrant was not supported by probable cause.

The search warrant affidavit contained evidence from confidential informants relating to a major supplier of cocaine in Wichita, Kansas named Tyrone Andrews. It described Andrews’s drug activities and identified a house he used as a "stash house" for drugs. Officers set up surveillance and controlled buys from Andrews. They observed defendant enter and leave the stash house carrying a black briefcase. They arranged to stop defendant near the intersection of Kellogg and Rock Road for a traffic violation, observed the briefcase on the front passenger seat of his vehicle, issued him a citation, and then sent him on his way. A confidential source later reported that Andrews was concerned because a "customer" to whom he had sold two kilos of cocaine had been followed by the police and stopped near Kellogg and Rock Road.

Officers began tapping Andrews’s phone and intercepted calls between Andrews and a male caller using defendant’s phone number. In the conversations, the two men appeared to be arranging a drug transaction. Officers later observed defendant meet with Andrews at a parking lot outside the shopping center where defendant worked. After Andrews met with his "high-dollar" drug source, whom he had discussed in his conversations with the person calling from defendant’s number, officers pursued Andrews in his car, recovered a bag containing a large quantity of cocaine, and arrested him. Based on the foregoing evidence, a magistrate judge issued the warrant to search defendant’s home for evidence relating to drug transactions.

The principal issues on appeal were: (1) whether the government had established the requisite nexus between defendant’s suspected criminal activity and the place to be searched—his home; and (2) whether it had established that records of drug sales (as opposed to drug purchases) could be found at defendant’s house. The Tenth Circuit held that it had. Whether such a nexus has been established is a question of "reasonableness," depending on the facts of each case. Probable cause is a flexible, common-sense standard that requires only a probability or substantial chance of criminal activity. The evidence was sufficient here to permit the magistrate judge to conclude that defendant intended to sell drugs. There also was evidence, in the form of the search warrant affidavit, that drug dealers often keep evidence relating to their illegal activities at their homes. Given this evidence, the warrant issued by the magistrate judge satisfied Fourth Amendment requirements. The district court’s suppression order was reversed.

No. 06-4142. Utah Education Ass’n v. Shurtleff. 04/21/2009. D.Utah. Judge Lucero. Civil Case—State Statute That Prohibits Withholding Voluntary Political Contributions—Public Employees—Rational Basis Review—State’s Interest in Keeping Partisan Politics Out of Governmental Workplaces.

A Utah state statute bars public employers from deducting political contributions, including those made to labor union political funds, when issuing paychecks. Plaintiffs are several labor unions who challenged the statute, arguing that it violated the public employees’ First Amendment right of political speech. The district court declared the statute unconstitutional, finding that it was not narrowly tailored to serve a compelling state interest.

Following recent Supreme Court precedent, the Tenth Circuit upheld the state statute. The state is under no obligation to aid the unions’ exercise of their First Amendment rights by using payroll systems. Therefore, the statute is subject only to rational-basis review. The state provided a rational basis; it has an interest in avoiding the entanglement of governmental workplaces with partisan politics. The district court’s judgment was reversed.

No. 07-1396. Turner v. Public Service Company of Colorado. 04/28/2009. D.Colo. Judge Tymkovich. Civil Case—Employment Discrimination—Gender—Legitimate Hiring Decision—No Showing of Pretext—No Prejudice Due to Defendant’s Failure to Find Documents.

Plaintiff sued defendant, alleging defendant refused to hire her because she is a woman, in violation of Title VII of the Civil Rights Act of 1964. Plaintiff applied for an entry-level position at the Comanche Power Plant in Colorado. The district court first determined that plaintiff established a prima facie case. Next, it held that the employer gave a legitimate, nondiscriminatory reason for its decision not to hire her and that plaintiff failed to show that the reason was a pretext for discrimination. Consequently, the district court granted summary judgment to the employer. Plaintiff appealed.

The Tenth Circuit reviewed the employer’s testing and interviewing process. The three-step application process involved: (1) a written test; (2) a screening for work experience and pertinent skills; and (3) an interview with four panel members, each of whom asked the same questions of all applicants. Plaintiff performed poorly during her interview, scoring second-lowest of the seventeen applicants. The only other woman interviewee scored second-highest, and was one of six of the highest scorers who were offered jobs.

The Circuit rejected plaintiff’s claims that the employer’s reasons for not hiring her were pretextual. She argued that the employer’s history of discrimination on the basis of gender was established by a sex discrimination lawsuit it lost in the 1980s; the Circuit ruled that the prior lawsuit was too old to be relevant.

Next, she asserted that the interview process was designed to exclude women, but she failed to explain how it disadvantaged women or why the only other female candidate was offered a job. The Circuit also held that the hodgepodge of hiring statistics plaintiff offered were irrelevant to the hiring process involving her and did not show disparate treatment between comparable individuals.

Finally, the Circuit rejected plaintiff’s claim for sanctions based on the employer’s inability to find the notes from the hiring sessions, because she failed to show prejudice or bad faith by the employer. The district court’s judgment was affirmed.

No. 08-2154. United States v. Otero. 04/28/2009. D.N.M. Judge McConnell. Criminal Case—Fourth Amendment—Warrant Requirement—Sufficiently Particular Description of Items to be Seized.

Defendant, a postal carrier, was charged with a number of crimes relating to theft of mail from customers along her route. She moved to suppress two incriminating documents uncovered during the search of her computer, on the ground that the warrant authorizing the search lacked sufficient particularity. The district court suppressed the evidence, and the government appealed.

Defendant was investigated after customers along her route complained of missing mail from credit card companies and unauthorized withdrawals from their accounts. A postal inspector supplied her with two test letters to deliver, designed to look like credit card correspondence. These later were found in her mail bag, along with other correspondence from credit card companies.

The postal inspector prepared a search warrant for defendant’s residence; had it reviewed by an Assistant U.S. Attorney; and submitted it to a magistrate judge, who issued it. An attachment to the warrant described in detail the physical items to be seized from defendant’s residence, linking them to the stolen mail. A separate section entitled "Computer Items to be Seized" did not limit the computer-related items to be seized to those involving stolen mail. The inspector submitted an affidavit stating that people engaged in this type of criminal activity often keep records on their computers and that the search would make every effort to review and copy only those computer records that were instrumentalities and/or evidence of defendant’s crimes. This affidavit, however, was not incorporated into the warrant.

The inspector sent the computer materials seized to a forensic computer analyst, along with a copy of the warrant, the application and affidavit in support of the warrant, and a cover letter explaining that the computer analyst was to ascertain whether the information described in the attachment to the warrant existed within the computer materials seized. She also supplied a list of known victims and the names and addresses of persons along the delivery route. Two of the "hits" made by the inspector turned up highly pertinent information that someone had tried to delete from the hard drive: a credit card log and a list of names and addresses of persons on defendant’s route.

On appeal, the government argued that the warrant’s description of items to be seized from defendant’s computers was sufficiently particularized to satisfy Fourth Amendment requirements. Alternatively, it argued that the good faith exception applied. The Tenth Circuit agreed with the latter contention. Although the Circuit agreed that the warrant described the items to be seized with neither technical precision nor practical accuracy, it determined that the good faith exception applied. The officers had read the second half of the warrant as limited by its particularized first part, and therefore lacked subjective knowledge that the search was unconstitutional. Also, the warrant was not so facially deficient that the officers could not rely on it. The Circuit therefore reversed the suppression of the computer evidence seized from defendant’s residence.

No. 08-3310. United States v. Dryden. 04/30/09. D.Kan. Judge Hartz. Criminal Case—Sentencing Guideline Amendment 706—Requirement That Defendant’s Guideline Range be Lowered for Amendment to Apply—Delegation Doctrine.

Defendant was convicted of one count of conspiracy to distribute crack cocaine and sentenced to 360 months’ imprisonment, which was later reduced to 292 months because of a retroactive amendment to the Sentencing Guidelines (Guidelines). After the Sentencing Commission adopted and made retroactive Guideline Amendment 706, adjusting downward the base offense level assigned to various quantities of crack cocaine, defendant sought an additional reduction of his sentence. The district court denied the reduction, reasoning that because he had been found responsible at his original sentencing for 9.5 kilograms of crack cocaine, his sentence would be the same whether or not the Amendment was applied. The district court relied on a Sentencing Commission policy statement that says that courts are not authorized to reduce a defendant’s sentence on the basis of a retroactive amendment to the Guidelines unless the amendment has the effect of lowering the defendant’s applicable Guideline range.

On appeal, defendant did not contest the district court’s conclusion that his Guideline range would be unaffected by Amendment 706. He argued, however, that the district court should not have relied on the policy statement because the Sentencing Commission cannot control which cases the federal courts can and cannot hear; this is a power reserved to Congress alone. Moreover, Congress had provided no intelligible principle for delegating its authority to determine court authority to the Sentencing Commission.

Exercising plain error review, the Tenth Circuit rejected defendant’s contention. The district court did not err in applying the policy statement to defendant. The challenged policy statement merely implemented a limitation created by Congress itself. Section 3582(c) of Title 18, under which defendant sought resentencing, provides that a court may not modify a term of imprisonment once it has been imposed, unless a limited exception applies. However, the exception on which defendant relied, contained in 18 U.S.C. § 3582(c)(2), permits modification "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Amendment 706 did not qualify under this proviso because it would not lower the sentencing range of offenders like defendant, whose relevant conduct included large quantities of crack. Thus, the policy statement, which merely paraphrased the statute, was properly applied to defendant. The Circuit affirmed the district court’s judgment.

No. 07-2254. Poolaw v. Marcantel. 05/04/2009. D.N.M. Judge Lucero. Civil Case—Search and Seizure—Familial Connection to Fugitive—Search Warrant—Reasonable Suspicion—Setting Events in Motion—Qualified Immunity.

Following the murder of a police officer, defendants, who are police officers, obtained a warrant to search the home of the parents-in-law of the primary suspect. Defendants also ordered the automobile stop of the suspect’s sister-in-law. Both actions were based on the parties’ familial relationship with the suspect. The in-laws sued the police officers, claiming their Fourth Amendment rights were violated. The district court granted summary judgment in favor of plaintiffs and denied defendants’ defense of qualified immunity.

On appeal, the Tenth Circuit ruled that a familial relationship to someone suspected of criminal activity, without more, does not constitute probable cause to search or stop. The affidavit provided to the magistrate who issued the search warrant did not establish probable cause that evidence of a crime would be found at the in-laws’ home. Because there was no probable cause for the search, the search violated plaintiffs’ Fourth Amendment rights. Similarly, the authorities did not have reasonable suspicion to stop the suspect’s sister-in-law, because the stop was based only on her familial relationship with the suspect.

The Circuit rejected defendants’ claim that they could not be held liable on the ground that they were not present during the search or the stop. Plaintiffs established that defendants set the series of events in motion.

The Circuit finally held that the law was clearly established and defendants were not entitled to the defense of qualified immunity. The district court’s judgment was affirmed.

No. 08-6105. United States v. Landers. 05/05/2009. W.D.Okla. Judge Tymkovich. Criminal Case—Competency—"Closed Belief System" Versus Insanity.

A jury convicted defendant of mailing threatening communications and conspiring to impede federal officials in the performance of their duties after he coordinated a scheme to extort the prison’s warden and other officials by placing liens on their property. At the time the scheme was hatched, defendant was serving a thirty-year sentence for crimes committed while being a member of the Montana Freemen, a militia group that rejects the authority of the federal government. The plan involved defendant "copyrighting" his name and invoicing the warden $10 million for its "unauthorized" use. When the warden failed to pay, defendant would file liens on his real and personal property. He would seize the property and use it to bargain for his release from prison. The scheme failed, and defendant found himself on trial for the crimes for which the jury ultimately convicted him.

During pre-trial, trial, and sentencing proceedings, defendant exhibited odd and disruptive behavior, on occasion necessitating his removal from the courtroom. The district court held a hearing on its own motion to determine whether mental competency proceedings were needed. Both the prosecution and defense counsel agreed that defendant’s disruptive behavior stemmed from a "general attitude of protest" rather than mental incompetency. Moreover, the district court found that a letter and telephone conversations in furtherance of the extortion scheme showed cogent and organized thinking inconsistent with mental incompetency. It therefore declined to initiate competency proceedings. Defense counsel subsequently requested permission to employ an expert to determine whether defendant had diminished mental capacity due to a "closed belief system," a delusional condition in which an individual dramatically distorts or completely rejects information that does not comport with certain beliefs. The district court denied the motion.

On appeal, defendant argued that the court should have ordered a competency proceeding in light of his bizarre behavior during court appearances, his numerous unusual pro se filings, and his refusal to communicate with counsel. The Tenth Circuit disagreed, finding that a reasonable judge would not have doubted defendant’s competency, which counsel never questioned and indeed affirmed. The district court properly relied on evidence of defendant’s organized thinking reflected in his plans for the offense. Defendant’s behavior, although bizarre, was not idiosyncratic—many others who reject government authority have engaged in the same type of conduct, including the obstreperous disruption of courtroom proceedings.

Defendant was not entitled to a psychological expert because Circuit authority precludes the assertion of a closed belief system defense at trial under defendant’s circumstances. His attempts to argue broadly that he was asserting an insanity defense were unpersuasive. Insanity is an affirmative defense that must be timely asserted, and a defendant who requests a psychiatric expert must demonstrate clearly and genuinely that sanity will be a significant factor at trial. Finally, the district court did not abuse its discretion by departing upward for twelve months, even though this will have the effect of leaving defendant imprisoned until he is 98 years old. Here, the district court permissibly departed upward due to defendant’s offenses, which struck at the heart of the criminal justice system and reflected an utter disdain for the law and the criminal justice system. Accordingly, the Circuit affirmed defendant’s conviction and sentence.

© 2009 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at