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TCL > September 2009 Issue > Summaries of Selected Opinions

September 2009       Vol. 38, No. 9       Page  163
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. 08-8026. Bylin v. Billings. 06/23/2009. D.Wyo. Judge Tacha. Late-Raised Defense—Prejudice—Expenditure of Time, Money, and Effort for Trial Preparation—Issue Not Raised Below Not Addressed—Statute of Limitations.

Plaintiff was injured during a back-country hunting expedition. More than three years later, he sued the professional guides who operated the hunting expedition. The case proceeded and a January 2008 trial date was set. In early January, with summary judgment motions pending and after the scheduling order had been entered, defendants moved to amend their answer to include a defense that plaintiff’s claims were barred by a two-year statute of limitations. Ultimately, the district court held that the statute of limitations applied, and dismissed plaintiff’s claims.

The Tenth Circuit reviewed the district court’s application of F.R.C.P. 15, which generally governs amendments to pleadings. The court held that defendants’ late amendment did not unduly prejudice plaintiff, because he had been afforded sufficient time to respond. Even though plaintiff had spent significant time and resources preparing for trial, the expenditure of time, money, and effort alone is not a ground for a finding of prejudice. The Circuit declined to address plaintiff’s claim that the late amendment violated F.R.C.P. 16, which governs amendments to scheduling orders, because he had not raised this claim in the district court and there was no compelling reason to address it.

Finally, the Circuit held that the district court properly applied the statute of limitations to dismiss plaintiff’s case. The district court’s judgment was affirmed.

No. 08-4103. U.S.A. v. Leifson. 06/23/2009. D.Utah. Judge Briscoe. Sentencing Guidelines—Cross-Reference in Perjury Cases "In Respect To" Underlying Crime—Appropriate Underlying Offense.

Defendant pled guilty to one count of perjury. He and a man named Olsen had been questioned about the disappearance of a 15-year-old girl. During the questioning, Olsen made a statement to the FBI implicating defendant in the disappearance. Defendant confronted Olsen and threatened to kill him. Defendant later was called to testify before a grand jury investigating the disappearance. During his testimony, he falsely denied that he recalled confronting and threatening Olsen. He later admitted that he lied.

In determining defendant’s base offense level under the Sentencing Guidelines, the sentencing court applied the cross-reference Guideline for accessory-after-the-fact to second-degree murder, finding that defendant’s perjury was "in respect to" that crime. The Guidelines called for defendant to be sentenced to the statutory maximum sentence of sixty months’ imprisonment, but the district court departed downward, sentencing him to forty-eight months.

On appeal, defendant first argued that his perjury was not in respect to second-degree murder, because it did not obstruct the investigation into that offense. The Tenth Circuit stated that three requirements had to be satisfied to cross-reference to the accessory-after-the-fact Guideline. First, defendant had to make a material false statement, which defendant had conceded in his guilty plea. Second, the grand jury investigation had to pertain to the cross-referenced crime (here, second-degree murder), which it did. Third, defendant had to be on notice of the subject of the grand jury’s inquiry. Here, defendant knew that the investigation concerned the girl’s disappearance and the question of whether she was murdered, so that element also was satisfied.

Defendant also argued that the underlying offense should be kidnapping, not second-degree murder. The Circuit determined that the district court’s finding that the relevant offense was second-degree murder was not clearly erroneous. Defendant had notice that the grand jury was investigating a murder. The fact that the FBI was conducting the investigation and generally has jurisdiction over kidnapping cases did not rob defendant of the knowledge that the investigation involved murder. Finally, the fact that Olsen also perjured himself with testimony more directly related to the girl’s disappearance and death did not mean that defendant’s testimony was unrelated to the murder investigation. Accordingly, the Circuit upheld the defendant’s sentence.

No. 07-2158. U.S.A. v. Torres. 06/30/2009. D.N.M. Judge Kelly. Brady Evidence—Impeachment of Confidential Informant.

Defendant was convicted of distributing methamphetamine after police conducted a controlled buy using a confidential informant. He filed a motion for a new trial, contending that the prosecution had suppressed certain information relating to the informant. The district court denied the motion, and defendant appealed.

Defendant obtained considerable discovery from the prosecution concerning the informant prior to trial and cross-examined the informant during trial. After the jury convicted him, defendant discovered that the informant had been retained as an informant by the Drug Enforcement Agency (DEA) during two prior periods. She had been de-activated at the end of the first period because of her conviction on a forgery charge.

Defendant argued that the government knew, but did not disclose during discovery, that the informant had been engaged in freelance drug dealing and forgery during the second period, which occurred prior to his trial. The information could have been used to impeach the informant’s testimony that she had not used drugs during her second employment by the DEA. The prosecution also allegedly withheld information that the informant had misidentified one of defendant’s family members. The district court determined that this information was merely cumulative of other exculpatory impeachment evidence defendant was permitted to elicit from the informant on cross-examination concerning her drug use, forgery, lack of employment, receipt of payment for controlled buys, another misidentification she had made, and other topics that would denigrate her credibility. Also, the district court noted there was other evidence to corroborate defendant’s guilt. Accordingly, he was not entitled to a new trial on the basis of newly discovered evidence.

The Tenth Circuit disagreed. The relevant test was the Brady test for suppressed evidence [Brady v. Maryland, 373 U.S. 83, 87 (1963)]. The government allegedly withheld the evidence from defendant. Analyzed under the Brady standard, the withheld evidence was relevant and justified a new trial. The confidential informant’s credibility was crucial in linking defendant to the controlled buy. Evidence of her previous criminal history and breach of an agreement with the DEA, along with the confusion illustrated by her misidentifications, could have led the jury to reach a different result.

No. 08-2112. Ellenberg v. New Mexico Military Institute. 07/10/2009. D.N.M. Judge Tymkovich. Disability—Individuals with Disabilities Education Act—Americans with Disabilities Act—Rehabilitation Act—Major Life Activity—Substantially Limits.

Plaintiff sued the New Mexico Military Institute, a state college prep school in a military setting, claiming it discriminated against her on the basis of disability when it denied her application for admission. She asserted that her eligibility for an individualized education program (IEP) under the Individuals with Disabilities Education Act (IDEA) automatically satisfied the disability requirements of the Rehabilitation Act and the Americans with Disabilities Act (ADA). The district court held that plaintiff failed to offer evidence of a disability that substantially limited a major life activity, as required under the Rehabilitation Act and the ADA, and granted summary judgment to defendant.

The Tenth Circuit ruled that having an IEP under the IDEA does not automatically establish a disability under the Rehab Act or the ADA, because the statutes have different requirements for establishing a disability. Even though "learning" is recognized as a "major life activity," plaintiff did not show that her disability substantially limited the major life activity of learning. Therefore, she failed to establish a prima face case under the Rehabilitation Act. The plaintiff’s ADA claim was deficient for the same reason. The district court’s judgment was affirmed.

No. 08-7090. U.S.A. v. Cherry. 07/13/2009. E.D.Okla. Judge Hartz. Sentencing Guidelines—Possession of Firearm—Cross-Reference to Voluntary Manslaughter.

Defendant pled guilty to being a felon in possession of a firearm after being involved in a gunfight that resulted in death. Defendant’s brother and some associates encountered the victim, who had made threatening gestures to the brother in a confrontation earlier that day. The brother phoned defendant to say that the victim was giving him trouble. Defendant arrived in his car, stopped it in the middle of the road, jumped out with a gun in his hand, and cocked the gun. He exchanged words with the victim’s group, threatening to kill them. Gunfire broke out, with defendant, the victim, and several others firing shots. The victim was killed, but it was unclear who fired the fatal round.

The district court held an evidentiary hearing in connection with defendant’s sentencing. It concluded that defendant’s possession of the firearm was the "but-for" cause of the victim’s death. It therefore applied as a cross-reference the Sentencing Guideline for voluntary manslaughter, reasoning that defendant acted in the heat of passion. On appeal, defendant argued that this cross-reference was inappropriate because it had not been proved that he fired the fatal shot.

The Tenth Circuit held that such proof was not necessary. For a voluntary manslaughter conviction, it need not be shown that the defendant was the actual instrument of the death. Defendant precipitated the gun battle and manslaughter was therefore a proper analogous crime for Sentencing Guideline purposes.

No. 08-2017. Caplan v. B-Line, LLC (In re Kirkland). 07/14/2009. Bankruptcy Appellate Panel. Judge Tacha. Bankruptcy—Proof of Claim—Supporting Documentation Required—Claim Disallowed.

An unsecured creditor filed a claim in bankruptcy without providing any supporting documentation. The trustee in bankruptcy objected. The bankruptcy court disallowed the claim. The Bankruptcy Appellate Panel (BAP) reversed. The trustee appealed.

The Tenth Circuit independently reviews the bankruptcy court’s decisions. Fed.R.Bankr.P. 3001 requires a claimant to include supporting documentation for its proof of claim. The claimant provided no supporting documentation and no explanation for its failure to do so. Although the bankruptcy court took judicial notice of the debtor’s appended schedules of unsecured creditors, it correctly determined that the schedules were of no evidentiary value against the trustee. Therefore, the creditor failed to present prima facie evidence of the validity and amount of the claim, as required by Rule 2001(f). The Tenth Circuit concluded that the bankruptcy court had appropriately disallowed the creditor’s claim. Accordingly, it reversed the BAP’s judgment and reinstated the bankruptcy court’s order disallowing the claim.

No. 08-4123. U.S.A. v. Rizvanovic. 07/17/2009. D.Utah. Judge McKay. Parental Kidnapping—Affirmative Defense—Flight From Domestic Violence—Relevance of Defendant’s Own History of Abuse.

A jury convicted defendant of parental kidnapping. The evidence showed that he was the father of two young children. He and the children’s mother lived together until the younger child was about one year old. Around that time, the mother left the apartment she shared with defendant and took the children to a shelter. A state court judge subsequently found that defendant had abused the mother and the children, and awarded the mother sole custody. After an overnight visitation with the children, defendant failed to return them to their mother. He took them to Australia and was apprehended when he attempted to transport them to Macedonia.

At trial, defendant conceded the elements of the kidnapping offense, but argued that he fell within a statutory affirmative defense for a kidnapper fleeing an incidence or pattern of domestic violence. He argued that he had witnessed the mother abuse the children on numerous occasions when they lived together, and that his reason for taking the children was to protect them. Over defendant’s objection, the district court permitted the government to examine him concerning the prior state proceedings in which the state court had found that he abused the children and their mother. When he said he did not recall the state court finding, the district court permitted the government to show defendant the state court order. It then instructed the jury that the order was not being admitted for the truth of the matter asserted but merely to permit the jury to evaluate the defendant’s credibility concerning domestic violence. The defendant testified that the state court’s finding was not true and the reason the state court had not found the mother guilty of abuse was that he had not reported any. The government also was permitted to introduce rebuttal evidence from the children’s mother and a step-daughter that defendant had abused the children but that the mother had not.

On appeal, defendant argued that the evidence of his own abuse was irrelevant to the issue of whether the children’s mother had abused them. The Tenth Circuit disagreed. Defendant had argued that he kidnapped the children to protect them. Evidence of the defendant’s domestic violence was relevant to his alleged motivation in kidnapping them.

Defendant also argued that the trial court erred in instructing the jury that the state court’s finding of abuse was admitted only for the purpose of assessing credibility. Because defendant did not object at trial, this objection was reviewed only for plain error. Defendant objected to the instruction because he contended the trial court did not require the jury to determine that the finding of abuse was true before using it to assess his credibility. Defendant failed to show that the limiting instruction was prejudicial to him, however, because admitting the state court’s finding without it simply would have permitted the jury to consider the finding of abuse without limitation. Accordingly, the Circuit affirmed the defendant’s conviction and sentence.

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