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. 08-6235. United States v. McCane. 07/28/2009. W.D.Okla. Judge Murphy. Search and Seizure—Search of Vehicle Incident to Arrest—Good-Faith Exception to Exclusionary Rule.
A jury convicted defendant of possession of a firearm by a convicted felon. After being stopped for a suspected traffic violation, defendant was arrested, handcuffed, and placed in the back of the officer’s patrol car. The officer then conducted a search of defendant’s vehicle and discovered the firearm in the pocket of the driver’s side door. The district court denied defendant’s motion to suppress the firearm as the fruit of an unlawful search. Defendant was convicted of the offense, and he appealed.
While his case was pending on appeal, the U.S. Supreme Court decided Arizona v. Gant, 129 S.Ct. 1710 (2009). There, the Court determined that a search is not valid as incident to a lawful arrest where the defendant is stopped for a traffic violation and is placed in handcuffs in the back of a patrol car during the search. An officer may search a vehicle incident to a recent occupant’s arrest only where the occupant is unsecured and within reaching distance of the vehicle, or when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle.
The Tenth Circuit held, however, that the evidence was properly admitted, because the good-faith exception to the exclusionary rule applied. Circuit precedent predating Gant had upheld searches under nearly identical circumstances.
Turning to the other issues presented by defendant, the Circuit held that there was sufficient evidence to show that defendant constructively possessed the firearm. The firearm was near defendant when the car door was closed. Defendant made this statement concerning the firearm: "I forgot that was even there." Finally, the Circuit held that 18 U.S.C. § 922(g) prohibiting a felon from possessing a firearm did not violate the Second Amendment or the Commerce Clause.
No. 08-2190. United States v. Fox. 07/29/2009. D.N.M. Judge McConnell. Felon-in-Possession—Indian Treaty Rights to Possession of Firearm for Hunting on Reservation.
Defendant, a member of the Navajo nation, pled guilty to being a felon in possession of a firearm after he was arrested on the Navajo Reservation and found in possession of a shotgun and a rifle. He reserved his right to appeal the issue of whether he had the right to possess guns for the limited purpose of hunting on the reservation, pursuant to an 1868 treaty between the United States and the Navajo nation.
The Tenth Circuit noted that the 1868 treaty preserved the right of the Navajo Nation to hunt on reservation lands. Moreover, the treaty created rights that can be asserted collectively by individuals and the tribe. However, just as convicted felons may forfeit other important constitutional rights by committing a felony, defendant forfeited his treaty right to hunt using a firearm. The treaty itself envisioned that the United States would remain free to punish Indians in accordance with its laws, and defendant was subject to such laws of general application. The Circuit therefore affirmed his conviction.
No. 08-8055. Phelan v. Wyoming Associated Builders. 07/31/2009. D.Wyo. Judge McConnell. ERISA—Reinstatement of Coverage—Equitable Remedy—Arbitrary and Capricious Cancellation.
Plaintiff was covered by an Employee Retirement Income Security Act (ERISA) health insurance policy provided through his employer. The employer had difficulty meeting the monthly premium payments. After late payments, the insurance plan’s administrator informed the employer that the next premium had to be made by the twentieth of the month, or the policy would be canceled. The employer sent the payment by overnight mail, to arrive on the twentieth, but a snowstorm caused the bank to close. The payment was not posted until the next day. The insurer canceled the policy and plaintiff sued the insurer. The district court found that the reason for cancellation was plaintiff’s expensive medical treatment. It held that defendant’s reasons for terminating the policy were a pretext for avoiding payment on plaintiff’s pending claim, and that the termination was arbitrary and capricious. It ordered retroactive reinstatement of the health insurance policy.
Defendant appealed, asserting that retroactive reinstatement is a legal remedy not authorized by ERISA, and that the termination of coverage was not arbitrary and capricious. The Tenth Circuit recognized that the ERISA remedies available to plaintiff are equitable in nature. Defendant argued that the remedy of reinstating plaintiff’s coverage was retroactive, compensatory, and tantamount to an order to pay plaintiff’s medical bills. Consequently, it argued, the remedy was a legal one.
The Circuit disagreed, because the reinstatement would have a prospective effect, assuming plaintiff’s employer continued to pay the premiums on the policy. The fact that plaintiff was one of the employees who benefitted from requiring defendant to reinstate the policy does not make the remedy legal in nature. It was equitable and therefore permissible.
The Circuit also affirmed the finding that cancellation of the policy was arbitrary and capricious. The district court’s judgment was affirmed.
No. 08-3278. United States v. Toombs. 08/03/2009. D.Kan. Judge Murphy. Speedy Trial Act—Sixth Amendment Guarantee of Speedy Trial—Continuances in the "Ends of Justice."
Defendant was convicted of drug and firearms charges. Prior to trial, he moved to dismiss the indictment against him, contending that his trial violated the Speedy Trial Act, because more than seventy nonexcludable days had passed between his arraignment and trial. Prior to trial, the district court had granted seven continuances under the "ends-of-justice" provision of the Act, in each case excluding the delay from computation of days. Defendant contended that the district court failed to make the requisite findings to justify the continuances. Concluding that it had made the necessary findings, the district court denied the motion to dismiss.
On appeal, defendant contended that granting the continuances violated his right to speedy trial, both under the Speedy Trial Act and the Sixth Amendment. The Tenth Circuit explained that when granting a continuance under the ends-of-justice provision, the district court must set forth orally or in writing its reasons for concluding that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial. The statute requires the district court to consider a number of factors in reaching this conclusion.
Here, two of the orders granting continuances were somewhat conclusory, reciting little more than the reason the continuance was sought (that discovery recently had been disclosed and counsel needed additional time to prepare for trial) and the language of the statute. This was deficient because the record, which includes the oral and written statements of both the district court and the moving party, must contain an indication of why the occurrence of the event for which a continuance is sought results in a need for extra time. The Circuit reversed the district court’s denial of the motion to dismiss, because the necessary findings were not made and the time excluded by the ends-of-justice continuances, if not excluded, would have resulted in a Speedy Trial Act violation.
Although it had already reversed the denial of the motion to dismiss on Speedy Trial Act grounds, the Circuit also considered whether defendant’s Sixth Amendment speedy trial rights had been violated. If they had, the dismissal of the indictment would necessarily be with prejudice. Although the length of the delay in this case was presumptively prejudicial, most of the delays were attributable to defendant. Defendant also waited until most of the continuances had been granted to assert his speedy trial right. The Circuit concluded that a twenty-two month delay did not constitute extreme delay that would demonstrate prejudice, and defendant did not otherwise demonstrate prejudice from the delay. Therefore, the Circuit upheld the denial of defendant’s motion to dismiss on Sixth Amendment grounds.
No. 08-8052. Johnson v. Smith (In re Johnson). 08/05/2009. Bankruptcy Appellate Panel. Judge Hartz. Bankruptcy—Chapter 13 Proceeding Dismissed—Jurisdiction Over Adversary Proceeding—Creditor’s Willful Violation of Stay.
Johnson filed a Chapter 13 bankruptcy petition. In willful violation of the automatic stay, Smith repossessed Johnson’s pickup truck. Consequently, the bankruptcy court awarded Johnson damages and attorney fees. The Bankruptcy Appellate Panel (BAP) affirmed the willful violation finding, but remanded for further proceedings relative to damages and fees. Further appeal was taken to the Tenth Circuit (which ultimately affirmed the BAP and remanded), but while that appeal was pending, the bankruptcy court dismissed the Chapter 13 case because Johnson had not been making the required payments. By the time the adversary proceeding returned to the bankruptcy court on remand, there no longer existed an underlying bankruptcy case. Smith moved to dismiss, arguing that the dismissal of the Chapter 13 case divested the bankruptcy court of jurisdiction over the adversary proceeding. The bankruptcy court denied the motion, received documentation regarding Johnson’s damages and attorney fees, held a nonevidentiary telephone hearing, and awarded attorney fees and costs to Johnson. The BAP affirmed.
The Tenth Circuit examined the relevant jurisdictional statutes and concluded that this proceeding for violation of the automatic stay was not mooted by dismissal of the underlying bankruptcy petition because it served to (1) compensate for losses not extinguished by the termination of the bankruptcy case, and (2) vindicate the authority of the statutory automatic stay. Therefore, the proceeding against Smith for violating the automatic stay survived dismissal of the underlying Chapter 13 bankruptcy case.
The Circuit also held that the bankruptcy court was not required to hold an evidentiary hearing to determine the amount awarded to Johnson, particularly when the parties did not request one. The BAP’s judgment was affirmed.
No. 08-8053. United States v. Burgess. 08/11/2009. D.Wyo. Judge O’Brien. Fourth Amendment—Automobile Exception to Warrant Requirement—Search of Computer Hard Drives.
A jury convicted defendant of two counts of child pornography. Police discovered the pornography on two computer hard drives inside a motor home. The motor home was towing a trailer bearing an expired Wyoming license plate.
An officer stopped the motor home on the interstate based on the expired plate. When the driver stepped out, the officer smelled marijuana. A canine sniff was conducted, resulting in an alert on the vehicle. The officer entered the vehicle, where he found drug paraphernalia. Officers then obtained a search warrant for the motor home.
The officers seized a laptop and two hard drives that they found in the motor home. The agent who examined the computer equipment was told that he could search for evidence of drug transactions but if he found evidence of any other crime, he would need a warrant to proceed further. After the agent discovered images of child pornography, he obtained a warrant and searched the hard drives further, discovering thousands of pornographic images of children. Defendant denied the images were his.
The prosecution at defendant’s trial introduced four pornographic images of the 14-year-old female ward of one of defendant’s friends. Later, to impeach a defense witness, an additional twelve images were introduced.
On appeal, defendant challenged the district court’s denial of his motion to suppress the evidence recovered from the hard drives. He contended that the search of his hard drive constituted an impermissible general search and that the original warrant lacked sufficient particularity to justify the search of images on his hard drive. The Tenth Circuit held that the automobile exception to the Fourth Amendment’s warrant requirement could justify the seizure of the hard drives but not the search of their contents. The search itself was justified by the initial warrant, which authorized search of "computer records" and "items of personal property which would tend to show a conspiracy to sell drugs." The warrant was not excessively broad, because it contained a nexus to the drug trafficking crime to be investigated. The agent had been looking for photos concerning the drug trade when he ran across the child pornography. Given the numerous ways in which file names and extensions are used on computers, attempting to structure the mechanics of the search here (by restricting it to certain file names or extensions, for example) would be an exercise in futility. Instead, the agent’s use of file previews was an acceptable methodology for conducting the search.
There was no Fourth Amendment violation on these facts. Moreover, even if the warrant was not sufficiently particularized, the good-faith exception to the warrant requirement would have come into play.
Defendant also argued that the search of his computer had been untimely, because it took place forty-four days after issuance of the warrant. Although the Federal Rules of Criminal Procedure require that a warrant ordinarily be executed within ten days, here there was no showing of prejudice or deliberate misconduct sufficient to justify exclusion of the evidence. The sixteen digital images introduced to rebut the defense case were permissibly introduced into evidence; the first four were relevant to show knowledge and possession, and the remaining twelve, although close to being impermissibly cumulative, contained captions that tended to show they were defendant’s.
Finally, defendant’s 180-month sentence was neither procedurally nor substantively unreasonable. The Circuit therefore affirmed defendant’s conviction and sentence.
No. 08-4034. DeFreitas v. Horizon Investment & Management Corp. 08/14/2009. D.Utah. Judge Hartz. Family and Medical Leave Act—Religious Discrimination—Hostile Work Environment—Fact Issues—Pretext—Weak Evidence.
After plaintiff was fired while on medical leave, she sued her former employer under the Family and Medical Leave Act (FMLA), claiming the employer violated the FMLA’s prohibition against interfering with her right to take medical leave. She also brought claims under Title VII, asserting that she was terminated because she is a Catholic and her boss and most other employees are Mormons, and that she suffered from a hostile work environment based on religious differences. The district court granted summary judgment to the employer. Plaintiff appealed.
The Tenth Circuit first considered plaintiff’s FMLA interference claim, addressing the disputed questions of whether her firing was related to her taking leave and whether she would have been fired even if she had not taken leave. The related-to requirement was met, because she was fired while still on medical leave, and her employer stated the reason for her departure as "illness."
As to whether she would have been fired anyway, the Circuit noted the ample evidence that plaintiff was a highly valued employee doing excellent work, in contrast to the lack of evidence to the contrary. Although the employment manual required documentation of poor performance and warnings to employees, no performance problems with plaintiff were documented. Therefore, summary judgment was precluded by a genuine issue of fact concerning whether plaintiff would have been fired regardless of whether she took FMLA leave.
Turning to plaintiff’s religious discrimination claims, the Circuit identified the dispositive question of whether there was evidence giving rise to an inference that plaintiff was discriminated against based on her failure to hold or follow her employer’s religious beliefs. The Circuit concluded that although there was some evidence concerning religious differences, it was too weak to create the required inference that plaintiff was fired on religious grounds. Accordingly, summary judgment on these claims was affirmed. The district court’s judgment was affirmed in part and reversed in part, and the case was remanded.