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TCL > November 2009 Issue > Summaries of Selected Opinions

November 2009       Vol. 38, No. 11       Page  147
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. 08-3076. The Law Co. v. Mohawk Construction & Supply Co. 08/17/2009. D.Kan. Judge Lucero. Discovery—Summary Judgment—Exhibits—Sham Affidavit Rule—Pretrial Order.

The Law Co. (Law), a general contractor, sued its subcontractor Mohawk Construction (Mohawk) for a declaratory judgment that Mohawk was barred from collecting delay damages under the subcontract, which contained a "no damages for delay" clause. Mohawk had contracted to complete its work in early February 2004, but did not complete it until November 2004. Mohawk counterclaimed for breach of contract. The district court granted summary judgment in favor of Law. Mohawk appealed.

The Tenth Circuit held that the district court erred in refusing to consider discovery documents produced by Law that were printed on Law letterhead. Those documents were authentic per se, and Mohawk was not required to provide an affidavit to authenticate them. Other supporting documents also must be considered if they would be admissible, and must be evaluated individually. The district court also erred when it discounted two affidavits submitted by Mohawk on the ground that they differed from the deposition testimony. The court was required to analyze their admissibility under the sham affidavit rule.

The Circuit also found error in the district court’s reliance on the pretrial order to exclude legal theories relevant to the central issue in the case—that is, whether the subcontract barred Mohawk from obtaining delay damages. Mohawk claimed the delay was extreme and unreasonable, so the "no damages for delay" clause did not apply. The district court did not consider this argument because it was not encompassed by the pretrial order. However, Mohawk was entitled to challenge the clause, and both parties and the court were aware of this claim. Therefore, the district court erred in refusing to consider it.

Finally, the Circuit ordered a remand to determine whether the delay damages were suffered by Mohawk or by an entity hired by Mohawk. The district court’s judgment was reversed and the case was remanded.

No. 08-2257. United States v. Commanche. 08/24/2009. D.N.M. Judge Lucero. Prior Bad Acts Evidence—Relevance Under F.R.E. 404(b)—Harmless Error Under F.R.E. 609(a)(1).

A jury convicted defendant of two counts of assault resulting in serious bodily injury. The assaults took place during a celebration on the Mescalero Indian Reservation. The fight began when one of the victims, who was considerably taller and heavier than defendant, pushed and hit defendant, who fell to the ground. During the ensuing conflict, defendant brandished a box cutter and inflicted serious injuries on one victim and on another man who attacked him.

Defendant elected to take the stand at trial. His theory was self-defense. Over his objection, the government was permitted to elicit testimony from prosecutors who testified to two incidents in which defendant had been convicted of aggravated battery, each involving a victim stabbed with a sharp instrument, one of which was a box cutter. The district court gave a limiting instruction that informed the jury that these other incidents should be used only as they bore on defendant’s intent. Moreover, the court instructed the jury that the fact that defendant had committed a similar offense in the past did not mean that he was guilty of the offense charged. In its closing argument, the prosecution referred to these incidents only as they affected defendant’s credibility as a witness.

On appeal, defendant argued that the use of these separate incidents at his trial violated F.R.E. 404(b), which limits the use of other crimes, wrongs, or acts to prove a defendant’s character and to show that he or she acted in conformity therewith during the offense charged. The Tenth Circuit agreed. Such evidence may be offered only if it is relevant to prove an issue other than character; however, this relevance cannot depend merely on a defendant’s having acted in conformity with a bad character trait. Here, the prior incidents were used to show "intent," but that intent was utterly unrelated to defendant’s intention to defend himself during the altercation at the feast, which was the only relevant intent issue in this case. Prior incidents, which had nothing to do with self-defense, could have been used only to show a general propensity toward violence, which is a forbidden purpose for admission under the Rule.

The government argued that any Rule 404(b) error was harmless, because the existence of defendant’s prior convictions for the aggravated assaults was admissible in any event under F.R.E. 609(a)(1) to impeach him once he took the stand. The Circuit noted, however, that the additional prejudice created by describing the circumstances of the offenses leading to conviction was not harmless. Also, Rule 609(a)(1) does not permit the government to inquire into the facts of the prior offenses. Under settled law, only the fact of the prior conviction, its general nature, and the range of punishment are legitimate subjects for inquiry under Rule 609(a). Accordingly, the Circuit reversed defendant’s conviction and remanded the case for further proceedings.

No. 09-5021. United States v. Jacobs. 09/02/2009. N.D.Okla. Judge Lucero. Ineligibility for Federal Benefits Resulting From Three Prior Convictions for Distribution of Controlled Substances—Applicability to Convictions for Possession With Intent to Distribute.

Defendant pled guilty to possessing cocaine base with intent to distribute. At sentencing, the district court noted that defendant had two prior Oklahoma convictions for possession of a controlled drug with intent to distribute. Accordingly, it ruled that under 21 U.S.C. § 862, the offense was defendant’s "third or subsequent conviction for distribution of controlled substances" and he therefore would be "permanently ineligible for all federal benefits."

On appeal, defendant argued that § 862(a) does not apply to convictions for possession with intent to distribute controlled substances. The government agreed, as did the Tenth Circuit. The plain language of § 862(a), that portion of the statute applied to defendant, refers to offenses "consisting of the distribution of controlled substances." Convictions involving mere possession of drugs are treated elsewhere in the statute, and involve only a time-limited disqualification from receipt of federal benefits. Defendant’s offense, which did not require proof of actual distribution, should not have been used to invoke the more severe disqualification of § 862(a). Accordingly, the Circuit vacated the lifetime bar on benefits and remanded for resentencing.

No. 09-6010. United States v. Bullcoming. 09/03/2009. W.D.Okla. Judge Hartz. Sentencing—Victim’s Comments at Sentencing as Breach of Plea Agreement.

Defendant pled guilty to one count of embezzlement from an Indian tribal organization. In exchange, the government dropped fourteen other counts and entered into several stipulations involving restitution and his offense level.

Defendant was in charge of administering revenues from tribe-owned casinos. He made improper personal use of the tribe’s funds for various purposes, including the specific count to which he pled guilty: use of tribal funds to purchase himself an automobile. The plea agreement calculated the amount of restitution at $95,350.75, and stated that the parties expected to take the position at sentencing that this was the proper amount of loss to be used for Sentencing Guidelines purposes. The agreement further provided that the government reserved the right to deviate from the agreement if further material credible evidence was discovered, and that the government reserved the right to notify the court of the nature and extent of defendant’s activities relevant to this case and to sentencing.

At sentencing, one of the witnesses, a chief of staff for the tribal governor’s office, complained that defendant had failed to take responsibility for his actions, had ignored tribal court orders for restitution, and had shown a lack of remorse for his embezzlement. She opined that he should be sentenced at the highest level available for his crimes. The government argued that it likely would never recover the actual amount defendant embezzled, which far exceeded the amount stipulated for restitution purposes. Defendant did not contemporaneously object to either the chief of staff’s remarks or the government’s argument. Although defendant’s Sentencing Guidelines range called for a sentence of twelve to eighteen months, the district court, citing the need to make an example of defendant and the seriousness of his offenses, varied upward from this range and sentenced him to thirty-six months.

On appeal, defendant argued that the government had breached his plea agreement in two respects. These arguments, which were not raised at sentencing, were reviewed for plain error. First, defendant argued that the government had improperly presented the chief of staff’s testimony that he had not accepted responsibility for his crimes, in spite of the agreement that he would receive an acceptance-of-responsibility downward adjustment in his Sentencing Guidelines range. The Circuit noted, however, that defendant failed to show that the government bore responsibility for the chief of staff’s remarks. Victims are entitled to be heard at sentencing, and the government cannot control what they say to the court. There was no evidence that the government orchestrated the comments, that the remarks about acceptance of responsibility pertained to the federal offenses as opposed to the tribal offenses, or that the government argued at sentencing that defendant had failed to take responsibility for his crimes.

Defendant also contended that although the government had stipulated to the amount of loss, it breached the plea agreement by arguing at sentencing that the stipulated amount of loss was only a fraction of what he actually stole. The Circuit rejected this argument, as well. The government had not bound itself to a specific amount of loss for offense calculation purposes. Moreover, the district court made it clear that the reason for the upward variance was to deter others, not to account for uncalculated losses.

Finally, defendant challenged the district court’s upward variance. The Circuit discerned no abuse of discretion in the variance. Accordingly, it affirmed defendant’s sentence.

No. 08-3141. United States v. Lovern. 09/09/2009. D.Kan. Judge Gorsuch. Controlled Substances Act—Online Pharmacies—Sufficiency of Evidence.

Two employees of Red Mesa Pharmacy were convicted after trial of conspiracy to distribute controlled substances and distribution of controlled substances. The owner of the pharmacy previously had pled guilty to similar charges. The pharmacy’s owners solicited customers exclusively through websites run by other companies. These companies submitted orders for online customers, who simply completed questionnaires. The questionnaires were then reviewed and approved or denied by physicians. The physicians did not examine their patients or verify the personal information contained in the questionnaires. In contrast to most pharmacies, Red Mesa Pharmacy distributed mostly prescriptions for controlled substances.

The basic issue on appeal was whether each of the employees charged knew that the pharmacy was filling prescriptions without a legitimate purpose or in defiance of professional standards. Defendant Lovern, a pharmacist, raised several arguments, including insufficient evidence to convict him. He contended that there was no evidence that prescriptions filled over the Internet are illegal. The Tenth Circuit pointed out that the gravamen of his offense was not simply filling prescriptions over the Internet, but rather knowingly filling prescriptions that he knew had been made by doctors who did not prescribe in accordance with the usual course of contemporary medical practice.

Defendant argued that the federal government has no legal ground to define the usual course of medical practice. The Circuit disagreed with the premise for this argument, noting that the government had not attempted to pass a blanket regulation prohibiting certain medical practices, but rather had simply offered proof from witnesses that the practices assisted by employees of Red Mesa Pharmacy were noncompliant. The Circuit further concluded that the prosecution had offered sufficient evidence that the pharmacy’s practices did not comply with accepted medical practices, and that the Controlled Substances Act, as applied to defendant, was not unconstitutionally vague concerning the conduct prohibited. The evidence that defendant, a pharmacist with decades of experience, knew of accepted medical practices, and knew how the Red Mesa scheme worked, was sufficient for the jury to convict him.

Finally, the government’s granting of a license to Red Mesa and failure to previously take action against it did not demonstrate entrapment by estoppel. The Circuit therefore affirmed defendant’s conviction.

The Circuit concluded that the case of defendant Barron was quite different. In contrast to defendant Lovern, there was no showing that Barron knew that the prescriptions were being filled outside the usual course of contemporary medical practice or without a legitimate medical purpose. He was not a pharmacist and there was no evidence that he had either experience with pharmacies or a medical education. He had a ninth-grade education and performed elementary computer tasks for Red Mesa. The evidence was insufficient to show that he possessed the mens rea necessary for a conviction under the Controlled Substances Act. The Circuit therefore reversed his conviction.

No. 08-4087. Hennagir v. Utah Department of Corrections. 09/10/2009. D.Utah. Judge Lucero. Americans with Disabilities Act—Essential Job Function—Rarely Required—Potentially Severe Consequences—Reasonable Accommodation—Retaliation.

Plaintiff was employed as a physician’s assistant by the Utah Department of Corrections. Several years after she was hired, the employer added a physical safety training requirement for medical and clinical positions that required inmate contact, including plaintiff’s position. It was undisputed that the safety training was a function rarely required in the normal course of an employee’s duties. Plaintiff was unable to complete the training due to a number of physical conditions.

Eventually, plaintiff’s employment was terminated. She sued, alleging discrimination, denial of reasonable accommodation, and retaliation under the Americans with Disabilities Act (ADA). The district court granted summary judgment in favor of the employer.

On appeal, the Tenth Circuit noted that part of plaintiff’s burden was to show that she was able to perform the essential functions of her job, with or without reasonable accommodation. The court then determined that the physical training requirement was an essential job function, rejecting plaintiff’s arguments that she had performed her job successfully for years without the training. The ADA does not limit an employer’s ability to change the nature or functions of a job. The court weighed heavily the employer’s judgment that the job function was essential, and observed that the potential consequences of employing an individual who was unable to perform the safety function were severe.

Next, the Circuit considered whether any reasonable accommodation would allow plaintiff to perform the function. It rejected plaintiff’s proffered reasonable accommodation, which was to waive the requirement. The Circuit further held that plaintiff failed to establish a retaliation claim. The district court’s judgment was affirmed.

No. 07-9564. Rosillo-Puga v. Holder. 09/15/2009. BIA. Judge Anderson. Immigration—Post-Departure Bar—Regulation Valid.

Petitioner was deported to Mexico in 2003 based on a 1997 Indiana conviction for battery, an aggravated felony. In 2003, the Seventh Circuit held that an Indiana battery conviction is not an aggravated felony for immigration law purposes. Consequently, petitioner filed a motion to reconsider or reopen his deportation proceedings. An immigration judge denied his motion and the Bureau of Immigration Appeals affirmed.

On appeal to the Tenth Circuit, petitioner argued that a regulation authorizing the agency to reconsider or reopen a case "at any time" permitted his motion. However, the Circuit invoked another section of the regulation that stated that undocumented immigrants who have been deported may not file a motion to reopen or reconsider their removal proceedings. The Circuit held that the regulation imposing a post-departure bar was valid. Thus, petitioner’s motion to reopen was properly denied. In addition, the petition to reopen was untimely.

The Circuit also rejected petitioner’s claim that the removal order was invalid, because it was based on an erroneous interpretation of the definition of a crime of violence. The petition for review was denied.

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