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TCL > February 2010 Issue > Summaries of Selected Opinions

February 2010       Vol. 39, No. 2       Page  105
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").

 Nos. 07-9580 & 08-9527. N-A-M v. Holder. 11/20/2009. Board of Immigration Appeals. Per Curiam. Immigration—Withholding of Removal—Felony Menacing Conviction—Particularly Serious Crime—Deference to Attorney General’s Reasonable Construction.

Petitioner, a pre-operative transsexual, fled from El Salvador to the United States in 2004, entering without inspection. In 2005, she was convicted in Colorado of felony menacing and reckless endangerment. When faced with deportation, she filed an application for asylum and withholding of removal. An immigration judge (IJ) found that although petitioner had suffered persecution due to her transgendered status, her conviction for felony menacing required her removal. A statute requires removal of an alien if the Attorney General decides that the alien, having been convicted of a particularly serious crime, is a danger to the U.S. community. The IJ ruled that petitioner’s felony menacing conviction fell within that definition. The Board of Immigration Appeals (BIA) affirmed.

On appeal to the Tenth Circuit, petitioner argued that only aggravated felonies qualified under the statutory definition of "particularly serious crime." The Attorney General has discretion to decide which crimes are particularly serious, and the Circuit concluded that deference was due to the Attorney General’s reasonable construction of the statute, which included petitioner’s conviction in the statutory definition. In addition, the Circuit upheld the Attorney General’s determination that the statute required only conviction of a particularly serious crime and did not require a separate finding that the alien also was a danger to the U.S. community. The BIA’s decision was affirmed.

No. 08-1154. City of Colorado Springs v. Northern Colorado Water Conservancy District. 11/25/09. D.Colo. Judge Ebel. Piggyback Standing—Intervenor—No Active Dispute—District Court Retained Jurisdiction.

In this water law litigation, Climax Molybdenum Co. (Climax) sought to intervene in a case decided more than fifty years ago, but over which the district court retained jurisdiction. Climax wanted to establish its own standing by piggybacking on the standing of an existing party to the lawsuit, even though there was no current dispute among the parties.

In the 1930s, a court decreed that Climax had conditional rights to divert water from a tributary of the Blue River. In 1942, after a reservoir and a power plant were built on the river, two Colorado cities filed litigation to adjudicate their claims to water from the Blue River, which later included claims by the United States. Eventually, those parties reached an agreement, which the court approved. The federal district court retained jurisdiction to ensure compliance.

Climax moved to intervene so it could challenge a 2005 decision of the Colorado State Engineer that its rights were junior to that of other parties. The district court denied Climax leave to intervene because there was no pending action before the court. Climax appealed, claiming it had piggyback standing because existing parties had standing.

The Tenth Circuit held that within litigation over which a district court has retained jurisdiction after entering a final decree, a proposed intervenor may not establish piggyback standing where the existing parties in the suit are not seeking judicial resolution of an active dispute among them. Therefore, because Climax did not have independent standing and could not rely on piggyback standing, its appeal was dismissed. The district court’s order was vacated with instructions to dismiss for lack of jurisdiction.

No. 08-2169. United States v. Pena-Montes. 12/07/2009. D.N.M. Judge Lucero. Fourth Amendment—Detention Related in Scope to Justification for Stop—Dealer License Plate.

Defendant pled guilty to one count of re-entry of a removal alien after a prior felony conviction. In the plea, he reserved his right to appeal the district court’s denial of his motion to suppress the evidence gained through his arrest.

Defendant was a passenger in a vehicle stopped by an Albuquerque Police Department officer. The officer stopped the vehicle because it appeared to have no license plate. As the officer approached the vehicle, he observed a dealer plate displayed in its rear window. He nevertheless proceeded to interview the driver, who could not produce registration, a bill of sale, or proof of insurance, leading the officer to believe the vehicle was stolen. Dealer plates had been used within the past year in the Albuquerque area to disguise automobile thefts.

After the driver informed the officer that he had a handgun in the car, the officer ordered the driver and defendant to exit the vehicle, and radioed in its vehicle identification number. Having determined that the vehicle had not been stolen, the officer and another officer on the scene patted down defendant and took from him cell phones, a pair of sunglasses, and $1,800. Defendant had no identification documents on him, and the information he provided concerning his identity could not be verified. After defendant gave a second, different date of birth and social security number, and provided explanations of how he knew the driver that did not fit with the driver’s own account, the officer handcuffed defendant and arrested him for concealing his identity.

When fingerprinting defendant at police headquarters, police determined his real identity. The district court denied his motion to suppress all evidence derived from the traffic stop, including his identity.

The Tenth Circuit began its analysis by holding that the traffic stop was justified at its inception. The officer’s initial conclusion that the vehicle did not display a license plate or registration permit involved an objectively reasonable mistake. The real question was whether the resulting detention was reasonably related in scope to the circumstances that justified the stop. On this question, the Circuit held that the district court erred in its determination that dealer plates were limited to use during a dealership’s business hours, and for demonstration purposes only. Under New Mexico law, such plates are nearly equivalent to standard license plates. Therefore, the officer made a mistake of law in concluding that the vehicle was being driven without legal authorization.

The Circuit rejected the government’s argument that the officer nevertheless had particularized reasonable suspicion to justify detaining the vehicle’s occupants because the stop occurred in a high-crime area; dealerships in the Albuquerque area had experienced theft of cars and dealer plates; and dealer plates typically are used during business hours. Because the New Mexico statutes do not restrict dealer plates to certain hours, the fact that the plate was being used at an unusual time did not create particularized reasonable suspicion, justifying the detention. The other factors cited also did not justify detaining defendant.

That the detention was illegal under the Fourth Amendment did not necessarily justify suppression of defendant’s identity. Fingerprint evidence obtained as part of a "routine booking procedure" is not subject to the exclusionary rule, unless the illegal arrest was purposefully exploited to obtain the fingerprint evidence. The Circuit therefore remanded for further factual determination of the purpose of defendant’s fingerprinting.

No. 08-1296. United States v. Masek. 12/10/2009. D.Colo. Judge Lucero. Sentencing Guidelines—Proof of Loss—Alleged Offsets and Civil Release of Liability—Calculation of Restitution.

Defendant pled guilty to wire fraud and received a thirty-three month sentence. He and his wife owned a retail dealership for Echostar, a satellite television provider. He was paid a commission when customers signed up with Echostar. Echostar’s risk manager determined that some of defendant’s accounts were suspicious. Each of them featured an inexpensive receiver and programming package, included no customer contact information, was set up so that no statements would be mailed to a physical address, and was paid with a prepaid debit card set to make automatic payments with limited funds. Eventually, the risk manager identified 4,310 accounts he believed to be fraudulent. When he terminated these accounts, only sixteen customers complained, leading him to believe that defendant had opened 4,294 fraudulent accounts, receiving commissions for non-existent customers.

In defendant’s plea agreement, the government estimated the total loss attributable to his charged crime at $2.5 million. Prior to his sentencing, defendant settled a civil complaint brought by Echostar by agreeing to pay the company $1.24 million, approximately $150,000 of which represented attorney fees. The settlement included a mutual release from any further causes of action or claims. At sentencing, the government presented evidence that Echostar had paid defendant $2,453,793 for the fraudulent accounts. This number credited defendant for "chargebacks" Echostar deducted from commissions and incentives due to customers’ premature cancellation of service. The government presented another estimate, excluding some possibly legitimate accounts, totaling $2,043,658.25.

Defendant contested these figures. Although the district court rejected most of his contentions, it arrived at a loss figure by reducing the smaller figure by $290,757, the amount paid to Echostar from the prepaid debit cards, resulting in a Sentencing Guideline-based sentence of thirty-three months. In calculating restitution, the district court subtracted the non-attorney fee portion of the settlement payment from the total loss figure, and ordered restitution of $663,729.28.

On appeal, defendant raised a number of issues relating to the loss calculation. He presented evidence showing that he bought more than $1 million worth of prepaid debit cards and paid Echostar an additional $66,036.85. The Tenth Circuit determined that the mere fact that defendant purchased this amount of debit cards did not prove that Echostar actually received the full amount of those purchases, a factor unestablished by other evidence in the case. The Circuit also rejected defendant’s attempt to obtain credits for monies allegedly owed to him on other legitimate transactions. The purpose of a sentencing hearing is not to settle accounts between a defendant and his victim; it is to determine the amount of loss resulting from the charged offense. Defendant’s other contentions, that the government miscalculated the amount Echostar paid him and its witnesses and that exhibits lacked sufficient indicia of reliability, did not demonstrate clear error.

Finally, defendant was not entitled to a credit for loss purposes for the amount of his civil settlement with Echostar, and the release in his civil settlement agreement did not preclude an award of restitution. Defendant failed to show that his sentence was substantively or procedurally unreasonable. The Circuit therefore affirmed the sentence and restitution order.

No. 08-4166. Ellis ex rel. Ellis v. Ogden City, Utah. 12/17/2009. D.Utah. Judge Holloway. High-Speed Police Chase—Bystander Killed—Shock the Contemporary Conscience—Intent to Injure Required—Municipal Liability.

During a high-speed police chase through a residential area of Ogden City, Utah, the fleeing felon’s car hit the vehicle plaintiff was driving. Plaintiff later died. His estate filed suit against Ogden City and Ogden City police officers, alleging they had violated plaintiff’s substantive due process constitutional rights. The district court dismissed the case for failure to state a claim.

The Tenth Circuit applied U.S. Supreme Court law, holding that to establish a substantive due process violation, a plaintiff must show that the officers acted in a manner so egregious and so outrageous that it may fairly be said to "shock the contemporary conscience." In the context of a high-speed police pursuit, the officers must have intended to physically harm the suspects or bystanders or to worsen their legal plight to shock the conscience.

The complaint failed to allege that the officers had any intention to injure anyone by their high-speed chase. Accordingly, the complaint failed to state a claim against them. Moreover, Ogden City could not be held liable on a theory of municipal liability; liability will not attach where there was no underlying constitutional violation by any of the municipality’s officers. The district court’s judgment was affirmed.

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