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

TCL > April 2010 Issue > Summaries of Selected Opinions

April 2010       Vol. 39, No. 4       Page  119
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

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. 08-7121. United States v. Osborne. 01/26/2010. E.D.Okla. Per Curiam. Sentencing Guidelines—Upward Departure—Flight From Police—Creating Risk of Bodily Injury or Death to More Than One Person.

Defendant pled guilty to one count of bank robbery. In calculating his sentence, the district court applied a two-level enhancement, because defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer."

When a police officer attempted to subdue defendant after the robbery, defendant drove away and led police on a high-speed chase. He drove through a residential area, at times reaching seventy-five miles per hour, and ran six or seven stop signs. He then turned into a Wal-Mart parking lot and circled the lot four times, driving at an approximate speed of fifty miles per hour, while being pursued by ten patrol cars. He swerved and braked in an attempt to wreck the police vehicles, causing damage to two police cars, as well as personal injuries to an FBI agent. Civilians fled during the parking lot chase, and one policeman fired his gun. After defendant headed back onto the highway, police shot out his rear tires and forced his car into a ditch, where he was apprehended.

At the government’s request, the district court departed upward an additional two levels at sentencing. The court gave two reasons for this departure: (1) a high-speed car chase always endangers more than one person and therefore qualifies for consideration for an upward departure; and (2) defendant’s particular high-speed car chase put a large number of people at risk. Defendant challenged the two-level upward departure on appeal, arguing that the circumstances of his flight and the number of people he put at substantial risk of death or bodily injury were already considered in the two-level enhancement the district court applied for.

The Tenth Circuit upheld the departure. The Sentencing Guidelines authorize an upward departure in cases where death or bodily injury results or where the defendant’s conduct posed a substantial risk of death or bodily injury to more than one person. The Circuit could not, however, endorse the district court’s reasoning that all high-speed car chases lie outside the heartland of flight from law enforcement because they endanger more than one person. Nevertheless, the district court’s other rationale—that the specific facts of defendant’s flight were outside the heartland of typical flights from law enforcement—did not represent an abuse of discretion. The Circuit therefore affirmed defendant’s sentence.

No. 09-3208. United States v. Prince. 02/01/2010. D.Kan. Judge Briscoe. Suppression of Evidence—Mistake of Law Leading to Consensual Encounter.

Defendant was indicted on drug and firearms-related charges. He moved to suppress evidence seized during a search of his residence. The district court not only suppressed the evidence seized during the search, but also sua sponte suppressed all evidence obtained by the government from the inception of its investigation of defendant. The government appealed the suppression order.

The government first targeted defendant for investigation after it learned that some "AK-47 gun flats"—pieces of flat metal containing holes and laser perforations—had been shipped to him. After interviewing defendant several times, ATF agents obtained a search warrant for his residence. During the search, they observed marijuana plants in plain view, as well as firearms. The question was whether the search warrant was invalid from inception, based on defendant’s contention that it was not illegal to possess the gun flats, which formed the initial basis for the search. After hearing expert testimony on the issue, the district court concluded that the gun flats did not constitute "firearms."

On appeal, the Tenth Circuit concluded that the officers’ mistake of law about the gun flats did not require suppression of the evidence. Any mistake led not to a seizure itself but to consensual encounters with defendant. During these consensual encounters, defendant permitted officers to observe materials that included "parts kits" for constructing firearms and a receipt for an Uzi machine gun. During one of the consensual encounters, defendant also stated that he had purchased firearms for resale and recently had sold ammunition at a gun show. The officers’ investigation revealed that defendant did not have a federal firearms license and had not officially registered any firearms under his name. It was this information that justified the issuance of a search warrant for defendant’s residence, during which the drugs and firearms were found. The Circuit therefore reversed the suppression order and remanded for further proceedings.

No. 08-1150. Apartment Investment and Management Co. v. Nutmeg Insurance Co. 02/02/2010. D.Colo. Judge McKay. Insurance—Duty to Defend—Parallel Judicial Proceedings—Colorado’s Complaint Rule—Policy Exclusions Read Narrowly.

Plaintiff (AIMCO) provides property management services, including risk management. It purchased professional liability policies from Nutmeg Insurance Co. (Nutmeg). The policies covered any damages incurred by AIMCO for a wrongful act by AIMCO or its independent contractors, but excluded coverage for claims based on providing services as an insurance broker. AIMCO hired an independent contractor to manage its insurance program. The contractor worked with several firms to place property and general liability insurance. One of those firms used AIMCO’s program as part of a Ponzi scheme. When the scheme was discovered, various victims of the scheme sued AIMCO, alleging AIMCO’s direct involvement or liability for its independent contractor.

Nutmeg refused to defend AIMCO, asserting that the complaints did not allege "wrongful acts" as covered by its policies. AIMCO sued Nutmeg, claiming it had breached its duty to defend. The district court examined the seven complaints filed against AIMCO and compared the allegations individually with the policies. The district court granted summary judgment to Nutmeg after finding that the alleged conduct was not covered.

On appeal, the Tenth Circuit stated Colorado’s complaint rule: a duty to defend arises when the underlying complaint alleges any facts that potentially or arguably fall within the policy’s coverage without considering the insured’s actual liability. In evaluating this question of law, the court compares the allegations of the underlying complaint with the relevant policy provisions. Here, the parties disputed whether Colorado law allows the court to consider evidence outside the complaints in making the determination.

The Circuit concluded that the complaint rule requires an insurer to consider facts in parallel complaints that tend to show a duty to defend. Nutmeg was aware that the complaints were related. Viewing the complaints together, the Circuit determined that they contained sufficient information to give Nutmeg reasonable notice that the lawsuits might fall within the policies’ coverage. Finally, the Circuit concluded that Nutmeg was not excused from providing coverage by exclusions contained in the policies, after construing the exclusions liberally in favor of AIMCO. The district court’s judgment was reversed and the case was remanded.

Nos. 09-3028 & 09-3045. United States v. Schneider. 02/08/2010. D.Kan. Judge O’Brien. Limitation of Evidence Under F.R.E. 403—Separate Deaths Charged Within a Single Count of Indictment—Duplicity of Indictment.

Defendants were charged with distributing controlled drugs at their family-owned clinic resulting in the deaths of numerous patients. Count 5 of the indictment charged them with illegally distributing drugs to eighteen patients, resulting in the patients’ deaths. Before trial, the district court excluded evidence of all but one of the eighteen deaths and placed a ten-day limitation on the government’s time to present its case. The government pursued an interlocutory appeal from these rulings. Defendants cross-appealed an earlier ruling in which the district court denied their motion to exclude the government’s expert testimony.

At a status conference one week before trial was to begin, the district court ruled that the case would be tried in four to five weeks rather than the eight weeks initially set aside for the case. The government would be allowed ten days to present its case, including cross-examination of defendants’ witnesses. The district court also ruled, under F.R.E. 403 (which excludes evidence whose probative value is outweighed by danger of unfair prejudice, confusion of the issues, misleading of the jury, unfair delay, waste of time, or presentation of cumulative evidence), that the government would be permitted only to present evidence of three patient deaths: those charged in Counts 2, 3, and 4 of the indictment. It later stated it would permit the government to present evidence concerning the first named individual of the eighteen patient deaths charged in Count 5.

On appeal, the Tenth Circuit first ruled that the challenged order was appealable. By limiting the government’s evidence, the district court dismissed "a portion of" Count 5 by effectively dismissing separately charged conduct brought by the government against defendants. This dismissal was improper, because the wholesale exclusion of evidence interfered with the government’s ability to prosecute criminal activity concerning the other seventeen patient deaths. The Circuit rejected defendants’ argument that the presentation of evidence concerning other patient deaths would be unfairly prejudicial: these deaths were precisely those with which they were charged. Moreover, the indictment was not duplicitous, because the government is permitted to combine multiple charges within a single count of an indictment. In light of its reversal on this issue, the Circuit declined to address whether the district court abused its discretion in limiting the government’s case to ten days, a ruling it might have reason to reconsider on remand. The Circuit also dismissed defendants’ cross-appeal, holding that it represented neither an appeal of a collateral order nor a pendant claim.

No. 09-2096. Casanova v. Ulibarri. 02/09/2010. D.N.M. Judge Hartz. Date of Alleged Action—Construe as True Nonmovant’s Factual Allegations—Dismissal for Failure to State a Claim—Motion for More Definite Statement.

Plaintiff filed a complaint alleging that while he was a prisoner, the warden violated his constitutional rights by ordering him to segregation without his medically necessary devices and other basics. The complaint did not state the date of this alleged incident, but described a different incident and alleged the date on which it had occurred. The warden requested dismissal, arguing that he could not be held liable because he assumed his post as warden after the only date identified in the complaint. Plaintiff filed a response in which he provided the date of the segregation incident; the warden was working at the prison on this date. Nevertheless, the district court dismissed the complaint, holding that the only date alleged was before the warden arrived at the prison, so the warden could not have participated in any of the allegedly wrongful conduct.

On appeal, the Tenth Circuit noted that the district court accepted as true the warden’s statement about when he arrived at the prison and assumed that the undated actions must have occurred before the single date alleged in the complaint. This procedure is contrary to the requirement that when considering dismissal for failure to state a claim, the court must construe all of the nonmovant’s allegations as true. The district court should have presumed that the undated incident occurred after the warden started working at the prison. If a date is crucial, the preferable procedure is a motion for a more definite statement. However, plaintiff’s response to the dismissal motion served this purpose by providing the necessary date. The district court’s order dismissing the complaint was reversed and the case was remanded.

No. 07-4158. United States v. Porter. 02/09/2010. D.Utah. Judge O’Brien. Search and Seizure—Exigent Circumstances—Reasonable Manner and Scope of Search.

A jury convicted defendant of being a felon in possession of a firearm after a gun was found at his residence. Prior to trial, defendant moved to suppress the gun as the fruit of a warrantless search. The district court denied the motion, finding that exigent circumstances existed to justify the search. Defendant appealed.

The search was triggered after a female caller contacted police, stating that (1) defendant had threatened her with a .38 caliber firearm; (2) defendant had been drinking; (3) another woman had taken the gun from defendant and placed it in the front bedroom of the home; (4) defendant and the other woman had recently been released from prison, where defendant had been imprisoned for murder; and (5) the caller had left the house to pick up her son but would be returning soon to meet with officers. Although a dispatch report revealed no outstanding warrants concerning defendant, Officer Irvine, one of the responding officers at the scene who knew both the female caller and defendant, had been called to respond to defendant’s address two or three times before this call, and remembered an incident in which defendant had been particularly belligerent and had used a baseball bat to break a window.

After the officers responded to defendant’s residence, Officer Irvine knocked on the door, which defendant partially opened. Defendant kept his left hand hidden, refused to show it on request, and glanced to his left, where the officer could see a baseball bat. Officer Irvine heard voices coming from inside the house. He grabbed defendant by his right arm, pulled him onto the porch, and handcuffed him. Inside the house, he could see two females. Other officers entered the front room of the house to perform a security check. One of the officers saw the butt of a revolver partially poking out of a black bag. Another officer on the scene confirmed that defendant was a convicted felon.

The issues on appeal were whether the warrantless entry and search of defendant’s house was justified based on the officers’ reasonable belief that a civilian needed immediate aid, and whether the manner and scope of the search were reasonable. The Tenth Circuit held that both tests were satisfied. When officers arrived at the scene, they expected to encounter the caller, but they did not see her. The gun was unaccounted for, and the number of people in the home and their identities were unknown. Officer Irvine knew of defendant’s violent tendencies from prior incidents. Defendant refused to show his left hand and had a weapon (the bat) within reach. Events moved very quickly and police entry was justified because the totality of the circumstances created a reasonable belief that someone within the premises might be in immediate danger. The security check occurred immediately after defendant was handcuffed. The gun was in plain view, was not seized pursuant to a search for evidence, and was not seized until further investigation supplied probable cause for the seizure. The Tenth Circuit therefore affirmed defendant’s conviction.

No. 09-3187. Wallace v. Microsoft Corp. 02/18/2009. D.Kan. Judge McKay. Statute of Limitations—Action Commenced—Removal to Federal Court—Time Limit to Serve Summons.

Plaintiff sued his former employer for injuries he sustained when he fell while walking to a company meeting and for damages based on his subsequent termination. Just before the two-year statute of limitations expired, plaintiff filed suit in a Kansas state court and served the employer with the petition, but not the summons. The employer elected to remove the case to federal court. Plaintiff then served the employer with the summons; however, by that time, the ninety-day window for service allowed by state law had expired. The district court dismissed, holding that the summons was served outside the state law limitations period, so the case was time-barred.

The Tenth Circuit explained that once a case is removed to federal court, federal statutes and court rules apply. Under federal law, the summons may be served within 120 days of removal. The employer had removed the case prior to the expiration of the state law’s ninety-day deadline for serving the summons. Therefore, service of the summons within the 120-day federal allowance saved plaintiff’s claims. The district court’s judgment was reversed and the case was remanded.

© 2010 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