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TCL > May 2010 Issue > Summaries of Selected Opinions

May 2010       Vol. 39, No. 5       Page  145
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. 09-2138. Bixler v. Foster. 02/22/2010. D.N.M. Judge Tymkovich. Civil RICO—Private Securities Litigation Reform Act—Minority Corporate Shareholders—Standing—RICO’s "Continuity" Requirement—Default Judgment—Judicial Bias.

Plaintiffs, minority shareholders of Mineral Energy and Technology Corp. (METCO), sued METCO’s corporate majority shareholders and directors under the civil Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961–68. They claimed that defendants had fraudulently transferred the corporation’s assets, thus reducing the value of their investment. The district court dismissed for lack of standing. The court also refused to enter a default judgment against one corporate director who was not served with the summons but who plaintiffs claimed had knowledge of the lawsuit and avoided service. Plaintiffs appealed.

The Tenth Circuit determined that plaintiffs’ claims were for the diminution of the value of their METCO shares; therefore, they lacked standing under the civil RICO statute because such a claim belongs to the corporation. In addition, because the gravamen of their complaint was securities fraud, the Private Securities Litigation Reform Act precluded their complaint.

Another ground for affirming the dismissal was the complaint’s insufficient allegations of RICO’s "continuity" requirement. Continuity requires a closed period of repeated or past conduct that by its nature projects into the future with a threat of repetition. Here, the complaint alleged a single scheme to accomplish the discrete goal of transferring METCO’s assets. The Circuit further affirmed the district court’s decision not to enter a default judgment against the unserved defendant because plaintiffs’ claims were properly dismissed.

Finally, the Circuit rejected plaintiffs’ claim that the district court was biased against them, because adverse decisions alone do not show bias, and the district court’s concern for discovery expenses was proper. The district court’s order dismissing the complaint was affirmed.

No. 09-2165. United States v. Ramos-Arenas. 02/23/2010. D.N.M. Judge Kelly. Sufficiency of Evidence—Impersonation of Federal Officer—"Thing of Value" Obtained From Impersonation.

A jury convicted defendant of falsely impersonating an officer or employee of the United States. Defendant was asleep in the front passenger seat of a car that his girlfriend was driving from Las Cruces to Alamogordo, New Mexico, when a New Mexico patrolman pulled the car over for traveling 97 miles per hour in a 75-mile-per-hour zone. The officer prepared a citation that decreased her speed to 95 miles per hour. When the officer returned to the vehicle, defendant told him he was a border patrol agent and had left his identification at home. The officer reduced the ticket to a warning as a professional courtesy.

On appeal, defendant challenged the sufficiency of the evidence to establish that by pretending to be an officer of the United States, he "demand[ed] or obtain[ed] any . . . thing of value" [18 U.S.C. § 912]. He contended that his conviction required proof that he "intended" to obtain something of value from the state policeman through his misrepresentation. The Tenth Circuit found no plain error for two reasons: (1) eight of nine federal circuits considering the question have held intent is not required; and (2) in any case, a reasonable jury could infer that defendant lied to get his girlfriend’s ticket reduced.

Defendant also argued that obtaining a thing of value for another person does not qualify under the statute. The statute, however, does not require that the thing of value be obtained for one’s self. Such a limited reading of the statute would permit a defendant to impersonate a federal officer to acquire benefits for any number of friends, thereby inviting unwonted mischief. Accordingly, defendant’s conviction was affirmed.

No. 09-3091. United States v. Washington. 02/23/2010. D.Kan. Judge Tacha. Interstate Agreement on Detainers—Notice to Court of Invocation of 180-Day Right of Disposition—"Fleeting" Possession of Firearm.

A jury convicted defendant of being a felon in possession of a firearm. Defendant was a passenger in a car that police stopped after they heard gunshots, and after the driver of the car committed a traffic violation. Officers handcuffed the vehicle’s occupants, including defendant. They found a .45 caliber pistol in the waistband of a female passenger who had been seated next to defendant or on his lap, and a .22 caliber semi-automatic pistol under the right front passenger seat, where it was accessible to passengers in both the front and rear seats. Defendant admitted to one of the officers that he had handled the .45 the day before and the .22 that day.

On appeal, defendant asserted that the government violated his rights under the Interstate Agreement on Detainers (IAD) Act. The IAD Act requires that a prisoner in the custody of a state—which defendant was, due to a probation violation based on the same events—must be brought to trial on the federal charges within 180 days after he or she has delivered to the prosecutor and the appropriate court a request for final disposition of the federal charges.

Defendant mailed two copies of his request for final disposition to the U.S. Attorney’s Office. He addressed the first to the "Department of Justice, Issuing prosecutor," and the second to the "Department of Justice, Court." The U.S. Attorney’s Office received both copies but did not forward the second copy to the district court. Defendant later submitted a form application to the Bureau of Alcohol, Tobacco, and Firearms, again requesting final disposition of the charges. No copy of this request was supplied to the district court.

Although defendant was not brought to court until more than 180 days after the notices were made, the district court denied his motion to dismiss the indictment for violation of the IAD Act, because no copies of the notices were provided to the court. Defendant contended that the U.S. Attorney’s Office should have forwarded his request to the district court, so actual delivery was not required to start the clock running. The Tenth Circuit disagreed. It held that actual delivery to the district court is required. There is no "fairness" exception based on a third party’s neglect or malice in preventing delivery.

Defendant also argued that the district court should have given an instruction that momentary or transitory control (fleeting possession) of object does not constitute "possession" for purposes of the statute. The Circuit noted that it has never recognized such a fleeting possession defense, and that even if it did, defendant would have to show that he either lacked knowledge that he possessed the contraband or he had a legally justifiable reason to temporarily possess it. Because defendant could not satisfy either of these requirements, the proposed instruction would have been improper. Finally, defendant failed to show prejudice from the district court’s decision permitting the transcript of defendant’s probation violation hearing, in which he stated that he had handled the firearms, to go as an exhibit to the jury room during its deliberations.

No. 09-4087. Kane County v. United States. 03/08/2010. D.Utah. Judge Briscoe. Intervention as of Right—Permissive Intervention.

Kane County, Utah (County) filed suit against the United States to quiet title to two roads that cross portions of federal public land, claiming that the County had designated both roads as public highways and had expended public funds to maintain them. Southern Utah Wilderness Alliance (SUWA), seeking to protect the wilderness area surrounding the roads, moved for leave to intervene as of right; in the alternative, it requested leave for permissive intervention to contest the County’s claim of title to the roads. Both the County and the United States opposed intervention. The district court denied SUWA’s motion, and SUWA appealed.

The Tenth Circuit noted that intervention as of right pertains to an entity that has an interest in the property or transaction and is so situated that the result of the case may impair the movant’s interest, unless existing parties adequately represent that interest. The Circuit held that even if SUWA had an interest in the proceedings, SUWA failed to show that the United States may not adequately represent that interest. There was no evidence that the United States would relinquish federal title to the roads. Accordingly, SUWA was not entitled to intervene as of right.

The Tenth Circuit also affirmed the denial of permissive intervention. The district court was within its discretion to deny intervention because the County’s claims were not similar to SUWA’s conservation interests, and because SUWA did not challenge the district court’s remaining reasons. The district court’s ruling was affirmed.

No. 08-4033. United States v. Wise. 03/09/2010. D.Utah. Judge Ebel. Sentencing Guidelines—"Crime of Violence"—Failing to Stop Vehicle in Response to Officer’s Command—Use of Conviction for Which Criminal History Points Were Wrongfully Omitted.

Defendant was sentenced to forty-eight months’ imprisonment after pleading guilty to being a previously convicted felon in possession of a firearm. In 2006, he had been convicted in Utah state court of failing to stop in response to an officer’s command to do so. Although, the pre-sentence investigation report did not assign him criminal history points for the 2006 conviction, the district court used this conviction to raise his base offense level here.

On appeal, defendant argued that the conduct for which he was convicted in 2006 was not a crime of violence for purposes of the U.S. Sentencing Guidelines, and thus did not qualify him for a sentencing enhancement. The issue was whether the applicable statute describes a crime that involves conduct that presents a serious risk of physical injury to another. The defendant, relying on Chambers v. United States, 129 S.Ct. 687 (2009), contended that the Supreme Court has held that some escapes are not crimes of violence and that each subsection of a statute must be examined separately to determine whether the conduct qualifies as a crime of violence.

The Tenth Circuit distinguished Chambers, holding that each subsection of the Utah statute constitutes a crime of violence and that the crime at issue here could not be analogized to the passive failure to report to custody at issue in Chambers. The Utah statute requires active defiance of an officer’s instructions while driving a vehicle, and therefore meets the requirements for a crime of violence.

The district court’s failure to assign criminal history points for the 2006 conviction did not prevent it from using the conviction to enhance his base offense level. The error, if any, lay in the district court’s failure to assign the criminal history points, not in its use of the conviction for enhancement purposes where the conviction should have been used for enhancement if criminal history points had properly been applied.

No. 09-2006. Zia Trust Co. v. Montoya. 03/09/2010. D.N.M. Judge McKay. Qualified Immunity—Interlocutory Appeal—Questions of Law—Excessive Force—Objective Reasonableness.

The plaintiff trust company filed suit on behalf of the minor son of a man killed by Officer Montoya while responding to a domestic disturbance. Carlos Montoya was an officer with the Doña Ana County Sheriff’s Department in Albuquerque, New Mexico.

Officer Montoya and another Doña Ana County officer responded to a call involving an adult with mental health issues. They were told that firearms were present. When the officers arrived, Officer Montoya drew his gun and approached a man in the driver’s seat of a van in the driveway. Although the van was stuck on a pile of rocks, it jumped forward about a foot. In response, Officer Montoya fired a shot, killing the driver. The complaint alleged that Officer Montoya used excessive force in the shooting. Officer Montoya claimed entitlement to qualified immunity because his actions were objectively reasonable. The district court denied the officer’s motion for summary judgment based on qualified immunity. He appealed.

The Tenth Circuit first addressed the extent of appellate jurisdiction. Ordinarily, a denial of summary judgment is not immediately appealable; however, the court has interlocutory jurisdiction over the denial of qualified immunity at the summary judgment stage. The court is limited to reviewing issues of law; it cannot review the district court’s determination that material facts are disputed or that a plaintiff’s evidence is sufficient to support a particular factual inference.

The Circuit then considered the excessive force claim under the standard of objective reasonableness, viewing the situation from the perspective of a reasonable officer on the scene. The Circuit concluded that the record, when viewed in the light most favorable to plaintiffs, did not indicate that Officer Montoya acted reasonably. The facts were disputed as to whether the officer identified himself as a police officer and whether the decedent knew he was an officer. In addition, the evidence was disputed as to whether the van’s wheels were pointed toward Officer Montoya and whether he could have seen them, how close he was to the van at the time of the shooting, and whether he could see that the van was stuck on pile of rocks. The Circuit determined that Officer Montoya did not have probable cause to believe there was a threat of serious physical harm to himself or others. Thus, plaintiffs established a constitutional violation. The Circuit also held that the law was clearly established at the time of the violation. Consequently, Officer Montoya was not entitled to summary judgment on qualified immunity. The district court’s ruling was affirmed.

No. 09-5080. United States v. Livesay. 03/16/2010. N.D.Okla. Judge Gorsuch. Not Guilty by Reason of Insanity—Placement in Attorney General Custody—Dangerousness Determination—Defendant’s Presence at Hearings.

Defendant was charged with being a felon in possession of firearms and ammunition stemming from an incident in which he attacked his father. Following trial, a jury found him not guilty by reason of insanity. The district court held a series of hearings and determined that defendant could not be unconditionally released into the community without posing a substantial risk to others. It committed defendant to the custody of the Attorney General. Defendant requested that he be released to Sugar Mountain Retreat, a private sanitarium where he had resided prior to trial. The district court rejected this placement for two reasons: (1) it had concerns about the facility’s ability to ensure public safety; and (2) the court lacked statutory authority to conditionally release defendant because he had failed to show that his release would not "create a substantial risk of bodily injury to another person or serious damage of another property due to a present mental disease or defect."

On appeal, the Tenth Circuit upheld the district court’s refusal to place defendant in the private treatment facility and its decision to place him in the custody of the Attorney General. The relevant statute, 18 U.S.C. § 4243(e), states that a defendant who has failed to meet his or her burden of proving a lack of substantial risk must be committed to the Attorney General’s custody. Congress also provided for post-commitment conditional release, suggesting that its failure to provide for such release in the pre-commitment context was not accidental, but deliberate. Once a detainee has been committed to the custody of the Attorney General, future decisions concerning the detainee’s disposition will benefit from far more extensive observation and evaluation of his or her mental state than the authorities had before such a commitment was made. Moreover, judicial review of post-commitment decisions is available.

Finally, defendant’s absence from some hearings concerning conditional release was harmless in view of the district court’s limited options for placement. The Tenth Circuit therefore affirmed defendant’s sentence.

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