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TCL > June 2010 Issue > Summaries of Selected Opinions

June 2010       Vol. 39, No. 6       Page  117
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. 09-5131. United States v. Fox. 03/22/2010. N.D.Okla. Judge Briscoe. Consent to Search—Taint Resulting From Prior Unlawful Seizure—Temporal Proximity and Lack of Intervening Circumstances.

Defendant pled guilty to one count of possession of an unregistered, "sawed-off" shotgun, reserving the right to appeal the denial of his motion to suppress evidence. The evidence showed that officers were conducting surveillance on defendant’s home when a black Ford Mustang pulled up in front of it. The occupant of the Mustang, Shawna Chiles, entered the house, returned to her car approximately thirty minutes later, and drove away.

Defendant subsequently drove into the driveway in a different vehicle and the officers arrested him. When Chiles returned and asked what was going on, one of the officers showed her his badge, got into her car, and told her to pull into a convenience store parking lot across the street. The officer discovered that Chiles did not have a driver’s license and that there was a bag of what appeared to be methamphetamine in her car. However, the officer told her that they were more interested in defendant than in her. After she explained that defendant was her husband and her name was on the house lease, the officer asked her if he could search their home. She replied that would be fine and that there was nothing to hide.

During the search, officers found the sawed-off shotgun in defendant’s bedroom. The district court upheld the search, finding that Chiles’s consent was voluntary.

On appeal, defendant argued that his wife’s consent was involuntary, because it had been tainted by a prior unlawful seizure of her person. The Tenth Circuit agreed. The unlawful seizure occurred when the officer entered Chiles’s car and told her to drive to the convenience store parking lot. A seizure occurred because, under the totality of circumstances, a reasonable person would not have felt free to ignore the officer’s presence in her car and to go about her business. The seizure was unlawful because it was not supported by any reasonable suspicion that Chiles was engaged in criminal activity. The taint of the unlawful seizure had not dissipated by the time she gave consent. There was temporal proximity between the seizure and the consent. The consent itself was not an intervening circumstance that dissipated the taint; no other intervening events broke the chain of causation between the illegal seizure and the consent; and the record suggested that the officer’s conduct was purposeful and flagrant.

The district court therefore erred in finding that there was sufficient attenuation between the illegal seizure and the subsequent consent. The Circuit ordered that the evidence found as a result of the consent be suppressed.

No. 08-4029. Securities and Exchange Commission v. Merrill Scott & Associates, Ltd. 03/23/2010. D.Utah. Judge Kelly. Securities Fraud—Protective Order—Collateral Order Rule—Modification was Abuse of Discretion—Reliance Interest.

Richard Gerber invested money with defendant (Merrill Scott) under a nominee arrangement promising large tax savings. The investment turned out to be a Ponzi scheme. Plaintiff (SEC) sued Merrill Scott for securities fraud. To get his money back, Gerber disclosed confidential material to the SEC for use in its securities fraud action. The district court entered a protective order to safeguard Gerber’s confidentiality, but his information was transmitted to the Internal Revenue Service, which then attempted to use it against him. Gerber sought a finding that the SEC had violated the protective order, and requested the return of his information. The district court modified the protective order to permit disclosure. Gerber appealed.

The Tenth Circuit determined that it had jurisdiction over Gerber’s request to enforce the protective order, even though the district court’s denial was not a final decision disposing of all issues. Under the collateral order rule, the appellate court had jurisdiction over the issue because it determined a disputed question that was completely separate from the merits, which would be effectively unreviewable on appeal from a final judgment.

Turning to the merits, the Circuit held that the district court abused its discretion by modifying the protective order to permit disclosure of confidential material. Because this was contrary to the order’s plain language, it violated Gerber’s reliance interest in the protective order. The district court’s order was reversed and the case was remanded.

No. 09-1084. Schroff v. Spellman. 03/23/2010. D.Colo. Judge Alarcon. Fourth Amendment—Search and Seizure—Right to Personal Privacy—Qualified Immunity.

Plaintiff Schroff obtained a restraining order against Greg Kruse, the father of her baby, which required him to keep 100 yards away from her but did not require her to keep away from Kruse. Kruse was to have supervised visitation with the infant. On the way to deliver the baby for a visit, Schroff saw Kruse’s truck parked outside a bar. She stopped to photograph the scene.

When Schroff and Kruse arrived at the police station for the child visitation, a dispute ensued. Defendant Spellman, a police officer, arrested Schroff. At this time, Schroff needed to pump her breasts. Spellman required a female cadet to be in the room while Schroff did so.

Schroff sued, claiming her Fourth Amendment rights were violated by her arrest and by requiring her to expose her breasts in the presence of another person. Spellman moved to dismiss on the basis of qualified immunity. The district court denied the motion.

The Tenth Circuit had jurisdiction over this interlocutory appeal because it presented a question of law: whether under the undisputed facts, Spellman was entitled to the defense of qualified immunity. The court held that plaintiff established that Spellman violated her Fourth Amendment right to be free from an unreasonable search and seizure. There was no evidence to support Spellman’s conclusion that he had probable cause to arrest her because she had violated the restraining order by allowing Kruse to come within 100 yards of her. Moreover, the restraining order did not authorize the arrest of Schroff, the protected person. The Circuit ruled that based on the undisputed evidence, no reasonable officer would determine that there was probable cause to arrest Schroff after reading the restraining order and being informed that Schroff was not a restrained person.

The Circuit also rejected Spellman’s request to dismiss Schroff’s claim that requiring her to expose her breasts in the presence of another person violated her right to personal privacy. The district court’s order denying Spellman’s motion for qualified immunity was affirmed.

No. 08-2297. United States v. Cook. 04/05/2010. D.N.M. Judge Briscoe. Miranda Warnings—Statements to Fellow Prisoner—Necessity of Custodial Interrogation to Trigger Right to Warning—Invocation of Counsel—Right to Silence.

Defendant, who was incarcerated, was charged with offenses relating to the death of a cellmate. An autopsy revealed that the cellmate had been strangled. Defendant and two other inmates housed in the cell initially told the sheriff’s office investigators that they had slept through the night and did not see or hear anything. After the autopsy, the investigators attempted to interview defendant. He stated he did not want to speak to them and invoked his right to an attorney. The interview was terminated.

A jail-house informant who was facing a lengthy federal sentence later told the sheriff’s office and the FBI that defendant told him about defendant’s involvement in the murder. The government promised to recommend leniency for the informant if he would approach defendant and question him about the murder. The prison conducted a mock "reclassification day" and placed the informant, wearing a recording device, in defendant’s cell. Defendant told the informant about the role that he and the other two cellmates played in killing the victim.

Defendant filed a motion to suppress all statements made to the informant, arguing that the government should not have used the informant to question him after he invoked his Miranda rights. He also argued that his statement was involuntary, because he believed that the informant’s motivation was to determine if defendant was cooperating with the government, which the informant then could expose within the Department of Corrections. The district court, finding that the informant was an agent of the government and that his questioning of defendant violated defendant’s Miranda rights, suppressed defendant’s statement. The government took an interlocutory appeal.

The Tenth Circuit addressed defendant’s contention that the government’s notice of appeal was late, depriving it of jurisdiction. The government filed a motion for reconsideration and appealed after its disposition. Contrary to defendant’s contention, this was not simply a motion for clarification, but was a true motion for reconsideration that sought to change the court’s decision. It therefore extended the time to appeal.

Turning to the merits, the Circuit concluded that defendant’s Miranda rights were not implicated, because his questioning by a fellow inmate was not a custodial interrogation. Defendant was unaware that he was in the presence of a government agent, and the pressure and coercion that Miranda seeks to protect against did not exist. Because Miranda did not apply, it was irrelevant that defendant had invoked his right to counsel when previously questioned by the officers. For the same reason, defendant’s right to remain silent was not implicated. The Circuit reversed the district court’s suppression order.

No. 09-2163. United States v. Begay. 04/12/2010. D.N.M. Judge Briscoe. Superseding Indictment Charging Additional Offenses—Charging Excluded Prior Bad Acts—Delay in Filing Superseding Indictment.

A grand jury indicted defendant on one count of aggravated sexual abuse of a child in Indian Country. Before trial, the government filed a motion seeking approval to introduce evidence that defendant had (1) sexually assaulted the victim on twenty prior occasions; (2) molested her younger sister; and (3) molested the mother of the two sisters when she was a girl. The government contended that the manner in which all the sexual assaults were committed was similar, thus making the assaults relevant under F.R.E. 414(a). Defendant contended that the evidence was unduly prejudicial, distracting, and time-consuming.

The district court concluded that the evidence was more prejudicial than probative, and denied the government’s motion. The Tenth Circuit affirmed. The government subsequently sought and obtained a superseding indictment, charging defendant with seven counts of aggravated sexual abuse of a child in Indian Country. All of the counts involved the original victim named in the previous indictment. Defendant moved to dismiss the indictment on the grounds that the government had engaged in excessive delay and sought to circumvent the district court’s order barring evidence of prior bad acts. The district court agreed that there had been excessive delay but found no actual prejudice to defendant, and granted the motion and directed that the trial proceed on the original indictment. The government took an interlocutory appeal.

On appeal, the Circuit considered whether there had been an unnecessary delay under Fed.R.Crim.P. 48 in presenting the charge to the grand jury. Rule 48 permits a district court to dismiss a case where the government has failed to prosecute in a timely manner. Here, the government had been aware of the information it relied on in the superseding indictment, but it had prosecuted diligently and did not engage in the sort of delay contemplated by Rule 48.

Moreover, the Circuit disagreed with the district court’s conclusion that it was improper for the government to respond in a tactical manner after the denial of its motion in limine. Defendant had not alleged, nor had the district court found, that the government acted vindictively in obtaining the superseding indictment. It was entirely proper for the government to alter its response tactics on its Rule 414 evidence and to seek the superseding indictment. The Circuit therefore reversed the order of dismissal and remanded for further proceedings.

No. 09-3182. Hill v. Rocoh Americas Corp. 04/19/2010. D.Kan. Judge Hartz. Federal Arbitration Act—Motion to Compel Arbitration—Factors.

Plaintiff sued his former employer. The employer filed an Answer and four months later moved to stay the case and compel arbitration under the arbitration clause in the parties’ employment agreement. The district court denied the motion, holding that the employer had waived its right to arbitrate by its delay in demanding arbitration after engaging the judicial process.

The Tenth Circuit had jurisdiction over this immediate appeal from an order denying arbitration. The Circuit noted that the Federal Arbitration Act strongly favors enforcement of arbitration agreements. A party should be denied arbitration if it is improperly manipulating the judicial process, such as waiting to request arbitration until substantial discovery has been completed or until the eve of trial. Other factors in deciding whether arbitration was waived include maintaining the combined efficiency of the public and private dispute-resolution systems and prejudice to the party opposing arbitration. Applying these factors to this case, the Circuit held that there was no waiver. A delay of four months after answering the complaint did not establish waiver, given that very little happened in the litigation during that period and the trial date was not imminent. The district court’s order denying the motion to compel arbitration was reversed.

No. 09-6049. United States v. Martinez. 04/19/2010. W.D.Okla. Judge Hartz. Guideline Sentencing—Attempted Burglary as Crime of Violence and Violent Felony.

Defendant pled guilty to being a felon in possession of a firearm. Previously, he had been twice convicted in Arizona of attempted second-degree burglary. The district court used these prior convictions to increase his sentence in two ways: (1) it treated the two burglary attempts as crimes of violence, which increased his base offense level; and (2) it treated the two offenses, along with another prior Arizona offense of second-degree burglary, as violent felonies, which caused his sentence to be enhanced under the Armed Career Criminal Act (ACCA).

On appeal, defendant challenged the classification of his attempted burglaries as crimes of violence and violent felonies. To be a violent felony, attempted burglary would have to "otherwise [involve] conduct that presents a serious potential risk of physical injury to another." Where state law defines an attempted burglary to require an overt act directed toward entry into or remaining in a structure, attempted burglary satisfies this test and constitutes a violent felony under the ACCA. Arizona law, however, does not require an overt act directed toward entry; it punishes any step taken toward commission of the offense. Therefore, even an attenuated act with no risk of violence attached can qualify. For this reason, a conviction of attempted burglary under Arizona law is not a violent felony.

Turning to the question of whether attempted burglary under Arizona law is a crime of violence, the Tenth Circuit reached a different result. The Official Commentary to the Sentencing Guidelines definition of "crime of violence" expressly includes an attempt to commit the offense. Thus, an Arizona attempted burglary is a crime of violence under the Sentencing Guidelines.

The Tenth Circuit affirmed the district court’s ruling that defendant’s attempted burglary offenses were crimes of violence, but reversed the ruling that they were violent felonies. The case was remanded for resentencing.

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