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TCL > July 2010 Issue > Summaries of Selected Opinions

July 2010       Vol. 39, No. 7       Page  157
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 08-1491. Kaufman v. American Family Mutual Insurance Co. 04/20/2010, D.Colo. Judge Tacha. Attorney Sanctions—Protective Order—Class Action—Client Solicitation.

A client of the Silvern Law Offices (Silvern) was involved in an automobile accident with a driver insured by defendant. Silvern filed a class action lawsuit against the insurance company, alleging that the company promised injured parties such as its client that it would settle but never did. Silvern got access to the insurance company’s files to determine if the numerosity requirement for a class action could be met by the number of claimants to whom the company had sent a letter promising to settle. In allowing access, the district court issued a protective order limiting Silvern’s use of the files to prepare for trial in only this case. Silvern, however, solicited additional class plaintiffs from the files. The district court sanctioned Silvern for violating the protective order. Silvern’s client then settled. An attorney for the insurance company made an ex parte telephone call to the court clerk to inquire about retaining jurisdiction, even though the nominal plaintiff had settled. The district court also sanctioned that attorney.

Silvern appealed the sanctions imposed for violating the protective order. The Tenth Circuit rejected Silvern’s argument that the protective order permitted it to solicit additional clients. The Circuit declined to require district courts to expressly enumerate each and every act prohibited by a protective order, even when the prohibited acts are obvious.

Next, the Circuit rejected Silvern’s First Amendment claim, holding that the contact with prospective clients involved commercial speech, which enjoys only limited protection. After denying Silvern’s due process claim, the court affirmed the sanction imposed on the insurance company’s attorney, but declined Silvern’s request for a remand to pursue its speculative claim that additional ex parte communications had ensued. The district court’s orders were affirmed.

No. 09-7091. United States v. Burkhart. 04/23/2010. E.D.Okla. Judge Kelly. Probable Cause—Stale Information Used for Warrant—Nexus Between Crime and Place Searched—Multiple Warrants for Different Premises.

Defendant pled guilty to possession of matter containing a visual depiction of a minor engaging in sexually explicit conduct. In his plea agreement, defendant reserved the right to appeal the district court’s denial of his motion to suppress the evidence found in a search of his home. The search took place as the result of an investigation of a child pornography ring by the European Law Enforcement Organization (Europol). After investigating an Italian national who operated a website that sold child pornography, Europol passed on to the FBI e-mails from the pornographer to U.S. citizens, including someone with defendant’s name.

The FBI was unable to verify that defendant resided at the same physical address associated with the e-mail address, but found motor vehicle registrations at two other addresses associated with defendant’s name and date of birth. Armed with this and other information suggesting that defendant resided at one of the addresses, police obtained search warrants for both addresses. One of them turned out to be the residence of defendant’s ex-wife but not of defendant. The officers returned the warrant for this residence unserved. At the other address, they found defendant, as well as more than 400 DVDs with images of child pornography. The district court denied defendant’s motion to suppress the pornography.

On appeal, defendant argued that the search warrant affidavit did not establish probable cause to search his home for three reasons: (1) at the time the warrants were executed, the information from Europol was stale; (2) no nexus was shown between the suspected possession of child pornography and his home; and (3) each affidavit undermined the probable cause in the other affidavit. The Tenth Circuit rejected each of these contentions.

Though more than two years had passed between the time of the e-mails and the search, the information was not stale, because defendant was charged with possession of child pornography, not with acquiring it, and there was no reason to believe he did not continue to possess the pornography. Other information in the affidavit, along with testimony that collectors typically hoard and retain such materials for years, justified the conclusion that the information was not stale. There was no evidence to support defendant’s suggestion that collectors tend to keep pornography received over the Internet for a shorter span than materials received through the mail.

As to the nexus, the officers’ investigation supported the magistrate judge’s conclusion that there was a fair probability that defendant would be found at the address where he was found, and that child pornography would be found there. Finally, law enforcement may obtain multiple warrants for multiple locations, as long as they demonstrate probable cause as to each location. That requirement was satisfied here and, at a minimum, the good faith exception therefore applied and exclusion of the evidence would have been inappropriate. The Tenth Circuit therefore affirmed defendant’s conviction.

No. 09-8079. United States v. Batton. 04/23/2010. D.Wyo. Judge Tymkovich. Evidence of Prior Bad Acts—F.R.E. 413—Expert Testimony Concerning Modus Operandi of Sex Offenders.

Defendant was convicted of transporting a 14-year-old family friend to Chicago, where he sexually assaulted him. He was sentenced to 360 months’ incarceration under the Interstate Transportation of a Minor for Unlawful Sexual Relations Act. On appeal, he argued that the district court erred by (1) admitting evidence of his past conviction for a sexual offense against another 14-year-old family friend; (2) giving an improper jury instruction regarding the relevance of the prior sexual assault; and (3) allowing an expert witness to testify regarding the methods sex offenders use to recruit and groom victims.

The Tenth Circuit disagreed with each of defendant’s arguments. The evidence of prior sexual assault involving another victim was admissible under F.R.E. 413, which permits relevant evidence of other sexual assault offenses committed by a defendant charged with sexual assault. The prior assault, which involved oral sex with a 14-year-old boy, clearly qualified as a sexual assault for F.R.E. 413 purposes, as did the illicit sexual activities in this case. Moreover, the evidence of the prior assault was relevant, because both offenses showed a pattern of grooming and assaulting young male victims. The probative value of the evidence also exceeded the danger of unfair prejudice for purposes of F.R.E. 403; the prior offense was proved through defendant’s conviction; it showed that defendant had a propensity for grooming and sexually assaulting teenage boys; and defendant denied having committed any of the acts charged, making his prior conviction a crucial piece of evidence to help the jury determine the validity of defendant’s accusations.

Defendant also challenged a jury instruction that informed the jury it could consider the prior evidence for its bearing on the question of the improbability that defendant had been falsely or mistakenly accused of the crimes. Defendant claimed this part of the instruction suggested to the jury that it had to draw an inference of guilt based on his conviction for the prior offense. The Tenth Circuit concluded that, taken in context, this portion of the instruction merely informed the jury that the prior conviction might have some bearing on the improbability the government falsely or mistakenly accused defendant of the charged offense. The remainder of the instruction informed the jury that it must find him guilty of the offense charged in this case, and that the burden of proving guilt remained with the government.

Finally, defendant challenged the government’s use of expert testimony that sex offenders often are close family members, friends, or well-respected individuals in the community who often use their positions to "groom" the victims into trusting them. Far from improperly profiling defendant, this information was useful to help jurors understand that sexual offenders are not strangers who fit some misconceived criminal caricature. It informed the jury of the modus operandi of sex offenders, which may not necessarily have been common knowledge. The Tenth Circuit therefore affirmed defendant’s conviction.

No. 08-1313. Rodriguez v. Wet Ink, LLC. 04/26/2010. D.Colo. Judge Tymkovich. Employment Discrimination—Right-to-Sue Notice—Colorado Civil Rights Division—EEOC—Work-Sharing Agreement.

After her employment was terminated, plaintiff filed separate discrimination charges with the Colorado Civil Rights Division (CCRD) and the federal Equal Employment Opportunity Commission (EEOC), alleging that her employer had discriminated against her based on her national origin and gender. The CCRD attempted mediation, but was unsuccessful.

Plaintiff requested a right-to-sue notice from the CCRD and EEOC. The CCRD issued the requested notice on November 25, 2007, but the EEOC did not issue its notice until January 29, 2008. Colorado and federal law require a discrimination plaintiff to file suit within ninety days of the agency’s action. Plaintiff filed her federal lawsuit on April 25, 2008, which was within ninety days of the EEOC’s right-to-sue notice, but more than ninety days after the CCRD issued its notice. The district court dismissed the case as time-barred. Plaintiff appealed.

The Tenth Circuit observed that all of plaintiff’s claims were based on federal law. The Circuit recognized that the CCRD and the EEOC have a work-sharing agreement to process certain discrimination charges. After each agency receives a discrimination charge, it is automatically filed with the other agency; however, the agencies’ work-sharing agreement does not authorize the CCRD to issue right-to-sue notices on behalf of the EEOC. Consequently, the CCRD’s notice did not trigger the federal ninety-day limitations period; therefore, the plaintiff’s claims were not time-barred. The district court’s dismissal order was reversed and the case was remanded.

No. 07-5140. United States v. Silva-Arzeta. 04/27/2010. N.D.Okla. Judge Hartz. Search and Seizure—Consent to Search Given in English by Spanish-Speaking Defendant—Evidence Tampering—Necessity of Timely Objection and Relief.

A jury convicted defendant of drug and firearms offenses. The drugs and firearms were discovered as the result of a search of defendant’s apartment. This search occurred after officers noticed a series of persons making visits to the apartment in a manner associated with drug sales. Defendant entered the apartment with a key, then later drove away. Officers stopped his vehicle because he was not wearing a seatbelt. After an officer questioned him in English and he responded in English that he did not have a driver’s license, defendant was arrested. A search of his car turned up methamphetamine, and a search of his person turned up a large sum of cash. Officers questioned him further after giving him a Miranda warning. One of the officers asked in English whether he could search defendant’s apartment, and defendant allegedly answered "Yeah." Officers then asked if they could use defendant’s key to open the door, to which he also allegedly consented. Inside the apartment, they discovered drug paraphernalia, methamphetamine, and a semiautomatic pistol and ammunition. At the police station, another officer questioned defendant in Spanish, and he made certain admissions about his drug business.

On appeal, defendant argued that he did not validly consent to the search of his apartment. He claimed that he did not understand English and his consent was coerced. The evidence, however, was sufficient to permit the district court to determine that defendant had a working knowledge of English. Moreover, although he was handcuffed when he was asked for consent to search the apartment, there was no evidence showing that he was intimidated into involuntarily consenting.

Defendant also challenged the use of testimony by the officer who questioned him in Spanish, contending that the officer was not properly certified as an interpreter, that the officer’s status as a law enforcement officer should have prevented him from acting as an interpreter for a police interrogation, and that the failure to record the interrogation prevented verification of his incriminating statements. The fact that there might be doubt about whether the officer properly interpreted defendant’s words, however, raised a factual issue rather than a due process problem. Neither the use of certified interpreters nor recording devices during interrogation is constitutionally required.

Finally, defendant was tried twice. The first trial ended in a mistrial. During the second trial, his counsel discovered that baggies in evidence may have been tampered with between the two trials; however, he requested no relief. After the second trial, defendant moved to examine the jurors from both trials, to detect whether tampering had occurred. The Tenth Circuit held that the district court properly denied this relief, because defendant knew about the alleged tampering before the second trial began and failed to seek evidence to confirm it on a timely basis. The district court’s judgment therefore was affirmed.

No. 08-3218. Vanderwerf v. Smithkline Beecham Corp. 04/27/2010. D.Kan. Chief Judge Henry. Untimely Notice of Appeal—Motion to Reconsider Withdrawn—No Appellate Jurisdiction—Appeal Dismissed.

The family of a man who committed suicide sued the maker of Paxil, alleging that the drug increased the man’s suicide risk. In January 2008, the district court granted summary judgment to defendant. Plaintiffs filed a motion to reconsider within ten days under F.R.C.P. 59(e), thus tolling the time to file a notice of appeal until after the court ruled on the motion. The court did not rule, so seven months later, plaintiffs withdrew the Rule 59 motion and filed a notice of appeal.

The Tenth Circuit held that the notice of appeal was filed too late to confer appellate jurisdiction. A notice of appeal must be filed within thirty days after judgment. The timely filing is mandatory and jurisdictional. Here, plaintiffs’ withdrawal of the Rule 59 motion in August 2008, without the entry of an order by the district court, left the January 2008 order as the order being appealed. Because that order was seven months old, the time for filing a notice of appeal expired approximately six months earlier. The motion by defendant to dismiss the appeal was granted.

No. 09-2046. United States v. Lujan. 04/29/201. D.N.M. Judge Ebel. Death Penalty Phase of Trial—Admission of Prior Unconvicted Homicides—Prejudice and Probative Value.

Defendant was charged with kidnapping resulting in the death of a victim. For the purpose of the sentencing phase of his death penalty trial, the government sought to admit evidence that he had previously committed a particularly gruesome double homicide in New Mexico. Defendant had not been convicted of the double homicide, but the government proposed to present evidence that he had committed it. The district court determined that this evidence was unfairly prejudicial and excluded it. The government took an interlocutory appeal from this ruling.

The Tenth Circuit first determined that the evidence of the double homicide was relevant and of considerable probative value to defendant’s future dangerousness, particularly in light of the cold, calculated, and brutal conduct it demonstrated. Introducing evidence in the sentencing phase of defendant’s trial would not undermine defendant’s presumption of innocence with respect to the other crimes in an eventual trial in state court on these other murders. The vicious, brutal nature of defendant’s conduct was not itself sufficient to justify a complete exclusion of evidence tending to show that defendant engaged in those acts. If defendants were allowed to keep out evidence of grisly crimes simply because they were grisly, this would have the perverse result of making it better for sentencing if the defendant engaged in hideous acts rather than more pedestrian ones. The jury should be provided with more evidence, rather than less, to reveal the true nature of defendant’s character. The district court had sufficient discretion to control the presentation of evidence to minimize the risk of unfair prejudice to defendant.

Finally, the district court overstated the risk of juror confusion leading to the possibility that jurors might treat the murders as an independent aggravating factor rather than as evidence of future dangerousness. The district court could give appropriate instructions to minimize that risk. The Tenth Circuit therefore reversed the district court’s order excluding evidence, and remanded.

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