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TCL > September 2010 Issue > Summaries of Selected Opinions

September 2010       Vol. 39, No. 9       Page  127
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. 09-1169 & 09-1237. Fredericks v. Jonsson. 06/21/2010. D.Colo. Judge Hartz. Psychologist—Duty to Warn—Serious Threat of Imminent Physical Violence—No Liability for Failure to Predict Violent Behavior.

Plaintiffs sued Dr. Jonsson, a licensed psychologist, for failing to warn them of the danger posed by Troy Wellington. Jonsson had evaluated Wellington on behalf of the Colorado Probation Office a few days before he attempted to break into plaintiffs’ home. Wellington was on probation for a conviction for stalking plaintiffs’ daughters. During the evaluation, Wellington stated that he used to have frequent violent fantasies involving members of plaintiffs’ family, but he no longer had violent thoughts directed at them. Jonsson did not warn plaintiffs. Based on Wellington’s break-in attempt, plaintiffs sued Jonsson, claiming she had negligently failed to warn them that Wellington constituted a danger to them. The district court granted summary judgment in favor of Jonsson, and plaintiffs appealed.

Colorado’s mental health professional statute, CRS § 13-21-117, provides that a mental health professional is not liable for civil damages for failure to warn or protect against a mental health patient’s violent behavior, and is not liable for failing to predict violent behavior. There is a duty to warn, however, where the patient has communicated a serious threat of imminent physical violence against a specific person.

The Tenth Circuit held that § 13-21-117 applied here, even though Jonsson’s job was to evaluate Wellington, rather than to treat him; however, the Circuit found that Wellington did not communicate a serious threat of imminent physical violence and concluded that Jonsson was not liable.

The Circuit rejected plaintiffs’ argument that they could recover under the Colorado victim-rights statute, CRS §§ 24-4.1-301 et seq., whose purpose is to assure that crime victims are protected by law enforcement agencies, prosecutors, and judges. That statute does not impose any duties on mental health providers. The district court’s summary judgment in favor of Jonsson was affirmed.

No. 09-3073. United States v. Salazar. 06/21/2010. D.Kan. Judge Henry. Search and Seizure—Submission to "Show of Force" as Initiation of Seizure—Reasonable Suspicion to Seize Suspect.

Defendant was indicted for being a felon in possession of a firearm and ammunition. He filed a motion to suppress evidence of the crime that a state patrolman had discovered in his pickup truck during a detention. The district court granted the motion in part and suppressed some of the evidence. The government filed an interlocutory appeal.

The evidence showed that while parked one evening at a Kansas Department of Transportation facility, an officer observed defendant’s pickup truck enter a parking lot across the highway. The pickup made a U-turn, backed up the entire length of the lot, and parked next to a commercial vehicle. Then, its lights went off. The officer saw what appeared to be the pickup door opening, but no one got out. He drove his patrol car across the highway with the headlights off. As he approached the pickup, its headlights went on and it began moving toward the patrol car. The officer activated his emergency lights. The vehicles continued to move toward each other, and both stopped within a few feet of each other. When the officer directed his spotlight on defendant, defendant backed the pickup away, and the officer slowly drove toward the pickup. Defendant then began driving toward the patrol car, to go around it. The officer exited his vehicle, drew his firearm, and yelled for defendant to stop and get out of the pickup. Defendant complied. When he could not produce a driver’s license, the officer handcuffed him and placed him under arrest. In the area where defendant had stopped the pickup, the officer found a pistol. Inside the pickup, he found a gun case and a box of ammunition.

The district court found that the officer had seized defendant by the time he began backing up the pickup, and that the seizure was not supported by reasonable suspicion. The court suppressed the physical evidence found in the pickup, as well as defendant’s statements to the trooper. It found that the pistol, however, had been abandoned by defendant and denied his motion to suppress it.

On appeal, the key issue was at what point the seizure occurred. The Tenth Circuit held this was a question of law, to be evaluated under an objective test: at what point the officer’s words and actions would have conveyed to a reasonable person that his movements were restricted. This test required proof (1) that the officer showed his authority, and (2) that defendant submitted to the show of authority. Applying this standard, the Circuit concluded that defendant was not seized until he obeyed the officer’s command to get out of this truck. Simply backing up the pickup was not a sign of submission. Moreover, the Circuit agreed with the government that by the time defendant submitted, the officer had reasonable suspicion to detain him based (1) on the possibility that he might have stolen property from the adjacent commercial vehicle, and (2) on his evasive action of backing away from the officer’s vehicle. The Circuit therefore reversed the partial order of suppression and remanded the case for further proceedings.

Nos. 09-2013 & 09-2014. United States v. Quaintance. 06/28/2010. D.N.M. Judge Gorsuch. Religious Freedom Restoration Act—Use of Illegal Drugs as a Religious Rite—Sincerity of Belief.

Defendants pled guilty to conspiracy and possession with intent to distribute marijuana, reserving the right to appeal the district court’s denial of the motion to dismiss the indictment based on the Religious Freedom Restoration Act (RFRA). The case stemmed from the arrest of co-defendant Joseph Butts, who was arrested while driving a pickup truck containing approximately 338 pounds of marijuana. To raise bail money for Butts, defendants recruited Timothy Kripner to deliver a load of marijuana for them. In the course of this transaction, defendants and Kripner were arrested by border patrol agents. They moved to dismiss their indictment, arguing that they were members of the Church of Cognizance, which defendant Daniel Quaintance had founded in 1991. The church teaches that marijuana is a deity and sacrament, and defendants contended that possession and consumption of marijuana was essential to their religious exercise.

On appeal, the Tenth Circuit noted that an RFRA claim requires a criminal defendant to show by a preponderance of evidence that the challenged government action (1) substantially burdens (2) a religious belief (not merely a philosophy or way of life) (3) that the defendant sincerely holds. If the defendant makes this showing, the government must prove that the challenged action is justified as the least restrictive means of furthering a compelling governmental interest.

The district court found that defendant had satisfied neither of the two latter elements. The Circuit concluded that the district court’s "sincerity" ruling was not reversibly wrong; it therefore did not address the "religiosity" holding.

The Circuit noted several facts tending to show that defendants’ marijuana dealings were motivated by commercial motives rather than sincere religious conviction. First, Kripner testified that defendants considered themselves to be in the marijuana "business" and bought marijuana from him for resale. Second, that business apparently was integral to the transaction resulting in their arrest. Third, defendants hastily inducted Kripner into the Church of Cognizance on the night before he was to pick up marijuana for them, without determining the sincerity of his beliefs. Fourth, defendants also purchased cocaine from Kripner for recreational purposes, undermining their religious rationale for using marijuana. The Circuit noted that notwithstanding defendants’ assertions about their modest standard of living, and the Church of Cognizance’s official condemnation of selling marijuana, overwhelming evidence supported the district court’s conclusion that defendants were running a commercial marijuana business with a religious front. The Circuit therefore upheld the conviction.

No. 08-1462. Weinman v. Graves (In re Graves). 06/29/2010. Bankruptcy Appellate Panel. Judge Holloway. Bankruptcy—Tax Refund Irrevocably Applied to Next Tax Year—Trustee’s Interest Same as Debtors’—Debtors Not Required to Reimburse Estate.

Before filing for bankruptcy protection, debtors elected to apply their $3,000 tax refund for 2006 to any future tax liability for 2007. This election was irrevocable. After they filed for bankruptcy protection, the trustee in bankruptcy sought an order requiring them to pay $3,000 to the bankruptcy estate, claiming the tax refund was property of the estate. The bankruptcy court denied the trustee’s motion and the Bankruptcy Appellate Panel (BAP) affirmed. The trustee appealed.

The Tenth Circuit ruled that the trustee’s interest in the 2006 tax refund was the same as that of the debtors. The Tax Code makes the refund application election irrevocable. Therefore, the debtors had no right to any cash from the 2006 refund they applied to their 2007 taxes until after their 2007 tax liability was determined, and then only if they would be entitled to a further refund. The portion of any 2007 refund attributable to pre-petition earnings would become property of the estate. The BAP’s judgment was affirmed.

No. 09-6246. United States v. McGinty. 06/29/2010. W.D.Okla. Judge Briscoe. Restitution and Forfeiture—Duplication of Recovery.

Defendant pled guilty to one count of misapplication of bank funds. He was employed as executive vice president of an Oklahoma bank. He used his position to transfer more than $500,000 from a customer’s account to his personal account, and used the funds for his own purposes. His plea agreement called for him to forfeit property worth $536,995 to the government.

Defendant repaid $320,000 to the bank, and asked that the forfeiture amount be reduced by this amount. At sentencing, the government requested both restitution and forfeiture. The district court ordered that the restitution amount be reduced by the $320,000 already paid. It then ordered that defendant forfeit his home and his boat, which had been purchased with stolen proceeds, but declined to order forfeiture equal to the full amount of the loss, reasoning that to order both full restitution and full forfeiture would represent a "double recovery."

The government filed a Fed.R.Crim.P. 35 motion, arguing that the district court should have granted a money judgment for the remaining amount of loss as part of its forfeiture order. The district court denied the motion.

On appeal, the government contended that it was entitled to a judgment for the full remaining amount of stolen funds. The Tenth Circuit determined that this question involved statutory interpretation, and must therefore be reviewed de novo. Applying this review standard, the Circuit determined that the plain language of the criminal forfeiture statute, 18 U.S.C. § 982(a)(2), makes forfeiture of proceeds of a crime mandatory. Because forfeiture is a sanction against the individual defendant rather than a judgment against the property to be forfeited, a money judgment is appropriate. The district court therefore should have ordered that a money judgment enter against defendant.

The district court further erred by reducing the forfeiture amount owed by defendant, in light of the amount he was required to pay the bank in restitution. Both restitution and forfeiture were mandatory in this instance. Forfeiture, which is punitive, serves a different purpose from restitution, which is remedial in nature. Even if paying both restitution and a forfeiture results in defendant having to disgorge twice the proceeds of the crime, this is in no way disproportionate to the costs to society of his offense. The district court lacked statutory authority to reduce the mandated criminal forfeiture order merely because defendant also owed restitution. The Circuit therefore reversed the district court’s judgment and remanded the case for further proceedings.

Nos. 09-3037 & 09-3038. United States v. Apollo Energies, Inc. 06/30/2010. D.Kan. Judge Tymkovich. Strict Liability Offenses—Fair Notice of Criminal Conduct.

Following a trial before a federal magistrate judge, defendants were convicted of the misdemeanor offense of taking or possessing migratory birds. Defendants, who are oil drilling operators, were charged after dead birds were discovered lodged in a piece of their oil drilling equipment. The magistrate judge imposed a fine for the offenses. The district court affirmed, concluding that the violations of the Migratory Bird Treaty Act (MBTA) for which defendants were convicted are strict liability offenses that do not require a knowing or intentional violation of the law.

The dead birds were found in defendants’ "heater-treaters," cylindrical pieces of equipment up to twenty feet high and three feet wide that separate oil from water when the mixture is pumped from the ground. After previous incidents involving birds in heater-treaters, the U.S. Fish and Wildlife Service (Fish & Wildlife) had engaged in a public education campaign designed to alert oil producers to the heater-treater problem. After the campaign was complete, Fish & Wildlife searched defendant Apollo’s and defendant Walker’s heater-treaters and found protected bird carcasses in them. A year later, Fish & Wildlife performed another search of Walker’s heater-treaters and found a dead protected bird there, even though he had placed metal caps on the exhaust pipes where birds previously had been found.

On appeal, the Tenth Circuit agreed with the district court that the MBTA offenses were strict liability offenses; however, even a strict liability interpretation would satisfy the requirements of due process only if defendants (1) had fair notice of what conduct was criminal, and (2) actually caused the criminal acts. The Circuit determined that the MBTA itself was not unconstitutionally vague; to be constitutional, though, the act must proscribe only actions that defendant proximately caused. Here, Apollo had notice that its equipment was a bird trap that could kill, but Walker did not know about problems with his heater-treaters prior to the first offense for which he was convicted. Without such notice, no reasonable person would have concluded that the exhaust pipes of a heater-treater would lead to the deaths of migratory birds. Walker’s conviction of the earlier offense was reversed, and the remaining convictions were affirmed.

Nos. 09-5089 & 09-5095. Skrzypczak v. Roman Catholic Diocese of Tulsa. 07/13/2010. N.D.Okla. Judge McKay. Employment Discrimination—Church Employee—Ministerial Exception—Jurisdiction to Review Claims—Conclusory Affidavits Insufficient.

Plaintiff sued her former employer, the Roman Catholic Diocese of Tulsa (Diocese), for gender and age discrimination after she was discharged from her position as the director of the Diocese’s department of religious formation. The district court granted summary judgment to the Diocese under the ministerial exception. The ministerial exception preserves a church’s essential right to choose the people who preach and teach its tenets, both to its membership and to others. The doctrine applies to a church employee whose position is important to the church’s mission, as well as to the church’s ordained minister. Plaintiff appealed.

The Tenth Circuit rejected the Diocese’s argument that the court was without jurisdiction to address plaintiff’s claims. Although the ministerial exception may be a barrier to the success of a plaintiff’s claims, it does not affect the court’s authority to consider them. The Circuit determined that although plaintiff’s job included purely administrative tasks, it also involved responsibilities—particularly teaching religious courses—that furthered the core of the spiritual mission of the Diocese. Accordingly, plaintiff was subject to the ministerial exception. Plaintiff had submitted affidavits stating that her job was purely administrative, but the Circuit held that they did not preclude summary judgment because they were conclusory and did not set forth any facts.

The Circuit held that although a church’s employment decision may be subject to scrutiny of Title VII of the Civil Rights Act, where the decision does not involve the church’s spiritual functions, because plaintiff was a minister for Title VII purposes, her claims were barred. For the same reasons, plaintiff’s claims under the Equal Pay Act also were barred. The district court’s judgment was affirmed.

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