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

TCL > October 2010 Issue > Summaries of Selected Opinions

October 2010       Vol. 39, No. 10       Page  111
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. 09-2244. U.S.A. v. Ford. 07/27/2010. D.N.M. Judge Kelly. Use of Evidence of Uncharged Prison Escape as Res GestaeAssault on Officer—Prior Conviction of Discharging Firearm at Occupied Vehicle as Violent Felony.

A jury convicted defendant of (1) being a felon in possession of firearms and ammunition; (2) being a fugitive in possession of firearms and ammunition; and (3) possession of stolen firearms. Defendant was serving a state sentence at a Kansas prison when he escaped with the aid of a fellow inmate and a former prison guard. The guard’s participation in the escape included stealing three pistols, one of which was a .40 caliber Glock; renting a getaway car; cutting through exterior fences at the prison; and providing guns for the escapees. After a manhunt, police arrested the guard and cornered defendant and the other inmate at an apartment complex. The two men attempted to elude police by scaling a fence. Police were able to apprehend the other inmate in a field next to the apartment complex, at which point they heard shots fired at a close range. A sheriff’s deputy responded to their call for backup and apprehended defendant in the apartment complex parking lot. Police later found shell casings from a .40 caliber Glock pistol approximately 100 feet from where they had apprehended the first inmate, and located the Glock approximately thirty-four feet from where defendant was apprehended. They found a .22 caliber pistol on the other inmate.

On appeal, defendant challenged admission of evidence concerning his uncharged prison escape, which he contended was unduly prejudicial to him. The evidence came in the form of defendant’s statements to a deputy U.S. marshal after his capture. These statements established he was a fugitive and that he had fired the gun during the police chase. The former prison guard also testified concerning her relationship with defendant and provided details of the escape and their capture. This testimony established that defendant was a fugitive, that he knew the firearms were stolen, and that he knowingly possessed the Glock and had access to another gun during the escape drive. This evidence was admissible as part of the res gestae (intrinsic evidence inextricably connected to the charged crimes). Its admission was not unfairly prejudicial.

Defendant also challenged the district court’s application of a sentencing enhancement for assaulting a law enforcement officer. The Tenth Circuit upheld this enhancement. Even if the government failed to prove that defendant shot at the officers, there was evidence that during the course of escape and in the middle of the night, he fired four rounds in proximity to the officers, thus creating a substantial risk of serious bodily injury. Whether diversionary or intended to harm the officers, the gunshots qualified as an assault on the officers.

Finally, the Circuit upheld the use of defendant’s prior conviction for criminal discharge of a firearm at an occupied dwelling or occupied vehicle as a predicate violent felony for purposes of the Armed Career Criminal Act (ACCA). Applying the modified categorical approach, which examines the charging documents and documents of conviction when the statute of conviction proscribes conduct broader than what would satisfy the ACCA’s definition of violent felony, the Circuit determined that defendant’s prior offense qualified as a violent felony. In his plea colloquy, defendant admitted to firing two shots toward an occupied vehicle. This fell within the ACCA’s residual clause as an offense presenting a serious potential risk of physical injury to another, because it involved purposeful, violent, and aggressive conduct. The Circuit therefore affirmed defendant’s conviction and sentence.

No. 09-8056. U.S.A. v. Landeros-Lopez. 08/03/2010. D.Wyo. Judge Lucero. Factual Basis for Guilty Plea—Additional Evidence Beyond Defendant’s Statements—Timing of Allocution.

Defendant pled guilty to one count of conspiracy to trafficking in methamphetamine. Police raided his apartment after a known methamphetamine dealer notified law enforcement officers that he had purchased methamphetamine in the apartment. In the apartment, which defendant shared with his cousin, police found methamphetamine, a loaded shotgun, and cash. At his plea hearing, defendant was asked to submit a factual basis for his guilty plea. He denied knowing about any methamphetamine sales in his apartment, or benefitting from such sales, but admitted that his cousin was selling methamphetamine and that he had accepted rent money from the cousin. The district court nevertheless accepted the guilty plea. At sentencing, the district court asked defendant whether he had anything to say before it imposed sentence. Defendant offered an apology, and the district court concluded proceedings shortly thereafter.

On appeal, defendant argued that the district court should not have accepted the plea, because there was no factual basis to support a conviction for conspiracy. The Tenth Circuit rejected this argument. It first noted that a district court is not restricted to a defendant’s statements at the plea colloquy in determining whether a factual basis exists. Here, the pre-sentence report (PSR) and the prosecutor’s statements, when considered with defendant’s statements at the plea colloquy, provided a sufficient factual basis for the plea. Although the PSR did not exist at the time defendant’s guilty plea was accepted, and therefore could not be considered in determining the existence of a sufficient factual basis, it could be considered in determining whether any error in accepting the plea affected defendant’s substantial rights. Where the record as a whole demonstrates a sufficient factual basis for a defendant’s plea, any error in determining whether a factual basis exists at the time of the plea is harmless.

Defendant also argued that he was denied his right of allocution—the right to speak or present any information before sentence is imposed. The district court allowed him to speak only after it had verbally announced his sentence from the Bench. A written judgment imposing sentence, which did not vary from the verbal sentence, followed six days later. Inviting a defendant to speak only after sentence has been announced does not provide a meaningful opportunity for allocution. Because depriving a defendant of allocution is per se prejudicial, the Circuit reversed defendant’s sentence and remanded for re-sentencing.

Nos. 09-4108 & 09-4120. Flitton v. Primary Residential Mortgage, Inc. 08/05/2010. D.Utah. Judge Tacha. Attorney Fees—Prevailing Party—Lodestar Amount—Claims Interrelated—Degree of Success—Must Request Attorney Fees for Appeal From Appellate Court—Jurisdiction.

In this Title VII action, the district court entered judgment in defendant’s favor. In a prior appeal, the appellate court reversed and remanded for a new trial. Plaintiff did not ask the appellate court to award her attorney fees. On remand, plaintiff prevailed on some of her claims, and the district court awarded her $367,689 in attorney fees as a prevailing party. The court declined to include an amount for fees related to the first appeal. Defendant appealed the fee amount, and plaintiff cross-appealed the denial of appellate attorney fees.

The Tenth Circuit noted that the most useful starting point is the lodestar amount: the number of hours reasonably expended multiplied by a reasonable hourly rate. Where a party was successful on only some of his or her claims, the court must consider whether the successful and unsuccessful claims were related and whether the plaintiff’s overall success justifies a fee award based on the hours expended by the plaintiff’s counsel. The district court did not abuse its discretion in awarding attorney fees for plaintiff’s unsuccessful claims, because they were interrelated with her successful claims. In addition, even though plaintiff’s recovery was not as much as she sought, her award of more than $350,000 in damages was not inconsequential, so a fee reduction was not required based on plaintiff’s degree of success.

Turning to plaintiff’s cross-appeal for attorney fees for the first appeal, the Circuit held that a party must request such fees from the appellate court. Plaintiff did not do so; therefore, the district court was without jurisdiction to consider her request. The district court’s order was affirmed.

No. 09-6157. Dodds v. Richardson. 08/06/2010. W.D.Okla. Judge Baldock. Supervisor Liability After Iqbal—Civil Rights—Liberty Interest—Qualified Immunity.

After his arrest on a Friday, plaintiff was not allowed an opportunity to post bail until he was arraigned by a judge, despite the arrest warrant’s statement of a pre-set bail amount. Plaintiff was arraigned on the following Monday, having spent the weekend in jail. The charges underlying the arrest were eventually dismissed. Plaintiff then sued the county sheriff, claiming the jail’s policy of not allowing individuals to post bond after hours deprived him of his liberty interest. Plaintiff’s claims against the sheriff were based on the sheriff’s bail policy, rather than on any personal involvement by the sheriff in detaining him. The district court denied the sheriff’s summary judgment motion based on qualified immunity, and he appealed.

On appeal, the sheriff argued that he was entitled to qualified immunity because plaintiff failed to show that he was personally involved or that he had acted with the state of mind necessary to impose liability. The Tenth Circuit considered Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), in which the Supreme Court held that claims for supervisory liability require a plaintiff to prove not only that the official’s subordinates violated the Constitution, but that the official, by virtue of his or her own conduct and state of mind, did so, as well. The Circuit ruled that a supervisor may be liable if the plaintiff demonstrates that he or she (1) was responsible for a policy that caused the constitutional harm; and (2) acted with the state of mind required to establish the alleged constitutional deprivation. Here, plaintiff alleged a substantive due process violation, so he must establish that the sheriff acted with deliberate indifference to his due process right to post pre-set bail. Plaintiff’s evidence of the sheriff’s state of mind was sufficient to survive summary judgment. Moreover, plaintiff had produced sufficient evidence to show that his right to be freed from detention once bail had been set was clearly established. Accordingly, the district court’s order denying summary judgment was affirmed.

Nos. 08-1347 & 08-1370. Newmont U.S.A. Ltd. v. Insurance Company of North America. 08/11/2010. D.Colo. Judge Tymkovich. Arbitration—Insurance Contract—Broad Arbitration Clause—Post-Judgment Interest Rate—Date of Accrual.

Plaintiffs sought a declaratory judgment that they were no longer liable to defendant Insurance Company of North America (INA) for re-insurance arising out of policies issued by INA. The district court compelled arbitration pursuant to the parties’ contract, and the arbitration panel found in INA’s favor, awarding monetary damages. The court then modified the award of post-judgment interest and entered final judgment. Plaintiffs appealed, arguing that the court erred by compelling arbitration. INA cross-appealed, claiming the court erred by modifying the arbitration panel’s award of post-judgment interest.

The Tenth Circuit held that unless the parties’ agreement states clearly to the contrary, the question of arbitrability is for the court. Where, as here, the arbitration provision is broad, there arises a presumption of arbitrability. Moreover, an arbitration clause in a contract is presumed to survive the expiration of that contract, and the disputed issues concerned rights that vested and events that transpired while the contract was in effect. Consequently, the district court correctly compelled arbitration.

As for the district court’s modification of the award concerning post-judgment interest, the Circuit ruled that the district court had improperly replaced the post-judgment interest rate established by the arbitration panel with the statutory rate in 28 U.S.C. § 1961. The panel had the authority to decide the post-judgment interest issue, and the contract provided for an interest rate other than the rate specified by § 1961. Finally, the Circuit modified the date on which interest began accruing, stating that § 1961 dictates that interest accrues on the date of judgment. The district court’s judgment was affirmed in part and reversed in part.

No. 08-1477. U.S.A. v. Weiss. 08/17/2010. D.Colo. Judge Murphy. Factual Basis for Mail Fraud, Wire Fraud, and Witness Tampering Convictions—Use of Grouping to Apply Later Version of Sentencing Guidelines as Ex Post FactoViolation.

A jury convicted defendant of numerous counts of mail fraud, wire fraud, and witness tampering, and of aiding and abetting these offenses. He was charged with organizing a scheme to obtain mortgage loans for low-income, unsophisticated home buyers through a Federal Housing Authority (FHA) program sponsored by the Department of Housing and Urban Development (HUD). Defendant was charged with helping homebuyers obtain subsidized loans through the FHA’s Single Family Home Mortgage program even though they were ineligible, and paid the buyers’ down payments in violation of HUD rules.

On appeal, defendant challenged the sufficiency of the evidence to convict him of mail fraud. The Tenth Circuit noted that for this offense, use of the mail must be part of the execution of the fraud. Here, the relevant mailings were deeds of trust sent from the Denver County Clerk and Recorder to the lenders designated on the deeds. Defendant argued that these mailings were not part of the execution of the scheme, but were merely post-fruition mailings that had no effect on the ongoing viability of his scheme. The Circuit rejected these arguments; defendant’s lack of personal involvement with the mailings was immaterial, because he knew the mailings were reasonably forseeable as part of his scheme, and the mailings facilitated and were necessary to the overall scheme by making the FHA-loans marketable to downstream investors.

Defendant also challenged the factual basis for his convictions of wire fraud. The charged transmissions supporting these convictions were Internet messages sent by a loan processor in Colorado to the FHA in Maryland, requesting an FHA case number in connection with the loans for properties involved in the scheme. The evidence presented at trial allowed the jury reasonably to infer that defendant intentionally applied for the FHA loans. The evidence was also sufficient to show that defendant reasonably could have foreseen that the fraudulent FHA applications would result in use of a wire communications facility. This was sufficient to uphold the conviction for wire fraud.

The Circuit considered the factual basis for defendant’s convictions of witness tampering. The evidence showed that defendant, through a co-defendant, asked three witnesses to lie to investigators about the true source of the down payments on some of the fraudulent loans. This evidence was sufficient to establish that defendant attempted to "corruptly persuade" someone to provide false information to federal investigators, thereby committing the offense of witness tampering. The Circuit reviewed for plain error defendant’s additional contention that he merely persuaded witnesses to exercise their Fifth Amendment rights to withhold self-incriminating information from investigators, and found that defendant could not show prejudice from the alleged error. The evidence showed that he persuaded the witnesses to lie rather than to merely avoid speaking with investigators, and the jury instructions required that the jury find that he told the witnesses to lie before convicting him of this offense.

Regarding sentencing issues, defendant argued that the district court’s use of the 2007 Sentencing Guidelines Manual (Manual), rather than the 2000 Manual, violated the ex post facto clause. Two of the witness tampering charges occurred after the 2001 Manual (identical to the 2007 Manual on this point) took effect. Defendant was on notice that under the sentencing guidelines’ grouping rules, the witness tampering counts could be grouped with the mail fraud and wire fraud counts, resulting in application of a later version of the Manual to both his pre- and post-revision offenses.

Defendant also argued that the district court should not have applied a two-level enhancement for use of "sophisticated means." The Circuit rejected his arguments that application of the enhancement to his crimes would result in its application to all crimes involving mortgage fraud, and that none of the individual steps in his fraudulent conduct was particularly sophisticated. It therefore affirmed both his convictions and sentence.

No. 09-4156. U.S.A. v. Hood. 08/17/2010. D.Utah. Judge Holmes. Spoliation of Evidence—Harmless Error in Notice of Prior Drug Convictions Used for Sentencing Purposes—Court’s Duty to Inquire Sua Sponte Into Attorney-Client Conflicts.

Defendant was convicted of possession with intent to distribute fifty grams or more of methamphetamine. He received a life sentence. Defendant came under suspicion after a confidential informant identified him as her supplier and agreed to call him to arrange for a drug deal. When defendant arrived at her house, officers seized his backpack, in which they found what a field test identified as 542 grams of methamphetamine inside five plastic bags. Drug testing at a lab later revealed that the drugs had a net weight of 526 grams, of which 476.5 grams were pure methamphetamine. The plastic bags were later destroyed and the methamphetamine was mistakenly released to a K-9 unit for training purposes before being returned for use in defendant’s prosecution.

Defendant moved to dismiss the indictment against him, contending that the government had impermissibly combined the drugs from each of the bags into a single bag, making it impossible to test the amount of pure methamphetamine seized from him, and had destroyed the chain of custody by releasing the methamphetamine to be used by the K-9 unit. The district court denied the motion, and defendant was convicted after a jury trial.

Before trial, the government notified defendant that he could be subject to increased punishment due to two prior drug convictions. The government’s notice contained incorrect details concerning one of the convictions, citing the wrong court and place of conviction. The district court permitted the government to correct the notice.

On appeal, defendant argued that the district court should have dismissed the indictment because the government destroyed potentially exculpatory evidence. He argued that it was possible that the government had combined methamphetamine found in his backpack with drugs located at the confidential informant’s house, thus resulting in an aggregate of more than fifty grams of methamphetamine. The Tenth Circuit noted that because the evidence was only potentially exculpatory, defendant would have to show that the officers acted in bad faith in destroying it, a fact he had already conceded was not present in this case. Defendant also argued that under a civil spoliation standard, the district court could have sanctioned the government even in the absence of bad faith, by excluding the evidence of the methamphetamine. Reviewing this argument for plain error, the Circuit held that any error was not "plain," because well-settled law in the Supreme Court and the Circuit does not support the application of such a civil spoliation rule in the criminal context.

Defendant next argued that he should not have been sentenced to life imprisonment because the government’s notice to him contained a significant error regarding one of his prior alleged convictions. The Circuit held that any error was harmless. Even if the error in the court and place of conviction was more than a simple clerical error, this did not prevent the application of harmless error. Defendant was on notice of facts that would have allowed him to reasonably infer that the conviction of which he had knowledge was the same conviction listed in the notice, notwithstanding the flawed description.

Finally, defendant argued that the district court should have inquired sua sponte into his relationship with defense counsel to investigate a possible conflict based on his statements complaining about defense counsel at his sentencing hearing. The Circuit held that no such duty exists, though defendant remains free to raise issues in a collateral, ineffective-assistance-of-counsel claim. Defendant’s conviction and sentence were affirmed.

© 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