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TCL > March 2011 Issue > Summaries of Published Opinions, NSOP, and Petitions for Rehearing

March 2011       Vol. 40, No. 3       Page  109
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Published Opinions, NSOP, and Petitions for Rehearing

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. 09-2271. US Airways, Inc. v. O’Donnell. 12/03/2010. D.N.M. Chief Judge Briscoe. Federal Preemption—Regulation of Alcoholic Beverages on Airlines—Twenty-First Amendment—Balancing.

Plaintiff, an interstate airline carrier, sought an injunction against state officials from regulating its alcoholic beverage service to passengers. The district court ruled that federal law did not preempt a New Mexico state law regulating alcoholic beverages, and granted summary judgment in favor of defendants. The airline appealed, claiming express and implied federal preemption, invoking the Federal Aviation Act (FAA).

The Tenth Circuit held that the state regulatory scheme was impliedly preempted because it fell within the field of aviation safety that Congress intended federal law exclusively to occupy. However, the Twenty-First Amendment, which prohibits the importation of liquor into a state in violation of state laws, requires the state’s core powers to be balanced against the federal interests underlying the FAA. The key inquiry in balancing state and federal interests is whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-First Amendment that the regulation trumps the federal policies. The case was reversed and remanded for the district court to conduct a Twenty-First Amendment balancing.

Nos. 09-6143 & 09-6182. Bryson v. City of Oklahoma City. 12/06/2010. W.D.Okla. Judge McKay. Municipal Liability—Forensic Chemist—Policy or Custom—Deliberate Indifference—Causal Link Required.

Plaintiff was convicted of a 1983 rape and kidnapping and served twenty years before being released based on exculpatory DNA test results. Conviction was based on forensic evidence given at trial by Joyce Gilchrist, a police chemist. The scientific evidence available at the trial showed that Gilchrist should have excluded plaintiff as a suspect in 1983. Plaintiff sued Gilchrist and her employer, the City of Oklahoma City (City), and obtained a $16.5 million judgment against Gilchrist. The district court held, however, that the evidence did not support a finding of municipal liability. Plaintiff appealed the summary judgment in favor of the City.

The Tenth Circuit explained that to hold a municipality liable under 42 U.S.C. § 1983 for injuries inflicted by its employee, a plaintiff must show the existence of a municipal policy or custom that had a direct causal link to the injury. Plaintiff asserted that he had satisfied this requirement by showing that the City failed to adequately train or supervise its employees, and that this failure resulted from deliberate indifference to the injuries that may have been caused. Observing that the City may have been deficient in training and supervising Gilchrist, the Circuit emphasized that to be actionable, this deficiency must rise to the level of deliberate indifference.

The City had received no complaints regarding its forensic chemists’ work at the time of plaintiff’s trial. Even though criticisms of Gilchrist came to light in 1986, that evidence was irrelevant to plaintiff’s claims based on his 1983 conviction. Although plaintiff asserted that the City was liable for his continued incarceration after 1986, the Circuit held that the link between the City’s alleged failure to supervise Gilchrist and the constitutional injury suffered by plaintiff was too attenuated to support a finding of municipal liability.

The Circuit rejected plaintiff’s ratification-theory argument based on the City’s praise and promotion of Gilchrist. It also rejected plaintiff’s claim that he had established a custom of manipulating evidence based on a former police chief’s remarks. The district court’s judgment was affirmed.

No. 10-6153. Constien v. United States. 12/09/2010. W.D.Okla. Judge Hartz. Separate Judgment Document—Jurisdiction—Failure to Serve With Process—Dismissal of Action Without Prejudice—No Abuse of Discretion.

Plaintiff sued various governmental agencies, asserting that the government had reduced her Social Security disability checks to make payments on her student loans. The district court dismissed the case without prejudice because plaintiff did not serve defendants with process in accordance with Rule 4 of the Federal Rules of Civil Procedure. Plaintiff appealed.

The Tenth Circuit first addressed defendants’ challenge to appellate jurisdiction on the ground that the judgment was not final because the dismissal had not been set forth on a separate document. The judgment was final, however, because a dismissal for failure of service dismisses the entire action, and the lack of a separate judgment document only extends the time to file a notice of appeal. Having established jurisdiction, the Circuit discussed the requirements for service of process on the United States, its agencies, officers, and employees. The district court ruled that plaintiff could not act as her own process server and ordered her to effect proper service. When she failed to do so, the district court dismissed her case. The Circuit held that the dismissal was not an abuse of discretion. The district court’s judgment was affirmed.

No. 09-4172. United States v. Larson. 12/20/2010. D.Utah. Judge Holmes. Speedy Trial Act—Sixth Amendment Guarantee of Speedy Trial—Ends-of-Justice Continuances—Dismissal With or Without Prejudice.

A jury convicted defendant of offenses relating to the manufacture of methamphetamine. He was indicted for these offenses on August 16, 2006 and his trial was originally scheduled for August 27, 2007. The district court postponed the trial at least eleven times. On January 14, 2009, it denied defendant’s motion to dismiss the trial under the Speedy Trial Act and the Sixth Amendment guarantee of a speedy trial. The trial then commenced on March 23, 2009, resulting in the challenged convictions.

On appeal, defendant renewed his Speedy Trial Act and Sixth Amendment claims. The Tenth Circuit first addressed the Speedy Trial Act claim. It noted that under the Act, a federal criminal trial must commence within seventy days of the filing of the information or indictment or the defendant’s initial appearance, whichever is later. The Act excludes delays resulting from continuances the district court granted on the basis of a finding that the ends of justice served by continuing the trial outweighed the best interests of the public and the defendant in a speedy trial. The Circuit held that two of the continuances granted here did not satisfy this ends-of-justice requirement, thus resulting in a delay of more than the maximum seventy days. In granting its second continuance, the district court inquired about a number of subjects that could have been relevant to such a continuance, but did not make obvious the factors it relied on in making its determination and failed to cite the ends-of-justice provision. In granting the fourth continuance, the district court noted that defense counsel had been appointed to two capital cases requiring immediate and substantial work, and found that "the ends of justice required by the granting of a continuance of the case outweigh the best interest of the public and the Defendant in a speedy trial." The Circuit held that this was deficient, because the district court failed to discuss how much time counsel needed to prepare for trial and what preparations he already had made.

Turning to defendant’s other argument, the Circuit held that he failed to show his entitlement to a "with prejudice" dismissal under the Sixth Amendment. Although the thirty-one month delay was approximately two-and-one-half times the ordinary delay period of one year, other factors weighed against finding a delay that violated the Sixth Amendment. All of the delays were attributable to defendant. He did not assert his speedy trial right until after the eighth continuance. Finally, he failed to show prejudice from the delay. Accordingly, defendant failed to demonstrate his entitlement to a dismissal with prejudice under the Sixth Amendment. The Circuit therefore remanded to the district court with instructions to determine whether the indictment should be dismissed with or without prejudice under the Speedy Trial Act.

No. 10-6037. United States v. Flonnory. 01/05/2011. W.D.Okla. Judge Hartz. Sufficiency of Evidence—Assimilative Crimes Act—Crime of False Pretenses Committed Where Property Obtained, Not Where False Statement Made.

A jury convicted defendant of five counts of obtaining money through false pretenses under the Assimilative Crimes Act. On appeal, he challenged one of the convictions, arguing that the government failed to prove he had committed the offense on federal territory and that the district court failed to instruct the jury that it should not speculate about the location of the offense. The evidence showed that defendant was a civilian employee of the U.S. Department of Defense at Fort Sill. He approached the victim of his scheme—a co-worker—about an investment opportunity. The two met at a Burger King on the base, where defendant told the victim he had a connection at the local courthouse who could provide tips about foreclosed property available for sale. Defendant promised to use the victim’s money to purchase property, resell it, and then pay him a high rate of return. The victim later gave defendant a cashier’s check and wrote four post-dated personal checks that defendant could cash while the victim was in Iraq, leaving them in defendant’s drawer at work. Instead of buying foreclosed properties, defendant invested in Nigerian oil contracts.

On appeal, defendant argued that there was insufficient proof that the victim delivered the cashier’s check to him on a military base. The government contended that it is not essential that the check be delivered on the base, only that the false statement was made on the base. The Tenth Circuit disagreed with the government’s position, noting that for jurisdictional purposes, the situs of the crime was the location where the property was obtained, not where the false statement was made. Nevertheless, the evidence was sufficient to uphold defendant’s conviction under the proper standard, because the victim stated that all his transactions with defendant occurred on base, and he could not remember giving the check to defendant anywhere but in his office.

During deliberations, the jury asked the court about the location and hours of the bank branch that had issued the cashier’s check to the victim. The district court instructed the jury that it had all the law and evidence in the case before it. Defendant argued this instruction indicated the jury intended to speculate about whether the check was delivered to him on the base, and that the district court should have given further instruction to the jury not to reach its verdict based on speculation. The Circuit found no abuse of discretion in the district court’s failure to give such an instruction; the existing instructions informing the jury that it could draw reasonable inferences and should convict only if it found defendant’s guilt beyond a reasonable doubt sufficiently foreclosed a verdict based on speculation.

The Circuit further rejected defendant’s sentencing-related arguments that the district court miscalculated the amount of loss and that it should not have imposed an enhancement for obstruction of justice. Accordingly, it affirmed the judgment and sentence.

No. 09-5025. United States v. Dobbs. 01/05/2011. N.D.Okla. Judge Holmes. Knowing Receipt of Child Pornography—Storage of Images in Computer Browser Cache—Defendant’s Lack of Knowledge of or Exercise of Control Over Images.

A jury convicted defendant of knowingly receiving and attempting to receive child pornography. The images were located on his computer’s hard drive, which was seized pursuant to a search warrant issued in an unrelated fraud investigation. When a search of the hard drive revealed multiple images suspected to be child pornography, the government obtained a second search warrant. During its execution, a forensic specialist discovered more than 150 images of child pornography in the hard drive’s temporary Internet file folder (cache). Although the evidence at trial suggested that defendant had deliberately searched the Internet for images of child pornography, the images were found exclusively in the cache, where they had been automatically stored. There was no evidence defendant had actually viewed the charged images or exercised actual control over any of them, and no evidence that defendant had accessed the computer’s cache or even knew it existed. There also was no evidence the two images on which the charges were based were the result of a temporally proximate search involving child pornography or that defendant visited a website associated with child pornography immediately preceding the arrival of the two images in his computer’s cache. The government also was unable to identify specific websites from which these two images derived.

The Tenth Circuit found this evidence insufficient to prove knowing receipt of child pornography. "Knowing" receipt means voluntary and intentional receipt. Given the lack of evidence that defendant even knew the images were stored in his computer’s cache, much less that he accessed or exercised control over them, the government failed to make its case for knowing receipt. A defendant cannot be convicted for having the ability to control something he does not even know exists. Moreover, the evidence was insufficient to show an attempt to commit the crime charged, because it failed to show defendant committed a substantial step toward the knowing receipt of the images at issue. Therefore, the Circuit reversed his conviction.

No. 10-6024. United States v. Wilkinson. 01/18/2011. W.D.Okla. Judge Hartz. Fourth Amendment—Reasonable Suspicion—Collective Knowledge Doctrine Applies to Misdemeanor Traffic Offenses.

Defendant was convicted after a bench trial of possession with intent to distribute five grams or more of a mixture containing cocaine base. Police found the cocaine in his truck after a traffic stop. Lieutenant Palmer of the Lawton, Oklahoma police department had received a tip from a reliable informant that a Black male would be bringing crack cocaine into Lawton from Texas in a small red pickup truck. The informant gave Palmer the area of town and time of day to look for the truck. Palmer was in the area in an unmarked car at the given time and saw a red pickup truck. Observing that its temporary paper license tag was unlawfully covered in plastic, Palmer directed by radio that a patrol unit stop the truck. Officer Timothy Poff, who received the radio request but did not know about the basis for the stop, observed that the tag looked weathered and altered or expired. He pulled over the vehicle. After a dog sniff, Officer Poff conducted a search of the truck and discovered the cocaine.

On appeal, defendant argued that Officer Poff lacked reasonable suspicion to stop his truck. The Tenth Circuit held that the officer could rely on Officer Palmer’s observation that the license tag was covered in plastic. Under the collective-knowledge doctrine, Officer Poff could rely on the fact that Officer Palmer, who issued the alert, had the required level of reasonable suspicion. The collective knowledge doctrine applied even though the offense was a misdemeanor and even though Oklahoma law allows an officer to arrest someone for a misdemeanor only if it is committed in his or her presence. First, the offense (having a temporary license tag covered with plastic) was committed in Officer Poff’s presence. Second, the legality of a detention under the Fourth Amendment is not dependent on state law governing detentions. It also is not dependent on the actual motives of the officer.

The duration of the stop was not unconstitutional. Observation by Officer Poff would have revealed the plastic cover, thus giving him probable cause to continue the stop and issue a warning or citation. Accordingly, the Circuit affirmed the defendant’s conviction.

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