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TCL > April 2011 Issue > Summaries of Selected Opinions

April 2011       Vol. 40, No. 4       Page  121
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. 10-1056 & 10-1075. United Fire & Casualty Co. v. Boulder Plaza Residential, LLC. 01/27/2011. D.Colo. Judge Lucero. Colorado Insurance—Duty to Defend and Duty to Indemnify.

This case concerns a dispute over the floors installed in new condominiums built in Boulder. United Fire & Casualty Company (United) issued an insurance policy to the subcontractor that installed the floor covering. The policy listed the general contractor as an additional insured and covered "ongoing operations." A formal notice of claim was sent to United for floor damage. United determined that the floor damage was caused by excessive moisture in the concrete floor, not by the installer’s work, and declined coverage. The property owners sued in state court for the damage. The general contractor sought a defense and indemnification from United, which denied the request because the policy covered only ongoing operations.

United filed this federal suit, seeking a declaratory judgment that it had no duty to defend or indemnify the general contractor in state court because the damage to the floors was observed after the subcontractor had completed installation and the policy did not apply to liability arising out of completed operations. The district court granted summary judgment in United’s favor.

Applying Colorado law, the Tenth Circuit noted that a duty to defend arises when the allegations in a complaint, if sustained, would impose a liability under the policy. The trigger for coverage under United’s policy was the physical manifestation of damage. Because the state court complaint alleged completed rather than ongoing operations, United had no duty to defend.

The Circuit then ruled that because United had no duty to defend, it had no duty to indemnify, rejecting the argument that other documents and/or clauses created such a duty. In state court, United’s primary insured—the subcontracting floor installer—was exonerated. Because there was no judgment against the subcontractor, United had no duty to indemnify. The district court’s judgment was affirmed.

No. 09-5087. United States v. Goodman. 01/28/2011. N.D.Okla. Judge Tymkovich. Insanity Defense—Temporal Relevance of Testimony—Lay Opinion Concerning Defendant’s Sanity—Prosecution’s Use of Expert Testimony Analyzing Defendant’s Actions.

A jury convicted defendant of multiple robbery and firearms offenses after a crime spree in which he robbed three convenience stores at gunpoint and attempted to rob a fourth. Defendant’s only defense at trial was insanity. He is an Iraq war veteran who had engaged in intense combat and had suffered a nervous breakdown while on active combat duty. The Army honorably discharged him based on his mental condition several years before he committed the robberies. After returning from Iraq, he behaved erratically. His wife eventually divorced him and obtained custody of their children. He committed the first robbery the day after his children moved out of his home.

The district court allowed defendant to present an insanity defense, but permitted defendant’s lay witnesses, including his father, his divorce lawyer, and his minister, to testify only about what they had observed in the days immediately before and immediately after the robberies. On appeal, defendant argued that the district court improperly circumscribed the testimony of these witnesses (if not temporally limited, they would have covered the difference in his personality before he went to Iraq and after he returned home), as well as his mental deterioration during the months before he committed the robberies. The Tenth Circuit agreed: evidence dating from three years before defendant committed his crimes was temporally relevant and should not have been excluded. Also, the error was not harmless. By excluding manifestations of defendant’s insanity, the district court compromised his ability to persuade the jury he was legally insane at the time he committed his crimes.

Defendant further argued that the district court erred by prohibiting witnesses from offering lay opinions concerning defendant’s sanity. The Circuit agreed. Under the federal rules, lay witnesses are permitted to offer their opinions concerning the mental states of others, even where such opinions embrace the ultimate issue to be decided by the jury. Moreover, this error was not harmless, because it likely affected the way defendant conducted his entire defense.

Finally, defendant challenged the prosecution’s use of hypothetical questions to expert witnesses. The prosecution posed hypothetical facts that mirrored the charged robberies, and asked the experts whether the hypothetical robber’s actions were consistent with the behavior of someone with post-traumatic stress disorder. The Circuit held that these hypothetical questions did not elicit improper expert testimony concerning the ultimate issue of whether defendant was legally insane. The jury was still required to make an additional inferential step to make this determination. The Circuit reversed and remanded for a new trial only on the lay testimony issues.

No. 10-3030. United States v. Burke. 02/02/2011. D.Kan. Judge Tymkovich. Waiver of Suppression Arguments—Applicability of Plain Error Review—Sufficiency of Warrant—Limitations on Proof in Plea Agreement.

Defendant pleaded guilty to several child pornography and firearms charges and received a 168-month sentence. The charges arose from a call defendant’s wife placed to the Leavenworth County Sheriff’s Office advising a detective that she had viewed on CDs belonging to her husband images of minor girls engaged in various sexual acts. Detectives obtained a search warrant and searched defendant’s home and truck, finding 1,155 pornographic images (many of which involved child pornography), as well as guns and ammunition.

On appeal, defendant raised two challenges to the search warrants used in his case. He first argued that the affidavits in support of the warrants lacked sufficient detail to support probable cause. For example, they did not provide specific descriptions of the images his wife saw. Defendant did not raise this argument in district court. He challenged the specificity of the warrants themselves, but he did not argue specificity of the affidavits. The Tenth Circuit therefore held this argument waived under Fed. R. Crim. P. 12(e). The Circuit further clarified that it is inappropriate to apply a plain error standard to suppression arguments waived under Rule 12(e). A defendant who has waived a suppression argument may obtain review by showing "good cause" for the waiver.

Defendant also argued that the warrant was too general and therefore violated the Fourth Amendment’s prohibition against general searches. He had preserved this argument for appellate review, but the Circuit held that it failed. The warrant called for officers to search for and seize defendant’s computer and other computers, hard drives, and media storage items, without limiting the search to computer files concerning pornography. The Circuit also stated that "[d]ue to the nature of the charges," officers should seize any and all items related to child pornography in any media form. This latter limitation sufficiently narrowed the search to bring it within Fourth Amendment requirements.

Defendant also challenged his sentence. He contended that the government breached its plea agreement with him by taking the position at sentencing that his CDs contained 1,155 images rather than the 155 images factually recited in the agreement. The government did not agree to limit itself to proof of only the 155 images mentioned in the agreement.

Finally, defendant waived in the plea agreement his arguments concerning the gun charge sentence. The Circuit therefore affirmed defendant’s sentence and the district court’s denial of his motion to suppress evidence.

No. 09-4141. United States v. Mitchell. 02/03/2011. D.Utah. Judge Tymkovich. Plea Agreements—Waiver of F.R.E. 410 Exclusion—Use of Plea-Related Statements in Prosecution’s Case-in-Chief.

Defendant was charged with conspiracy to transport stolen securities. On the day his trial was scheduled to begin, he entered into a plea agreement with the government and pleaded guilty to the charge. The plea agreement specified that if defendant withdrew his guilty plea, he would not assert any claim under F.R.E. 410 for suppression of statements he made pursuant to the agreement. Defendant subsequently obtained new counsel and moved to set aside his guilty plea on the basis that it was not knowing and voluntary. The district court permitted him to go to trial. During the trial, the government made extensive use of defendant’s statements in support of his plea both for impeachment purposes and during its case-in-chief. The jury convicted him and he was sentenced to twenty-seven months’ imprisonment.

On appeal, defendant argued that the government should not have been permitted to use the F.R.E. 410 evidence against him. F.R.E. 410 ordinarily makes a defendant’s statements during plea discussions inadmissible at trial. Defendant argued that his F.R.E. 410 waiver was not knowing and voluntary, because counsel who negotiated the plea agreement pressured him into agreeing to it. The Tenth Circuit held that counsel’s advice did not rise to the level of constitutionally suspect coercion. The fact that the district court permitted defendant to withdraw his plea, in part because he asserted that counsel had exercised "undue influence" over him, did not vitiate its further finding that the plea was voluntary; therefore, the plea agreement was enforceable.

Supreme Court precedent permits a defendant to waive his or her rights under F.R.E. 410, where the government uses such evidence for rebuttal or impeachment purposes. Here, defendant argued that even if his waiver was enforceable, the evidence could not be used in the government’s case-in-chief. The Circuit noted that it saw no analytical difference between F.R.E. 410’s application to impeachment waivers and case-in-chief waivers. Congress made no such distinction in the rule itself. An F.R.E. 410 waiver means the jury will have more evidence before it, which will permit a more accurate determination of the merits of the controversy. Permitting case-in-chief waivers would not undermine the willingness of defendants to engage in plea bargaining. The Circuit therefore affirmed the use of defendant’s plea waiver and statements from plea negotiations at his trial.

No. 10-2068. United States v. Begay. 02/07/2011. D.N.M. Judge Briscoe. Supervised Release—Modification of Conditions—Polygraph Testing Requirement

Defendant pleaded guilty to one count of aggravated sexual abuse of a minor child and various other offenses relating to firearms and assault. At the time of sentencing, the district court imposed standard conditions of supervised release, as well as conditions involving substance abuse and a requirement that defendant participate in a sex offender treatment program. Defendant served his sentence and was released to a halfway house.

While he was residing at the halfway house and obeying its rules, the probation office sought to add supervised release conditions relating to sexual abuse issues, including a requirement that defendant submit to polygraph testing. The district court imposed the additional conditions, notwithstanding defendant’s objection to the polygraph testing provision.

On appeal, defendant argued that the district court did not have the authority to modify his conditions of supervised release because no changed or unforeseen circumstances were present. The Tenth Circuit disagreed. A district court can modify conditions of supervised release after considering the sentencing factors in 18 U.S.C. § 3553(a) without a showing of changed circumstances. The requirement that § 3553(a) factors be considered prevents the court from modifying conditions haphazardly or without justification. Moreover, concerns about finality of judgments do not require a finding of changed circumstances before the court can modify the conditions of supervised release.

Defendant also argued that the polygraph condition was invalid because it was unreliable, was subject to manipulation, and involved a greater-than-necessary deprivation of his liberty. The Circuit disagreed. Polygraph results often are inadmissible in court and would not be used here as the basis for revoking defendant’s supervised release. The district court heard evidence that polygraph testing could be an effective supervision and rehabilitation tool because it would encourage defendant to be truthful with his probation officer. Defendant also failed to show that polygraph testing constituted a significant further deprivation of his liberty, given the other conditions already imposed in connection with his supervised release. The Circuit therefore affirmed the district court’s imposition of the further condition on supervised release.

No. 09-1501. Jordan–Arapahoe, LLP v. Arapahoe County Board of County Comm’rs. 02/08/2011. D.Colo. Judge Tymkovich. Zoning Decision—Protected Property Right—Colorado Law—Site-Specific Plan—Detrimental Reliance.

Plaintiff owned land in Arapahoe County that it intended to develop as a car dealership and sell to an identified buyer. The Arapahoe County Board of County Commissioners (County) rezoned the land to prevent the development. Plaintiff sued, claiming the County’s zoning decision deprived it of its protected property interest without due process. The district court dismissed the case.

The Tenth Circuit affirmed, holding that plaintiff had failed to show a protected property interest; the development proposal was not final or vested. Under Colorado law, a property owner does not obtain a vested property right absent the approval of a site-specific development plan or the landowner’s substantial and detrimental reliance on representations and affirmative actions by the local government. Because neither condition was met, plaintiff’s claim of a protected property interest failed.

No. 10-1186. Chizzali v. Gindi (In re Gindi). 02/14/2011. Bankruptcy Appellate Panel. Judge Hartz. Automatic Stay—Pending Appeals in Colorado Court of Appeals—Likelihood of Success—Bank Balance Necessary for Effective Reorganization—Reluctant Application of Precedent Lifting Stay of Debtor’s Appeal of Judgment.

Chizzali sued his former business partner, Gindi. Both parties filed appeals to the Colorado Court of Appeals. Chizzali appealed two rulings: (1) an order declining to hold Gindi in contempt, and (2) an order setting aside the default of Gindi’s bank on a garnishment. Gindi appealed the state court’s judgment against him based on an arbitration award.

While the appeals were pending, Gindi filed a voluntary Chapter 11 bankruptcy petition. Chizzali sought relief from the automatic stay to pursue his appeal in the Colorado Court of Appeals, but the bankruptcy court refused to lift the stay. The bankruptcy court, however, agreed with Gindi’s argument that the stay did not apply to his appeal of the judgment against him.

Chizzali appealed to the Bankruptcy Appellate Panel (BAP), seeking to lift the stay of his appeals and to invoke Gindi’s stay. The BAP affirmed the bankruptcy court. The Tenth Circuit held that the automatic stay applied to Chizzali’s appeal of the state court’s refusal to hold Gindi in civil contempt.

On the entry-of-default issue concerning Gindi’s bank, the Circuit held that Chizzali did not show a likelihood of success on appeal to warrant lifting the stay, but he did show that he was entitled to have the stay lifted because Gindi had no equity in the bank account and Gindi failed to show that the money in the account was necessary to an effective Chapter 11 reorganization.

Finally, the Circuit followed precedent and held that the automatic stay does not apply to a debtor’s appeal of a judgment against him or her. The Circuit decided not to overrule that precedent because the Colorado Court of Appeals already had resolved the state appeal. The BAP’s decision was affirmed in part and reversed in part, and the case was remanded.

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