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TCL > June 2011 Issue > Summaries of Selected Opinions

June 2011       Vol. 40, No. 6       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. 09-4075. United States v. Begaye. 03/25/2011. D.Utah. Judge Holmes. Sentencing Guidelines—Upward Departure for Extreme Psychological Injury and Extreme Conduct—Need for Comparative Evidence.

Defendant pleaded guilty to a felony information alleging aggravated sexual abuse of his daughter. He had raped his daughter since she was in the first grade. The evidence also showed that he had severely physically abused his children, who were removed from the home. To spare the children the difficulty of a trial, the government permitted defendant to plead guilty to a single count of aggravated sexual abuse. The Sentencing Guidelines called for a sentencing range of 210 to 262 months. The district court departed upward based on Guideline § 5K2.3 (Extreme Psychological Injury) and § 5K2.8 (Extreme Conduct), sentencing defendant to 300 months, followed by lifelong supervised release.

On appeal, defendant argued that the district court lacked a factual basis for the upward departure based on extreme psychological injury, because the government failed to put forth comparative evidence demonstrating the psychological injury normally suffered by victims of aggravated sexual abuse. The Tenth Circuit acknowledged that the government bears the burden of showing that the victim suffered psychological injury greater than what normally results from the crime of conviction to justify the enhancement. The Circuit rejected defendant’s argument that the government must establish this element by presenting comparative evidence. District courts enjoy an institutional advantage in making departure decisions, based on the large number of Guidelines cases they see. Here, there was extensive psychiatric testimony concerning the extreme and potentially long-term nature of the victim’s psychological injuries. When coupled with evidence of the heinous nature of defendant’s conduct, this met the government’s burden. Defendant tried to point to other possible causes for the victim’s psychological injuries, but failed to establish that the district court’s conclusion that his conduct was the principal catalyst for the victim’s extreme psychological injury was clearly erroneous.

Defendant also challenged the departure for extreme conduct. To justify this departure, the district court cited only defendant’s improper sexual intercourse with his young daughter over a period of years. Again, defendant argued that the government was required to establish a baseline by presenting evidence of the typical crime of aggravated sexual abuse with which to compare his offense. The Circuit noted, however, that the Guidelines require only a showing that the offense was "unusually heinous, cruel, brutal, or degrading." Evidence of defendant’s repeated sexual abuse of his daughter over a period of years met this standard. Finally, the district court did not commit plain error by allegedly failing to provide adequate reasons for its departure decision at sentencing.

No. 09-4046. United States v. Wilgus. 03/29/2011. D.Utah. Judge Ebel. Bald and Golden Eagle Protection Act—Exception for Possession for Native American Religious Purposes—Use of Exception by Non-Tribal Members—Application of Religious Freedom Restoration Act.

Defendant was charged under the Bald and Golden Eagle Protection Act (Eagle Act) with illegally possessing 141 feathers of bald and golden eagles. He argued that as a follower of a Native American faith (but neither a member of a federally recognized tribe nor an Indian by birth), he was entitled to rely on an exception to the statute that permits possession of feathers "for the religious purposes of Indian tribes." He contended that the government’s choice to limit legal possession of eagle feathers to members of federally recognized tribes substantially burdened his religious exercise, in violation of the Religious Freedom Restoration Act of 1993 (RFRA). The district court agreed, and the government appealed.

The evidence showed that defendant had lived with enrolled members of the Southern Paiute Nation and eventually became a "blood brother" to a member of the tribe. He was given a number of eagle feathers by Native Americans. When police officers stopped a speeding truck in which defendant was a passenger, the officers discovered eagle feathers. More feathers were recovered from defendant’s home.

The government maintains a repository for eagles and eagle parts that can be permitted and supplied on request for tribal religious purposes. The demand for such parts exceeds the supply, and there is a waiting list. There also is a black market for eagles and eagle parts. The question that faced the Tenth Circuit was whether prohibiting possession of eagle parts by non-Indians and limiting permit applications to members of federally recognized tribes was the least restrictive means of implementing the Eagle Act, as required by the RFRA.

The Circuit identified two compelling interests the government had in burdening defendant’s religious exercise: (1) protecting eagles and (2) fostering and preserving Native American religion and culture. The latter interest was limited in this instance to preserving the culture and religion of federally recognized tribes, rather than to protecting Native American religion per se. The government also had the burden of supporting its choice of regulation and refuting the alternative schemes offered by defendant to show that it used the least restrictive means to achieve these interests.

The Circuit determined that the government had met its burden. Neither of the alternatives defendant and the district court offered—opening the repository process to all practitioners of Native American religion, regardless of their tribal membership, or allowing tribal members in lawful possession of eagle parts to give them to non-tribal practitioners—adequately balanced the government’s two competing interests in a manner less restrictive to defendant’s rights than the government’s alternative of limiting possession to tribal members alone. The Circuit therefore held that defendant’s conviction did not violate the RFRA.

No. 10-5065. United States v. McHugh. 04/04/2011. N.D.Okla. Judge Holmes. Fourth Amendment—Reasonableness of Seizure of Defendant—Relevance of Defendant’s Behavior Toward Private Security Guard.

Defendant pleaded guilty to possession of a firearm and ammunition by a felon, reserving the right to appeal the district court’s denial of his motion to suppress evidence obtained during an investigatory stop. During his patrol round at 2:00 a.m., an armed security guard at an apartment complex spotted defendant and another white male acting suspiciously in a parking lot. The two men got into a vehicle and the guard approached it to question them. He saw that defendant was trying to conceal something with his right hand between the driver’s seat and the center console. Both men tried to exit the vehicle, but the guard prevented them from doing so by kicking the door shut, spraying defendant with pepper spray, and holding the men at gunpoint while he called 911. The guard told the dispatcher that he believed the men had a gun in the car. After police officers arrived and ordered defendant to exit the vehicle, he informed them he had a gun. He was arrested and patted down, at which time the arresting officer located a revolver in defendant’s back pocket, leading to the felon-in-possession charge.

On appeal, defendant challenged the reasonableness of the police officer’s initial investigatory detention. The Tenth Circuit determined that the seizure (the officer’s order to defendant to exit the vehicle and his compliance with the command) was reasonable because: (1) the stop occurred in a high-crime area; (2) the incident occurred in the early morning hours; and (3) the security guard told the officer that he believed the suspects had a weapon in the car and that defendant had exhibited suspicious behavior before the stop.

Defendant argued that his efforts to oppose the security guard’s orders and the guard’s attempts to seize defendant should not be viewed as indicators of criminal behavior, because the security guard was a private citizen rather than a law enforcement officer. The Circuit disagreed. Although defendant’s furtive, evasive, and defiant conduct did not have the same probative value with a security guard as it might have with a law enforcement officer, it was still relevant to the reasonable suspicion analysis. The security guard was an authoritative presence in the apartment complex whose partial objective was to prevent crime. He was thus more akin to a law enforcement officer than an apartment tenant or casual passerby. The Circuit therefore affirmed the denial of defendant’s motion to suppress.

No. 09-2296. Copar Pumice Co. v. Morris. 04/06/2011. D.N.M. Judge Lucero. Rule 50(b) Motion for Judgment as a Matter of Law—Appellate Jurisdiction—Waiver of Merits Review.

Plaintiff sued two New Mexico Environment Department inspectors under 42 U.S.C. § 1983, claiming they unlawfully took documents from plaintiff’s plant. The district court denied defendants’ pretrial summary judgment motion based on disputed facts, rather than on purely legal issues. The case proceeded to a jury trial. Defendants lost and then moved for judgment as a matter of law under F.R.Civ.P. 50(b). They subsequently withdrew the motion and appealed the denial of qualified immunity.

In addressing appellate jurisdiction, the Tenth Circuit noted that defendants filed their notice of appeal after judgment but before the district court ruled on their Rule 50(b) motion. The legal effect of a withdrawn motion is as though the motion had never been made, so the tolling effect of a post-judgment motion did not arise and the notice of appeal was timely. The Circuit ruled, however, that by withdrawing their Rule 50(b) motion, defendants waived appellate review of their claims. The subject of the appeal was the district court’s denial of their motion for judgment as a matter of law, but the district court never ruled on it because defendants withdrew it. The district court denied defendants’ pre-verdict Rule 50(a) motion, but that ruling cannot be appealed unless the motion is renewed pursuant to Rule 50(b). Defendants could not appeal the order denying their summary judgment motion because it was based on facts, rather than law, which cannot be reviewed absent a Rule 50(b) motion. The district court’s judgment was affirmed.

No. 09-2238. Standiferd v. U.S. Trustee (In re Standiferd). 04/12/2011. D.N.M. Judge Tacha. Bankruptcy—Chapter 13 Conversion to Chapter 7—Failure to Obey Order—Debtors’ Preconversion Misconduct May Prevent Discharge.

Debtors filed a Chapter 13 bankruptcy proceeding. The court issued a confirmation order requiring them to keep the trustee apprised of their post-petition financial condition, but they did not. Later, debtors converted their bankruptcy to Chapter 7. The trustee filed a motion to deny debtors a Chapter 7 discharge based on their misconduct while their case was governed by Chapter 13. Debtors did not dispute that they received and failed to comply with the confirmation order or that their failure to comply was anything other than willful. They contended instead that the Chapter 13 confirmation order was not a "lawful order of the court" under the Bankruptcy Code, and their refusal to obey the order occurred while their case was proceeding under Chapter 13, so they could not be sanctioned. The bankruptcy court denied discharge and the district court affirmed.

The Tenth Circuit held that a Chapter 13 confirmation order is a lawful order of the court, and is clearly permitted by the Bankruptcy Code. The Circuit rejected the argument that as Chapter 13 debtors, they always retained the right to convert their case to Chapter 7 or dismiss the case. The Circuit held that as long as debtors remain under Chapter 13, they must comply with the confirmation order. The Circuit further held that debtors’ preconversion misconduct may support the denial of a Chapter 7 discharge. The Bankruptcy Code is intended to provide the extraordinary benefit of discharge only to the honest but unfortunate debtor. The district court’s judgment was affirmed.

No. 10-6039. United States v. Smith. 04/12/2011. W.D.Okla. Judge Kelly. Embezzlement From Employee Benefit Plan—Necessity of Actual Embezzlement of Funds—Making False Statements to Federal Agent—Locus Delicti of False Statement.

Defendant was convicted of embezzling from an employee benefit plan and making false statements to a government agent. From 1989 to 2004, he served as executive director of a private nonprofit youth and family service center. As executive director, he was in charge of compiling and managing the center’s budget, which was approved by its board of directors. The center was not always able to pay the budgeted amounts, given the uncertain nature of donations, grants, and rising costs. The center had an employee profit-sharing plan, but contributions to the plan were entirely discretionary. During 2002 and 2003, the center’s fiscal director made checks to fund the plan, but defendant directed him to hold the checks because there was no money available to cover them. Defendant intended to make the contributions once the center received funds due from the state of Oklahoma, but the full amount of anticipated funds was never received and the contributions were never made. Defendant did not notify the board that the contributions had not been made.

Defendant also arranged for the center to contract with Paradigm Associates, PA (Paradigm) to provide administrative support for the center. Although defendant had a financial interest in Paradigm, which he disclosed, he assured the board that he would not receive direct financial benefit from the contract. Defendant deposited the checks issued to Paradigm into his own account, and the government later presented evidence that Paradigm was a shell company that had no employees and performed no services. After the center’s new financial director questioned defendant’s connection to Paradigm, defendant resigned and moved to Minnesota. In an interview in Minnesota by a federal agent, he stated that he did not receive any financial benefit from Paradigm and that Paradigm was a legitimate company with employees that performed services for the center.

Defendant was convicted of using deceptive practices to defeat the plan’s right to collect amounts contractually due from the employer, and of lying to the federal agent. On appeal, he argued that there was insufficient evidence to convict him of embezzling plan assets, because there were insufficient funds and the contributions were discretionary. The government took the position that defendant had not actually embezzled the funds, but that he had violated the statute by defeating the plan’s right to collect amounts contractually due from the employer.

The Tenth Circuit held that this evidence was insufficient to demonstrate a violation of the statute, which required actual embezzlement, theft, abstraction, or conversion. Moreover, the government failed to prove that the approved contributions were assets of the plan, because there was no contractual obligation to provide them and contributions to the plan were purely discretionary.

The Circuit turned to the conviction for making a false statement to a federal agent. It noted that the locus delicti of the crime for venue purposes is where the defendant makes the false statement. Here, defendant allegedly made the false statement in Minnesota. The fact that the statement concerned events in Oklahoma did not make Oklahoma the proper venue for the prosecution. The Circuit therefore reversed with instructions to the district court to vacate the judgment and sentence, to enter a judgment of acquittal on the embezzlement counts, and to dismiss the false statement counts for improper venue.

Nos. 09-4179 & 09-4185. Mauerhan v. Wagner Corp. 04/19/2011. D.Utah. Judge Seymour. Americans With Disabilities Act—Drug Addiction—Rehabilitation—Current User—Safe Harbor—Employer’s Reasonable Belief Drug Use is Ongoing Problem.

Plaintiff worked as a sales representative until he was fired for using illegal drugs. He completed a drug rehabilitation program with a prognosis of guarded and immediately sought reemployment. The former employer informed him that he could be rehired, but he would not receive his former salary and he would not be assigned his former accounts. Plaintiff declined employment and sued under the Americans with Disabilities Act (ADA). The district court granted summary judgment to the employer, holding that the ADA did not protect plaintiff because he was a current drug user when he sought reemployment, given that he had stopped using only when he entered a thirty-day rehabilitation program.

The Tenth Circuit affirmed for reasons other than those relied on by the district court. Under the ADA, an alcoholic or illegal drug user is not "a qualified individual with a disability" entitled to ADA protection if he or she is currently engaging in the use of illegal drugs. The ADA provides a safe harbor that includes an individual who has successfully completed a drug rehabilitation program and is no longer using drugs. The Circuit declined to adopt a bright-line rule for when an individual is no longer currently using drugs; rather, the question is whether the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem. The Circuit emphasized that an employer may terminate an individual for misconduct related to drug use or alcoholism.

Here, plaintiff had been clean for one month before applying for reemployment, his prognosis was guarded, and he did not dispute the employer’s addiction specialist’s testimony that three months of treatment would be necessary for an addict to attain significant improvement in his or her condition. Plaintiff’s argument that he had stayed clean was insufficient for a fact finder to infer that the employer was unreasonable in believing at the time plaintiff applied for reemployment that his drug addiction was sufficiently recent that he might have an ongoing problem. The district court’s judgment was affirmed.

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