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TCL > August 2011 Issue > Summaries of Selected Opinions

August 2011       Vol. 40, No. 8       Page  163
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. 09-3314. United States v. Foy. 05/23/2011. D.Kan. Judge Tacha. Wiretap Evidence: Adequate Showing of Necessity—Conspiracy: Adequate Evidence of Interdependence—Venue: Necessity of Act Within Charging Jurisdiction for Attempt Conviction.

A jury convicted defendant of conspiring to manufacture, to possess with intent to distribute, or to distribute cocaine base, and of attempting to possess with intent to distribute cocaine. His convictions stemmed from his participation in a vast conspiracy to distribute cocaine and cocaine base in Kansas City, Kansas and Kansas City, Missouri. The police tried a number of traditional investigative techniques to uncover the size and scope of this conspiracy, but found them ineffective. The police filed a wiretap application with a federal judge. The application referenced an outdated Attorney General Order (Order) delegating authority to the official who authorized the application. Relying heavily on information obtained through the wiretap, the government presented its case against defendant and he was convicted of the conspiracy and attempt charges.

On appeal, defendant argued that the information obtained through the wiretaps should have been suppressed because the application cited the outdated Order. The Tenth Circuit found that any error was harmless, because the current version of the Order did not revoke the authority to approve wiretap applications granted to officials empowered to authorize wiretap applications under the previous, outdated version of the Order.

Defendant also argued that the government failed to make the necessary showing that the wiretaps were "necessary"—that is, that traditional investigative techniques were insufficient to achieve law enforcement purposes without a wiretap. The Circuit determined that the government had made an adequate showing of necessity. The government’s affidavits addressed either why each traditional investigative technique had been ineffective in this case or why officers believed such techniques would be ineffective or dangerous.

The Circuit further rejected defendant’s argument that the evidence of conspiracy was insufficient to sustain his conviction. Defendant argued that there was insufficient evidence of interdependence—that is, that each co-conspirator’s activities constituted essential and integral steps toward the realization of a common, illicit goal. The Circuit held that the showing of defendant’s connection with one other co-conspirator, with whom he operated as partners in the drug trade, was sufficient to show interdependence.

Defendant also challenged the prosecution in the District of Kansas of both the conspiracy and attempt charges against him for improper venue. The Circuit held that conspiracy charges were properly tried in the District of Kansas, because the government presented ample evidence that various members of the conspiracy committed overt acts in furtherance of the conspiracy in that district. With respect to the attempt charge, the Circuit held that venue was improper, because there was no evidence that defendant himself committed any act in the District of Kansas. Actions by other defendants in the district could not be imputed to defendant for purposes of the attempt charge.

Defendant’s other challenges to his conviction and sentence were unavailing. A juror’s introduction of extrinsic evidence related only to firearm charges against a co-defendant and therefore had no effect on defendant. The district court attributed to defendant all drugs that it was reasonably foreseeable would be sold to his partner, where these drugs were part of the same course of conduct or common scheme or plan as the charged conspiracy. Finally, an enhancement for possession of a firearm was properly applied to defendant, where the firearm was possessed by his co-defendant.

The Circuit therefore affirmed defendant’s conviction and sentence on the conspiracy charge. Defendant’s conviction and sentence on the attempt charge for improper venue were vacated.

No. 10-1046. Fowler v. United States. 05/31/2011. D.Colo. Judge Seymour. Federal Tort Claims Act—Respondeat Superior—Within the Scope of Employment—Traveling Employee Rule.

Plaintiff was injured when the motorcycle he was riding collided with a car driven by Sean Garrick, an activeduty member of the U.S. Air Force who was on a temporaryduty assignment in Boulder, Colorado. Garrick worked twelvehour shifts and the Air Force provided him a room at a Boulder hotel. Garrick was on his way to the hotel during a work break when the accident happened. Plaintiff sued Garrick and the United States under the Federal Tort Claims Act (FTCA), which waives the United States’ sovereign immunity for a tort committed by a government employee while acting within the scope of his or her office or employment. Plaintiff asserted that the United States was liable for Garrick’s negligence because the tort was committed during the course of Garrick’s employment.

Federal employees are absolutely immune from commonlaw torts arising out of acts they undertake in the course of their official duties. If the Attorney General (AG) certifies that the employee was acting within the scope of his office or employment, the United States is substituted as defendant in place of the employee, and the litigation is governed by the FTCA.

The AG declined to certify, so Garrick moved the district court to certify that he was acting within the scope of his employment and to dismiss him from the case. The United States moved to dismiss the case on the ground that the FTCA requires the tortfeasor to be within the scope of his employment when the tortious act occurred, which it claimed Garrick was not; therefore, the court lacked subject matter jurisdiction.

The district court denied Garrick’s motion for certification and granted the United States’ motion for summary judgment. Plaintiff and Garrick then jointly dismissed the case, with plaintiff reserving his right to pursue on appeal his FTCA claim against the United States.

The Tenth Circuit applied Colorado respondeat superior law to determine whether Garrick was within the scope of his employment when the car accident occurred. The Circuit noted the "traveling employee" rule, which states that when an employee is required to be away from home, any hazards present in staying at a hotel and going to and from it are considered necessarily incidental to his or her employment. The Circuit held that Garrick’s travel to the hotel to nap in the middle of his shift so as to return to work refreshed and to permit another employee to use his work station indicated that he was acting for the benefit of the U.S. Air Force; thus, he was acting within the scope of his employment at the time of the traffic accident. The district court’s determination that Garrick was not acting within the scope of his employment for FTCA purposes was reversed and the case was remanded.

No. 09-1558. Simmons v. Sykes Enters., Inc. 06/02/2011. D.Colo. Judge McKay. Age Discrimination in Employment Act—Pretext—Cat’s Paw—Subordinate Bias—But for Causation.

Plaintiff sued her former employer, claiming that her employment was terminated in violation of the Age Discrimination in Employment Act (ADEA). She worked as a human resources assistant. When an employee complained that someone within the company had improperly disclosed the employee’s confidential medical information, the employer conducted an investigation. The employer determined that plaintiff had revealed the confidential information, despite her denials. The employer fired plaintiff, who was 62, as well as a 23-year-old coworker who also was involved in revealing the confidential information. Plaintiff sued. The district court granted summary judgment in the employer’s favor, concluding that plaintiff had failed to establish that the reason for firing her was a pretext for age discrimination.

The Tenth Circuit affirmed the district court’s conclusion of no pretext, noting that the issue was what the employer believed in good faith, rather than whether plaintiff actually had revealed the confidential information. As the situation appeared to the employer, plaintiff’s statements were inconsistent and the employer was justified in concluding that plaintiff could not be trusted to protect its employees’ confidentiality.

Deciding an issue of first impression, the Circuit held that the theory of subordinate bias, or "cat’s paw," applies to ADEA cases. Under the cat’s paw theory, a plaintiff’s coworkers, through their biased influence on the final decision, caused the plaintiff’s termination. An ADEA plaintiff must prove that the discriminatory conduct of the subordinate employees was a but for cause of the adverse employment action—that is, it was the factor that made a difference. The evidence showed that absent the alleged discriminatory bias, the employer would still have fired plaintiff. The district court’s judgment was affirmed.

No. 10-1166. United States v. Hillman. 06/13/2011. D.Colo. Judge Tymkovich. Prosecutorial Misconduct Before Grand Jury—Mootness After Conviction by Trial Jury—Opinion Evidence Concerning Guilt—Deliberate Ignorance Challenge—Failure to Object to Actual Knowledge Instruction.

A jury convicted defendant of money laundering, conspiracy to commit money laundering, and making false statements to a federal agent. These convictions arose from a scheme to steal hundreds of thousands of dollars from an insurance company. Defendant had been employed with the company, but he had been dismissed before the execution of the scheme. His girlfriend continued to work in the annuities department. Defendant discussed with the girlfriend a scheme where she would empty inactive annuity accounts by issuing checks to defendant’s friend. The friend wanted nothing to do with the scheme.

The girlfriend then began to cut checks in defendant’s name and presented them to him, allegedly telling him they came from her grandmother’s trust. Although defendant doubted this explanation for the source of the funds, he asked no questions and he and his girlfriend eventually stole more than $800,000 from inactive annuity accounts. Their activities came to light when a policyholder sought a payout from one of the inactive annuities that had been drained of funds.

On appeal, defendant first challenged the district court’s refusal to dismiss the indictment against him based on statements made to the grand jury by the prosecutor and a witness who allegedly expressed opinions about defendant’s guilt and legal conclusions to be drawn from the evidence. The Tenth Circuit held that these statements, which were merely accurate descriptions of defendant’s actions or explanations concerning the course of the investigation, did not invade the grand jury’s independent deliberative process or substantially affect its decision to indict defendant. Moreover, because the jury convicted defendant after trial, claims concerning the grand jury’s finding of probable cause were moot absent a showing of fundamental error, which defendant had not made.

Defendant next argued that the prosecutor violated his due process rights by injecting his own theory on the meaning of "grandma’s trust" when he asked the girlfriend during a pre-indictment interview whether the term was a code-word for the annuity scheme. The Circuit held there was no hint of impropriety and no showing that the prosecutor was attempting to influence the girlfriend. Moreover, there was no showing of improper prejudice, because the issue of the meaning of "grandma’s trust" was first raised by defendant’s counsel at trial, not by the government.

Defendant next complained that the Internal Revenue Service (IRS) agent who examined him was permitted at trial to testify that defendant had lied. However, this was an accurate representation of the facts. Defendant stated that funds came from his girlfriend’s grandmother and denied seeing or endorsing the insurance company checks until he was told they could be sent for fingerprint and handwriting analysis. He then apologized, admitted to signing and negotiating the checks, and admitted that he had lied. Under the circumstances, the IRS agent did not present improper opinion testimony concerning defendant’s guilt by stating that he had lied.

Finally, defendant challenged the "deliberate ignorance" instruction given at his trial, arguing that the government failed to present sufficient evidence supporting his deliberate choice to ignore the true source of the proceeds. The Circuit held that this challenge could not be used to obtain reversal, because defendant did not challenge the sufficiency of the evidence or the instruction concerning his actual knowledge of the scheme. In fact, more than sufficient evidence supported defendant’s actual knowledge of the scheme. The Circuit therefore affirmed defendant’s conviction.

Nos. 10-4112 & 10-4139. United States v. Galvon-Manzo; United States v. Guzman-Manzo. 06/14/2011. D.Utah. Judge Anderson. Safety-Valve Provision—District Court’s Discretion to Receive Evidence and Evaluate Credibility After Untruthful or Incomplete Statements—Nature of Hearing at Sentencing.

Defendants each pleaded guilty to one count of possession of cocaine with intent to distribute. A car in which Galvon-Manzo was the driver and Guzman-Manzo was a passenger was stopped by police, who discovered twelve kilograms of cocaine in a hidden compartment in the roof. Both defendants denied knowledge of the cocaine in their car. Each defendant was subject to a ten-year mandatory minimum sentence, unless he qualified for safety-valve relief. Finding that defendants had not truthfully disclosed to the government all drug-related information of which they were aware, the district court denied safety-valve relief and sentenced each defendant to the mandatory minimum of 120 months.

Each defendant claimed during debriefing with U.S. Drug Enforcement Agency (DEA) agents that he had not worked for "Chino," the man police suspected was their supplier, and that this was the first time each defendant had ever been involved in drug trafficking. Moreover, Galvon-Manzo claimed he did not know about the hidden compartment in the car, and Guzman-Manzo claimed Galvon-Manzo was not involved with drugs and that Galvon-Manzo was transporting the drugs for a man named "Gordo."

After the government recommended that safety-valve eligibility be denied for each defendant, each of them filed a memorandum or affidavit indicating that (1) he had lied during the debriefing; (2) he had been involved in prior drug sales; and (3) Chino was involved in the drug trafficking that led to his arrest. At sentencing, the district court refused to permit defendants to provide additional testimony to attempt to qualify for safety-valve consideration.

On appeal, Guzman-Manzo argued that he should have been permitted to present information relating to the safety-value provision at the sentencing hearing, and that the district court erred in failing to consider his affidavit and in concluding that errors in his previous statements precluded any consideration of the safety-valve provision. He argued that the safety-valve statute permits a defendant to furnish the government with information "not later than the sentencing hearing," so he should have been permitted to furnish further information at sentencing.

The Tenth Circuit held that disclosures for safety-valve purposes generally are timely only if they occur prior to the commencement of the sentencing hearing. This is because the disclosures are to be made to the government, not to the sentencing court. The government should not be forced to wait until the middle of a sentencing hearing before it obtains such information; however, the district court has discretion to permit supplemental disclosures or evidence at sentencing. The district court also has discretion, in light of a defendant’s prior untruthfulness, to refuse to give the defendant another opportunity to explain himself or herself at sentencing.

Galvon-Manzo made similar appellate arguments, which the Circuit rejected for similar reasons. He also argued that he should have been permitted to testify and to examine DEA agents who debriefed him at sentencing, to demonstrate that he had been truthful in his prior disclosures. The Circuit rejected this argument because the safety-valve provision does not require an evidentiary hearing at sentencing. The district court also had discretion to determine that in light of the gaps in defendant’s prior affidavit, no useful or truthful information would be forthcoming at sentencing.

Given the information provided, the district court was permitted to determine issues surrounding Galvon-Manzo’s credibility. Here, the district court did not automatically apply a two-strikes policy, forbidding a third attempt to tell the truth under any circumstances, but instead permissibly determined from everything it had received that Galvon-Manzo was not going to be truthful and a third opportunity to qualify would be futile. For these reasons, the Circuit affirmed the sentences of both defendants.

No. 10-6080. Raley v. Hyundai Motor Co., Ltd. 06/14/2011. W.D.Okla. Judge Gorsuch. Notice of Appeal Filed by Non-Party—No Appellate Jurisdiction—Appeal Dismissed.

Misty Raley filed suit against Hyundai Motor Co., Ltd., alleging that a car it manufactured was defectively designed and responsible for injuries she suffered in an accident. Before trial, Raley asked the district court to substitute BancFirst in her place as the real party in interest and sole plaintiff. BancFirst had been appointed as guardian for Raley and her children. Over Hyundai’s objection, the district court granted the substitution. Following a trial at which Hyundai prevailed, Raley (not BancFirst) filed a notice of appeal.

The Tenth Circuit noted that generally only named parties may appeal an adverse final judgment and that Raley apparently did not fall within the exceptions to the general rule. The Circuit then rejected Raley’s arguments that (1) BancFirst was merely added as a party in the district court; (2) the Circuit could effect a reverse substitution whereby Raley was now the named plaintiff; and (3) the Circuit could infer BancFirst’s intent to appeal. The appellate rules require that the notice of appeal identify the party taking the appeal and make clear the party’s intent to appeal. These requirements were not met. The appeal was dismissed for lack of jurisdiction.

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