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TCL > September 2011 Issue > Summaries of Selected Opinions

September 2011       Vol. 40, No. 9       Page  139
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. 10-4166. United States v. Martinez-Haro. 06/22/2011. D.Utah. Judge Ebel. Defendant’s Mental Competency—Power of District Court to Order Second Competency Examination Where Necessary.

Defendant was indicted and charged with two counts of possession with intent to distribute methamphetamine. Before trial, his counsel requested that a psychiatric examination be performed to determine defendant’s competency to stand trial. A doctor performed a psychiatric examination and concluded that defendant likely was not competent to stand trial. She noted his unrealistic and seemingly delusional ideas about his case and his many risk factors for organic brain damage. She recommended that more testing be done by a Spanish-speaking neuropsychologist and indicated a willingness to revise her conclusion based on the results of that examination.

The government filed a motion seeking a second competency exam. Defendant objected to the request. The district court granted the motion and ordered that defendant be committed to a suitable Bureau of Prisons facility for purposes of the examination. Defendant then took an interlocutory appeal from the order.

The Tenth Circuit first determined it had jurisdiction over the challenged order under the collateral order doctrine. It then turned to interpretation of 18 U.S.C. § 4241(b), which deals with competency examinations. Although the statute provides that a court may order that a psychiatric or psychological examination be conducted, this language does not limit the district court to ordering only one examination, as defendant contended. Moreover, the statute’s provision that the court may order an examination "by more than one such examiner" does not prevent the court from ordering a second examination after the initial examination. In this case, the district court did not abuse its discretion in ordering a second examination; it was not authorizing a second examination as a means of "shopping" for a psychologist or psychiatrist who would conclude that defendant was competent. Instead, the district court sought to give effect to the first examiner’s concern that a second exam by a Spanish-speaking neuropsychologist might give the court more complete information on which to base its competency opinion. The Circuit therefore affirmed the district court’s order for a second competency exam.

No. 10-3162. United States v. Ransom. 06/24/2011. D.Kan. Judge Matheson. Theft of Public Money—Falsification of Time Sheets—Fair Labor Standards Act—Exempt Public Employee.

Defendant, a supervisor at the U.S. Department of Housing and Urban Development (HUD), was convicted of wire fraud and theft of public money after he falsified his timesheets at work. As a supervisory employee, defendant was exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). Like other supervisors at HUD, however, he was required to select a fixed office arrival time and to ensure a supervisory presence during official business hours. Defendant’s approved working hours were from 8:00 a.m. to 4:30 p.m. Every two weeks, he signed and turned in time records that accounted for eighty hours during that time period, and these time records were sent via wire communication for payment.

After an anonymous tip that defendant was frequently absent from work, FBI and HUD agents investigated and discovered that, even though his time cards showed him at work, he had been absent from the office at times during core working hours to play tennis or gamble at a casino. Between 2001 and May 2007, the investigation determined, he had failed to take more than 800 hours of leave time that should have been expended when he engaged in these activities. After a jury trial, he was sentenced to twelve months and a day of imprisonment and ordered to pay $46,925.57 in restitution.

On appeal, defendant first argued that there was insufficient evidence to sustain his convictions. He argued that his FLSA-exempt status, resulting in his receipt of a fixed salary regardless of the number of hours worked, rendered his time records irrelevant to the amount of money he received from HUD. This, he contended, obviated his liability for wire fraud or theft of public money even if he falsified the time records. The Tenth Circuit disagreed. It noted that defendant’s time records affected his leave balances. Because leave has monetary value, failure to take leave when appropriate resulted in his wrongfully obtaining money from the government. That the absences were for less than a full day, or that his hours were set by the agency rather than by statute, did not prevent the jury from finding that he stole public money by failing to record his absences and to take appropriate leave.

Defendant also argued that as an FLSA-exempt supervisory employee, he was not on notice that his paychecks were tied to his time records, and therefore did not have the requisite intent to commit the crimes with which he was charged. The Circuit noted that there was sufficient evidence that defendant was familiar with timekeeping requirements and their consequences, and also that he knew he could not make up the missed core hours with weekend and nighttime hours, rather than taking leave.

Finally, the jury was properly instructed that alleged violations of HUD policies should not be considered a violation of criminal law per se, but could be used to determine whether defendant had the required intent to violate the criminal statutes. The Circuit therefore affirmed defendant’s conviction.

No. 10-2204. United States v. Maestas. 06/28/2011. D.N.M. Judge Briscoe. U.S. Sentencing Guidelines—Guideline Enhancement—Risk of Death or Serious Bodily Injury—Defendant’s Knowledge of Risk.

Defendant pleaded guilty to theft of government property. At sentencing, the district court applied a U.S. Sentencing Guidelines enhancement that increased his offense level because the offense involved "the conscious or reckless risk of death or serious bodily injury" [U.S. Sentencing Guidelines § 2B1.1(b)(13)].

Defendant worked as a technician in a plutonium facility at Los Alamos National Laboratory (LANL). He was attempting to leave the facility during the lunch hour when he set off a radiation detector. He was found to be carrying a piece of gold that was contaminated with plutonium. The gold piece was wrapped in yellow tape, used at LANL to identify radioactive material. Defendant claimed he was taking the gold to someone in the machine shop, although this explanation was implausible because radioactive materials were not allowed in the machine shop. The evidence also showed that defendant had attempted to decontaminate the gold before removing it from the facility, and that he had tested it for contamination before removing it, but the detector he used was incapable of detecting plutonium intermixed with the gold.

The district court concluded that defendant knew the contaminated gold was hazardous to humans. It rejected defendant’s argument that he scanned the gold to make sure it was safe, and concluded he only tested it to determine whether he would be caught. Accordingly, it applied the Sentencing Guidelines enhancement.

On appeal, defendant argued that the enhancement required the government to prove that he was aware of the risk that his conduct created and consciously or recklessly disregarded this risk. The Tenth Circuit disagreed; it held that the government does not have to prove that a defendant was aware of the risk of serious bodily injury or death when it seeks a § 2B1.1(b)(13) enhancement. The enhancement refers to reckless "risk," not reckless "conduct." To receive the enhancement, a defendant either must have been conscious of—or reckless as to the existence of—the risk created by his or her conduct. (The conduct would involve a reckless risk if the bodily injury would have been an obvious risk to a reasonable person.)

The Circuit also held there was sufficient evidence to support the district court’s findings that the gold posed a health risk and that defendant was aware of this risk. The gold was contaminated with a significant amount of plutonium and could have posed an extreme harm if it entered a person’s body. To prove that it posed a risk of bodily harm, the government did not have to prove that the gold would certainly be incorporated into a person’s body. The Sentencing Guideline does not speak to a certainty of bodily injury. Defendant’s twelve years of working with radioactive materials, coupled with the indicia that the gold was radioactive, provided sufficient evidence that he was aware the gold he took was dangerous. The decision of the district court therefore was affirmed.

No. 10-9549. JimenezGuzman v. Holder. 06/28/2011. Board of Immigration Appeals. Judge McKay. Immigration—Agency’s Discretionary Decision—Reviewable if Based on Regulation—Not Reviewable if Based on Statute.

Petitioner, a Mexican citizen admitted to the United States as a lawful permanent resident, pleaded guilty in state court to possession of heroin. Consequently, removal proceedings were instituted against him. While those proceedings were pending, the U.S. Supreme Court issued Padilla v. Kentucky, 130 S.Ct. 1473 (2010), holding that for a non-citizen defendant, the right to the effective assistance of counsel includes the right to be advised of the risk of deportation resulting from a guilty plea. Petitioner filed a motion in state court to withdraw his guilty plea, claiming he had not been advised as required by Padilla. The state trial court denied the motion. Petitioner then requested a continuance of his removal proceedings to permit him to file an appeal with the state court of appeals. The Immigration Judge denied a continuance and ordered petitioner removed.

The Tenth Circuit rejected the Attorney General’s assertion that the court lacked jurisdiction to review the denial of petitioner’s request to continue his administrative hearing. Although agency decisions made discretionary by statute are not reviewable, decisions made discretionary by regulation, such as the denial of an alien’s request for a continuance, are reviewable. Nevertheless, the Circuit upheld the denial of a continuance because the Immigration Judge had continued the hearing several times while awaiting the state trial court’s disposition of petitioner’s challenge to his conviction. Also, the record did not support a claim of ineffective assistance of counsel in the guilty plea. The Circuit determined that the conviction record provided clear, unequivocal, and convincing evidence to support the agency’s decision to remove him. The petition for review was denied.

No. 10-6190. Ravenswood Investment Co., L.P. v. Avalon Correctional Services. 07/08/2011. W.D.Okla. Judge Murphy. Diversity Jurisdiction—Complete Diversity Required—Dismiss Dispensable Party.

This case was filed based on diversity jurisdiction, with plaintiffs being residents of Oklahoma and defendant being a resident of Nevada. After significant court proceedings resulting in several interim orders, the parties discovered that all plaintiffs were not diverse from all defendants. One plaintiff was comprised of a trust whose trustee was a resident of Nevada. Nevertheless, the district court entered an order converting the interim orders to a final order on the merits and dismissing the remaining claims. Plaintiffs appealed.

The Tenth Circuit noted that complete diversity must exist at the time the case is filed. However, there is an exception to the time-of-filing rule, which that allows the court to dismiss dispensable non-diverse parties. The district court attempted to invoke this exception and preserve the investment of resources by the court and the parties. The district court did not cure the jurisdictional defect, however, because it did not alter the composition of the parties. That left two options: (1) either dismiss the case without prejudice in its entirety, or (2) dismiss a dispensable non-diverse party to effect complete diversity.

The courts of appeals have the power to dismiss a party to achieve complete diversity. Even so, the considerations were not straightforward. The Circuit remanded the case for the district court to determine whether the non-diverse plaintiff was dispensable—the prejudice each party would face if dismissed—and whether any party was more at fault for failing to discover the jurisdictional defect before such a substantial investment of time by the court and the parties. If full diversity cannot be achieved by dismissing a non-diverse party, the district court must dismiss the case in its entirety for lack of jurisdiction. The district court’s judgment was reversed and the case was remanded for further proceedings.

No. 10-2070. United States v. Martinez. 07/12/2011. D.N.M. Judge Seymour. Fourth Amendment—Warrantless Search and Seizure—Exigent Circumstances.

The district court granted defendant’s motion to suppress evidence found during the search of his home, and the government appealed. Sheriff’s officers undertook the search after the Bernalillo County Emergency Communication Center received a 911 call from defendant’s residence. The 911 dispatcher heard only static on the line. She disconnected the call and placed a return call to the residence, but there was no answer and she again heard only static on the line. Sheriff’s officers were dispatched to the residence; the dispatch was not considered a "priority call."

When the officers arrived at the residence, they knocked repeatedly on the front door but received no response. They saw no sign of forced entry and heard and saw no one. They did find an unlocked sliding glass balcony door at the rear of the house. The house was untidy and there were electronics boxes just inside the sliding door. They opened the door and announced their presence, and then entered the house and conducted a sweep. Inside the house, they found drugs and drug paraphernalia in plain view, as well as pornography that appeared to depict minors, but no one in need of emergency assistance. They exited the house and secured it after spending approximately five minutes inside.

Defendant arrived home while the officers were still on the property. He was taken into custody, advised of his Miranda rights, and made admissions to a detective. Relying on information obtained from defendant and from their observations during the warrantless entry, officers secured a search warrant and seized evidence during the search that was used to support criminal charges against defendant.

On appeal, the government argued that exigent circumstances justified the officers’ entry into defendants’ house and, consequently, the evidence obtained as a result should not have been suppressed. The Tenth Circuit disagreed. The government bears the burden of proving that exigent circumstances rendered a warrantless search reasonable. To rely on exigent circumstances, the government must show that officers had an objectively reasonable basis for believing that a person inside the house was in need of immediate aid. Here, the government relied on four facts to make this showing: (1) the static-only 911 call from the residence; (2) the untidy appearance of the house; (3) the unlocked door; and (4) the electronics boxes inside the unlocked door.

The Circuit held that none of these factors demonstrated exigent circumstances. A static-only 911 call can result from factors such as electrical and weather anomalies. The remaining factors added little to the equation, did not give rise to a reasonable suspicion that a burglary was in progress, and did not justify a warrantless search. Accordingly, the Circuit affirmed the suppression of evidence.

No. 10-2214. Garrett v. Cook. 07/14/2011. D.N.M. Judge McKay. Removal to Federal Court—Award of Attorney Fees and Costs—Thirty Days—Objectively Reasonable—Automatic Bankruptcy Stay—No Abuse of Discretion.

Defendant was sued in state court in 2003. He filed for bankruptcy in 2004. Following adverse rulings in the procedurally complicated state-court case, he filed a notice of removal to federal court on January 27, 2010, based on his claim that the state courts discriminated against him because he was white. Ordinarily, a defendant must remove a case to federal court within thirty days of the time the suit was commenced. If the original case is not removable, but a pleading is filed later that makes the case removable, a defendant has thirty days after filing the subsequent pleading to file a removal notice.

The district court held that defendant had not filed a timely notice of removal from any of the possible triggering pleadings, and that the obvious purpose of removal was to avoid adverse state-court rulings. The district court awarded $22,300 in fees and costs to two plaintiffs. Defendant appealed.

The Tenth Circuit lacks jurisdiction over remand orders, but it does have jurisdiction to review an award for attorney fees. Generally, courts may award attorney fees only where the removing party lacked an objectively reasonable basis for seeking removal. The Circuit first ruled that the automatic bankruptcy stay did not prevent defendant from being held liable for the attorney fees and costs because his voluntary, post-petition litigation in federal court was not covered by the stay.

Defendant argued that he had never been properly served with the third amended complaint, so his thirty days for removal had not run. The Circuit rejected this argument. For removal to be timely, it must run from some other event that occurred within the thirty days before the defendant filed his notice of removal. In addition, removal prior to a triggering event would have been premature and thus ineffectual. Furthermore, earlier complaints served on defendant would have triggered the thirty-day period, because it is the earliest pleading putting a defendant on notice of removability that counts. The Tenth Circuit also rejected defendant’s claim that he was entitled to removal because he had alleged racial discrimination. Defendant’s removal was both untimely and objectively unreasonable. The award of attorney fees and costs was not an abuse of discretion. The district court’s judgment was affirmed.

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