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TCL > February 2012 Issue > Summaries of Selected Opinions

February 2012       Vol. 41, No. 2       Page  127
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. 10-1461. United States v. Bass. 11/23/2011. D.Colo. Judge Hartz. Search and Seizure—Consent to Search Shared Premises—Search of Zippered Container in Common Area of Home.

A jury convicted defendant of one count of being a felon in possession of a firearm. After arresting defendant near his residence for unrelated offenses and transporting him to the police station, officers returned to his trailer, knocked on the door, and spoke to defendant’s girlfriend. She initially refused consent to a search, stating she needed to speak to defendant, the "homeowner." She attempted to call defendant. When officers informed her that defendant was in custody, she became upset and began crying. She also told the officers she was relieved defendant had been arrested because he had been verbally abusing her. She then referred to the officers as "angels."

The officers told her they had arrested defendant with drugs (true) and with a firearm (not true), and again requested permission to search the trailer. This time she gave her verbal (and later written) consent to the search. She told the officers that defendant stored firearms in black bags, satchels, or backpacks. One of the officers located and opened a black leather zipper bag, in which he found a revolver.

Defendant was convicted of possessing the revolver. He was acquitted of possessing two rifles, which police also located with his girlfriend’s assistance in a neighbor’s storage shed.

On appeal, defendant argued that this girlfriend’s consent was involuntary and that she lacked authority to consent to search of the black zippered bag. He argued that involuntariness was demonstrated by several factors: his girlfriend initially refused consent to the search; she was upset; she feared getting in trouble if she did not cooperate; she had used methamphetamine earlier that day; she had made several inconsistent statements about her consent; and the officer lied to her that defendant had been found with a gun.

The Tenth Circuit noted that the district court viewed the evidence differently and permissibly drew inferences favorable to the girlfriend’s consent from such factors as the relief she expressed at defendant’s arrest, her apparent understanding of the proceedings and additional cooperation with the officers, and the officers’ peaceful demeanor. Therefore, the district court permissibly determined that the search of the trailer was not involuntary.

The Circuit further determined that the girlfriend had apparent authority to consent to the search of the bag containing the firearm. Factors such as her storage of personal possessions at the trailer indicated she was a "live-in girlfriend" with authority to consent to a search of the trailer. As for the bag itself, it was located on the living room floor next to the couch, giving no indication that defendant intended to protect it from scrutiny. Thus, the officers were reasonable in believing that the girlfriend had the requisite authority over an unlocked bag in a common area.

Defendant also challenged his sentence. The district court had enhanced the sentence based on conduct for which the jury acquitted him—possession of the rifles found in the storage shed. The Circuit rejected this challenge, noting the general principle that the Sixth Amendment right to jury trial is not implicated by judicial fact-finding under a discretionary sentencing regime. This is true even where a jury acquits the defendant of a crime later used against him or her at sentencing. The Circuit also rejected defendant’s sufficiency-of-the-evidence challenge, ruling that the district court’s credibility determinations were adequate to support its conclusions. Accordingly, it affirmed defendant’s conviction and sentence.

No. 10-3315. Almond v. Unified School District #501. 11/29/2011. D.Kan. Judge Gorsuch. Employment Discrimination—Untimely Administrative Grievance—Age Discrimination in Employment Act—Lily Ledbetter Fair Pay Act.

To ease budgetary straits, in 2003, defendant-employer eliminated plaintiff’s position, but offered to retain him in a lower-paying job. The salary reduction would not take effect for two years. Plaintiff accepted the offer.

In 2006, plaintiff filed an administrative grievance alleging that his demotion was motivated by unlawful age discrimination, in violation of the Age Discrimination in Employment Act (ADEA). The district court dismissed his subsequent lawsuit because his grievance was filed too late. Plaintiff appealed.

The Tenth Circuit held that the ADEA claim was time-barred, because plaintiff did not file his administrative grievance within 300 days after he discovered his injury—his demotion in 2003—rather than two years later when his pay was reduced. The Circuit then considered whether the Lily Ledbetter Fair Pay Act (Ledbetter Act), enacted in 2009, applied. The Ledbetter Act applies to claims alleging discrimination in compensation and provides that an "unlawful practice" includes each time wages are paid. Plaintiff argued that his claim accrued when he was paid the lower salary in 2006, thus making his claim timely. However, the Circuit held that the Ledbetter Act applies only to claims of unequal pay for equal work. Plaintiff did not make such a claim, so the Act did not apply and his case was untimely. The district court’s judgment was affirmed.

No. 11-2024. United States v. Rochin. 12/13/2011. D.N.M. Judge Gorsuch. Fourth Amendment—Objectively Reasonable Fear of Dangerous Objects—Officer’s Prerogative to Remove Objects From Pockets.

Defendant was charged with and convicted of a federal firearm offense. A police officer stopped his car at 2:30 a.m. for an expired registration. As the officer approached defendant’s car, a police dispatcher warned him that the vehicle and its driver were suspected of involvement in a drive-by shooting and that he might be armed and dangerous.

Defendant could not provide a driver’s license, vehicle registration, or insurance information on request. Fearing for his safety, the officer asked defendant to step out of the vehicle for a protective pat-down. During the brief frisk, the officer felt a "bulge" in each of defendant’s trouser pockets. The objects felt long and hard, but the officer could not tell what they were. He asked defendant in Spanish, "¿Quien es?"—meaning "Who is this?" Defendant, having equal difficulties in Spanish, responded "No sabe." This translates to "He doesn’t know." The officer then decided to remove the objects for inspection. They turned out to be glass pipes containing drugs. The officer arrested defendant for drug possession. A later inventory search of the car turned up the gun for which defendant was charged.

On appeal, defendant argued that the officer violated the Fourth Amendment by removing the objects in his pocket for inspection when he had no idea what they were. The Tenth Circuit rejected this argument, noting that the officer’s subjective beliefs and knowledge were legally irrelevant. What counted was whether a reasonable officer could have feared that the objects he felt might be used as instruments of assault. A reasonable officer is not credited with x-ray vision and cannot be faulted for failing to divine the essentially harmless nature of objects without seeing them. Here, it was objectively reasonable for the officer to fear that the hard objects might be used as weapons. Moreover, given this reasonable suspicion, he was not required to confirm through tactile investigation what the objects were before removing them from defendant’s pockets. Accordingly, the Circuit affirmed defendant’s conviction.

No. 10-4200. United States v. Halliday. 12/16/2011. D.Utah. Judge Baldock. Guideline Sentencing—Criminal Contempt and "Most Analogous Offense Guideline"—Obstruction of Justice as Appropriate Analogous Guideline.

Defendant was convicted of criminal contempt for refusing to testify before a grand jury and sentenced to ten months’ incarceration. The grand jury subpoenaed him as part of its investigation into attacks on mink farms. At his first appearance, he refused to take an oath as a witness and answered virtually every question with "No comment."

Defendant subsequently sent a series of text messages to a target of the grand jury’s investigation, telling him they needed to talk and make sure they were "all on the same page." At his second grand jury appearance, defendant took the oath, but again answered "No comment." He then asserted a Fifth Amendment privilege and refused to provide substantive answers to questions. Afterward, he again texted the targeted individual, gloating about his resistance to the questions. The district court held a civil contempt hearing, at which the government granted defendant immunity. He still refused to answer questions. The district court found him in civil contempt and he was jailed for 108 days, until the grand jury’s term expired. He subsequently was indicted for criminal contempt and pleaded guilty to that charge.

Defendant’s issues on appeal centered around the calculation of his sentence. The U.S. Sentencing Guideline (Guideline) for criminal contempt directs the court to "apply the most analogous offense guideline." Defendant argued that the most analogous guideline was U.S.S.G. § 2J1.5, "Failure to Appear by Material Witness." However, the district court relied instead on U.S.S.G. § 2J1.2, "Obstruction of Justice." Discussing a conflict in the standard of review, the Tenth Circuit noted that it would review the district court’s factual findings for clear error, while reviewing its selection of the most analogous guideline de novo. It affirmed the district court’s determination that defendant’s refusal to testify was motivated by a desire to impede the prosecution rather than a simple matter of conscience based on his beliefs. Based on the tenor of defendant’s text messages, the district court’s findings were not clearly erroneous.

Given these facts, on de novo review, the Circuit also could not say that the district court had selected the wrong Guideline provision. The Guidelines themselves contemplate the application of the "obstruction of justice" guideline in appropriate circumstances. Here, defendant’s refusal to testify over a long period of time and his statements about resisting the grand jury made his conduct more serious than simply failing to appear.

Defendant next argued that this sentence was substantively unreasonable. He contended that a sentence of probation would have been sufficient. He pointed to his "exemplary conduct" as an adult and throughout his pretrial release, his ability to overcome previous mental disorders, and his plans to further his education. The district court permissibly relied on other factors that it concluded outweighed these factors, such as defendant’s criminal history and his contempt for the grand jury. Moreover, defendant’s sentence was significantly lower than those awarded the two men who were convicted of animal enterprise terrorism in the mink farm attack, and it was not disproportionate to those awarded in similar cases elsewhere. Accordingly, the Circuit affirmed defendant’s sentence.

No. 109541. Compass Environmental, Inc. v. Occupational Safety and Health Review Comm’n. 12/19/2011. OSHA Review Comm’n. Judge McKay. High-Voltage Power Line—Training-Specific Test—Reasonably Prudent Employer.

Plaintiff-employer appealed the decision of the Occupational Safety and Health Administration (OSHA) Review Commission (Commission) to impose a $5,500 penalty for failing to train a nowdeceased employee to recognize and avoid the electrocution hazard presented by a highvoltage overhead power line at his worksite in Ft. Lupton, Colorado. The employee was hired after the job safety training had been held, and his individual safety training did not include instruction concerning an on-site overhead power line. During an excavation, the employee was electrocuted. The Commission concluded that a reasonably prudent employer would have anticipated the employee’s exposure to the overhead power line and provided him appropriate training.

Employer sought review from the Tenth Circuit. It argued that the Commission failed to apply the correct legal test and erred in concluding that a reasonably prudent employer would have anticipated the employee’s potential exposure to the power line. The Circuit rejected employer’s argument that an OSHA violation must be established through proof of a four-part test showing: (1) the cited safety standard applied; (2) the employer did not comply with the standard; (3) the employee had access to the violative conditions; and (4) the employer knew or should have known of the violative conditions. Rather, the Commission applied a trainingspecific test and focused on whether a reasonably prudent employer would have anticipated the employee’s exposure to the power line and provided him with training on this hazard.

The Circuit held that the Commission’s inquiry was within the statutory and regulatory requirements. The Circuit further held that the Commission did not abuse its discretion in holding that the employer should have trained the employee on the fatal danger posed by the highvoltage lines. The Commission’s decision was affirmed.

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