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TCL > March 2012 Issue > Summaries of Selected Opinions

March 2012       Vol. 41, No. 3       Page  137
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. 10-1363. Marx v. General Revenue Corp. 12/21/2011. D.Colo. Judge Kelly. Fair Debt Collection Practices Act—Third-Party Communication of Debt—Costs Awarded—Showing of Bad Faith Not Required.

Plaintiff sued defendant, a debt-collection agency, alleging that it violated the Fair Debt Collection Practices Act (FDCPA) when it faxed to her workplace a request for information about her employment. After a bench trial, the district court found no FDCPA violation and awarded costs to defendant in the amount of $4,543. Plaintiff appealed, asserting that the fax to her job violated the FDCPA’s provision against debtcollector communications with third parties. She also challenged the award of costs.

The Tenth Circuit held that the request to verify plaintiff’s employment was not a prohibited third-party communication of a debt, because it did not indicate to the recipient that the message related to the collection of a debt. In addition, there was no evidence that plaintiff’s employer thought the fax concerned a debt. Defendant testified that it was careful not to mention a debt to a third party.

The Circuit approved the award of costs under F.R.C.P. 54(d), which allows a costs award to the prevailing party. The FDCPA also contains a costs provision, which the Circuit held does not conflict with Rule 54(d). The Circuit concluded that costs can be awarded to a prevailing defendant without a finding that the plaintiff brought the case in bad faith for purposes of harassment. The district court’s judgment was affirmed.

No. 10-4095. United States v. Murphy. 12/23/2011. D.Utah. Judge Tymkovich. Sex Offender Registration and Notification Act—Reporting Requirements—Applicability to Offenders Moving Overseas.

Defendant was convicted of knowingly failing to update his sex offender registration as required by the Sex Offender Registration and Notification Act (SORNA). SORNA requires sex offenders to register and keep their registration current in each state where they reside, work, or study. When sex offenders change their name, residence, employment, or student status, they also must appear in person in at least one jurisdiction involved within three days, to inform the state’s authorities of the change.

Defendant was registered as a sex offender in Utah, where he had been paroled to a community corrections center. He escaped from the center and fled to the country of Belize. After six months of living in Belize under an assumed name, he was arrested for lack of proper documentation and returned to Utah, where he was convicted of the SORNA violation.

On appeal, defendant argued that he did not violate the statute because Belize is not a covered jurisdiction as defined by SORNA and he had no obligation to update his registration in that country. The Tenth Circuit agreed that sex offenders who are living abroad are not obligated to return to the United States to update their registration each time they change residence, employment, or student status; however, defendant violated SORNA by failing to notify Utah authorities of his initial change of status—his escape from the community corrections facility—which occurred while he was still residing in the jurisdiction of Utah. Abandonment of a dwelling place is a change in residence under SORNA that must be reported to a "jurisdiction involved" within three days, whether or not the defendant has yet established a new residence elsewhere. Though defendant changed his residence, he did not immediately change the jurisdiction in which he resided merely by abandoning his previous dwelling. Thus, even though SORNA’s reporting requirement does not apply abroad, sex offenders who are relocating abroad must satisfy their reporting obligations in the jurisdiction where they abandoned their residence.

No. 11-2042. United States v. Lonjose. 12/28/2011. D.N.M. Judge Eagan. Scope of Appeal Waiver—Modified Sentence—Supervised Release Condition Involving Contact With Minors.

Defendant pleaded guilty to one count of engaging in a sexual act with a minor in Indian Country and was sentenced to fifty-one months in prison, followed by three years of supervised release. As part of his plea agreement, he waived his right to appeal his sentence. Defendant’s conditions of supervised release did not initially include a condition prohibiting or limiting his contact with minors; however, the U.S. Probation Office filed a motion to modify the conditions to include two additional conditions: (1) that defendant reside at and complete a program at a residential re-entry center; and (2) that he not have contact with any child under the age of 18 without written permission from his probation officer. On appeal from the district court’s order granting this motion, defendant argued that the condition prohibiting him from contact with minors intruded on his right to familial association and lacked compelling justification. The government responded that the appeal waiver barred defendant from raising this issue.

The Tenth Circuit first addressed whether defendant’s challenge to the condition of supervised release lay within the appeal waiver. The waiver stated that defendant "knowingly waives the right to appeal any sentence within the statutory range applicable to the statute(s) of conviction." Ambiguities in an appeal waiver are to be read against the government and in favor of the defendant’s appeal rights. The plea agreement, including the waiver, is construed in light of what the defendant reasonably understood when he or she entered the plea. A modification of conditions of supervised release creates a right of appeal that is separate from the defendant’s right to appeal the original sentence. Here, defendant’s appeal waiver did not include a waiver of this separate right of appeal, and he challenged only a modification of his sentence. Therefore, his appeal could proceed.

The Circuit next turned to the condition that limited defendant’s contact with minors. In imposing this condition, the district court had relied on the facts of defendant’s offense, which involved sexual contact with a girl between 12 and 16 years of age, as well as his previous sexual relationship with another 12-year-old girl. However, the Circuit determined that the facts in the record did not present the compelling circumstances necessary to justify a supervised release condition that limited defendant’s contact with his son and other minor male family members. Neither the provision in the condition of supervised release allowing defendant to seek permission to associate with his son, nor the district court’s exhortation to the probation officer to "keep a close eye" on the situation in view of eventual mitigation of the condition, justified the infringement on defendant’s ability to associate freely with his family. Accordingly, the Circuit reversed the imposition of the condition of supervised release and remanded the case for further proceedings.

No. 10-1095. United States v. Carel, Jr. 12/30/2011. D.Colo. Judge Matheson. Constitutionality of Sex Offender Registration and Notification Act as Applied to Federal Sex Offender on Supervised Release.

Defendant was convicted of knowingly failing to update his sex offender registration as required by the Sex Offender Registration and Notification Act (SORNA). He previously had pleaded guilty to sexual abuse of a minor in Indian Country. While on supervised release, he was required to re-register quarterly under SORNA but failed to do so. He entered a conditional guilty plea to the failure-to-register offense, reserving his right to appeal his motion to dismiss on the basis that SORNA is unconstitutional.

SORNA requires sex offenders to register in the jurisdiction where they reside, even if they do not cross state lines. On appeal, defendant argued that in enacting this provision, Congress exceeded the scope of its authority under the Commerce Clause. He also argued that the provision’s application to federal sex offenders was not a proper exercise of Congress’s authority under the Necessary and Proper Clause. Because the Tenth Circuit concluded that Congress did not exceed its authority under the Necessary and Proper Clause, it did not reach the Commerce Clause question.

The Circuit began by construing defendant’s challenge as an "as-applied" rather than a facial challenge to SORNA. The issue, then, was whether Congress exceeded the scope of its authority by requiring defendant—a federal sex offender on supervised release—to register as a sex offender. The Necessary and Proper Clause gives Congress broad authority to enact federal legislation that is rationally related to the implementation of a constitutionally enumerated power. Congress has broad authority to punish those who violate its laws. It is undisputed that Congress has authority to criminalize sexual abuse of a minor in Indian country. Congress reasonably could have concluded that federally adjudicated sex offenders would pose an especially high danger to the public if they were allowed to remain in the public on supervised release without being required to register as sex offenders. SORNA is designed to require them to do so. Moreover, Congress’s authority to impose such a requirement was not limited to sex offenders currently in custody, but extended to defendant, who was on supervised release. Accordingly, the Circuit upheld defendant’s conviction and sentence.

No. 10-3331. United States v. Ruiz. 01/10/2012. D.Kan. Judge Seymour. Fourth Amendment—Reasonable Expectation of Privacy in Airplane Hangar and Abandoned Rental House.

Defendant pleaded guilty to possession with intent to distribute five kilograms or more of cocaine. He reserved his right to appeal the district court’s denial of his motions to suppress evidence. The officers discovered the cocaine inside a rented airplane that defendant had flown from Las Cruces, New Mexico to Liberal, Kansas. The Air and Marine Operations Center (AMOC), a radar monitoring and coordination facility affiliated with the Department of Homeland Security, identified defendant’s flight as suspicious because he did not file a flight plan in marginal weather, and because an airplane carrying drugs had landed in Liberal six months earlier. AMOC contacted an agent with Immigration and Customs Enforcement, who in turn contacted a receptionist at the airport, asking her to report any suspicious behavior by defendant. Defendant stored the plane in a hangar along with airplanes owned by other customers, which was not unusual, but he paid cash for the storage, which was unusual. After the receptionist reported this, the Kansas Bureau of Investigation sent an agent to examine the airplane inside the hangar. Finding the plane locked, the agent obtained the services of a drug dog, which alerted several times to the presence of a narcotic in the plane. After obtaining a search warrant, agents entered the plane using a spare key and found a suitcase containing cocaine.

Beginning in January 2008, defendant also had rented a house in Norwich, Connecticut. In February 2010, shortly after defendant’s airplane flight to Liberal, the landlord received a letter from defendant stating that he would no longer be renting the home and had relocated to Phoenix, Arizona. Defendant told the landlord he could keep the down payment and the furniture, but requested that the landlord store his electronics, documents, and clothing until he could return. The landlord entered the rental home by drilling out a tamper-proof lock installed by defendant. Inside the home, the landlord and his wife discovered several thousand dollars, wooden crates in the garage, clothes all over the bathroom, and flight plans and manuals in the study. Becoming suspicious, the landlord contacted police, who obtained his permission to search the residence. After they discovered what appeared to be drugs on a rafter in the basement ceiling, they obtained a search warrant. They conducted a search, which yielded cocaine, cash, money counters, computer equipment, and a safe. They later obtained a second search warrant and performed an additional search of the residence.

On appeal, defendant argued that the district court erred in denying his motions to suppress the evidence found during the searches of the airplane and the rental house. With regard to the search of the airplane, he contended that the search warrant affidavit failed to include information that would have demonstrated his reasonable expectation of privacy in the hangar and the unreliability of the drug dog. The Tenth Circuit concluded that defendant had no reasonable expectation of privacy in the hangar. Although the hangar was secured with a fence and customers did not have access to it after business hours, it was open to the public during business hours and its owner gave police permission to search it. The hangar differed from a motel room in that defendant shared it with other customers and it was entirely controlled by the owner. The search warrant was not deficient because it failed to mention that the drug dog had falsely alerted authorities on three of its past ten drug sniffs. Such evidence of unreliability was insufficient to undermine probable cause for the search.

Turning to the search of the house, the Circuit concluded that defendant had abandoned the house when he terminated the lease. Thus, he lost any reasonable expectation of privacy in the house. On appeal, defendant had argued that notwithstanding the abandonment, he retained a legitimate expectation of privacy in his personal belongings. Because he failed to make this argument in the district court, however, the Circuit refused to consider it. Accordingly, the Circuit affirmed the denial of defendant’s motions to suppress evidence.

Awad v. Ziriax. No. 10-6273. 01/10/2012. W.D.Okla. Judge Matheson. Sharia Law—State Constitutional Amendment—Establishment Clause—Preliminary Injunction—Heightened Standard—Injury in Fact—Harm Sufficiently Imminent—Discrimination Among Religions—No Compelling State Interest—Irreparable Injury.

Oklahoma voters approved a state constitutional amendment that would prevent Oklahoma state courts from applying or considering international law or Sharia law. Before the amendment could take effect, it had to be certified by the Election Board (Board). Plaintiff, an American citizen residing in Oklahoma, is a Muslim and the executive director of the Council on American–Islamic Relations. He sued to prevent certification of the amendment, asserting that the proposed amendment violated his rights under the Free Exercise Clause of the First Amendment. A federal district court granted a preliminary injunction to prevent the Board from certifying the election result. The Board appealed.

The Tenth Circuit upheld the injunction on Establishment Clause grounds. The Circuit first rejected the Board’s argument that the claim was not justiciable, holding that plaintiff had alleged an injury-in-fact by asserting that the proposed amendment expressly condemned his religion and exposed him and other Muslims in Oklahoma to disfavored treatment. The Circuit next ruled that the claim was ripe for review because the asserted harm was sufficiently imminent. Turning to the preliminary injunction, the Circuit approved the district court’s requirement that plaintiff meet the heightened standard for an injunction that grants a party all the relief he could recover after a merits trial. The Circuit concluded that the proposed amendment violated the Establishment Clause because it facially discriminated among religions and the Board failed to show a compelling state interest to justify it. In addition, plaintiff established that he would suffer irreparable injury, that his injury outweighed the Board’s injury under the injunction, and that the injunction was not adverse to the public interest. Accordingly, the preliminary injunction was affirmed.

Nos. 10-2167 & 10-2172. Guttman, MD v. Khalsa. 01/11/2012. D.N.M. Judge Tymkovich. Americans with Disabilities Act—Eleventh Amendment—State Sovereign Immunity—Money Damages—Prospective Injunctive Relief.

Plaintiff, a physician, sued the state of New Mexico and two individuals for revoking his medical license on the ground that allowing him to continue to practice medicine would constitute an imminent danger to public safety. He claimed that New Mexico violated the Americans with Disabilities Act (ADA) because his license was revoked due to his psychiatric condition. He sought money damages and injunctive relief. The district court dismissed the case and plaintiff appealed.

The Tenth Circuit held that although the ADA authorizes suits by private citizens for money damages against public entities, New Mexico has state sovereign immunity from a claim that it violated the ADA when it revoked the medical license of a physician whose practice the state claimed constituted an imminent danger to the public. The Circuit further held that the state’s actions did not violate the U.S. Constitution. In addition, the Circuit ruled that the individual defendants were entitled to qualified immunity under the discretionary-function doctrine on plaintiff’s "stigmaplus" claim (governmental defamation and an alteration in legal status). The Circuit ruled that plaintiff may have viable claims for prospective injunctive relief against the individual defendants, so those claims were remanded. The district court’s judgment was affirmed in part and reversed in part, and the case was remanded for further consideration.

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