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TCL > April 2012 Issue > Summaries of Selected Opinions

April 2012       Vol. 41, No. 4       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. 11-3070. United States v. West. 02/14/2012. D.Kan. Judge Baldock. Distribution of Drugs Within 1,000 Feet of Public Playground—Definition of "Playground"—Principle of Ejusdem Generis.

A jury convicted defendant of possession and distribution of marijuana and cocaine within 1,000 feet of a public playground. The statute under which he was convicted, 21 U.S.C. § 860(e)(1), defines "playground" as an outdoor public facility "containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards." Defendant’s apartment, where the drug offenses took place, was located within 1,000 feet of Holcom Park, a city park complex that includes four baseball fields, two soccer fields, two tennis courts, two handball courts, a volleyball court, and a covered area for picnics. The complex also has a children’s park area with a set of swings, a jungle-gym apparatus, and a second jungle-gym apparatus connected to the first one by a bar that a child can swing across. On appeal, defendant argued that Holcom Park does not meet the statutory definition of a "playground" because it contains only two apparatuses intended for children—the connecting jungle-gym apparatus and the swing set. The recreational fields do not count, defendant argued, because they are not similar to the examples of sliding boards, swing sets, and teeterboards given in the statute.

The Tenth Circuit disagreed with defendant’s construction of the statute. The Circuit first rejected the application of ejusdem generis, a principle that limits the scope of objects encompassed by a statute to those that are similar to specific examples given in the statute. Here, Congress described an "apparatus" as "including, but not limited to, sliding boards, swingsets, and teeterboards." The language expanding the definition beyond the examples given suggests that ejusdem generis does not apply. Moreover, limiting the meaning of "apparatus" to devices similar to "sliding boards, swingsets and teeterboards" played with by younger children would be inconsistent with Congress’s reference to "children" elsewhere in the statute as persons under 18 years of age. Here, the jury could have found that the sports fields qualify as a third "apparatus," particularly because the baseball field contains a backstop. The Circuit therefore affirmed defendant’s convictions.

No. 10-4224. United States v. Rosales-Garcia. 02/07/2012. D.Utah. Judge Holloway. Sentencing Guidelines—Enhancement for Previous Drug Felony—Timing of Sentencing for Previous Felony Affecting Application of Enhancement.

Defendant pleaded guilty to one count of illegally reentering the country. His Sentencing Guidelines sentence was subject to enhancement because he had a previous drug trafficking felony. The district court found that the sentence imposed for this drug trafficking felony exceeded thirteen months. It therefore enhanced his illegal reentry Sentencing Guidelines base offense level by sixteen levels. Had the sentence for the previous offense been less than thirteen months, defendant’s base offense level would have been increased by only twelve levels. The sentence for the previous felony was made longer than thirteen months after he was deported and illegally reentered this country.

The evidence showed that defendant had been convicted of a state drug trafficking felony in 2008 and was sentenced to ninety days’ state imprisonment and three years’ probation. He then was deported and illegally reentered the country. As a result of his illegal reentry, the state court revoked his probation and sentenced him to a one-to-fifteen years’ term of imprisonment for his previous felony. This state-court sentence counted as a fifteen-year sentence under the Sentencing Guidelines. Defendant’s presentence report therefore assigned him a sixteen-level enhancement based on the sentence he received on revocation of probation. The district court sentenced him accordingly.

On appeal, defendant argued that he should not be assigned a sixteen-level enhancement because he did not have a drug trafficking felony sentence that exceeded thirteen months at the time he reentered the country. The Tenth Circuit agreed. The text of the relevant Sentencing Guideline, U.S.S.G. § 2L1.2, provided for the enhancement if the defendant had been previously deported "after a conviction for a felony that is . . . a drug trafficking offense for which the sentence imposed exceeded 13 months." The Circuit noted the use of the past tense in "imposed" and "exceeded" following the word "after." This made it logical to refer to the date of deportation in evaluating whether a previous sentence imposed exceeded thirteen months. The fact that a Guideline Application Note defines "sentence imposed" to include "any term of imprisonment given upon revocation of probation," U.S.S.G. § 2L1.2, Application Note 1(B)(vii), does not resolve the temporal constraint created by the language in the Sentencing Guideline. Accordingly, the Circuit remanded to the district court for resentencing.

No. 11-1063. Khalik v. United Air Lines. 02/06/2012. D.Colo. Judge McKay. Explication of Twombly/Iqbal Standard for Dismissing Complaint for Failure to State a Claim—No Heightened Fact-Pleading Standard—Employment Discrimination.

Plaintiff sued her former employer under Title VII, alleging discrimination based on race, religion, national origin, and ethnic heritage. The district court dismissed the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

The Tenth Circuit discussed the Twombly/Iqbal standard by which the Supreme Court recently clarified the Rule 12(b)(6) pleading standard: a complaint must have sufficient allegations of fact, taken as true, to state a claim for relief that is plausible on its face. Legal conclusions need not be accepted as true. [Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).] The Circuit addressed whether the new standard requires a significantly heightened fact-pleading standard, and concluded that it does not. Previously, the Circuit had determined that the new standard is a middle ground between heightened fact-pleading (which was expressly rejected) and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action.

The Circuit stated that a plaintiff need not set forth a prima facie case for each element, but he or she must set forth plausible claims. Even where the defendant is a large corporation and the plaintiff may not know who actually fired him or her or for what reason, the plaintiff should have some relevant information to make the claims plausible on their face. In this case, plaintiff’s general assertions of discrimination, without any details of events, were insufficient to withstand a motion to dismiss. The district court’s judgment was affirmed.

No. 11-1232. Miller v. Deutsche Bank Nat’l Trust Co. (In re Miller). 02/01/2012. Bankruptcy Appellate Panel. Judge Porfilio. Bankruptcy—Foreclosure—Relief From Automatic Bankruptcy Stay—Copy of Mortgage Note Assigned in Blank Insufficient.

Deutsche Bank National Trust Co. (Deutsche Bank) brought a foreclosure action on the home owned by the bankruptcy debtors. The bank sought relief from the automatic stay in bankruptcy to complete the foreclosure. The mortgage note on which the debtors defaulted was payable to IndyMac Bank, not Deutsche Bank. At the hearing on relief from stay, Deutsche Bank produced a copy of the note payable to IndyMac Bank that had been assigned in blank. However, Deutsche Bank was unable to produce the original note or any other evidence that it was the current holder of the note. The bankruptcy court nevertheless granted relief from the stay, and the Bankruptcy Appellate Panel affirmed.

The Tenth Circuit reversed, holding that Deutsche Bank had failed to establish that it was a "party in interest" entitled to relief from the stay. The Circuit rejected Deutsche Bank’s reliance on an earlier Colorado state court ruling authorizing the foreclosure in an interlocutory proceeding. That proceeding had no preclusive effect on the issue of Deutsche Bank’s statutory standing to seek relief from the bankruptcy stay. The Circuit also held that Deutsche Bank had failed to prove its status as a "creditor" under Colorado law and, hence, its entitlement to seek relief from stay. A note endorsed in blank may establish the holder as the payee only if the payee has physical ownership of the instrument in question. Because Deutsche Bank failed to show that it had physical possession of the original note, it failed to show that it was the current holder of the note. The judgment was reversed and the case was remanded for further proceedings.

No. 10-1358. United States v. Strandlof. 01/27/2012. D.Colo. Judge Tymkovich. Stolen Valor Act—Constitutionality Under First Amendment.

The Stolen Valor Act, 18 U.S.C. § 704(b), criminalizes false representations that a defendant has been awarded "any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item[.]" Defendant, who had never served in the armed forces, founded the "Colorado Veterans Alliance" and told veterans that he had received the Purple Heart after being wounded in action and the Silver Star for gallantry in battle. After his deception was detected, he was charged with violating the Stolen Valor Act. Arguing that the Act violates the First Amendment, defendant persuaded the district court to dismiss the prosecution. The government sought review of this ruling.

The sole question presented on appeal was whether the Stolen Valor Act is facially constitutional. In holding that the Act does not violate the First Amendment, the Tenth Circuit relied on Supreme Court authority, stating that the U.S. Constitution does not foreclose content-based laws criminalizing knowing falsehoods, as long as the laws allow "breathing space" for core protected speech. The Circuit found such "breathing space" present in the Act if it is read narrowly in two ways. First, the Act can and should be read to contain an "intent to deceive" requirement; its use of the term "falsely represents" implicates only a knowing falsehood intended to deceive others. Second, the Act does not criminalize satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements that qualify as protected speech. These limiting characteristics prevent the Act from suppressing constitutionally valuable opinions and true statements. Moreover, the Act is analogous to other laws prohibiting perjury or impersonation of a government official, which operate regardless of whether the violator obtains pecuniary benefit therefrom or causes pecuniary loss. The Circuit therefore reversed the district court’s dismissal and remanded the case for further proceedings.

No. 10-2069. Abbasid, Inc. v. First Nat’l Bank of Santa Fe. 01/24/2012. D.N.M. Judge Hartz. Jury Trial—Issues Not Preserved for Appeal—Exclusion of Evidence—Jury Instructions—Post-Judgment Order Not Included in Notice of Appeal.

The sole shareholder of the corporate plaintiff sued the defendant bank. Plaintiff claimed that the bank had improperly allowed checks payable to his business to be deposited in an account owned by his wife’s cousin. The wife used the funds for personal expenses. After a jury trial, a verdict was returned in the bank’s favor. Plaintiff appealed.

The Tenth Circuit declined to review plaintiff’s claim that the verdict was against the weight of the evidence, because he did not preserve this issue in the district court or present adequate appellate argument. The Circuit rejected plaintiff’s claim that the district court had improperly excluded evidence of the bank’s policies and procedures for handling checks, because this evidence was irrelevant to plaintiff’s strict-liability conversion claim.

The Circuit also rejected plaintiff’s asserted error in the jury instructions concerning mitigation of damages. The Circuit noted that the jury found the bank not liable, so the mitigation instructions could not have affected the verdict. Also, the mitigation evidence was relevant to the issue of liability: if plaintiff had known that his wife was using store revenues for personal expenses, one could infer that he authorized her actions.

The Circuit then considered plaintiff’s claim that the district court had denied his proffered jury instruction. Although the proposed instruction was a correct statement of the law, it was unnecessary because the other instructions provided proper guidance and a trial court need not clutter the jury instructions with every potentially relevant correct statement.

Finally, the Circuit dismissed plaintiff’s appeal of the district court’s post-judgment order awarding costs of $5,582.85 to the bank. Although plaintiff filed a notice of appeal from that order, he did not pay the filing fee, despite a warning that the appeal would be dismissed unless the fee was paid. The notice of appeal of the judgment was not effective with respect to the post-judgment order. A party cannot circumvent this rule by challenging a post-judgment order in an appeal from the underlying judgment. The district court’s judgment was affirmed.

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