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TCL > July 2012 Issue > Summaries of Selected Opinions

July 2012       Vol. 41, No. 7       Page  145
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. 11-4134. Securities and Exchange Commission v. Smart. 04/27/2012. D.Utah. Judge Murphy. Fifth Amendment Privilege—Attempt to Withdraw Invocation of Privilege—Securities Civil Enforcement Action—Manipulation of Litigation Process.

The Securities and Exchange Commission (SEC) filed a civil enforcement action against defendant Brian Smart and his LLC for operating a Ponzi scheme. The SEC attempted to depose Smart, who invoked his Fifth Amendment rights. Later, the SEC moved for summary judgment and asked the court to draw an adverse inference against Smart due to his invocation of the Fifth Amendment. Smart then moved to withdraw his assertion of the Fifth Amendment, and he provided a declaration in support of his own summary judgment motion. The district court granted the SEC’s motion for summary judgment, inferring from Smart’s Fifth Amendment invocation that he had knowingly and purposely defrauded investors. The court entered a judgment against defendants for $4,715,580 and permanently enjoined them from violating federal securities laws. Smart appealed, contending that he should have been allowed to withdraw his assertion of the Fifth Amendment and proffer his own declaration.

The Tenth Circuit recognized the Fifth Amendment privilege against self-incrimination. A court has the ability, however, to strike a witness’s testimony if he or she asserts the privilege to avoid answering questions but freely responds to questions that are advantageous to his or her case. In deciding whether to permit withdrawal, the court should consider whether other parties were prejudiced and whether the litigant was trying to manipulate the litigation process. Here, Smart was using the privilege to manipulate the litigation process, so the district court did not abuse its discretion in denying his request to withdraw his invocation of the Fifth Amendment. The Circuit then reviewed the merits of the summary judgment and affirmed.

No. 11-1537. United States v. Cope. 05/01/2012. D.Colo. Judge Matheson. Operating a Common Carrier While Under the Influence of Alcohol—Venue and Sufficiency of Evidence.

Defendant, an airline pilot, was convicted of one count of operating a common carrier under the influence of alcohol. The statute under which he was convicted provided that an individual with a blood alcohol content (BAC) of .10% or more would be presumed to be under the influence of alcohol. Defendant was the copilot and first officer of a commercial flight from Austin, Texas to Denver. Robert Obodzinski was the captain. The day before the flight, defendant and Obodzinski flew from Denver to Austin. Defendant declined to eat dinner with the crew, stating he did not feel well. The next morning, Obodzinski noticed that defendant had a puffy face and his eyes were a little red. In the cockpit, he smelled alcohol coming from defendant. Obodzinski contacted dispatch to delay the next leg of the flight and advised defendant to call in sick if he had any problem taking a breathalyzer. Defendant stated he would call in sick. However, Obodzinski received instructions to escort defendant to a breath-testing facility, which he did. Defendant blew a .094% on his first test at 10:33 a.m. and a .084% on his second test at 10:54 a.m.

A forensic toxicologist testified for the government at trial that the average alcohol elimination rate is between .01 and .025 milligrams per deciliter per hour but that she had observed and read about higher rates. Defendant’s rate of .033, based on the two tests, was higher than average but not unheard of. Defendant’s expert, on the other hand, testified that such an elimination rate was not physiologically possible, and thus the tests must have been unreliable. There also was testimony that defendant confessed to Obodzinski that he had drunk beer and whiskey the night before the flight, but Obodzinski testified that defendant did not exhibit any outward signs of impairment.

On appeal, defendant first argued there was no evidence that he was under the influence of alcohol in Colorado; thus, venue in the District of Colorado was improper. The Tenth Circuit disagreed. The venue statute involving offenses begun in one district and completed in another provides that offenses involving transportation in interstate commerce may be prosecuted in any district from, through, or into which such commerce moves. Thus, proof that defendant was under the influence of alcohol during the flight was sufficient, and the prosecution did not need to prove specifically that defendant was under the influence in Colorado.

Defendant next challenged the sufficiency of the evidence to support his conviction. He argued that the district court put too much weight on the results of the breathalyzer tests, in light of his expert’s testimony that they were unreliable. The Circuit disagreed. The district court was entitled to weigh the evidence provided by the conflicting expert testimony concerning elimination rates and to make appropriate credibility determinations. Moreover, even without the presumption that an individual with a BAC of .10% or more is under the influence, the evidence here, including defendant’s own statements, was sufficient to show that defendant was under the influence within the meaning of the statute. Defendant’s argument that he was able to complete his duties and showed no outward sign of impairment was unavailing. The statute prohibits operating a common carrier while under the influence, not while showing outward signs of impairment. Accordingly, the Circuit affirmed defendant’s conviction.

No. 10-2252. United States v. Diaz. 05/08/2012. D.N.M. Judge Tymkovich. Crime in Indian Country—Proof of Victim’s Non-Indian Status.

Defendant, an Indian, was convicted in federal court of knowingly leaving the scene of a car accident after she hit and killed a pedestrian. The accident occurred on the Pojoajue Pueblo Indian Reservation. On appeal, defendant challenged the district court’s jurisdiction over the crime, arguing that the government failed to prove that the victim was not an Indian. The victim’s non-Indian status was a jurisdictional requirement for bringing the charge in federal court under the General Crimes Act, 18 USC § 1152.

The Tenth Circuit held there was sufficient evidence of the victim’s non-Indian status. To be considered an Indian for purposes of criminal jurisdiction in Indian County, a person must have "some Indian blood" and must be "recognized as an Indian by a tribe or by the federal government." Here, the victim’s father testified that he had performed genealogical research going back several hundred years indicating that both he and the victim’s mother were descendants of Sephardic Jews and that neither had any Native American or Indian background. The father further stated that the victim had never enrolled in a tribe or pueblo and his only connection with any tribe lay in his job at an Indian casino. The Circuit further held that in light of this testimony, neither DNA evidence nor testimony from tribal officials to prove the victim was not a tribal member was required.

The Circuit also rejected defendant’s other appellate arguments alleging error at trial. These included challenges to the jury instructions, the district court’s evidentiary rulings, and the district court’s alleged comments on the evidence.

Finally, defendant argued that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that its accident reconstruction expert had been part of a SWAT team whose encounter with defendant’s cousin had led to the death of a police officer. Given the circumstances, this evidence was not material such that if it had been disclosed, it could have led to a different result. The Circuit therefore affirmed defendant’s conviction.

No. 11-9520. Shepherd v. Holder, Jr., U.S. Attorney General. 05/08/2012. BIA. Judge Matheson. Immigration—Appellate Jurisdiction—Final Agency Decision—Criminal Alien—Issue Preclusion.

The government sought to deport petitioner on the ground that she was a criminal alien. In the initial removal proceedings, the government did not contest petitioner’s claim to automatic citizenship under the Child Citizenship Act of 2000 (CCA), so the immigration judge (IJ) dismissed the case. The next day, the government filed a new removal proceeding on the ground that it had been mistaken and that petitioner was too old to qualify for CCA citizenship. On agency appeal, the Board of Immigration Appeals (BIA) ruled that collateral estoppel did not apply and remanded the case to the IJ, who ordered removal. Petitioner filed for review in the appellate court.

The Tenth Circuit first held that petitioner’s case was final for purposes of appellate review, even though she did not file a second appeal to the BIA after she was ordered removed. The Circuit then noted that its jurisdiction over orders to remove criminal aliens is limited. Therefore, petitioner’s status as either a citizen or an alien was a dispositive jurisdictional fact. The undisputed facts established that petitioner was too old to qualify for CCA citizenship; thus, she was an alien and the statutory jurisdictional bar precluded further review. Her issuepreclusion argument based on the IJ’s first decision was unavailing because administrative collateral estoppel did not apply. The petition for review was dismissed.

No. 11-3231. United States v. Handley. 05/15/2012. D.Kan. Judge Brorby. Revocation of Supervised Release—Potential of Lifetime Term on Successive Revocations.

Defendant pleaded guilty to distributing more than five grams of crack cocaine and was sentenced to seventy-two months’ imprisonment and four years of supervised release. While serving his term of supervised release, he accrued numerous violations of the supervised release conditions, including testing positive for drugs and walking away from a halfway house. The district court revoked his term of supervised release and sentenced him to ten months’ imprisonment and another supervised release term of three years and nine months. Defendant again completed his term of imprisonment and again accrued multiple violations of his supervised release conditions, including testing positive on five occasions for a variety of drugs. The district court again revoked his term of supervised release and sentenced him to incarceration for one year and supervised release for another four years. Defendant appealed, arguing that his second four-year term of supervised release exceeded the maximum permitted under 18 USC § 3583(h).

The Tenth Circuit disagreed. 18 USC § 3583(h) provides that after revocation, the length of supervised release cannot exceed the term of supervised release authorized for an offense by statute, less any term of imprisonment imposed on revocation. Another subsection of § 3583 states that "except as otherwise provided," the authorized term of supervised release for a class A or class B felony is not more than five years. However, this did not limit defendant to a total of five years of supervised release and imprisonment on revocation. The statute under which defendant was convicted, 21 USC § 841, falls within the language "except as otherwise provided," in that it does not set a maximum term of supervised release.

Defendant argued that if this statutory exception were taken too literally, there would be no limit to successive terms of supervised release and he could literally spend a lifetime of imprisonment and supervision. According to 21 USC § 841(b)(1)(B), a supervised release term for the type of drug offense for which defendant was convicted must be "at least" four years. This statute was enacted at the same time the "except as otherwise provided" language was added to § 3583(b), as part of the Anti-Drug Abuse Act of 1986. This suggests that Congress did not intend for the general limiting language about class A or class B felonies to apply to a drug offense under § 841(b)(1)(B). Given the lack of limiting language, the maximum term of supervised release is life. The Circuit opined that "whether [defendant] faces a lifetime of supervised release depends on his own conduct and any future violations of the conditions of his supervised release." Finally, the district court’s imposition of an additional four-year term was reasoned and reasonable given defendant’s ongoing drug problems, obvious need for mental health and substance abuse treatment, and numerous violations of the terms of his supervised release. The Circuit therefore affirmed defendant’s sentence of imprisonment and additional supervised release.

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