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TCL > October 2012 Issue > Summaries of Selected Opinions

October 2012       Vol. 41, No. 10       Page  131
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. 11-2123. United States v. Franco-Lopez. 07/23/2012. D.N.M. Judge Briscoe. Transportation of Undocumented Individual—Requirement That Individual "Illegally" Enter the United States.

Defendant was convicted of transporting an undocumented immigrant who "has come to, entered, or remains in" the country illegally. [8 USC § 1324(a)(1)(A)(ii).] Defendant was arrested after border patrol officers spotted several individuals running north from the direction of the Mexican border. The agents did not see these individuals enter the United States. The individuals jumped into a van and were apprehended after being chased by the agents. The driver of the van testified that defendant had told him to pick up some individuals in Mexico. At defendant’s trial, the jury was instructed that an undocumented immigrant has not "entered" the United States if, due to constant law enforcement surveillance from the moment he crossed into the United States, he lacked the freedom to go at large and mix with the population. After the jury found him guilty, defendant moved for a judgment of acquittal, arguing that the undocumented individual he was charged with transporting had not entered the United States because he had been under constant surveillance by border patrol agents once he crossed the border.

On appeal, defendant contended that he could not have committed the offense charged because there was no evidence that the transported individual entered the United States under the definition of "entry" contained in the Immigration and Nationality Act. Defendant did not challenge the instruction given at his trial, but he noted that agents had not seen the individual cross the border, and that once they spotted him, he was continuously tracked and never free from official restraint.

The Tenth Circuit rejected this argument. The statute is disjunctive. If the government has proved that the transported individual "has come to" or "remains in" the United States in violation of law, there is no additional requirement that it prove that he or she entered the United States illegally. The statute also can be violated, for example, when one knowingly or with reckless disregard transports an immigrant who overstayed his visa. Proof that the individual unlawfully entered the United States is merely one method of establishing the immigrant’s illegal presence in the United States. The Circuit therefore affirmed defendant’s conviction.

No. 11-2109. United States v. Burciaga. 07/25/2012. D.N.M. Judge Baldock. Fourth Amendment—Reasonable Suspicion of Traffic Violation—Failure to Signal When Traffic May be Affected by Lane Change.

The district court suppressed 17 kilograms of heroin recovered as the result of a traffic stop involving defendant’s vehicle. A police officer pulled over the car after defendant, without timely engaging his directional signal, changed from the left to the right lane on the interstate. Defendant waited to signal until he actually moved into the right lane. This meant he failed to signal 100 feet before executing the lane change as required by New Mexico statute. The statute qualifies such duty, however, requiring a signal only "in the event any other traffic may be affected by such movement." The district court suppressed the evidence of the heroin, that the stop violated defendant’s Fourth Amendment rights because the officer’s testimony failed to establish that traffic "could have been affected" by the lane change without signaling. The government appealed the suppression order.

On appeal, the issue was whether the officer had an objectively justifiable basis under the statute for stopping defendant’s vehicle. The officer had testified that traffic in the vicinity of the lane change, including a water truck moving slowly in the right lane and a semi-truck traveling some distance behind, "could have been affected" by the improper signal, because other drivers would have been unaware of defendant’s intention to change lanes. The officer admitted, however, that he had noticed no perceptible effect on traffic as a result of the defendant’s failure to signal. The Tenth Circuit disagreed with the district court’s finding that this was not enough to establish an objectively justifiable basis for pulling over defendant.

To comply with the Fourth Amendment, the officer needed only "reasonable suspicion" that defendant had violated the statute. The New Mexico Supreme Court, whose construction of the statute was binding, required only "a reasonable possibility" that traffic might have been affected by defendant’s failure to timely signal. The government was not required to prove that traffic actually "could have been affected" by the failure to signal. It was enough if the failure to timely signal might have affected other drivers’ decision-making processes in the seconds preceding the lane change. Here, the statute provided reasonable suspicion to stop the driver of a vehicle passing traffic at 75 miles per hour on the interstate when that driver, "a little ways in front" of the officer’s vehicle, failed to timely signal his intention to change lanes. Accordingly, the Circuit reversed the order of suppression and remanded for further proceedings.

No. 11-8000 Centennial Archaeology, Inc. v. AECOM, Inc. 07/27/2012. D.Wyo. Judge Hartz. Attorney Fees—Discovery Disputes—Reasonable Fee Awarded Despite Fixed-Fee Agreement.

AECOM, Inc. hired Centennial Archaeology, Inc. (Centennial) to perform cultural resources survey work in southern Wyoming relative to a wind-energy project. Centennial sued AECOM for payment. The parties settled the merits of the litigation. The district court ordered AECOM to pay Centennial $58,361.51 in attorney fees for misconduct in the course of discovery. AECOM appealed.

The disputes concerned internal communications that AECOM claimed were (1) protected by the attorney–client privilege and the attorney work-product doctrine; (2) course-of-dealing evidence; (3) Centennial’s motion to amend the complaint based on late-revealed discovery; and (4) an inability to agree on a deposition schedule. Centennial filed three motions for discovery, each followed by an AECOM motion for a protective order. Centennial received most of its requested relief.

The Tenth Circuit affirmed the award of attorney fees, concluding that AECOM had frustrated the discovery process and stalled the resolution of the case. In addition, the Circuit held that the amount of the fee award was proper and that Centennial was entitled to a fee award, even though its attorneys were working for a fixed fee. AECOM argued that the discovery disputes did not cause Centennial to pay more than the fixed attorney fee, so it should not have to pay. Discussing the meaning of "attorney fees," the Circuit distinguished between the amount actually paid or owed by the party to its attorney and the value of attorney services provided to the party. The Circuit noted that the purpose of Fed.R.Civ.P. 37 attorney-fee sanctions is to deter discovery abuses. The district court’s award of attorney fees was affirmed.

No. 11-4008. Sanders v. Mountain Am. Fed. Credit Union. 07/30/2012. D.Utah. Judge O’Brien. Truth in Lending Act—Rescission—Alleged Ability to Repay—Equitable Remedies—Tender of Home—Repayment Obligation.

Plaintiffs took out a mortgage on their home in July 2007. In March 2010, they filed a notice of rescission under the Truth in Lending Act (TILA). The TILA provides that a borrower may rescind a loan transaction within three days of the consummation of the transaction or the delivery of the required disclosures, but in no case longer than three years. A timely notice of rescission triggers the lender’s duty to release its security interest and refund any finance charges. Once this is done, the borrower must return the loan proceeds. Here, plaintiffs sought rescission because defendant-lender had delivered only one copy of the disclosures, not the required two copies. They sued to enforce rescission. The district court held that plaintiffs were required to allege that they were able to repay the loan, and their failure to do so warranted dismissal of their complaint.

The Tenth Circuit acknowledged that a lender would be reluctant to release a security interest before receiving payment, particularly if the borrower is in default or in bankruptcy and would have difficulty paying back the loan. Nevertheless, the district court’s requirement that plaintiffs allege an ability to repay was reversible error because (1) it added a condition to the remedy not found in the TILA, and (2) categorical relief is beyond the reach of the court’s equitable powers. A court may, however, fashion equitable relief on a case-by-case basis, and the Circuit remanded to allow the district court to consider such relief.

Next, the court considered whether plaintiffs could satisfy their rescission obligations by tendering their home. Such a tender would not necessarily meet their TILA tender obligation, because the goal of rescission is returning the parties to the status quo ante. Therefore, until the district court determined how much plaintiffs owed, it was unknown whether the home’s value could meet plaintiffs’ repayment obligation. The district court’s judgment was reversed and the case was remanded for further proceedings.

No. 11-2098. Armijo v. Perales. 08/01/2012. D.N.M. Judge McKay. Fourth Amendment—Search and Arrest Warrants—Particularity Requirement—No Qualified Immunity.

Plaintiff was the former police chief. Defendants were criminal investigators for the local district attorney’s office who investigated plaintiff on allegations of improper evidence handling and mishandling of city funds and impounded vehicles. In addition, there was some evidence that plaintiff had improperly purchased two firearms using an official voucher. Based on their investigation, defendants applied for a warrant to search plaintiff’s home. The warrant authorized defendants to search for a variety of documents, as well as drugs, money, and firearms. The search produced the two firearms, but no drugs or money. Plaintiff was arrested pursuant to a warrant, and criminal charges were filed. The charges were subsequently dropped.

Plaintiff then filed the underlying lawsuit, alleging false arrest and illegal search and seizure. Defendants moved for summary judgment based on qualified immunity. The district court denied summary judgment and defendants appealed.

The Tenth Circuit held that the search warrant violated plaintiff’s Fourth Amendment rights because the supporting affidavit contained no evidence linking plaintiff to drugs or money. Thus, the scope of the warrant far exceeded the probable cause to support it. The Circuit also held that the law was established that a search warrant must conform to the particularity requirement. The Circuit then rejected defendants’ claim that their actions were objectively reasonable under the circumstances. The arrest warrant also lacked probable cause and it would have been clear to a reasonable officer that probable cause was lacking. Accordingly, defendants were not entitled to the defense of qualified immunity for either the arrest or the search. The district court’s denial of summary judgment was affirmed.

No. 11-1076. United States v. Shippley. 08/14/2012. D.Colo. Judge Gorsuch. Inconsistent Jury Verdict—Conviction of Drug Conspiracy With Special Verdict Specifying No Drug Quantities—District Court’s Charge to Continue Deliberations.

Defendant, who served as "Sergeant at Arms" for a motorcycle club, was charged with drug conspiracy. An informant testified at trial that defendant was responsible for supplying large amounts of high-quality cocaine for resale to retail customers. The district court instructed the jury that it could convict defendant of this charge only if it unanimously agreed that he conspired to distribute at least 50 grams of methamphetamine, 500 grams of cocaine, or any amount of ecstasy. The jury was supplied with a general verdict form (to indicate whether defendant was guilty or not guilty) and a set of special interrogatories (to specify the drug kinds and quantities connected with the conspiracy). The jury returned a guilty verdict, but answered "no" to each of the special interrogatories, indicating that defendant had not conspired to distribute any of the drugs at issue in the case. After consulting with counsel, the district court instructed the jury that (1) its verdict was inherently inconsistent; (2) if it wished to render a verdict of not guilty, it should reconsider its answer in the general verdict; (3) if it wished to render a guilty verdict, it should reconsider its answers to the special interrogatories; (4) it could, if it wished, stand on its existing verdict; (5) any changes must be unanimous; and (6) the court was not advising the jury on what its answers should be. Shortly thereafter, the jury returned a guilty verdict and specified that defendant had conspired to distribute 500 grams or more of cocaine.

On appeal, defendant argued that the district court should have entered a verdict of acquittal and that it coerced the jury, violating his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. Relying on two Supreme Court cases where the Court allowed inconsistent verdicts to stand, defendant argued that these cases ruled out the possibility of further jury deliberations in the face of an inconsistent verdict. The Tenth Circuit distinguished the Supreme Court cases, noting that they involved logical inconsistencies between counts and defendants, whereas this case involved an inconsistency on the same count with the same defendant. Moreover, nothing in the previous cases precluded the district court from ordering continued deliberations.

The Circuit did not agree with defendant that the district court had coerced the jury with its supplemental instruction ordering further deliberations. The Circuit instructed the jury that it could retain its existing verdict if it wished, and that it was not attempting to tell the jury how to decide what the verdict should be. Defendant failed to show that the mere act of asking the jury to deliberate further was inherently coercive.

Defendant raised two other issues. In the first, he contended that as to a separate charge, using a telephone to facilitate an illegal sale of Percocet pills, the person to whom he sold them should not have been permitted to testify that defendant also had sold him Percocet pills on at least twenty occasions. The Circuit upheld the district court’s conclusion that the evidence was admissible under Fed. R. Evid. 404(b).

In the second issue, defendant argued there was insufficient evidence to support his Sentencing Guidelines sentencing enhancement because a weapon was present or possessed during the charged offense or during other drug trafficking activity that was part of the same course of conduct or common scheme or plan as the offense of conviction. The Circuit found sufficient evidence to support the enhancement. Accordingly, it affirmed defendant’s conviction and sentence.

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