|The Colorado Lawyer|
Vol. 41, No. 11 [Page 159]
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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: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 11-6231. Iqbal v. Holder. 08/21/2012. W.D.Okla. Judge Tymkovich. Attorney Fees—Equal Access to Justice Act—Prevailing Party—Buckhannon Standard—Judicially Sanctioned Material—Alteration in Parties’ Legal Relationship.
In this immigration case, plaintiff filed suit to obtain resolution of his naturalization application that was stalled in U.S. Citizen and Immigration Services (agency). Six months later, the agency denied plaintiff’s application, and defendant moved to dismiss the suit. The district court denied dismissal, holding that once plaintiff filed his case, the agency no longer had jurisdiction. The court remanded to the agency, noting that the agency could reissue its denial of naturalization. On remand, the agency again denied plaintiff’s naturalization application.
Plaintiff moved for an award of attorney fees under the Equal Access to Justice Act (EAJA), arguing that he was a prevailing party because the district court had denied the agency’s motion to dismiss. He further argued that the agency’s delay on his application and its position on the motion to dismiss were not substantially justified. The district court denied the fee application. Meanwhile, the agency granted plaintiff’s application for naturalization.
Addressing plaintiff’s appeal of the denial of EAJA fees, the Tenth Circuit ruled that he had not shown that he was a prevailing party, so it did not address his claim that the government’s position was not substantially justified. The Circuit applied the rule of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), which rejected the "catalyst theory." That theory posits that a plaintiff is a prevailing party if his or her lawsuit brought about a desired change in the defendant’s conduct. Instead, the lawsuit must result in a judicially sanctioned material alteration in the parties’ legal relationship. The Circuit explicitly held that this standard applies to EAJA fee requests. Plaintiff was not a prevailing party because the district court did not decide anything about the merits of his naturalization application or grant any specific relief requested in his lawsuit. The remand to the agency was not a legal victory that entitled plaintiff to EAJA fees. The district court’s judgment was affirmed.
No. 11-2033. United States v. Turrietta. 08/29/2012. D.N.M. Judge O’Brien. Unsworn Jury—Effect of Defense Counsel’s Failure to Lodge Contemporaneous Objection.
A jury convicted defendant of assaulting a law enforcement officer after he bit an officer who was attempting to arrest him. The jury reached its verdict despite the fact that it was never sworn. Defendant’s counsel knew from the outset of the trial that the jury had not been sworn, but strategically reserved any objection until it had returned a guilty verdict and dispersed.
On appeal, defendant argued that the district court violated his Sixth Amendment right to trial by jury by allowing the unsworn verdict to stand. Given defendant’s failure to object contemporaneously to the error, the Tenth Circuit held that only plain error review was available to him. However, defendant could not satisfy the plain error test because, assuming the failure to swear in the jury was error, the error was not so clear or plain that the district court could be faulted for refusing to act when it was belatedly called to his attention. Also, the error was not so grave that a failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice.
No. 11-1225. United States v. De Vaughn. 08/31/2012. D.Colo. Judge Baldock. Jurisdiction—Plea in One Federal District to Crime Charged in Another District—Scope of Appeal Waiver Occasioned by Guilty Plea.
Defendant pleaded guilty to multiple counts of mailing threatening communications after he mailed twelve hoax anthrax letters to the President of the United States, seven members of Congress, and two Argentine consulates in the United States. Each letter contained a harmless white powder, along with statements suggesting that the powder was anthrax. Defendant was charged by a Colorado grand jury and by two informations filed in Alabama. The Alabama cases were transferred to the District of Colorado, and defendant pleaded guilty in the District of Colorado to all charges.
The Tenth Circuit determined that the appeal presented three jurisdictional challenges. Addressing these challenges, it ruled as follows: (1) although defendant was charged in Alabama, he pleaded guilty in the District of Colorado, and the Circuit therefore had jurisdiction over his appeal from the Alabama charges; (2) defendant’s waiver of non-jurisdictional issues resulting from his guilty plea included his contentions that his offense did not violate the "laws of the United States" and that the threat and hoax statutes violated the First Amendment as applied to him; but (3) the government’s failure to raise the preclusive effect of his guilty plea in its briefing on appeal operated as a waiver, because an unconditional guilty plea does not deprive the court of appeals of jurisdiction and the government may waive the effect of such a plea. Addressing defendant’s arguments on the merits, the Circuit held that they failed to demonstrate plain error. It therefore affirmed defendant’s conviction.
No. 11-4014. Woolsey v. Citibank, N.A. (In re Woolsey). 09/04/2012. D.Utah. Judge Gorsuch. Bankruptcy—Second Mortgage—Value of Home Less Than Mortgage—Dewsnup Controls—Possible Winning Argument Not Made.
The Chapter 13 bankruptcy debtors sought to strip off the second mortgage lien held by Citibank. They argued that the Bankruptcy Code voided Citibank’s lien because the lien was unsupported by any current value in the home. The bankruptcy court and the district court refused to strip off the lien.
After satisfying itself that appellate jurisdiction was proper, the Tenth Circuit observed that the Bankruptcy Code allows debtors to void liens that are not allowed and secured claims. Therefore, a disallowed or unsecured claim would be void. Because Citibank’s junior lien was unsupported by any value in the home, Citibank held only an allowed unsecured claim. Thus, its claim appeared to be voidable. However, in Dewsnup v. Timm, 502 U.S. 410 (1992), a Chapter 7 bankruptcy case, the Supreme Court held that the value in the collateral has no bearing on lien avoidance. Debtors argued that Dewsnup does not apply to Chapter 13 cases. The Circuit rejected this contention.
The Circuit recognized a possible argument that a provision in Chapter 13, 11 USC § 1322(b)(2), could allow a debtor to modify the rights of a secured creditor. The Supreme Court has indicated that this section requires a "secured" claim to be supported by at least some value in the collateral, which would allow a debtor to remove a wholly unsecured lien, even one against the debtors’ principal residence. Debtors repudiated this argument, so the Circuit declined to decide it. The district court’s judgment was affirmed.
Nos. 11-3199 & 11-3202. United States v. Butler. 09/13/2012. D.Kan. Judge Lucero. Fair Market Value of Poached Deer—State as Victim of Poaching for Restitution Purposes—Supervised Release Condition Prohibiting Hunting and Fishing as Unduly Restrictive Occupational Restriction.
Defendants were convicted of conspiring to sell and transport unlawfully killed deer in interstate commerce, based on their activities in conducting guided deer hunts for out-of-state hunters in which they encouraged their clients to violate state hunting laws. The district court concluded that the fair market value for sentencing purposes of each poached deer was the total amount that the client paid to participate in the guided hunt. This resulted in a significant sentence enhancement. The district court also imposed conditions of supervised release on defendants that prohibited them from hunting, fishing, trapping, or accompanying anyone else engaging in such activities.
On appeal, defendants argued that the district court had improperly calculated the fair market value of the poached deer. The Tenth Circuit agreed. Fair market value is the price at which a willing buyer and seller, with knowledge of all relevant facts, would agree to exchange the property or interest at issue. The guide fees at issue in this case did not correspond to the fair market retail price of the animal itself. It is the price of the animal that counts, not the price of an expedition to hunt the animal.
One defendant also challenged certain other sentencing factors. Addressing these challenges, the Circuit held that (1) the district court properly enhanced his sentence for being the organizer and leader of the criminal activity, because he owned the land on which the illegal hunts occurred, hired employees to help with the hunting operation, and personally guided several clients; (2) the state of Kansas could be a victim for restitution purposes, because it owned the deer in its sovereign capacity; but (3) the supervised release condition on his ability to hunt, fish, or trap must be vacated, because the district court failed to find that such an occupational restriction was "the minimum restriction necessary" for sentencing purposes. Accordingly, the Circuit vacated defendants’ sentences and remanded for resentencing.
No. 11-4151. United States v. DeChristopher. 09/14/2012. D.Utah. Judge Baldock. Leasing Reform Act—Necessity of Group Activity to Show Scheme, Arrangement, Plan, or Agreement to Defeat Lease Auction.
A jury convicted defendant of interfering with the Federal Onshore Oil and Gas Leasing Reform Act and of making a false statement or representation. He attended an auction of oil and gas leases conducted by the Bureau of Land Management (BLM), intending to participate in a protest organized by demonstrators unhappy with prospective drilling on the BLM parcels. He decided that protesting outside the building where the auction was held would not have much of an impact and that he wanted to take stronger action. He entered the building and told a BLM employee that he was a bidder. He signed a bidder registration form, stating that he was acting with a good faith intention to acquire a lease. The form also notified him that false or fraudulent statements in connection with the auction would constitute a crime. Defendant nevertheless bid up prices to such an extent that some legitimate bidders left the auction and BLM officials ended up suspending the auction. Defendant won the auction on several parcels at a bid price of more than $1.7 million, requiring a down payment of more than $81,000. He then announced that he was unable to pay that amount, and he never completed the payment. He later admitted he attempted to win the leases even though he knew he could not afford them.
On appeal, defendant raised eight issues. The Tenth Circuit ruled as follows: (1) defendant’s conviction under a provision of the Leasing Reform Act making it unlawful for any person "to organize and participate in any scheme, arrangement, plan or agreement" to defeat a lease auction did not require a showing of group activity; (2) his conviction for a knowing violation of the statute did not require a showing that he knew the specific statutory or regulatory provisions he was violating, only that he knew his actions would circumvent or defeat the statutes and regulations governing oil and gas leases; (3) a reasonable jury could conclude that he intended to bid in bad faith when he signed the bidding form; (4) the omission of allegations of elements that were not essential to the offense did not constructively amend the indictment, and a charge denounced in the statute disjunctively but alleged in the indictment conjunctively could be proved in the disjunctive; (5) the district court properly excluded as irrelevant evidence that the BLM had allegedly failed to comply with certain environmental regulations in conducting the auction; (6) defendant was not entitled to raise a necessity defense because he failed to show he had no legal alternative to his actions to prevent the environmental harm that would result from the sale and delivery of the leases; (7) he was not entitled to a selective prosecution defense because, although he showed that another bidder failed to pay for leases, there was no showing that the other bidder had bid with the intention of disrupting or stopping the sale; and (8) he failed to show that his sentence was in retaliation for exercise of his First Amendment rights, where defendant’s statements that he would continue to fight and that it was fine to break the law were highly relevant to appropriate sentencing factors. Accordingly, the Circuit affirmed defendant’s conviction and sentence.
No. 11-2118. Sanchez v. Vilsack. 09/19/2012. D.N.M. Judge Lucero. Disability—Rehabilitation Act—Reasonable Accommodation—Transfer for Medical Treatment.
Plaintiff sued her federal employer under the Rehabilitation Act after it refused to grant her a hardship transfer to another city where she could better access ongoing medical treatment. After falling at work, plaintiff suffered irreversible brain damage that resulted in her losing the left half of her vision. The district court held that plaintiff was not substantially limited by her impairment and granted summary judgment in defendant’s favor because plaintiff was not disabled within the meaning of the Rehabilitation Act.
The Tenth Circuit noted that the Rehabilitation Act prohibits the federal government from discriminating against an otherwise qualified individual with a disability, and includes an obligation to provide reasonable accommodation. Acknowledging that the life activity of seeing is a recognized impairment, the Circuit determined that plaintiff had demonstrated a genuine issue of material fact that her condition substantially limited her ability to see. Therefore, summary judgment was improper.
The Circuit then considered whether plaintiff’s requested transfer accommodation for medical treatment fell within the scope of the Rehabilitation Act, and concluded that it did. The district court’s judgment was reversed and the case was remanded for further proceedings.
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