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TCL > June 2013 Issue > Summaries of Selected Opinions

June 2013       Vol. 42, No. 6       Page  119
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. 11-3356. Ryan Development Co., L.C. v. Indiana Lumbermens Mutual Insurance Co. 03/27/2013. D.Kan. Judge Kelly. Lay or Expert Testimony—Specialized Knowledge—Opinion—Certified Public Accountant.

Plaintiff’s business suffered major losses from a fire. After its insurer refused to pay the policy limits, plaintiff sued. The insurer filed a pretrial motion in limine to exclude expert testimony because plaintiff did not designate any expert witnesses. At the jury trial, plaintiff presented the testimony of two certified public accountants (CPAs), who explained how they had computed claims for lost income and tangible personal property. The insurer objected on the ground that this testimony was expert testimony. The jury returned a verdict of $2,261,166 for plaintiff. The insurer appealed, raising the expert-testimony issue, as well as arguments about jury instructions, closing arguments, and sufficiency of the evidence.

The Tenth Circuit addressed the insurer’s argument that the CPA’s testimony was expert in nature because the accountants used specialized training. Under FRE 701, a non-expert witness may offer opinions not based on specialized knowledge. In general, a lay witness may offer observations that are common enough and require a limited amount of expertise, if any. Here, the challenged testimony was based on the use of arithmetic, personal experience, and no outside expert reports. Thus, the district court did not abuse its discretion in allowing it as lay testimony. The Circuit also rejected the insurer’s remaining claims. The district court’s judgment was affirmed.

No. 12-4076. Klein-Becker USA, LLC v. Englert. 03/27/2013. D.Utah. Judge Matheson. Sanctions—Default Judgment—Discovery Abuses—Permanent Injunction—Amount of Damages.

Plaintiff sued defendant for trademark and copyright infringement and other claims. The district court sanctioned defendant several times for failing to comply with court orders and discovery schedules. The third and final sanction resulted in the entry of default judgment in plaintiff’s favor. The district court also ordered defendant to pay sanctions-related expenses in the amount of $75,411. After a bench trial on damages, the district court entered judgment in plaintiff’s favor for $773,384, plus attorney fees. The court also permanently enjoined defendant from using plaintiff’s trademarks or selling its products. Plaintiff appealed, challenging the judgment, injunction, and damages.

The Tenth Circuit observed that default judgment is a harsh sanction that should be used only when a party’s noncompliance is due to willfulness, bad faith, or any fault of the disobedient party. Here, the district court did not abuse its discretion by entering default judgment where three motions for discovery sanctions were filed and defendant was given several warnings, but he still failed to provide discovery. The Circuit then held that defendant was properly held personally liable, affirmed the amount of the damages award, and affirmed the permanent injunction.

No. 12-9010. Schoppe v. Commissioner of Internal Revenue. 03/28/2013.Tax Court. Judge McKay. Bankruptcy Stay—Tax Court Proceeding—Independent Judicial Proceeding Initiated by Debtor—Continuation of an Administrative Proceeding Against Debtor.

Petitioner filed a Tax Court proceeding challenging federal tax deficiencies. The Tax Court ruled against him, and he filed a petition for review with the Tenth Circuit. While the appeal was pending, petitioner filed a bankruptcy petition, which raised the question of whether the automatic bankruptcy stay would apply to the appeal. The Circuit held that it did not, because a petition filed in Tax Court is an independent judicial proceeding initiated by the debtor, not the continuation of an administrative proceeding against the debtor. The Circuit then affirmed the Tax Court’s ruling on the merits, because petitioner failed to substantiate his business expenses.

No. 12-5013. United States v. Benoit. 04/02/2013. N.D.Okla. Judge Lucero. Fourth Amendment—Consent to Search—Private Individual Did Not Act Under Government Control or Coercion in Showing Officer Pornographic Video Stored on Computer—"Receipt" Versus "Possession" of Child Pornography—Double Jeopardy Clause.

Defendant was convicted of receipt and possession of child pornography. The convictions resulted from a search of his computer, instigated after his live-in girlfriend contacted the police. The girlfriend explained to an officer who arrived at their home that while using defendant’s computer to pay bills, she had found what appeared to be child pornography. The girlfriend led the officer to the computer, which was in a common area of the house. A relative who was living at defendant’s house then opened a child pornography video and showed a portion of it to the officer. The officer seized the computer. A magistrate judge later issued a search warrant authorizing a search of the computer, after which additional child-pornographic images and videos were found.

On appeal, defendant argued that the district court erred in denying his motion to suppress the evidence found on his computer. He contended that his girlfriend lacked actual or apparent authority to consent to the officer’s search because she had informed the officer that the computer did not belong to her. The Tenth Circuit determined that the officer had not "searched" the computer when he watched the portion of the video presented to him. Neither the girlfriend nor her relative had been acting as agents of the government when they discovered the files on the computer and showed them to the officer. Neither acted under the direction of the officer in displaying the video to him; the officer merely acted as a witness. The officer also did not violate the Fourth Amendment by seizing the computer; the pornography he saw was in plain view.

Defendant also argued that his convictions for both receipt of child pornography and possession of child pornography violated the Double Jeopardy Clause. Analyzing the statutory language involved, the Circuit determined that possession of child pornography is a lesser-included offense of receipt of child pornography, because receipt necessarily involves possession. Moreover, Congress did not clearly express an intent to punish separately the lesser-included offense of possession. Finally, it was clear from the record that the jury convicted defendant of both receipt and possession based on the same visual depictions. Because defendant’s convictions and sentence violated the Double Jeopardy Clause, the Circuit remanded the case with instructions to vacate one of the convictions.

The Circuit also vacated a portion of defendant’s restitution order in favor of one of the victims depicted in the pornography he received, and remanded the case for further proceedings. The district court had not made an adequate finding that the victim’s losses were proximately caused by defendant’s conduct. Finally, the Circuit rejected various other issues defendant raised relating to his conviction and sentence, finding that none of them had merit.

No. 11-3258. United States v. Patterson. 04/05/2013. D.Kan. Judge Tymkovich. Competency to Stand Trial—District Court’s Ability to Exercise Gatekeeper Function.

A jury convicted defendant of a number of drug charges in connection with his role in a cocaine distribution operation. The district court denied his pretrial request for a hearing to determine whether he was competent to stand trial. Pursuant to 18 USC § 4241(a), the district court is required to hold a competency hearing if there is "reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent" to understand the proceedings against him or to properly assist in his defense. Defendant asserted that he had trouble paying attention for long periods of time due to his previously diagnosed Attention Deficit Disorder (ADD). The district court denied the motion for several reasons: its observation of him in court showed he appeared alert, responsive, and knowledgeable, and understood what was happening; defendant’s ADD apparently had been successfully treated; he had proved to be a competent businessman and manager before his arrest; and he had filed his own pro se motion to limit evidence used against him at trial, which demonstrated his valid general understanding of the charges and issued involved in the case.

On appeal, defendant argued that the district court erred in three ways in denying his motion. First, it unjustifiably discounted the fact that his pro se motion was so incoherent as to raise questions concerning his mental competency. Second, there was sufficient doubt concerning his competency that the district court should have deferred to a mental health expert by referring him for an evaluation rather than relying on its own conclusions concerning competency. Third, in addition to the evidence of ADD, he may have been suffering from Asperger’s Syndrome or Obsessive Compulsive Disorder (OCD) during the trial, thus entitling him to an evaluation. The Tenth Circuit rejected each of these arguments. The pro se pleading defendant filed, although not up to the standards of competency expected from counsel, did not demonstrate that defendant was incompetent to stand trial or required a competency hearing. The district court can rely on its own expertise, rather than seeking medical assistance, to provide a gate-keeping determination concerning the need for a competency hearing. Finally, even if defendant had Asperger’s Syndrome or OCD, this fact alone would not be sufficient to warrant a competency hearing, absent a showing of reasonable cause that his disorder made him incapable of understanding the proceedings against him or assisting in his defense.

Addressing defendant’s other appellate arguments, the Circuit held that (1) the evidence of a conspiracy presented at trial, based on a detective’s explanation of coded references in the co-conspirators’ telephone calls, was sufficient to admit the statements of defendant’s co-conspirators; (2) the government sufficiently proved that the conspiracy involved more than a simple buyer–seller relationship between defendant and one of his co-conspirators; (3) the admission of statements made by his co-conspirators in furtherance of the conspiracy did not violate his Sixth Amendment right to confront witnesses; (4) the district court did not exert undue coercion on the jury by his comments relating to scheduling of the trial and the fact that a different judge would have to handle the jury verdict if a verdict were not reached by the end of the week; (5) the evidence sufficiently supported the quantity of cocaine assigned to defendant; (6) the superseding indictment sufficiently notified defendant of the charges against him; and (7) defendant waived his argument concerning the government’s use of cell site location information by failing to present sufficient argument in his appellate brief and improperly attempting to incorporate by reference portions of his district court motion to suppress. Accordingly, the Circuit affirmed the district court’s judgment and sentence.

No. 12-5072. United States v. Shuck. 04/12/2013. N.D.Okla. Judge Briscoe. Fourth Amendment—"Plain Smell" Doctrine—Curtilage of Property.

Defendant entered a conditional guilty plea to charges relating to manufacture and possession with intent to distribute marijuana, reserving the right to appeal the denial of his motion to suppress. Officers arrived at a home owned by defendant after a neighbor telephoned to say that he believed there was a marijuana-growing operation in the house next door. The neighbor stated that he and his relatives had noticed the smell of marijuana coming from the trailer house next door, about fifty yards away. He provided additional information about defendant’s comings and goings from the residence. The officers drove to the residence and walked around a chain link fence to the back door of the trailer, which appeared to be the door used for access. They observed security cameras at the back door, and knocked on the door but received no response. The officers observed a PVC pipe a foot or two to the right of the back door. One of the officers smelled the end of the pipe and detected the odor of marijuana. They observed that some of the windows of the home were boarded up and others were covered. On return to their office, the officers checked the residence’s water service and determined it was using large quantities of water each month. Armed with the evidence they had gathered, the detectives sought and obtained a search warrant. On search of the residence and of defendant’s other residence, they discovered marijuana plants, plant-growing paraphernalia, and marijuana.

On appeal, defendant first argued that the district court improperly denied his motion to suppress evidence discovered during the search of his trailer home property. The Tenth Circuit rejected his argument. The officers did not unlawfully enter the curtilage of his property by going directly to the back door. Even assuming the area they traversed lay within the curtilage, they did not violate the Fourth Amendment by crossing it to reach the back door and to knock on it. The officers used the normal route of access to the house to engage in a "knock and talk," which officers may do even without reasonable suspicion. It also was not a violation of defendant’s Fourth Amendment rights when one of the officers smelled the PVC pipe, which was in plain view of anyone going to the back door. A smell of the pipe would not uncover intimate details or private activity within the trailer home. Exposure of odors to the public constitutes a "plain smell," analogous to criminal activity within plain view.

Defendant also challenged the district court’s refusal to depart downward from his Sentencing Guidelines range. The district court departed downward six levels based on defendant’s cooperation with the government but refused his request for an additional four-level departure. The Circuit affirmed the sentence because it determined that, notwithstanding defendant’s expressed concern about retaliation from a co-defendant against whom he had testified, defendant’s sentence of eighteen months’ incarceration was both procedurally and substantively reasonable.

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