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TCL > August 2013 Issue > U.S. Court of Appeals for the Tenth Circuit

August 2013       Vol. 42, No. 8       Page  157
From the Courts

U.S. Court of Appeals for the Tenth Circuit

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. 12-1135. Enterprise Mgmt. Ltd., Inc. v. Warrick. 05/21/2013. D.Colo. Judge O’Brien. Copyright Infringement—Organizational Management Chart—Original and Creative Expression of Ideas—Registration as Prerequisite to Suit.

Plaintiff Mary Lippitt created an organizational management chart and registered it with the copyright office in 1987. In 1996, she revised and updated the diagram, which she registered in 2000 and 2003. Defendant incorporated plaintiff’s diagram in his teaching and consulting materials, and plaintiff sued him for copyright infringement. Defendant moved for summary judgment, arguing that plaintiff could not prove she held a valid copyright because she could not produce the 1987 diagram, the diagram was not copyrightable, and defendant’s materials did not infringe on any protected expression. The district court granted summary judgment in favor of defendant, and plaintiff appealed.

The Tenth Circuit reviewed the two elements of a copyright infringement claim. A plaintiff must show (1) ownership of a valid copyright, and (2) that protectable constituent elements of the work had been copied. Defendant argued that the work was not eligible for copyright protection because the diagram was inextricably woven with the ideas depicted and lacked the creativity necessary to merit copyright protection. A copyright protects the expression of an idea, not the underlying idea itself, as long as the idea is capable of many different modes of expression. There are many ways to express the ideas depicted in plaintiff’s diagrams, so they were copyrightable. Also, the elements of her diagram, although common shapes and symbols, were selected, coordinated, and arranged in an original way, as required to be copyrightable.

In addition, the Circuit found that plaintiff had met her burden to show that she had registered her work before bringing suit, noting that although copyright registration is not a prerequisite for copyright protection, it is a necessary prerequisite to suing for infringement. The Circuit also found that plaintiff met her burden of producing evidence of defendant’s infringement, because he admitted using the diagrams. Accordingly, the district court’s judgment was reversed and the case was remanded.

Nos. 12-1086 & 12-1115. Schneider v. City of Grand Junction Police Dep’t. 06/05/2013. D.Colo. Judge Matheson. Rape by Police Officer—Constitutional Right to Bodily Integrity—Supervisory Liability—Municipal Liability.

Plaintiff alleged that she was raped by a police officer for the City of Grand Junction, Colorado, the day after he responded to her 911 call about an altercation with her teenage son. The officer was fired and, a few days later, he committed suicide. Plaintiff sued the police department and the officer’s supervisors, asserting violation of her substantive due process right to bodily integrity. She brought claims under 42 USC § 1983 of inadequate hiring and training of the assaulting officer, inadequate investigation of a prior sexual assault claim against him, and inadequate discipline and supervision of him. Conceding that the officer had raped plaintiff, defendants moved for summary judgment on the grounds that the officer did not act under color of state law and that plaintiff could not prove they were deliberately indifferent to the risk of rape. The district court granted summary judgment to defendants, and plaintiff appealed.

The Tenth Circuit first addressed whether the supervisors could be held liable, and concluded that they could not. Plaintiff failed to show the required "affirmative link" (personal involvement, causation, and state of mind) between the supervisors and the constitutional violation. Similarly, the Circuit ruled that the municipality could not be held liable because plaintiff did not establish that her injury was caused by a municipal policy or custom enacted or maintained with deliberate indifference to constitutional injury. Accordingly, her claims could not survive summary judgment and the district court’s judgment was affirmed.

Nos. 11-2106 & 11-2221. United States v. Christie. 06/11/2013. D.N.M. Judge Gorsuch. Search and Seizure—Delay in Seeking Warrant for Search of Computer—Particularity Requirement as Applied to Computer.

A jury convicted defendant, who lived on a military base in New Mexico, of second-degree murder, two assimilated state-law homicide charges, and an assimilated child abuse charge after her child died from dehydration. The evidence at trial showed that defendant spent long hours playing computer games and failed to provide her daughter adequate water and food, resulting in the child’s death. The district court dismissed the two assimilated homicide charges and entered a twenty-five-year sentence on the remaining second-degree murder and assimilated child abuse charge. Both defendant and the government appealed.

Defendant first challenged the government’s use of evidence developed from a search of her computer. She did not contest the seizure of the computer itself, to which her husband, a co-owner of the computer, had consented. However, she challenged the search warrants that permitted the government to search the computer. She contended that the first warrant, which came five months after the government seized the computer, was the result of constitutionally impermissible delay. The Tenth Circuit, noting the district court’s finding that defendant had failed to object to the seizure of the computer and to the delay in returning it to her, together with the seizing agent’s need to fulfill other police priorities, held that the delay was not unreasonable.

Defendant challenged the second warrant as failing to meet the particularity requirement, in that it permitted a search for all records and information showing the day-to-day activities of herself and her child. The Circuit noted that this language was limited by other language in the warrant requiring that such evidence be relevant to the child’s "murder, neglect, and abuse." The Circuit also rejected defendant’s argument that the government unreasonably delayed the second warrant. Once the government discovered incriminating evidence during the first search, it was presumptively entitled to retain custody of the computer until trial.

The Circuit also ruled that the district court properly excluded defendant’s husband from the courtroom during the brief testimony of his 10-year-old daughter. A partial closure of a trial requires a showing of a substantial interest and sufficient findings to permit review, factors that were satisfied in this case.

Finally, the Circuit addressed the government’s cross-appeal, ruling that under the Assimilative Crimes Act and double jeopardy principles, the district court properly dismissed the assimilated charges. Accordingly, the judgment and sentence were affirmed.

No. 11-4206. Cavanaugh v. Woods Cross City. 06/12/2013. D.Utah. Judge Tymkovich. Excessive Force—Taser—Warning—Risk of Harm to Self or Others—Disputed Facts—Mixed Question of Law and Fact—Ultimate Determination for Jury.

Plaintiff’s husband called police, reporting that plaintiff was suicidal and had run out of the house carrying a knife. One of the responding officers used a taser on her as she headed back into the house. She fell and hit her head, causing serious injury. Plaintiff sued the officer and Woods Cross City, Utah, claiming that use of the taser was unconstitutionally excessive force. The evidence was disputed whether plaintiff’s hands were visible, whether she posed a threat to herself or others, and whether the officer shouted a warning before using the taser. These facts were critical because it is clearly established law that an officer cannot use a taser to subdue a nonviolent misdemeanant. Following a jury trial, the jury returned a verdict for defendants, finding that plaintiff had not proven that her right to be free from excessive force had been violated. She appealed.

The Tenth Circuit noted that the inquiry into whether an officer’s use of force was excessive or reasonable is an objective one depending on the particular facts, judged from the perspective of a reasonable officer on the scene. Plaintiff argued that the district court erred in submitting to the jury the question of whether the officer used excessive force. She asserted that the proper procedure was to have the jury answer special interrogatories to decide the factual disputes, and then have the judge make the legal determination on excessive force. The jury was instructed to consider the relevant factors of the extent of injury, the need and severity of force, the threat to the officer, and plaintiff’s noncooperation. The excessive force question is a mixed question of law and fact, and such questions can be for the court or the jury, depending on the situation. Generally, where the facts are disputed, the question of reasonableness is for the jury. Here, the critical facts were disputed, so the trial court properly had the jury decide whether the officer’s use of force was reasonable. The judgment was affirmed.

No. 12-4025. United States v. Angilau. 06/14/2013. D.Utah. Judge Hartz. Double Jeopardy—Collateral Estoppel From Prior Prosecution—Due Process Challenge to Repeated Prosecutions.

Defendant pleaded guilty in state court to obstruction of justice and failure to stop at the command of police. These charges resulted from the shooting of two deputy U.S. marshals. The government then filed a number of cases related to the shooting against defendant in federal court. In a first federal case, he was charged with assaulting the marshals and using a firearm during a crime of violence. The government dismissed these charges, and the district court ordered that the dismissal be with prejudice, because the government had not provided sufficient reasons for seeking dismissal. In the second federal case, defendant was charged with, among other things, assault and using firearms during the assault. The government also dismissed this case. The government then re-indicted defendant, charging him with racketeering under the Racketeer Influenced and Corrupt Organizations Act, and with three charges related to the shooting: assaulting a federal officer, assault with a dangerous weapon in aid of racketeering, and using or carrying a firearm during a crime of violence. The district court granted his motion to dismiss the assault charge on double jeopardy grounds, but denied his motion to dismiss the other two shooting-related charges. It also denied defendant’s motion to dismiss all charges on the basis of "prosecutorial harassment," because the government had violated his due process rights by repeatedly bringing and dismissing charges against him. While the remaining charges were still pending against him, defendant appealed.

The Tenth Circuit first held that it could not review defendant’s due process challenge on an interlocutory basis because it did not fall within the collateral order doctrine. It could reach his double jeopardy arguments, however. Defendant argued that the current firearm charge against him stated the same offense as the previously dismissed charge and therefore should be dismissed. The Circuit disagreed, finding that different elements were present in the two firearms charges. It then addressed defendant’s collateral estoppel double jeopardy challenge, reviewing for plain error because the argument had not been made in district court. The Circuit held that collateral estoppel did not apply because the dismissal with prejudice in the first federal case was not based on a determination of the facts of the marshals shooting; the only factual issue resolved was whether the government had provided adequate reasons for a dismissal without prejudice. The Circuit affirmed the judgment and sentence in part, and dismissed the appeal in part for lack of jurisdiction.

Nos. 11-3366 & 11-3374. United States v. Dunbar. 06/17/2013. D.Kan. Judge Hartz. Voluntariness of Guilty Plea—Attempt to Withdraw Plea—Dissatisfaction With Counsel.

Defendant pleaded guilty to distribution of cocaine. His plea agreement, entered into under Fed. R. Crim. P. 11(c)(1)(C), was conditioned on a sentence of forty-eight months’ imprisonment. The agreement also stated that the parties would recommend a consecutive sentence of twelve months for defendant’s violation of his supervised release from a prior sentence. At his sentencing hearing, defendant stated that he had "mental disabilities" and that he was dissatisfied with his counsel’s performance in connection with his guilty plea. The district court ruled that counsel should continue representing defendant. It declined the parties’ recommendation of a twelve-month sentence on the revocation count, and sentenced defendant to thirty-six months on that count, to follow the forty-eight-month sentence for distribution of cocaine.

On appeal, defendant first argued that the district court should have inquired further concerning his request for new counsel and that it abused its discretion in denying his request. The Tenth Circuit rejected his contention. Defendant’s argument that counsel should have challenged the presentence report lacked merit, given that his stipulated sentence was not based on the report. Also, the district court could have found that counsel told defendant he was not guaranteed a one-year sentence on revocation and that defendant was competent to understand the plea agreement. Defendant did not assert his innocence of the revocation offense until he was informed of this sentence on revocation, so counsel was not ineffective in stipulating to the violation of supervised release. Finally, the district court gave defendant ample opportunity to explain his grievances with counsel, and there was no evidence the court did not understand his complaints or ignored them.

Defendant also argued that a pro se pleading he submitted and his oral statements should have been interpreted as motions to withdraw his guilty plea. The Circuit noted that because the district court denied defendant’s motion to replace his counsel, it was not obligated to consider his pro se pleading. Moreover, the pleading spoke of his complaints about counsel, not an attempt to withdraw his plea. Defendant’s pro se oral statements were untimely and made while he was represented by counsel. Defendant also failed to show plain error in the district court’s rejection of his pro se contentions that his plea was involuntary.

As for his arguments that his three-year sentence was unreasonable, the district court was not obligated to state that it had taken defendant’s mental retardation into account, or that it had considered the guidelines policy statements for supervised-release violations. Defendant invited the district court’s erroneous factual assumption that he had committed his offense while on supervised release. Although defendant’s mental retardation was one factor to be considered at sentencing that might reduce culpability, it need not override all other proper sentencing considerations. Accordingly, the Circuit affirmed the district court’s judgment.

Nos. 12-3057 & 12-3060. United States v. Dyke; United States v. Steele. 06/17/2013. D.Kan. Judge Gorsuch. Outrageous Government Conduct—Predisposition and Government Involvement.

A jury convicted defendants of drug, forgery, and counterfeiting charges. Before the government became involved, defendants had engaged in small-time criminal activities, including forging checks, peddling pills, and selling marijuana. Government agents persuaded them to expand their operation into more serious activities: counterfeiting currency and manufacturing methamphetamine. The district court rejected their "outrageous governmental conduct" defense, and permitted the case against them to go to the jury.

On appeal, defendants reasserted their claim of outrageous governmental conduct. While expressing some reservations concerning the continued validity of the doctrine, the Tenth Circuit assumed for purposes of its decision that the defense exists and is a separate defense from entrapment. To establish it, the defendant must prove either excessive government involvement in creation of the crime or significant governmental coercion to induce the crime. The Circuit determined that neither element was proved here. First, the mere fact that the government induces a defendant who is already engaged in a criminal enterprise to commit new crimes, or even offers supplies and expertise to facilitate the new crime, is not enough to warrant relief. Second, as with an entrapment defense, the defendant’s predisposition to commit the crime (including his or her participation in the crime) is relevant under the totality of the circumstances test. Here, the government’s conduct was "pretty prosaic stuff" for an undercover operation: agents sometimes bought defendants beer, offered to exchange antifreeze or a fuel pump for contraband, and provided counterfeiting equipment and the initial batch of methamphetamine. Moreover, the crimes the government promoted, though more serious, were similar in nature to those that defendants were already engaged in. Finally, defendants readily participated in the new crimes and the district court found that one of them had devised the counterfeiting scheme and hatched the idea to make methamphetamine.

The Circuit also rejected defendant Donald Steele’s argument that he had been entrapped, upholding the sufficiency of the evidence to support a jury finding that he was predisposed to commit the crimes. It further held that an expunged state court conviction counted against defendant Steele as a prior offense for sentencing purposes, and that defendant Randy Dyke failed to present sufficient evidence to justify a voluntary intoxication instruction. Accordingly, the Circuit affirmed defendants’ convictions and sentences.

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