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TCL > September 2013 Issue > Summaries of Selected Opinions

September 2013       Vol. 42, No. 9       Page  107
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. 11-2186. United States v. Berry. 06/26/2013. D.N.M. Judge O’Brien. Jury Instructions—Permissible Inference—Defendant’s Knowledge of Contraband—Sentencing Guidelines—Commercial Truck Driving as "Special Skill" Warranting Enhancement.

A jury convicted defendant of possession with intent to distribute 100 kilograms or more of marijuana. The marijuana was discovered while defendant, a commercial truck driver, was stopped at a New Mexico port of entry in his tractor-trailer. A police officer noted violations in defendant’s logbook and decided to perform a safety inspection of his truck. While examining the trailer’s contents, the officer noticed eight brown boxes stamped "UPS," for which there was no bill of lading. Defendant stated they were his household belongings that he was moving, but when opened, the boxes contained bundles of marijuana wrapped in brown contact paper, plastic wrap, and tin foil. The judge sentenced defendant to ninety-seven months’ imprisonment.

On appeal, defendant first challenged a jury instruction that permitted, but did not require, the jury to infer that defendant knowingly possessed the controlled substance found inside the vehicle if it found that the government proved defendant’s sole possession of the vehicle. The instruction further cautioned the jury that any inference it made must be based on all the evidence in the case, and that the government retained the burden to prove defendant’s knowledge beyond a reasonable doubt. The Tenth Circuit concluded that the instruction, though not perfect, was valid. The jury was not required to draw the inference, but was permitted to do so. Moreover, the totality of the evidence concerning defendant’s knowledge justified the instruction. Finally, the instruction did not shift the burden of proof to defendant.

Defendant also argued it was error to convict him of possessing 100 kilograms or more of marijuana, because the government failed to subtract the weight of packaging and any "masking agents"—that is, substances used to mask the marijuana smell. A government agent testified that there was no masking agent in this case, and stated that the government and defense counsel often agree to attribute 10% of the gross weight to packaging. Based on the sample of marijuana presented at trial, the jury could have found there was no masking agent and that any packaging did not equal more than 43% of the gross weight, meaning the marijuana weighed at least 100 kilograms. Therefore, the evidence as to the weight was sufficient.

Defendant further contended that the district court improperly adjusted his sentence upward from the Sentencing Guidelines base offense level for "use of a special skill" in a manner that "significantly facilitated the commission or concealment of the offense." He argued that commercial truck driving is not a "special skill" (such as being a pilot, lawyer, doctor, accountant, chemist, or demolition expert) that can be used to facilitate an offense. The Circuit concluded that commercial truck driving requires significant training and knowledge not possessed by the general public, and therefore qualifies as a "special skill." It therefore affirmed defendant’s judgment and sentence.

No. 12-6294. Hobby Lobby Stores, Inc. v. Sebelius, Secretary of the U.S. Department of Health and Human Services. 06/27/2013. W.D.Okla. Judge Tymkovich (en banc). Preliminary Injunction—Corporations—Affordable Care Act—Contraceptive Coverage—Religious Freedom Restoration Act.

Plaintiffs, private corporations who run their businesses to reflect their religious values, provide health insurance to their employees. They sued various governmental agencies, seeking declaratory and injunctive relief from a portion of the Affordable Care Act that requires insurance coverage for contraceptives that prevent implantation of a fertilized egg. The district court denied an injunction because plaintiffs did not make the required showing that they were likely to succeed on appeal. The district court did not address the other elements for issuing a preliminary injunction.

The Tenth Circuit held that plaintiffs were entitled to bring claims under the Religious Freedom Restoration Act, which requires a showing that the government substantially burdens a sincere religious exercise. The Circuit found that plaintiffs had demonstrated a substantial burden: it was undisputed that plaintiffs’ religious beliefs were sincere, and the contraceptive-coverage requirement placed substantial pressure on them to violate those beliefs. Accordingly, plaintiffs had established that they were likely to succeed on the merits. The Circuit reversed the denial of a preliminary injunction and remanded the case for the district court to address the remaining preliminary injunction factors.

No. 12-9593. Munis v. Holder, Jr. 07/02/2013. Board of Immigration Appeals. Judge Brorby. Immigration—Discretionary Finding—Extreme Hardship—No Appellate Jurisdiction—Voluntary Departure.

Petitioner appealed an order of the Board of Immigration Appeals (BIA) removing him from the United States for violating his student visa and being convicted of various crimes. One of these crimes involved moral turpitude, which made him inadmissible. He sought a waiver of inadmissibility based on the extreme hardship to his wife if he were removed, and he sought voluntary departure. The BIA denied relief.

The Tenth Circuit found that although it has jurisdiction to review constitutional issues and questions of law, it does not have jurisdiction over discretionary rulings by the BIA. The Circuit then held that the hardship determination is an unreviewable discretionary decision. The decision to deny voluntary departure also is discretionary, and therefore unreviewable. Accordingly, the petition for review was dismissed.

No. 12-2040. United States v. Hatch. 07/03/2013. D.N.M. Judge Tymkovich. Hate Crimes Act—Constitutionality—Consistency With Power Granted Under Thirteenth Amendment.

Defendant and two other men kidnapped a disabled Navajo man and branded a swastika into his arm. Defendant pleaded guilty to committing a hate crime under the federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (Act), which makes it a felony to subject a person to violence because, inter alia, of that person’s race. As part of his guilty plea, defendant reserved his right to appeal the constitutionality of the Act.

The district court found the Act constitutional, concluding that it was authorized by the Thirteenth Amendment, which prohibits slavery but has been interpreted by the Supreme Court to prohibit the "badges and incidents" of slavery, as well. On appeal, defendant argued that the Act represents an impermissible intrusion into matters the Constitution reserves to the states. The Tenth Circuit disagreed. It rejected defendant’s argument that the Act runs afoul of the limitation of Congressional power reflected in the Tenth Amendment. When the Constitution explicitly grants Congress authority to act (as in the Thirteenth Amendment), the Tenth Amendment must give way.

The Circuit also noted that none of the Supreme Court’s more recent Commerce Clause and federalism cases, cited by defendant, has mentioned the Thirteenth Amendment or called into question the key Supreme Court case giving that amendment a broad interpretation—Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The Circuit noted that any change to the Jones standard must come from the Supreme Court. Moreover, the Act passes the Jones test because Congress rationally determined that racially motivated violence was a badge or incident of slavery that it had authority to prohibit under the Thirteenth Amendment. Furthermore, a requirement in the Act that the Attorney General certify the federal interest in any prosecution under the Act was not constitutionally required and therefore did not prove the need for, or lack of, congruence and proportionality in defendant’s prosecution. Finally, the Thirteenth Amendment protects all races, as does the Act, and therefore the Act does not violate the Equal Protection Clause.

No. 12-1283. Rojas v. Anderson. 07/09/2013. D.Colo. Judge McKay. Excessive Force—Argument Inadequate—Client Bound by Attorney’s Errors—Qualified Immunity—Summary Judgment.

Plaintiff appealed the entry of summary judgment in defendant’s favor on his claims that defendant, a police officer, used excessive force when arresting him. The evidence was disputed whether plaintiff lunged at the officer or attempted to hit him. Plaintiff was injured when, after binding his hands and feet, police officers dropped him on the pavement. The district court entered summary judgment in favor of the officer on the basis of qualified immunity. The court concluded that the officer had probable cause to arrest plaintiff, and that the act of dropping him was reasonable, if careless (despite evidence that the officers intentionally dropped him).

The Tenth Circuit reviewed plaintiff’s heavy two-part burden when a public official invokes the defense of qualified immunity. The plaintiff must show that (1) the defendant’s actions violated a constitutional or statutory right, and (2) the right was clearly established at the time of the conduct. Then, and only then, the public official bears the traditional burden on summary judgment to show that there are no material issues of fact and that he or she is entitled to judgment as a matter of law. Here, plaintiff made little, if any, attempt to meet his two-part burden, arguing instead that disputed facts precluded summary judgment. However, the burden to show an absence of disputed facts did not shift back to defendant because plaintiff failed to meet his burden on the legal question of qualified immunity. The Circuit noted that based on these facts, plaintiff may have been able to satisfy his burden; however, because clients usually are bound by their lawyers’ actions or inactions, the Circuit had no choice but to affirm.

No. 11-2169. United States v. Nicholson. 07/12/2013. D.N.M. Judge Briscoe. Fourth Amendment—Officer’s Mistake of Law Concerning Traffic Offense Vitiated Probable Cause for Stop and Search of Vehicle.

Defendant entered a conditional guilty plea to drug and weapons charges, reserving his right to appeal the district court’s denial of his motion to suppress evidence obtained during a traffic stop. A policeman pulled over defendant’s vehicle after he made a left-hand turn from an eastbound street into the right-hand lane of a northbound street. Defendant explained that he did this so he could enter a nearby parking lot on the right-hand side of the northbound street. The officer stopped him for failing to enter the innermost left-hand lane when completing a left turn. After he stopped the car, the officer smelled marijuana and spotted two glass pipes and a police scanner in the car. Police impounded the car, obtained a search warrant, and discovered contraband, leading to the charges against defendant.

On appeal, defendant argued that the district court should have granted his motion to suppress the evidence found in his car. The Tenth Circuit distinguished between an officer’s mistake of fact, which does not necessarily eliminate probable cause or reasonable suspicion for a traffic stop, and a mistake of law, which does. The New Mexico Court of Appeals had recently concluded that a state statute analogous to the cited ordinance did not prohibit the type of left-hand turn made by defendant. The Circuit determined that the Court of Appeals’ method of interpretation was sound. The Circuit rejected the government’s argument that because the statute was not plain and unambiguous, it should nevertheless uphold the stop. The rule that mistakes of law made by an officer are unreasonable applies even if the law is unclear. Also, by failing to make those arguments in response to defendant’s motion to suppress, the government had forfeited any argument that another legal basis existed for the stop or that the good faith exception should apply. The district court’s denial of the motion to suppress was reversed and the case was remanded with directions to vacate defendant’s convictions.

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