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TCL > February 2014 Issue > Summaries of Selected Opinions

February 2014       Vol. 43, No. 2       Page  109
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. 12-5176. United States v. Hill. 12/10/2013. N.D.Okla. Judge Hartz. Bank RobberyMotion for a New Trial Based on Newly Discovered Evidence.

The government prosecuted both defendant and his brother Stanley as the two masked men who robbed a bank in Tulsa, Oklahoma. The jury convicted defendant but could not agree on Stanley’s guilt, although Stanley was later retried and convicted. Several months after defendant’s conviction, the government charged defendant and another of his brothers, DeJuan, with conspiracy to commit various robberies, including the robbery of the bank in Tulsa. In presenting the case to the grand jury, the government called an FBI agent, who explained that the government’s understanding of the robbery had changed. Based in part on cell phone data, the agent now believed that Stanley had not been one of the masked robbers but had driven the getaway car, and that the two robbers inside the bank were defendant and DeJuan. Defendant moved to set aside his robbery conviction, arguing that the government’s change in theory was exculpatory evidence that entitled him to a new trial. The district court denied his motion.

On appeal, defendant argued that the "new evidence" entitled him to a new trial; however, his brief did not clearly identify the new admissible evidence on which he relied. Defendant disclaimed reliance on the cell phone data, which the Tenth Circuit found "quite damning." Other items of evidence that defendant mentioned did not qualify as new evidence. That left only the FBI agent’s new theory of the case, which had been disclosed to the grand jury. The Circuit held that this was not admissible new evidence; it was merely opinion testimony by the agent. Without admission of the cell phone data underlying the agent’s opinion, the opinion could not be considered as expert opinion under FRE 702. It also could not be considered new evidence for purposes of impeachment, because no witness had testified in the previous trial that there were only two robbers, and "newly discovered evidence cannot be mere impeachment." The Circuit therefore affirmed the district court’s denial of a new trial.

No. 12-2026. United States v. Archuleta. 12/17/2013. D.N.M. Judge Briscoe. Admission of "Gang Expert" Testimony—FRE 403, 702, and 704(b).

A jury convicted defendant, a leader of a gang known as the Sureños, of drug and firearm offenses. At trial, the government presented a gang expert who testified—over defendant’s objection—about the gang’s history, colors, tattoos, structure, activities, and affiliation with the Mexican Mafia. He also testified that defendant’s tattoos identified him as a member of the Sureños.

On appeal, defendant argued that admission of the expert’s testimony violated FRE 403, 702, and 704(b). FRE 403 permits a court to exclude relevant evidence whose probative value is substantially outweighed by certain other factors. The Tenth Circuit held that the district court did not abuse its discretion in weighing the FRE 403 balance in favor of admitting the gang expert’s testimony. The expert’s testimony was not cumulative, because it provided additional testimony not provided by other witnesses. It was not confusing or misleading, because it explained defendant’s activities as a member and leader of the gang. In addition, despite its references to crimes committed by the gang and the gang’s violent behavior, it did not result in unfair prejudice to defendant, who had admitted during his testimony to participating in such crimes and violent behavior. Finally, the fact that the jury acquitted defendant of one of the conspiracy crimes charged showed that it did not convict him merely for being a "bad person."

The Circuit reviewed defendant’s other objections for plain error due to his lack of objection at trial. The evidence satisfied FRE 702 because it was useful to the jury in understanding the implications of defendant’s gang membership. Even if the testimony violated FRE 704(b), defendant could not show plain error because, in light of other evidence that defendant played a key role in the planning and execution of the conspiracy, he could not show that the testimony affected his substantial rights.

No. 12-1134. Ute Mesa Lot 1, LLC v. First-Citizens Bank & Trust Co. (In re Ute Mesa Lot 1, LLC). 11/25/2013. D.Colo. Judge Kelly. Bankruptcy—Lis Pendens—Preferential Transfer.

Ute Mesa Lot 1, LLC (Ute Mesa) borrowed $12 million from United Western Bank (Bank) to finance the construction of a home in Aspen. The deed of trust incorrectly named the property’s owner, so the deed of trust was ineffective in giving the Bank a lien on the property. Later, the Bank filed suit to reform the deed of trust and give it a first priority lien on the property. The Bank then recorded a notice of lis pendens with the county real property records. Two months later, Ute Mesa filed for bankruptcy and sought to avoid the lis pendens as a preferential transfer. The bankruptcy court and district court dismissed Ute Mesa’s claim. Ute Mesa appealed, arguing that the lis pendens would prevent a bona fide purchaser from acquiring an interest in the property superior to the Bank’s. Therefore, it was a "transfer of an interest in property" and an avoidable preferential transfer.

The Tenth Circuit held that a lis pendens is merely a notice and does not constitute a lien, despite the fact that under Colorado law, a lis pendens renders title unmarketable. The lis pendens was not a transfer, however, so it was not subject to the bankruptcy provision allowing a debtor-in-possession to avoid a transfer of an interest in property that occurred within ninety days before the filing of the bankruptcy petition. The judgment was affirmed.

No. 12-2169. United States v. Jackson. 11/26/2013. D.N.M. Judge Kelly. Two Deaths Committed While Attempting to Avoid Apprehension—Double Jeopardy—Rule of Lenity—18 USC § 2113.

Defendant was convicted of one count of bank robbery and two counts of killing a person while attempting to avoid apprehension for bank robbery. He robbed a bank and then fled in a minivan. During the ensuing police chase, he lost control of the minivan and crashed into a car, killing two women. The district court vacated the count of bank robbery as a lesser included offense of 18 USC § 2113(e) and sentenced defendant to two concurrent life terms for the killings.

Defendant’s primary argument on appeal was that sentencing him for two counts of killing a person while attempting to avoid apprehension constituted double jeopardy, because the two deaths arose from a single accident. The Tenth Circuit noted that § 2113(e) provides that a person who "kills any person" while attempting to avoid apprehension for bank robbery will be punished by death or life imprisonment. This ambiguous language called for application of the rule of lenity, which would view both deaths as part of a single "unit of prosecution." Thus, the case was remanded to the district court to vacate the sentence and resentence defendant.

Defendant also argued that the government improperly commented on his silence at trial by arguing to the jury that he should "man up" and "accept responsibility" for his actions. The Circuit noted that the comments were not related to defendant’s decision not to testify but to his suggestion that others might be at fault for the accident. Moreover, the district court extinguished any undue prejudice by giving a limiting instruction. Finally, the government was not required to prove under § 2113(e) that defendant knowingly killed his victims. The reckless disregard for human life inherent in his commission of the bank robbery proved the requisite intentional scienter to support the conviction. The Circuit therefore affirmed defendant’s conviction in part and remanded the case for resentencing.

Nos. 12-3072 & 12-3109. Debord v. Mercy Health System of Kansas, Inc. 11/26/2013. D.Kan. Judge Tymkovich. Employment Discrimination—Sexual Harassment—Hostile Workplace—Retaliation—Direct or Vicarious Knowledge—Faragher Defense—Delay in Reporting—Prevailing Party Presumed Entitled to Costs.

Plaintiff worked at Mercy Hospital under the supervision of Leonard Weaver. According to plaintiff, Weaver began sexually harassing her soon after she was hired in 2004. However, plaintiff did not report the misconduct to the hospital’s management until 2009.

The hospital first received notice of the behavior through a Facebook post. The hospital investigated, but plaintiff declined to file an in ternal complaint at that time. Plaintiff was later terminated for disruption, inappropriate behavior, and dishonesty for receiving pay to which she was not entitled. She sued the hospital for sexual harassment and retaliation, and for being in violation of Title VII by creating a hostile work environment that resulted from Weaver’s offensive sexual touching and remarks. She claimed that the hospital knew or should have known about the harassment and, further, that it did not do enough to prevent sexual harassment. She also alleged that when she finally reported the harassment, she was terminated in retaliation. The district court granted the hospital’s motion for summary judgment, and plaintiff appealed. The hospital filed a cross-appeal of the order denying costs.

The Tenth Circuit rejected plaintiff’s claims that the hospital was directly or vicariously liable for a hostile work environment, concluding that she had not adduced that the hospital had either direct or vicarious knowledge of the harassment and failed to take reasonable steps to stop it. Moreover, the hospital was entitled to the Faragher defense: (1) it exercised reasonable care to prevent and correct harassing behavior, and (2) the employee unreasonably failed to take advantage of the hospital’s opportunities to avoid or prevent harm. [Faragher v. City of Boca Raton, 524 U.S. 775 (1998).]

The Circuit found that plaintiff’s five-year delay in reporting the harassment was unreasonable. On plaintiff’s retaliation claim, the Circuit held that there was no genuine dispute that the hospital had legitimate reasons for discharging her, based on its conclusion that she was dishonest and disruptive and that she had improperly received extra pay. On the hospital’s cross-appeal for costs, the Circuit remanded the case to the district court to explain why the hospital, as the prevailing party presumptively entitled to costs, was not awarded them. The grant of summary judgment in the hospital’s favor was affirmed.

Nos. 12-2163 & 12-2164. Taylor v. Taylor (In re Taylor). 12/09/2013. Bankruptcy Appellate Panel. Chief Judge Briscoe. Bankruptcy—Nondischargeable Debt—Separation Agreement—Domestic Support Obligation—Absurdity Doctrine—Attorney Fees.

Eloisa and Matthew Taylor were divorced in 2005. They entered into a Marital Settlement Agreement, which included a provision for Matthew to pay $2,500 per month to Eloisa as spousal support until Eloisa’s remarriage or death. In 2009, Matthew moved to terminate spousal support, arguing that Eloisa had been living for two years in a marriage-like relationship with a man. The divorce court agreed and ordered Eloisa to repay $40,660 in overpaid spousal support, plus $10,000 for Matthew’s attorney fees. A month later, Eloisa filed for bankruptcy. Matthew objected to a discharge of the $50,660 judgment. The bankruptcy court ruled that the debt was not dischargeable as a debt to a former spouse incurred "in connection with a separation agreement" under 11 USC § 523(a)(15), but rejected Matthew’s argument that the debt was a "domestic support obligation" under 11 USC § 523(a)(5). The Bankruptcy Appellate Panel agreed with the bankruptcy court, and further ruled that the court did not have authority to award Matthew attorney fees under the separation agreement’s fee-shifting provision. Both parties appealed.

The Tenth Circuit examined the nature of the debt, conducting a dual inquiry: (1) the intent of the parties at the time they entered into the separation agreement, and (2) the substance of the obligation. The Circuit determined that the debt was not in the nature of support owed to Matthew; therefore, it was not a "domestic support obligation." Nevertheless, the debt was excepted from discharge as a domestic support obligation. The Circuit rejected Eloisa’s absurdity doctrine argument that the intent of the drafters should control over the plain language of the statute. Finally, the Circuit agreed with the attorney fees ruling. The judgment was affirmed.

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