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TCL > March 2014 Issue > Summaries of Selected Opinions

March 2014       Vol. 43, No. 3       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. 13-2058. Diversey v. Schmidly. 12/23/2013. D.N.M. Judge O’Brien. Copyright—Claim Accrual—Tolling—Right to Make Copies—Right to Distribute—Fair Use.

Plaintiff sued for copyright infringement on his unpublished dissertation, alleging that the University of New Mexico made his PhD dissertation available to the general public. The district court dismissed the complaint as untimely, because it was filed more than three years after plaintiff was notified that his dissertation had been deposited in the university library.

The Tenth Circuit held that unless an appropriate tolling principle applies, a copyright infringement claim must be brought within three years of the date on which the plaintiff becomes aware of an act of infringement or becomes chargeable with knowledge of it. The Circuit recognized that the limitations period does not begin to run until the plaintiff knows or has reason to know of the infringement. In addition, if an infringer’s actions are calculated to deceive the plaintiff, the accrual may be tolled even further.

Here, plaintiff asserted infringement of two distinct rights: (1) his exclusive right to make copies, and (2) his exclusive right to distribute his work. Because he learned more than three years before he filed suit that the university had made copies for deposit at its library, his first claim was time-barred. However, his distribution claim was not time-barred. Deposit of the dissertation in the library is not the same as making it available to the borrowing or browsing public by listing it in the library catalog system. The Circuit rejected the university’s claim that its use was permissible as fair use. The applicable factors weighed in plaintiff’s favor. The judgment was affirmed in part and reversed in part, and the case was remanded.

No. 12-1419. Eller v. Trans Union, LLC. 12/31/2013. D.Colo. Judge Matheson. Fair Credit Reporting Act—Colorado Consumer Credit Reporting Act—Telephonic Remote Testimony—Unexpected Reasons—Vital Evidence—Inconvenience.

Plaintiff had filed two lawsuits against Trans Union, LLC for false reporting; both cases were settled. In this suit, he alleged that Trans Union willfully and negligently reported erroneous entries on his credit report, in violation of the Fair Credit Reporting Act (FCRA) and the analogous Colorado Consumer Credit Reporting Act (CCCRA). Plaintiff represented himself at trial. He requested that two of his witnesses be permitted to testify by telephone because they were out of state. The district court denied the request. At the conclusion of the trial, the district court granted judgment in Trans Union’s favor.

The Tenth Circuit stated that to prove either negligent or willful infringement of the FCRA or the CCCRA, plaintiff had to establish that (1) Trans Union failed to follow reasonable procedures to assure that its reports were accurate; (2) the report was inaccurate; (3) plaintiff was injured; and (4) Trans Union’s failures caused the injury. Plaintiff claimed that the testimony of his out-of-state witnesses would have established the first element. Generally, a district court has discretion to allow a witness to testify by telephone for unexpected reasons or where a vital witness would be endangered or made uncomfortable by appearing in a courtroom, but not where the witness would merely be inconvenienced. Both out-of-state witnesses were unexpectedly unavailable; moreover, neither was a vital witness, because both would have provided only background information on plaintiff’s present claims. Therefore, the district court did not abuse its discretion. The judgment was affirmed.

No. 12-4190. Eisenhour v. Weber County. 12/31/2013. D.Utah. Judge Bacharach. Sexual Harassment—Whistleblower—First Amendment—Protected Speech—Relation Back—Qualified Immunity—Disputed Material Facts.

Plaintiff, an employee of the Weber County Justice Court, alleged that a judge sexually harassed her and that the County retaliated against her for reporting the harassment. The County investigated plaintiff’s claims of sexual harassment, but decided not to discipline the judge. The County referred the complaint to the state commission on judicial misconduct, which found no misconduct. Plaintiff told her story to the press, which reported her allegations that the commission refused to hear several witnesses. During the second half of 2009, the County closed the Justice Court, resulting in the loss of plaintiff’s job. Plaintiff sued under Title VII, 42 USC § 1983, and the Utah Whistleblower Act. The district court granted summary judgment to defendants.

On appeal, the Tenth Circuit held that (1) the statute of limitations barred plaintiff’s Whistleblower Act claim for refusing to rehire her; (2) the Title VII claim was unexhausted; (3) plaintiff lacked a property interest in future employment for her due process claim; and (4) the County was not liable for an equal protection violation because the judge was not a policymaker. The Circuit reversed on plaintiff’s equal protection claim against the judge and on her First Amendment and Whistleblower Act claims against the County for closing the Justice Court, stating that issues of material fact precluded summary judgment on those claims. The Circuit held that plaintiff’s comments to the media involved constitutionally protected speech and her evidence was sufficient for an inference that her speech was a motivating factor to close the Justice Court. The Whistleblower Act claims were untimely, but because plaintiff’s original complaint stated facts relating to closing the Justice Court, her amended complaint raising the Whistleblower Act related back as to that claim. On her equal protection claim against the judge, the Circuit reversed the district court’s ruling that he was entitled to qualified immunity. The Circuit found that plaintiff had adequately alleged an equal-protection violation, the law was clearly established, and the disputed facts precluded summary judgment. The judgment was affirmed in part and reversed in part, and the case was remanded.

No. 13-3064. United States v. Ko. 01/03/2014. D.Kan. Judge Kelly. Escape From Home Confinement—Definition of "Custody."

Defendant was convicted of conspiracy to distribute methamphetamine and was sentenced to sixty months’ imprisonment. He served most of his sentence in prison, but eventually was transferred to a community corrections center, and then to confinement at his home in Kansas. He signed an agreement with the Bureau of Prisons (BOP) stating he would (1) remain in BOP custody even though living at home; (2) wear an electronic monitoring bracelet; (3) remain at home except when at his employment; and (4) return home by a specified time each day. He failed to return home and was charged with escape. He was arrested in Kansas City. The district court dismissed a superseding indictment that charged him with escape from the custody of the Attorney General or his representative, reasoning that the escape statute did not contemplate the crime of absconding from home confinement.

On appeal, the government argued that a person is in custody when he or she is serving a sentence at a place designated by the BOP. Defendant argued that the meaning of "custody" under the escape statute, 18 USC § 751(a), is ambiguous and that the rule of lenity therefore applied. The Tenth Circuit agreed with the government’s position. Reading § 751(a) in connection with related statutes reveals that the BOP has the authority to designate the place of a prisoner’s imprisonment, including "home confinement." Thus, a prisoner is within BOP custody when he or she is under home confinement and is being monitored, and can be convicted of escape from that custody. The district court’s order dismissing the superseding indictment therefore was reversed.

No. 13-2027. United States v. Toledo. 01/07/2014. D.N.M. Judge Kelly. Self-Defense—Involuntary Manslaughter—Jury Instructions.

Defendant appealed from his conviction of voluntary manslaughter. Defendant and his family lived next to the victim (defendant’s uncle) on the Navajo reservation. Defendant’s parents became concerned that the victim was a "skinwalker"—that is, a person who possesses supernatural powers and who assumes the appearance of an animal for malevolent purposes. Defendant also was afraid that the victim was a Satanist who had tried to harm him with witchcraft. Acting on advice from a medicine woman, defendant and his stepfather (who is African American) went out one night to spread sacramental ashes to protect their animals and property. After they finished, defendant and his stepfather encountered the victim at a barbed wire fence between their properties. The parties engaged in a verbal dispute—punctuated by the victim’s racial slurs—but had begun to walk away from each other when defendant told the victim not to call them names. The victim, who had been drinking, then used a racial slur repeatedly and charged toward defendant, reaching over the fence and lunging at him. Defendant, who was much shorter and smaller than the victim, fatally stabbed him with a knife.

At trial, defendant requested jury instructions on self-defense and involuntary manslaughter. The district court denied the instructions, finding a lack of evidence at trial to support them. On appeal, the Tenth Circuit found that defendant was entitled to a self-defense instruction because he testified he was afraid his uncle would grab or choke him, circumstances a jury could have concluded required deadly force to prevent the victim from causing him great bodily harm. The jury should have been permitted to decide the other factual questions at issue, including whether defendant should have realized he could have retreated and how much of an obstacle the fence posed to the victim’s aggression. Defendant also was entitled to an involuntary manslaughter instruction, because his attempt at self-defense, even if not entirely justified, could have made him only criminally negligent. Accordingly, the judgment was reversed and the case was remanded for a new trial.

No. 12-7085. United States v. Harriman. 01/14/2014. E.D.Okla. Judge Holmes. Insanity Defense—Sentencing Guidelines—Downward Adjustment for Acceptance of Responsibility.

A jury convicted defendant of attempting to destroy or damage property by means of an explosive, and of illegally making an explosive device. The explosive device was discovered near a gas pipeline. When defendant saw a news report about the discovery, he contacted the police and admitted he was responsible for the device. At trial, he presented an insanity defense. His attorney argued he did not have the necessary intent to commit the crime. Defendant did not contest the basic facts of the offense, but presented testimony that he (1) suffered from manic depression, schizoaffective disorder, and post-traumatic stress disorder; (2) had been sexually abused as a minor; (3) had attempted suicide; (4) had been repeatedly hospitalized for psychotic episodes; (5) was taking antipsychotic medications at the time of the crime; and (6) placed the bomb at the behest of imaginary voices that spoke to him and threatened him if he failed to comply. Defendant claimed that after he heard a news report about the bomb, he became lucid, contacted the police, and took responsibility for his actions. The jury convicted him of both offenses.

At sentencing, defendant sought a downward adjustment for acceptance of responsibility, which the district court denied. On appeal, the Tenth Circuit upheld this denial. Defendant’s insanity and lack-of-intent defenses did not bring him within the rare class of cases where a defendant admits to the facts of a crime, thus accepting responsibility, and then puts the government to the burden of a trial on a contested legal or constitutional issue. Here, the parties disputed the fact of defendant’s mental condition, not merely its legal ramifications. Defendant contended he was psychotic and delusional when he constructed and placed the bomb; the government argued he was not. Given that defendant contested the government’s version of events on this factual issue, requiring a trial, he was not entitled to an adjustment for acceptance of responsibility. Moreover, the district court made sufficient findings on the acceptance-of-responsibility issue. The Circuit therefore affirmed defendant’s sentence.

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