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TCL > June 2014 Issue > Summaries of Selected Opinions

June 2014       Vol. 43, No. 6       Page  97
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. 12-1373. United States v. Bergman. 03/28/2014. D.Colo. Judge Gorsuch. Government’s Right to Appeal—District Court’s Order Having Practical Effect of Dismissing Indictment—Ineffective Assistance of Counsel—Re-Prosecution Under the Double Jeopardy Clause.

Defendant was convicted of hiring a hit man to kill her ex-husband. After her trial, defendant discovered that her trial attorney was not a lawyer at all: he was a con man. She then filed a motion to vacate or correct her sentence under 28 USC § 2255, alleging violation of her Sixth Amendment right to effective assistance of trial counsel. The district court granted her motion, vacated her conviction, and discharged her from supervised release (she had finished her prison term). The government then asked the district court to set a new trial date, so that defendant could be retried while properly represented by counsel. The district court refused, and the government appealed.

The Tenth Circuit first addressed whether it had jurisdiction to consider the government’s appeal. The government is permitted to appeal from an order dismissing an indictment, but here the district court only denied a trial date. Viewing the matter as one of substance rather than form, the Circuit held that the government could appeal from the district court’s order, which had the practical effect of dismissing an indictment.

The Circuit then addressed and rejected defendant’s argument that both the appeal and any further prosecution were barred by the Double Jeopardy Clause. First, the error asserted did not relate to guilt or innocence, and therefore did not prohibit the government from seeking a new trial. Second, the fact that defendant had fully served her sentence, even if true, would not prohibit prosecution and a lawful conviction, as long as she was not exposed to more punishment for the same charge. Finally, the district court had not cited other considerations (such as delay) that could have overcome the general rule that the appropriate remedy was a new trial with effective assistance of counsel. Accordingly, the Circuit vacated the district court’s order and remanded the case for further proceedings.

No. 13-1026. United States v. Pulliam. 04/08/2014. D.Colo. Judge O’Brien. Fourth Amendment—Reliability of Informant’s Statements in Search Warrant Application—Sufficiency of Description of Items to be Seized—Duty to Provide Copy of Warrant.

Defendant was indicted on charges of being a felon in possession of a firearm and of being an armed career criminal. The firearms resulting in these charges were found at his home during a search by Colorado police officers. He pleaded guilty but reserved his right to appeal from the denial of his motion to suppress the firearms. On appeal, defendant made three arguments for suppression of the firearms. The Tenth Circuit rejected each of them, and affirmed his conviction.

First, defendant argued that the warrant lacked probable cause because the warrant application contained unreliable and uncorroborated statements from an untested and dishonest informant. The Circuit noted that the police knew the identity of the informant at the time he made his statements and that the informant had previously provided reliable information leading to the discovery of contraband.

Second, defendant argued that the warrant failed to sufficiently describe the items to be seized, and that the copy given to him improperly omitted an attachment identifying the places to be searched and items to be seized. Because the police knew of defendant’s prior felony conviction, however, any guns in his possession were considered to be contraband, and thus no specific description of a gun was necessary. Further, defendant was not entitled to a copy of the warrant that satisfied the particularity requirement, because that requirement was satisfied by the deliberate impartial judgment of a judicial officer and the right to suppress and/or seek damages for any evidence improperly obtained.

Finally, the police did not violate Fed.R.Crim.P. 41(f)(1)(C) or the terms of the warrant by failing to provide defendant and his spouse a copy of the warrant contemporaneous with their search. Defendant failed to show prejudice from any disregard of the Rule’s requirements, such that he would be entitled to suppression of the evidence. Also, Rule 41 does not apply to "state warrants," and even if the warrant itself required that a copy be furnished to defendant, he did not show that failure to comply with this directive rendered the search unreasonable or required suppression of the firearms.

No. 13-3061. Howard v. Ferrellgas Partners, L.P. 04/08/2014. D.Kan. Judge Gorsuch. Federal Arbitration Act—Motion to Compel Arbitration—Disputed Facts—Extended Discovery and Motions Practice—Summary Trial.

Plaintiff Randy Howard filed a class action lawsuit alleging that defendant Ferrellgas Partners, L.P. (Ferrellgas) overcharged him and other customers. Ferrellgas responded that Howard was required to pursue his individual claim alone in arbitration. The district court, unsure whether Ferrellgas had shown an agreement to arbitrate, entertained discovery and other motions practice. Eventually, almost a year and a half after Ferrellgas had filed its motion to compel arbitration, the district court found that material facts prevented it from deciding whether the parties had agreed to arbitrate. Therefore, the court denied arbitration. Ferrellgas appealed.

The Tenth Circuit observed that the Federal Arbitration Act requires courts to process arbitration motions quickly, with only restricted inquiry into factual issues. In this case, where a quick look demonstrated that material disputes of fact existed on the question of whether the parties had agreed to arbitrate, a summary trial, not extended discovery and motions, was required. The district court erred in denying arbitration based on a finding of disputed facts. Instead, the court should have moved quickly to resolve those disputed facts and then rule on arbitrability. Accordingly, the district court’s order denying arbitration was vacated and the case was remanded for the district court to resolve the disputed facts surrounding whether the parties had agreed to arbitrate.

No. 13-5040. United States v. Muhammad. 04/09/2014. N.D.Okla. Judge Hartz. No-Contest Plea—Voluntariness Affected by Collateral Consequences—Knowing and Voluntary Nature of Plea.

After allegedly making false statements to receive rent subsidies from the U.S. Department of Housing and Urban Development, defendant was indicted for numerous crimes. She pleaded no contest to one count of making a false statement. During the plea colloquy, the district court questioned defendant regarding her understanding of the charges against her, the rights she was giving up by pleading guilty, and the applicable penalties she faced. At the outset of her sentencing hearing, however, she moved to withdraw her plea, arguing that she had not understood that on entering a no-contest plea she would be found guilty. She later testified that she did not know that the plea would result in a felony conviction, and that her attorney had told her to just say "no contest" and to trust him. Her attorney testified that he had explained to her that the district court, in accepting the no-contest plea, would find her guilty. Defendant also argued that her lack of English comprehension and difficulty in translating the plea petition kept her from understanding the effect of her plea. The district court denied the motion to withdraw the plea, citing language in the written petition stating that a finding of guilt would be made.

On appeal, defendant argued that her no-contest plea was involuntary because she was not informed that she would have a felony conviction and thus would have difficulty obtaining credit, securing employment, and obtaining Section 8 housing and federal financial aid, and that she would be precluded from owning a firearm and that her future court testimony would be subject to impeachment. The Tenth Circuit concluded that defendant did not need to know of these collateral consequences to enter a valid plea.

Defendant also argued that she did not understand that her plea would result in a finding of guilt and that she did not understand the difference between a plea of no contest and a guilty plea. Her attorney testified that he told her that "a no-contest plea is the same thing as a guilty plea, except you don’t have to say that you did anything wrong." Moreover, the plea petition itself indicated that the court would make a finding of guilt. Finally, given her attenuated assertion of innocence and the other factors that weighed against allowing her to withdraw her plea, she failed to show a fair and just reason for requesting withdrawal. Accordingly, the Circuit affirmed defendant’s conviction and sentence.

No. 12-1343. City Center West, LP v. American Modern Home Insurance Co. 04/15/2014. D.Colo. Judge Hartz. Appeal Mooted—Lack of Practical Importance—Dismissed for Lack of Jurisdiction.

Defendant insurance company sought rehearing of the Tenth Circuit’s decision upholding the assignment of a post-loss insurance claim. The claim had been assigned to plaintiff City Center West, LP (City Center) by Summit Bank. The rehearing petition disclosed that City Center had reassigned its insurance claim to Summit Bank more than a year before the Tenth Circuit issued its decision on the merits. As a result, the court’s decision would have no practical effect.

A case that was justiciable when litigation commenced can become moot if the underlying controversy ceases to exist. The appeal ceased to have any practical importance when City Center reassigned its claim to Summit Bank. At that point, the case became moot. Mooted cases must be dismissed for lack of jurisdiction. The Circuit’s opinion on the merits was vacated and the case was remanded with directions to vacate the district court’s judgment and dismiss the complaint as moot. The vacated judgment has neither res judicata nor stare decisis effect.

No. 12-4174. Jubber v. Bank of Utah (In re C.W. Mining Co.). 04/15/2014. Bankruptcy Appellate Panel. Judge Murphy. Bankruptcy—Post-Petition Transfer—Secured Creditor—No Estate Depletion.

C.W. Mining Co. took out a secured loan from the Bank of Utah (Bank). It then purchased a certificate of deposit (CD) from the Bank. After C.W. Mining filed for bankruptcy, the Bank liquidated the CD and applied the proceeds to the amount due on the loan. The bankruptcy trustee sought to recover the proceeds from the CD, claiming that the Bank’s action was an unauthorized post-petition transfer or, in the alternative, that the transfer was a violation of the automatic bankruptcy stay. The bankruptcy court ruled in the Bank’s favor and the Bankruptcy Appellate Panel (BAP) affirmed.

The Tenth Circuit noted that an unauthorized transfer or one made in violation of the automatic stay is void and the parties are returned to the status quo as it existed before the transfer. Voiding the transfer in this case would reinstate the Bank’s status as a secured creditor. The Bank obtained no benefit from the transfer that it would not otherwise have been entitled to and the bankruptcy estate suffered no damage. Thus, the Trustee was entitled to no relief. The BAP’s judgment in the Bank’s favor was affirmed.

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