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: www.cobar.org (click on “Opinions/Rules/Statutes”).

No. 15-3074. Mayfield v. Bethards. 06/20/2016. D.Kan. Judge McHugh. Pet Dogs—Constitutional Rights—Qualified Immunity—Effects—Dogs Are Personal Property—Adequacy of Complaint.

Plaintiffs sued a police deputy for killing their pet dog, claiming a violation of their Fourth Amendment rights. They alleged that the deputy shot and killed their dog while it was lying in their front yard. The deputy moved to dismiss on qualified-immunity grounds. The district court denied the motion, and the deputy appealed.

Qualified immunity protects government officials from suit for civil damages if their conduct does not violate clearly established statutory or constitutional rights. The Tenth Circuit noted that the Fourth Amendment protects people against unreasonable searches and seizures of, among other things, their effects. The deputy asserted that dogs are not “effects,“ so there was no constitutional violation. The Tenth Circuit disagreed, stating that “effects” is equated with personal property and Kansas recognizes that dogs are their owners’ personal property. Therefore, killing a dog violates the Fourth Amendment, absent a warrant or an exception to the warrant requirement.

The deputy also asserted that killing the dog was reasonable under the circumstances because he believed the dog had attacked livestock. The Tenth Circuit rejected this claim. The issue here was whether plaintiffs’ complaint was adequate. The complaint alleged that a different dog had attacked the livestock. Thus, the complaint alleged facts that, if true, could support a constitutional violation.

The judgment was affirmed.

No. 14-1322. Nelson v. United States. 06/28/2016. D.Colo. Chief Judge Tymkovich. Personal Injury—Colorado Recreational Use Act—Federal Tort Claims Act—Negligent Maintenance—Objective Standard—Permissive User—No Liability.

Plaintiff was seriously injured in a bicycle accident on Air Force Academy (AFA) land when his bike hit a sinkhole in a bike path. He sued for damages under the Federal Tort Claims Act for negligent maintenance of the path and was awarded damages. The government appealed, arguing that it was not liable under the Colorado Recreational Use Act (CRUA), which limits the liability of landowners who allow the use of their property for recreational purposes.

The CRUA protects a landowner who allows its land to be used for recreational purposes, but it does not limit liability for a landowner’s “willful and malicious failure to guard or warn against a known dangerous condition . . . likely to cause harm.” Applying an objective standard, the Tenth Circuit found that plaintiff was a permissive user under the CRUA because he was indirectly permitted to use the bike path—the AFA knew the public used the path for recreational purposes and never prevented usage or took steps to close it off to the public. Therefore, the AFA was entitled to protection under the CRUA, unless its failure to warn was willful or malicious. Because the district court did not adjudicate the willful-or-malicious issue, the judgment was reversed and the case was remanded for the district court to decide this issue in the first instance.

No. 15-3201. Lebahn v. National Farmers Union Uniform Pension Plan. 07/11/2016. D.Kan. Judge Bacharach. ERISA—Pension Plan—Consultant—Fiduciary— Discretionary Authority—Equitable Estoppel.

Plaintiffs, Lebahn and his wife, contended that a pension-plan consultant breached a fiduciary duty by misstating the amount of the monthly pension payments that Lebahn would receive if he were to retire. Shortly after Lebahn began receiving retirement benefits, a representative of the pension plan informed him that he was being overpaid and he would have to return the overpayments. Plaintiffs sued the pension plan, and the district court dismissed for failure to state a claim.

Plaintiffs alleged that the consultant’s misinformation was a breach of fiduciary duty and violated the Employee Retirement Income Security Act of 1974 (ERISA). The Tenth Circuit held that plaintiffs failed to plead facts showing the consultant was a plan fiduciary: the consultant did not have discretionary authority in administering the pension plan, but was responsible only for calculating pension benefits. Therefore, the claim for breach of fiduciary duty was properly dismissed.

Plaintiffs also alleged an ERISA violation based on equitable estoppel. When a district court dismisses a claim on two or more independent grounds, the appellant must challenge each of those grounds. Here, plaintiffs failed to challenge the district court’s determination that they failed to adequately plead one of the five elements of equitable estoppel—justifiable reliance. The Tenth Circuit thus affirmed the dismissal of the equitable estoppel claim.

The judgment was affirmed.

No. 15-2119. United States v. Basurto. 07/12/2016. D.N.M. Judge Bacharach. Procedural Reasonableness of Fine—Hardship—Ability to Pay.

Defendant was convicted of federal drug charges. Her only source of income was her monthly disability payments, but she and her husband owned a home unencumbered by a mortgage. The district court imposed a fine of over $13,000, reasoning that defendant could pay the amount either by selling the house or obtaining a loan. She appealed the fine, arguing that it was procedurally unreasonable.

Defendant first argued that in finding that she could pay the fine, the court erroneously relied on her ability to sell or mortgage her house because (1) state law requires her husband’s consent, and (2) no one would loan her money. However, state law permits a sale without spousal permission under certain circumstances, and defendant did not show that lenders would not loan her money using the house as collateral. Based on the evidence presented, the district court acted within its discretion in imposing the fine.

Defendant next argued that the district court erred by failing to consider hardship as part of its ability-to-pay analysis. The district court did not err in treating her ability to pay and hardship as separate inquiries; hardship does not affect her ability to pay.

Defendant further argued that the district court erred in relying on facts that (1) family members living with defendant knew of her illegal drug activity and could have stopped it, and (2) her house had been connected to her illegal behavior. The Tenth Circuit found these findings were not clearly erroneous.

Lastly, defendant argued that the district court did not account for the increased risk of recidivism by imposing the fine. In considering the sentencing factors, the district court expressly considered the recidivism risk posed by the fine.

Accordingly, the Tenth Circuit affirmed the imposition of the fine.

No. 15-7043. United States v. Merida. 07/12/2016. E.D.Okla. Judge McHugh. Attorney–Client Privilege—Corporate Counsel—Harmless Error.

Defendant was charged with various crimes in connection with his actions as the executive director of the Choctaw Nation of Oklahoma (Nation). At his trial, the government used a sworn statement that defendant gave in an investigation for a civil suit to impeach his testimony. Defendant moved for a mistrial, arguing that the sworn statement was protected by attorney–client privilege. The district court denied the motion, finding that the attorney–client privilege belonged to the Nation, not defendant personally, and the Nation waived the privilege. Defendant was convicted of defrauding the Nation. He appealed the denial of the motion for mistrial.

On appeal, the Tenth Circuit agreed that the attorney–client privilege belonged to the Nation, not to defendant. Defendant failed to establish he was the client holding the attorney–client privilege because he did not show that the Nation’s corporate counsel represented him individually in addition to representing the Nation. Rather, the Nation was the client holding the privilege, and it intentionally waived the privilege by providing the transcript to the government. The district court therefore did not abuse its discretion in denying the motion for mistrial.

The Tenth Circuit further determined that even if defendant held the privilege, the use of his statements was harmless because the evidence of his guilt was overwhelming and the impact of the impeachment was minimal.

Accordingly, the Tenth Circuit affirmed the district court’s denial of defendant’s motion for mistrial.

No. 15-2019. United States v. Little. 07/19/2016. D.N.M. Judge Lucero. Jury Instructions—Constructive Possession of Firearm—“Intent”—Requirement.

Defendant lived in rental property. Pursuant to a search warrant, police discovered stolen weapons in defendant’s residence. The property owner later turned in a third gun she found on the property. Defendant was tried and convicted of being a felon in possession of a firearm and possessing a stolen firearm.

On appeal, defendant challenged the constructive possession jury instruction, arguing that the instruction should have included a requirement that he had the intention to exercise dominion and control over the firearms. Based on Supreme Court authority, the Tenth Circuit agreed. However, because the evidence presented at trial compels the conclusion that defendant intended to exercise control over the weapons, the error was harmless.

Defendant next challenged the aiding and abetting instruction, arguing that it was inconsistent with the government’s theory that he was the principal, and that the evidence was insufficient to support the instruction. A district court may provide an aiding and abetting instruction even if the government argues a defendant is guilty as principal. Furthermore, the Tenth Circuit found that the evidence supported the instruction.

Defendant also challenged the sufficiency of the evidence for the deliberate indifference instruction. Although the instruction was improper, the error was harmless because the evidence showing that defendant had actual knowledge of the weapons was substantial and the Tenth Circuit was convinced that the instruction played no part in the verdict.

Lastly, defendant challenged the “possible guilt of others” instruction. The district court properly instructed the jury that involvement by third parties would not constitute an absolute defense.

The Tenth Circuit also determined that the district court enhanced defendant’s Guideline offense level for a prior “crime of violence” under a Guideline residual clause that was unconstitutionally vague.

The convictions were affirmed, but the sentence was vacated, and the case was remanded for sentencing.

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