Wednesday, February 08, 2006

10th Circuit Summaries

As before, a big thanks to Bonnie Hill for compiling these. I only have time to keep up with state court opinions.

This collection excludes immigration cases. Before each case the subject of the case is printed in all caps. Last time I did this, I inserted links to each case on the court's website. I've decided that's just too time consuming. I love you guys, but I have (or am trying to have) a life. So if you want to read any cases, find them yourself here, or here.



US v. Batie, No. 04-4299 (10th Cir. January 04, 2006)

After three mistrials on an indictment for armed robbery and brandishing a firearm, the district court dismissed the indictment on the grounds that seventeen-and-a-half months was too long for Batie to wait and violated his Sixth Amendment right to a speedy trial. The dismissal of defendant's indictment was reversed. The court held the district court erred in finding that a fourth trial of defendant would violate his constitutional (Sixth Amendment) rights to a speedy trial and substantive due process. The Court evaluated the four factors used to determine whether Batie’s right to a speedy trial had been violated – the length of delay, the reasons for the delay, whether the defendant protested at the time, and prejudice to the defendant – and concluded that the factors did not weigh in Batie’s favor. Particularly illustrative that defendant’s right to a speedy trial was not violated was the fact that the defendant had requested two continuances before he claimed his right to a speedy trial and later moved for a third continuance over the government's objections. The court explained that dismissal based on delay requires, at a minimum, some intentional and purposeful misconduct by the government. The Court also rejected Batie’s argument that the mistrials prejudiced him by allowing the government’s witnesses to become more polished on the stand. Because the district court did not make any findings regarding changes in the witnesses’ testimony, there was no record support for this argument. Also rejected was the district court’s finding that the evidence against Batie was too sparse to warrant another trial, noting that the decision of whether to prosecute rests within the discretion of the prosecutor, and not the discretion of the court. Thus, the matter was remanded for a new trial.


US v. Smith, No. 04-5085 (10th Cir. January 04 2006)

Defendant Smith, a felon in possession of a firearm, claimed his prior conviction for receiving or acquiring the proceeds from illegal drug activity should not have been considered a controlled substance offense and that the district court erred in calculating it as such to determine his sentence for firearm possession. In an opinion affirming the district court, Judge McConnell concluded that Mr. Smith’s admission of receiving the proceeds from a sale of cocaine in a plea colloquy and the charging language in the information demonstrated that Mr. Smith committed a controlled substance offense.


Winsness v. Yocom, No. 04-4275 (10th Cir. January 05, 2006)

Dismissal of an action for a declaratory judgment and injunctive relief asserting that Utah's flag-abuse statute violates the First Amendment is affirmed where plaintiffs lack standing to pursue their claims. Two plaintiffs – a gubernatorial candidate, Larsen, who campaigned by distributing miniature flags with his name on them and Winsness, who was cited for burning a smiley face into a flag, sued for a declaratory judgment that the Utah statute is unconstitutional. They claimed that without an injunction against future prosecution, the very existence of the statute would have a chilling effect on their respective campaign/s and artwork. Winsness lacks standing because charges against him were dropped and the there is no threat of being further injured because the district attorney announced that it will bring no prosecutions under the statute. The deputy who cited Winsness for burning a smiley face into a flag was deemed to have acted independently of the governor, attorney general and county prosecutors. The court held that Larsen, who engaged in activities that he believed violated the law but was not prosecuted, failed to show that the law injured him or that there is an imminent threat that it will injure him, and thus also lacks standing. The Court explained that neither plaintiff alleged an injury in fact sufficient to confer standing for the declaratory and injunctive relief they seek. To have standing, the plaintiffs would have to show a credible threat of future prosecution. Here, however, Utah officials have assured both individuals that they will not be prosecuted under the statute, which is sufficient to defeat standing or at least render the case moot. Although the Court does not discuss attorney fees and implicitly denies them by affirming the district court’s dismissal.


US v. Lott, No. 04-6268 (10th Cir. January 05, 2006)

Denial of defendant's motion for substitution of counsel in a prosecution for offenses involving the manufacture and distribution of methamphetamine is affirmed where any constitutional error in denying defendant counsel for an evidentiary hearing was harmless beyond a reasonable doubt, and there was no abuse of discretion in the finding that there was not a complete breakdown in communication. Lott, who manufactured and distributed meth, claimed he was entitled to counsel at an evidentiary hearing to determine whether he had a complete breakdown in communications with his trial attorney. In an opinion written by Judge Murphy, the court held that the evidentiary hearing was part of the larger criminal proceeding, where Lott was represented, and denial of counsel did not result in the loss of any identified right. Also, there is no evidence that the district court would have found a breakdown in communication between Lott and his attorney if Lott had been appointed counsel, and thus any error was harmless.


UWA v. BLM, Nos. 04-4071 & 04-4073 ( 10th Cir. January 06, 2006)

[Opinion amended on rehearing.] San Juan, Kane, and Garfield Counties claimed they had a legal easement to grade roads on land owned by the Bureau of Land Management. The court held that nothing in the law gave the BLM jurisdiction to make binding determinations regarding rights of way. Remanded for further investigation of historical rights of way.


US v. Angelos, No. 04-4282 (10th Cir. January 09, 2006)

Defendant contended the district court erred in denying his motion to suppress the items seized from the rental house. The court found that the district court did not abuse its discretion when it denied defendant's motion to suppress the items seized from the rental house because although the officers executing the warrant did not act reasonably when they exceeded the scope of the warrant and seized items throughout the house, even if some of the evidence seized from the rental house should have been suppressed, its admission at trial was harmless. Defendant's conviction and sentence for multiple drug, firearms, and money laundering offenses is affirmed over claims of error regarding: 1) denial of a motion to suppress; 2) evidentiary rulings, 3) an Eighth Amendment challenge, and 4) an equal protection claim.


Robbins v. Wilkie, No. 04-8016, (10th Cir. January 10, 2006)

Robbins claimed Wilkie and other Bureau of Land Management employees tried to extort a right-of-way across Robbins property. The court held that under the Fifth Amendment, Robbins has a right to exclude the government from his land unless is exercises its right of eminent domain and thus Wilkie is not entitled to qualified immunity.


Maldonado v. City of Altus, No. 04-6062 (10th Cir. January 11, 2006)

City employees claimed the city's English-only policy created a hostile work environment and violated their civil rights. Summary judgment for defendants, municipality and officials, was reversed as to claims under Title VII alleging disparate-treatment and disparate-impact; intentional discrimination under 42 U.S.C. § 1981 and equal protect claims under civil rights laws, 42 U.S.C. § 1983. Summary judgment in favor of defendants was affirmed on all other claims. Additionally, the court held there were sufficient grounds for Plaintiffs to proceed under their Title VII claims, individual defendants may not be held liable under that statute.


Silverton Snowmobile Club v. US Forest Serv., No. 05-1005 (10th Cir. January 12, 2006)

Order upholding the Forest Service decision to ban snowmobiles on 200 acres around Andrews Lake near Molas Pass was affirmed in an environmental law challenge by plaintiffs, a group of non-profit organizations whose members enjoy engaging in winter motorized activities. Forest Service officials wanted to separate incompatible winter-recreation buffs. A growing number of users and less-than-normal snowfall left them competing for the same playground. The federal agency's action in June 2001 was intended to calm tempers that rose when lack of snow over several winters forced winter recreationalists to compete for less space.


Nat. Labor Relations Bd. v. Velocity Express, Inc., No. 04-9602 (10th Cir. January 17, 2006)

The NLRB determined that Velocity Express wrongfully discharged the Kirks, two delivery drivers, because of their union activities. NLRB’s order for backpay and reinstatement of the Kirks is enforced in a dispute over the calculation of backpay for employees wrongfully terminated. Velocity argued that the NLRB should have deducted vehicle operating expenses the Kirks would have incurred, had they been employed by Velocity. Rejecting this argument, the NLRB relied on settled law that it does not "deduct from the gross backpay those expenses that employees would have incurred had they not been unlawfully discharged. The court agreed.


Colorado Wild, Inc. v. US Forest Serv., No. 05-1265 (10th Cir. January 18, 2006)

Judgment for agency defendant on plaintiffs-conservation groups' action under the Administrative Procedure Act is affirmed in a challenge to a regulation promulgated by defendant allowing the Shaw Lake salvage timber sale and salvage of dead and/or dying trees on certain land with only a Categorical Exclusion (CE) - the minimal level of environmental analysis required under federal law. Such an analysis often entails only a two-page decision memo, as opposed to a full environmental assessment (EA) or environmental impact statement (EIS). The court concluded the Forest Service did not act arbitrarily when it only reviewed projects with temporary roads to determine the point at which road construction has a significant environmental affect because looking at projects without roads would not have added to determination of whether the roads have an impact. The court found no evidence that the Forest Service acted irrationally or deviated from past practices when it used the mean acreage of forest projects to determine the rule's acreage limit.


Robey v. Shapiro, Marianos & Cejda, L.L.C., No. 04-5163 (10th Cir. January 18, 2006)

Dismissal of plaintiff's claims brought under the Fair Debt Collection Practices Act (FDCPA) arising out of a foreclosure action is affirmed where plaintiff failed to state a claim under the FDCPA. Plaintiff claimed that the defendant’s request for “reasonable attorneys fees” in the foreclosure petition was an unfair debt collection practice pursuant to 15 U.S.C. § 1692f(1) because it did not accord with an agreement that defendants would handle the foreclosure action for a flat fee. The court rejected Robey's claim that the request in the foreclosure petition for “reasonable attorney’s fees” was an unfair debt practice and held that Robey had failed to state a claim under the FDCPA.


Ahmad v. Furlong, No. 04-1450 (10th Cir. January 18, 2006)

District court's ruling that defendants, prison officials, waived their defense of qualified immunity on prisoner plaintiff's claim under the Religious Land Use and Institutionalized Persons Act because they did not raise it as a defense in their Amended Answer is reversed. The court held that not only was defense raised in defendant’s motion for summary judgment, the plaintiff also thought defendants had raised the qualified immunity defense and his response to the motion for summary judgment raised no objection to Appellants' claiming RLUIPA qualified immunity, therefore the district court should have addressed it.


US v. Atencio, No. 04-2325, 05-2022 (10th Cir. January 20, 2006)

The court held that a jury instruction confusing the relationship between the drug quantities described in § 848(b)(2)(A) and the violations that constitute “a continuing criminal enterprise” was an error, but found no prejudice because evidence of the size and scope of the Atencios' drug trafficking activities showed that even using defendant's proposed instructions would not have affected the outcome. Defendants' sentence for conspiracy to possess with intent to distribute cocaine is vacated pursuant to a claim that their sentences for conspiracy violated their rights under the Double Jeopardy Clause since conspiracy is a lesser included offense of a continuing criminal enterprise. The court affirmed the Atencios' convictions under the CCE (Continuing Criminal Enterprise) statute and remanded the case to the district court with instructions to vacate their concurrent sentences for conspiracy.


Hain v. Mullin, No. 05-5039 (10th Cir. January 23, 2006)

The court granted an “en banc” hearing to determine if attorneys fees would be covered for defending indigent defendants seeking federal habeas relief in state clemency hearings. Attorneys Jackson and Presson claimed they were entitled to federal funding for representing Hain, who was executed by the state, during state clemency hearings. The court found that under the plain language of the statute (21 U.S.C. § 848(q)(4)(B)) directions that counsel must represent a defendant through all proceedings, including clemency, must apply to state clemency hearings because the federal government does not have the power to pardon defendants convicted in state courts. Reversed.


Hamilton v. Mullin, No. 04-5067 (10th Cir. January 24, 2006)

Denial of habeas relief from defendant's conviction for murder and the death penalty is affirmed over claims of error regarding: 1) prosecutorial misconduct; 2) exclusion of certain testimony and jury instructions; 3) jury instruction; 4) insufficiency of the evidence; and 5) cumulative error. The court found that the alleged prosecutorial misconduct, prosecutor’s “rhetorical flourish” at closing, was of minimal influence on the jury when compared to the physical evidence and testimony describing the quadruple homicide. Likewise the omission of the victim impact instruction was also minimal in the context of all the instructions given as a whole. The court concluded the weight of all of the alleged errors did not deprive Hamilton of a fair trial and that defendant failed to establish that individual harmless errors should collectively justify habeas relief.


Robbins v. Chronister, No. 02-3115 (10th Cir. January 25, 2006)
Attorney's fee award for plaintiff following an award of nominal damages of one dollar in a civil rights claim under 42 U.S.C. section 1983 against defendant, a police officer, is reversed where the district court erred in failing to apply the Prison Litigation Reform Act's attorney's fee award limit of 150% of the money judgment. Chronister, a police officer, claimed attorney fee limitations for civil suits filed by prisoners should apply to Robbins' excessive force suit against him even though the incident occurred prior to Robbins incarceration. Using the plain language of the law, which limits fees for all civil rights cases filed by prisoners, because prisoners have time to pursue their claims, do not need money for their necessities, and are entitled to free legal assistance, the court applied the PLRA cap altering the original award for $9,680 in fees and $915.16 in expenses to $1.50. Reversed.


Brereton v. Bountiful City Corp., No. 05-4067 (10th Cir. January 26, 2006)

Dismissal with prejudice of plaintiff's challenge to a parking ordinance involving advertisement or sale of cars as an unconstitutional infringement on his right to free speech is modified to a dismissal without prejudice where plaintiff's failure to show that his complaint could be amended to establish standing did not justify the entry of a dismissal with prejudice of the action. “The district court extended the futility principle too far in this case by dismissing with prejudice for lack of standing, since it lacked jurisdiction to make a determination on the merits of the complaint.” Remanded for modification of dismissal to “without prejudice.”


US v. Robinson, No. 04-7052 (10th Cir. January 26, 2006)

Appellant Robinson argued that the jury instructions were misleading in their definition of what constitutes a "substantial step" towards the attempted manufacture of methamphetamine, and that the language "possession in furtherance of" for the purposes of the firearms charges must be defined for the jury to apply them intelligently. He also argued that the evidence was insufficient to convict him of one count of the firearms charge. Finally, Robinson contended that he must be resentenced under United States v. Booker, 540 U.S. 220 (2005). Convictions for attempted manufacture of methamphetamine and possession of a firearm in furtherance of a drug trafficking offense were affirmed where none of the challenged jury instructions were deemed misleading, and the evidence was found sufficient to support the challenged firearm conviction. Appellant’s sentence was vacated pursuant to Booker and remanded, because the Government conceded that the district court's application of the U. S. Sentencing Guidelines in a mandatory fashion warranted resentencing.


Fogle v. Colorado Dep't of Corr., No. 05-1405 (10th Cir. January 27, 2006)

Dismissal of inmate-plaintiff's 42 U.S.C. section 1983 complaint alleging various civil rights violations committed by defendant, department of corrections, is reversed in part as to claims that were deemed to have an arguable basis in law or fact. The court held that district court’s dismissal of all claims as frivolous was an error. Appellant’s claims that survived are: his claim of the lack of due process afforded him regarding administrative segregation; his claim of retaliation for exercising his First Amendment rights; his claim of being denied “Christian fellowship” , his claim of being denied access to the law library and that claims were held by the district court as barred by the statute of limitations.


US v. Green, No. 05-5053 (10th Cir. January 27, 2006)

Defendant's conviction on drug and firearm offenses is affirmed over his claims of error regarding: 1) improper denial of a motion to suppress evidence regarding a confidential informant; 2) composition of the jury pool – that those drivers who live outside of Tulsa county, but do not vote were excluded; 3) jury instructions – instructions were disjunctive while charges in the indictment were listed in the conjunctive; and 4) sufficiency of the evidence on the possession of an unregistered sawed-off shotgun - Defendant alleged that it was not proved that he knew the length of the gun’s barrel.


US v. Westover, No. 03-3287, (10th Cir. January 30, 2006)

Westover was convicted by a jury of violating 18 U.S.C. § 1001, making false statements regarding matters under the jurisdiction of a federal agency, by embezzling government funds in conjunction with his receipt of public housing assistance and food stamps. “The district judge imposed a sentence which exceeded that supported by the facts found by the jury or admitted by the defendant.”Defendant mounted a Booker challenge which was denied. The court held that “sentencing error in this case did not seriously affect the fairness, integrity or public reputation of judicial proceedings.” Affirmed.


U.S. v. Wolfe, No. 04-2114, (10th Cir. January 31, 2006)Defendant-Appellant, the driver in a fatal automobile accident on an Indian reservation, pled guilty to two counts of involuntary manslaughter. Defendant appealed her sentence, challenging the district court's decision to depart upward from the then-mandatory sentencing guideline range. The court held that the district court impermissibly double-counted facts and failed to explain the degree of upward departure adequately. On remand the court directed that resentencing should follow the new discretionary guidelines sentencing regime established by Booker. Reversed and Remanded


U.S. v. Crockett, No.04-4204, (10th Cir. January 31, 2006)

Defendant , a promoter of trust schemes, was charged in a four-count indictment with one count of conspiring to defraud the IRS, in violation of 18 U.S.C. § 371, and three counts of aiding and assisting in the preparation of false and fraudulent tax returns, in violation of 26 U.S.C. § 7206(2). A jury found him guilty on all four counts. Defendant argued that his conviction should be vacated because: (1) He was not allowed to cross examine one of the prosecution’s witnesses – Defendant failed to show that the proposed line of questioning would have cleared him; (2) District court’s refusal to give jury instructions regarding grantor trust provisions of the Internal Revenue Code –Court held that factual evidence presented at trial did not provide an evidentiary foundation for the instruction.; (3) Prosecutor presented perjured testimony to the grand jury - Defendant failed to show the testimony was false; (4) The cumulative effect of individual harmless errors denied Defendant a fair trial - Court found neither error nor harmless error and refused a cumulative analysis; (5) Sentencing him in accordance with Federal Sentencing Guidelines was illegal and violated his constitutional rights - The government suggested and the court agreed that Defendant's sentence should be vacated and the case remanded for resentencing pursuant to Booker. Affirmed on all issues; remanded for resentencing.


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