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July 6, 2016
  Independence Institute v. Williams - Tenth Circuit
Case Name: Independence Institute v. Williams

Headline: Tenth Circuit Expands Citizens United to Compel Disclosure of Donors to Policy Ad Incidentally Mentioning a Political Candidate

Area of Law: First Amendment, Elections

Issues Presented: (1) Whether a policy advertisement mentioning a political candidate is subject to Colorado Const. art. XXVII, § 6(1), which requires disclosure of donors to electioneering communications, and (2) if so, whether the disclosure requirements are consistent with the First Amendment as articulated in Citizens United.

Brief Summary:

A non-profit corporation sought to air an advertisement criticizing the state for failing to audit its health care exchange and asking viewers to urge the incumbent governor, a candidate in the forthcoming election, to support an audit. Seeking to prohibit the Secretary of Colorado from requiring it to disclose the donors to the ad, the corporation filed a motion for summary judgment arguing that its ad was not campaign-related and, even if it was, compelling disclosure would infringe on its members' First Amendment right to free association. The Secretary filed a cross motion. The district court, concluding that the disclosure requirements did not violate the First Amendment, entered summary judgment for the Secretary.

The corporation appealed. First, disclosure requirements could properly reach issue speech such as this ad mentioning a candidate shortly before an election, even if the ad did not take a position on a candidacy. Second, Colorado's disclosure requirements, as applied to the corporation's ad, survive First Amendment scrutiny. The Tenth Circuit affirmed.

Extended Summary:

A non-profit corporation engaged in research and education of the public on public policy sought to air an advertisement criticizing the state's failure to audit its health care exchange. The ad urged viewers to call upon the incumbent governor, a candidate in the forthcoming election, to support an audit. The corporation sought an injunction to prohibit the Secretary of Colorado from compelling it to disclose the donors to its ad. See Colorado Const. art. XXVII, § 6(1). In a motion for summary judgment, the corporation argued that, because its ad was issue speech and not campaign-related speech, it was not subject to disclosure requirements. And even if the ad was campaign-related, the corporation contended, requiring disclosure would infringe on its members' First Amendment right to free association.

The Secretary filed a cross-motion for summary judgment seeking to compel disclosure. The district court granted the Secretary's motion, holding that the disclosure requirements did not violate the First Amendment right to free association. The corporation appealed. The Tenth Circuit affirmed.

First, the Tenth Circuit held that ads purporting to discuss only an issue, while incidentally mentioning a candidate shortly before an election, are sufficiently campaign-related to implicate the government's interest in disclosure. While Buckley v. Valeo, 424 U.S. 1 (1976), initially limited application of disclosure requirements to express advocacy that was unambiguously campaign-related, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), expanded the reach of disclosure requirements beyond express advocacy to at least some forms of issue speech. Here, the ad's insinuation that the incumbent governor failed to take action on an issue could bear on his character or merits as a candidate.

Second, the Tenth Circuit held that Colorado's disclosure requirements, which were substantially similar to the requirements upheld in Citizens United, met the exacting scrutiny standard and was the least restrictive alternative. Exacting scrutiny "requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest." In this case, the requirements serve the public's legitimate interest in knowing who communicates about a candidate shortly before an election. Colorado's spending requirements were sufficiently tailored because smaller elections can be influenced by less expensive communications.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-1463.pdf

Panel: Tymkovich, Murphy, and Bacharach

Date of Issued Opinion: February 4, 2016

Docket Number: No. 14-1463

Decided: The Tenth Circuit affirmed summary judgment in favor of the Secretary of Colorado.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

Allen Dickerson (Tyler Martinez, Center for Competitive Politics, and Shayne M. Madsen and John Stuart Zakhem, Jackson Kelly, PLLC-Denver, with him on the briefs), Center for Competitive Politics, Alexandria, Virginia, for Appellant.

Glenn E. Roper, Deputy Solicitor General (Cynthia H. Coffman, Attorney General, Sueanna P. Johnson, Assistant Attorney General, and Frederick R. Yarger, Assistant Solicitor General, with him on the brief) Office of the Attorney General, Denver, Colorado, for Appellee.

Margaret G. Perl and Luis A. Toro, Colorado Ethics Watch, and Benjamin J. Larson, Ireland Stapleton Pryor & Pascoe, PC, Denver, Colorado, on the brief for Amici Curiae Colorado Ethics Watch and Colorado Common Cause.

Fred Wertheimer, Democracy 21, J. Gerald Hebert, Tara Malloy, Lawrence M. Noble, and Megan McAllen, The Campaign Legal Center, Donald J. Simon, Sonosky, Chambers, Sachse Enderson & Perry, LLP, and Scott L. Nelson, Public Citizen Litigation Group, Washington, DC, on the brief for Amici Curiae The Campaign Legal Center, Democracy 21 and Public Citizen.

Author of Opinion: Hon. Tymkovich

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:55 AM     10th Circuit     Comments (0)  

  United States v. Fager - Tenth Circuit
Case Name: United States v. Fager

Headline: Tenth Circuit Holds that Roadside Frisk for Weapons is Reasonable When Defendant's Passenger has Criminal History

Area of Law: Fourth Amendment, Search

Issue Presented: Whether the officers' concerns for their own safety gave them reasonable suspicion to frisk Defendant during a roadside frisk.

Brief Summary:

Defendant was stopped for failing to use a turn signal. The officer discovered that the passenger in the vehicle had multiple outstanding warrants for his arrest. Defendant consented to a search of his car while he waited in the back of the patrol car. The officer patted down Defendant to check for weapons and found a gun on his person. Defendant filed a motion to suppress the gun based on a lack of reasonable suspicion of dangerousness. The district court denied the motion to suppress.

Defendant appealed. The Tenth Circuit affirmed, holding that, based on a totality of the circumstances, the officers reasonably could have suspected that Defendant was armed and thus acted lawfully when they patted him down in concern for their own safety.

Extended Summary:

An officer initiated a traffic stop for a turn signal violation. The officer initially believed Defendant was impaired and found the passenger's behavior suspicious in that he was leaning forward, apparently to obstruct the officer's view of Defendant. The officer conducted a warrants check and learned that the passenger had several outstanding warrants for his arrest. A backup officer arrived and the two officers asked Defendant to step out of his car. They determined that Defendant was not impaired. Defendant then consented to a search of his car and, because it was cold outside, sat in the back of the patrol car.

The two officers, concerned that they were going to looking completely away from Defendant and the passenger during the vehicle search, patted down Defendant for weapons. The officers discovered the firearm at issue in Defendant's waistband and arrested Defendant for being a felon in possession of a firearm. Defendant filed a motion to suppress the firearm, arguing that the pat-down was unlawful. The district court denied the motion to suppress. Defendant entered a conditional guilty plea and exercised his right to appeal the denial.

First, Defendant argued that the two cases relied on by the district court, United States v. Manjarrez, 348 F.3d 881 (10th Cir.2003) and United States v. McRae, 81 F.3d 1528 (10th Cir.1996), were incorrectly decided. The Tenth Circuit disagreed, reestablishing the principle from these cases that when an officer must turn his or her back to a defendant, such as during a search of a vehicle, little beyond a concern for safety is necessary to support the officer's reasonable suspicion. In Manjarrez, the officer was similarly justified in frisking a driver before turning his back on him to search the vehicle given the dangerous nature of traffic stops to officers. A driver need not, as in the case of McRae, possess a violent criminal history for a search of the driver to justify when the driver turns his back on the driver prior to a search of the vehicle.

Second, the Tenth Circuit held that Defendant's case was not distinguishable from Manjarrez and McRae because of the presence of the second officer. In the context of a traffic stop, it was reasonable for the officers to be concerned that Defendant and the passenger could launch a coordinated attack, especially when the Defendant or passenger knew there were outstanding warrants. See United States v. Holt, 264 F.3d 1215, 1223 (10th Cir.2001) (en banc).

In addition, other circumstances justified reasonable suspicion. The officers could infer that the men would jointly try to conceal evidence of the passenger's outstanding warrants based on the suspicious behavior of the passenger. See United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007). And the traffic stop occurred in a high-crime area in nighttime darkness. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-3104.pdf

Panel: Holmes, Baldock, and Matheson

Date of Issued Opinion: January 21, 2016

Docket Number: No. 15-3104

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

Andrew J. McGowan, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Topeka, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney, Topeka, KS, for Plaintiff-Appellee.

Author of Opinion: Hon. Baldock

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:51 AM     10th Circuit     Comments (0)  

  United States v. Lilly
Case Name: U.S. v. Lilly

Headline: Tenth Circuit Holds Investigators' Promises of Immunity to Confidential Informant Could Not Prevent Federal Charges

Area of Law: Fourth Amendment, Public Contract

Issue Presented: Whether the Wyoming agents, acting independently or on behalf of the federal DEA, had actual authority to bind the United States to a non-prosecution agreement pursuant to the Constitution, federal statute, or duly promulgated regulation, or as integral part of their duties.

Brief Summary:

Investigative agents from the Wyoming Division of Criminal Investigation (DCI) interviewed Defendant in connection with her fiancé's arrest by the Drug Enforcement Agency (DEA) for distribution of methamphetamine. Defendant agreed to serve as a confidential informant and made several incriminating statements about her involvement. Defendant was subsequently indicted for conspiracy to distribute methamphetamine. Defendant filed a motion seeking to prevent the United States from prosecuting her, arguing that the investigative agents promised her federal immunity from prosecution. The district court denied the motion, finding that neither the DCI nor DEA had the authority to bind the United States to any such agreement.

Defendant appealed. The Tenth Circuit held that the state investigators, acting independently or on behalf of the DEA, did not have the authority to promise Defendant federal immunity. Because any agreement was therefore unenforceable against the United States, the Tenth Circuit affirmed the district court's denial of Defendant's motion.

Extended Summary:

First, the Tenth Circuit held that, assuming there was an enforceable non-prosecution agreement between Defendant and the DCI agents, the DCI agents were acting independently and did not have authority to bar federal prosecution, because state officials have no power to bind the federal government. See United States v. Vinson, 414 F.3d 924, 929 (8th Cir.2005).

Second, as to express actual authority, Defendant pointed to no federal statute or regulation expressly authorizing DEA agents to grant immunity to cooperating informants. See United States v. Flemmi, 225 F.3d 78, 85 (1st Cir. 2000).

Third, regarding implied actual authority, while granting immunity might be helpful to securing cooperation of informants, the connection between a promise of immunity and the DEA's duty to investigate crimes is far too attenuated to establish that the DEA had implied actual authority to grant Defendant immunity. See id. at 86. Further, Defendant could not identify any participation by a federal prosecutor - who actually did possess such authority - in making a non-prosecution promise to her. See id. at 87.

Fourth, Defendant did not explain why her general fairness considerations should trump the well-established principle that anyone entering into an arrangement with the Government takes the risk of having accurately ascertained the limits of an agent's authority. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383-84 (1947). Nor was this case so extraordinary as to invoke the fundamental fairness exception to the requirement of actual authority. See Flemmi, 225 F.3d at 88 n.4.

Fifth, the supervisory power of the Court did not apply because a failure to enforce promises, which were unauthorized in the first instance, would not implicate the integrity of the judiciary or violate Defendant's recognized rights; nor were the alleged promises tainted by any illegality. See United States v. Payner, 447 U.S. 727, 734 - 35 (1980). Finally, Defendant did not raise, and therefore waived, the argument that a federal prosecutor ratified the agreement or failed to repudiate it knowing of the grant of immunity. See Flemmi, 225 F.3d at 90.

Concluding that the DCI agents had no independent authority to bind the United States, and the DEA agents likewise lacked the authority to direct them to do so, the Tenth Circuit affirmed the district court's denial of Defendant's motion.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-8041.pdf

Panel: Briscoe, Holmes, and Bacharach

Date of Issued Opinion: January 19, 2016

Docket Number: No. 14-8014

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion.

Case Alert Author: Veronica C. Gonzales-Zamora

Counsel:

W. Keith Goody, Cougar, WA, for Defendant-Appellant.

Thomas Szott, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Office of the United States Attorney, District of Wyoming, Cheyenne, WY, for Plaintiff-Appellee.

Author of Opinion: Hon. Holmes

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:46 AM     10th Circuit     Comments (0)  

February 12, 2016
  J.H. v. Bernalillo County - Tenth Circuit
Case Name: J.H. v. Bernalillo County

Headline: Tenth Circuit Holds Schoolhouse Arrest of Special Education Student Did not Violate Fourth Amendment or ADA

Area of Law: Fourth Amendment, Americans With Disabilities Act

Issue Presented: Whether a school officer: 1) had probable cause to arrest a special needs child who kicked a teacher; 2) used excessive force in handcuffing the child and transporting her to the juvenile detention center; 3) discriminated against the child on the basis of disability; and 4) failed to reasonably accommodate the child during an arrest and transport.

Brief Summary:

After observing 11 year-old special needs student (Child) kick a teacher, a school resource officer handcuffed and transported Child to a juvenile detention center. Child's Mother sued the officer and his employer, Bernalillo County, for violations of the Fourth and Fourteenth Amendments and Americans with Disabilities Act (ADA) via 42 U.S.C. § 1983. The district court dismissed the due process claim and granted summary judgment to Defendants on the remaining claims.

Mother appealed. The Tenth Circuit affirmed, holding with respect to the constitutional arguments that the officer had probable cause to arrest Child after she committed a crime and did not use excessive force. The Tenth Circuit also rejected the ADA arguments because there was no reason for the officer to believe Child lacked the necessary scienter and Child never asked for an accommodation.

Extended Summary:

A school officer observed an 11 year-old special needs student (Child) kick a teacher. Since battery of a school official is a crime, the officer handcuffed and transported Child to a juvenile detention center. Child's Mother sued the officer and his employer, Bernalillo County, under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, Due Process Clause of the Fourteenth Amendment, and Americans with Disabilities Act (ADA). She asserted that the officer arrested Child without probable cause and used excessive force in handcuffing and transporting Child to a juvenile detention center. And the officer discriminated against Child for having a disability and failed to reasonably accommodate Child's disability.

The district court dismissed the due process claim because the factual allegations did not implicate the Fourteenth Amendment. The district court also granted summary judgment to Defendants on the Fourth Amendment and ADA claims on qualified immunity grounds. Mother appealed.

First, the Tenth Circuit held that once Child committed a crime by kicking the teacher, the officer had probable cause to arrest her. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Second, the Tenth Circuit held that the officer did not apply excessive force because the officer could restrict Child's freedom of movement by handcuffing her. See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1156 (D.C.Cir.2004). Also, state law authorized the officer to take her to a detention center as opposed to taking her to her parents. See NMSA 1978, §§ 32A-210(A)(1), (A)(3).

Third, the Tenth Circuit agreed that the officer did not violate the ADA, as the officer properly arrested Child on the basis that she committed a crime, not on the basis of her disability. See Roberts v. City of Omaha, 723 F.3d 966, 973-74 (8th Cir.2013); see also 42 U.S.C. § 12132.

Fourth, the Tenth Circuit held that the officer did not fail to reasonably accommodate Child's learning disability because he did not know, or have reason to know, that Child was an individual with a disability needing accommodations. See Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1996 (10th Cir.2007); see also 42 U.S.C. § 12112(b)(5)(A).

Additionally, the Tenth Circuit affirmed dismissal of the Due Process claim because actions for excessive force and unlawful arrest are governed by the Fourth Amendment, not the Fourteenth. See Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir.2014). The Tenth Circuit also rejected claims against Bernalillo County for inadequate training because an employer is not liable unless the employee commits a constitutional or statutory violation. See Estate of Ellis v. Odgen City, 589 F.3d 1099, 1104-05 (10th Cir.2009). There was no such violation here.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-2068.pdf

Panel: Bacharach, Ebel, and McHugh

Date of Issued Opinion: November 27, 2015

Docket Number: No. 14-2068

Decided: The Tenth Circuit affirmed the district court's dismissal and grant of summary judgment in favor of defendants.

Case Alert Author: Veronica C. Gonzales

Counsel:

Joseph P. Kennedy, Kennedy Kennedy & Ives, Albuquerque, New Mexico (Shannon L. Kennedy and Michael L. Timm, Jr., Kennedy Kennedy & Ives, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellant.

Luis Robles, Robles, Rael & Anaya, Albuquerque, New Mexico (Taylor S. Rahn, Robles, Rael & Anaya, Albuquerque, New Mexico, with him on the briefs), for Defendants-Appellees.

Author of Opinion: Hon. Robert E. Bacharach

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:14 AM     10th Circuit     Comments (0)  

  U.S. v. Snowden - Tenth Circuit
Case Name: U.S. v. Snowden

Headline: Tenth Circuit Holds Possible $1.5 million Error in Sentencing Calculations Was Harmless

Area of Law: Criminal Procedure, Sentencing

Issue Presented: Whether the district court erred in calculating the sentencing enhancement based on a calculation of loss that was the sum of the pecuniary costs and the costs to develop a proprietary database. And if so, whether the error was harmless.

Brief Summary:

Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails. The district court found that because these crimes caused over one million dollars in losses, a 16-level sentencing enhancement was appropriate. The resulting guideline range was 41-51 months in prison, though the court varied downward and imposed a 30-month sentence.

Defendant appealed, arguing that the loss amount mistakenly included the $1.5 million cost to develop the proprietary database he hacked into and, consequently, the sentencing range was too high. The Tenth Circuit, without determining whether the loss calculation was improper, held that any perceived error was harmless because the district court unequivocally stated it would still impose a 30-month sentence even under a lower guideline range. The Tenth Circuit affirmed.

Extended Summary:

Since 2005, Onyx, M.D., Inc., a physician-staffing agency, developed a proprietary database. Defendant was a former employee who, a year after being terminated, obtained an executive's password and copied information out of the database to help him compete with Onyx. Defendant also intercepted over 20,000 emails to and from four Onyx executives. Onyx eventually noticed the hack, which the FBI traced to Defendant's address. Defendant pleaded guilty to unlawfully obtaining information from a protected computer and to unlawfully intercepting emails.

At sentencing, the district court determined that Onyx's losses were 1) $25,000 monetary harm in responding to the hack, and 2) $1.5 million in costs to develop the database. This resulted in a 16-level increase and guideline range of 41-51 months.

Defendant argued that the proper loss amount was $25,000, which would call for a 4-level increase and guideline range of 8-14 months. The district court disagreed and varied downward to impose a 30-month sentence, stating that even under a lower range it would impose a 30-month sentence with an upward variance. Defendant appealed.

First, the Tenth Circuit considered whether the district court properly calculated Onyx's losses. The Tenth Circuit looked to the guidelines commentary, which defined actual loss as the reasonably foreseeable pecuniary harm (meaning monetary harm) resulting from the offense. See USSG § 2B1.1 cmt. n.3(A)(i), (iii).

The Tenth Circuit held that the $1.5 million development cost was not adequately tied to any actual loss suffered by Onyx. Interpreting the commentary to require a district court to not only take into account the cost of developing trade secrets, but to substitute the development cost for the loss calculation contradicts the guideline's emphasis on actual losses. Without explicitly reversing, the Tenth Circuit stated its reluctance to affirm the offense level and corresponding guideline range.

Second, the Tenth Circuit held that any alleged error in the loss calculation was harmless. In the rare situation where there is harmless error in the loss calculation, it is because the error did not affect the sentence imposed by the district court. See U.S. v. Glover, 413 F.3d 1206, 1210 (10th Cir.2005). Here, the sentence was not affected because the district court clearly expressed that it would impose a 30-month sentence as an upward variance even if the correct range was lower.

Moreover, the Tenth Circuit held that the district court properly gave more than a boiler plate or perfunctory explanation for why it would exercise an upward variance. See U.S. v. Pena-Hermosillo, 522 F.3d 1108, 1117-18 (10th Cir.2008). The court relied on specific factors from 18 U.S.C. § 3553(a). Since the district court is not otherwise required to sentence within the guideline range, see U.S. v. Booker, 543 U.S. 220 (2005), a remand was inappropriate. The Tenth Circuit held that any error was harmless and affirmed the district court's sentence.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1107.pdf

Panel: Tymkovich, Hartz, and Baldock

Date of Issued Opinion: November 27, 2015

Docket Number: No. 15-1107

Decided: The Tenth Circuit affirmed the sentence imposed by the district court.

Case Alert Author: Veronica C. Gonzales

Counsel:

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

Paul Farley, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.

Author of Opinion: Hon. Harris L. Hartz

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/12/2016 12:08 AM     10th Circuit     Comments (0)  

February 11, 2016
  U.S. v. Cunningham - Tenth Circuit
Case Name: U.S. v. Cunningham (non-precedential)

Headline: Tenth Circuit Applies New Supreme Court Case Holding That Officer's Mistake of Law Excuses Improper Stop

Area of Law: Criminal Procedure, Fourth Amendment

Issue Presented: Whether the officer made an objectively reasonable mistake of law that would justify an otherwise invalid traffic stop.

Brief Summary:

An officer stopped a vehicle because of the driver's failure to signal prior to turning onto a public street. The front seat passenger, Defendant, was indicted for being a felon in possession of a firearm. Defendant filed a motion to suppress on the grounds that the driver's conduct was not prohibited by the Colorado statute. The district court denied the motion to suppress, holding that the stop was justified based on a traffic violation.

Defendant appealed. Following the district court's judgment, the Supreme Court of the United States ruled in Helen v. North Carolina, 135 S.Ct. 530, 539 (2014) that an officer's mistake of law can justify a traffic stop as long as the mistake is objectively reasonable. Relying on Helen, the Tenth Circuit affirmed, holding that the officer's mistake was objectively reasonable because the statute was ambiguous.

Extended Summary:

An officer stopped a vehicle as it was exiting a motel parking lot because the driver failed to signal her intention to turn onto a public street, contra Colo. Rev. Stat. § 42-4-903(1). The front seat passenger, Defendant, was indicted for being a felon in possession of a firearm. He filed a motion to suppress, arguing that the statute did not prohibit the driver's conduct, the traffic stop was thereby invalid, and as a result the firearm and statements were obtained in violation of the Fourth Amendment. Defendant argued that the officer's mistake of law, even if reasonable, invalidated the stop.

The district court found that the driver committed a traffic violation under Colorado law and that the stop was not based on a mistake of law. The court denied Defendant's motion to suppress. Defendant appealed.

The issue before the Tenth Circuit was whether the traffic stop and seizure were permissible under the Fourth Amendment. After the district court's ruling, the Supreme Court of the United States decided Helen v. North Carolina, 135 S.Ct. 530, 539 (2014). There, the Supreme Court held that an officer's mistake of law does not invalidate a traffic stop so long as the mistake is objectively reasonable.

The Tenth Circuit held that the officer's interpretation of Colorado law as requiring a turn signal was objectively reasonable and so then was the stop. First, the statute is genuinely ambiguous and the highest court in Colorado has not interpreted it. Second, like Sigrist v. Love, 510 P.2d 456, 457 (Colo.App.1973), the Tenth Circuit can apply a state traffic law to a driver entering a public street. Third, the divide among Colorado district courts in interpreting this law provided further evidence of the ambiguity in the statute.

The Tenth Circuit also interpreted the statute to require the driver to signal her intent to turn. Though the statute only expressly requires a signal when entering a private road, but not exiting, a residual clause requires a signal when turning from a direct course, roadway or not. Additionally, even though the statute ordinarily does not apply to a private road or driveway, the conduct here did not occur exclusively on a private road. It involved the use of a street governed by state law. Accordingly, the Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/15/15-1042.pdfhttps://www.ca10.uscourts.gov/opinions/15/15-1042.pdf

Panel: Gorsuch, O'Brien, and Bacharach

Date of Issued Opinion: November 24, 2015

Docket Number: No. 15-1042

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion to suppress.

Case Alert Author: Veronica C. Gonzales

Counsel:

Robert Mark Russel, David A. Tonini, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Antony Mark Noble, Noble Law Firm, LLC, Lakewood, CO, for Defendant - Appellant.

Author of Opinion: Hon. Terrence L. O'Brien

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 02/11/2016 11:50 PM     10th Circuit     Comments (0)  

August 2, 2015
  United States v. Dillard - Tenth Circuit
Case Name: United States v. Dillard

Headline: Tenth Circuit Holds Letter to Doctor Who Intended to Provide Abortion Services Could Be Considered a True Threat.

Area of Law: First Amendment

Issue Presented: Did a letter to a doctor who planned to open an abortion clinic constitute a "true threat," and thus fall outside of First Amendment protection, when the letter did not directly make reference to actual acts of violence the author intended to undertake, but referenced conditionally that potential harm could come about if the doctor provided abortion services?

Brief Summary:

In 2010 Dr. Mila Means confirmed reports that she intended to start offering abortion services in Wichita, Kansas. At the time, no doctor was providing these services in Wichita. The last doctor who performed abortions in the city was murdered by Scott Roeder in 2009. The Defendant, Angel Dillard, sent a letter to Dr. Means indicating some harm may come to her if she starting offering abortion services. The letter, however, made no direct mention of actual violent actions that the author was going to take. The United States Attorney General's office filed a civil lawsuit against the Defendant under the Freedom of Access to Clinic Entrances Act ("FACE").

The district court granted the Defendant's motion for summary judgment, concluding that the letter was not a true threat unprotected by the First Amendment and thus could not serve as the basis for a FACE prosecution. The Tenth Circuit held that the summary judgment was improper, as a reasonable juror could have concluded that this letter constituted a true threat unshielded by the First Amendment from FACE prosecution.

Extended Summary:

In 2010, Dr. Mila Means confirmed reports that her medical practice intended to start performing abortions in Wichita, Kansas. At this time, no doctors had performed abortions in Wichita, Kansas because of the murder of a doctor who provided abortion services by anti-abortion activist, Scott Roeder. Dr. Tiller had been a mentor and colleague of Dr. Means.

In early 2011, the Defendant, Angel Dillard, a friend of Roeder, sent a letter to the office of Dr. Means, suggesting harm may come to Dr. Means, but not directly threatening to take any violent actions. Dr. Means forwarded the letter to the FBI, which subsequently interview the Defendant. The FBI did not, however, determine that the Defendant posed a threat.

Although the FBI did not take further actions, the Attorney General of the United States brought a civil action under FACE against the Defendant. FACE prohibits using force, threats of force, or physical obstruction to injure, intimidate, or interfere with those seeking to obtain or provide reproductive health services. The statute does not, however, define "threat of force." Nor does it prohibit any expressive conduct protected by the First Amendment.

The district court granted the Defendant's motion for summary judgment, reasoning that the letter did not contain a true threat. The district court concluded that the letter did not contain an unconditional, imminent, and likely violence and that the letter predicated violence by third parties, but did not suggest the Defendant herself would engage in any violent acts.

A panel of the U.S. Court of Appeals for the Tenth Circuit reversed, by 2-1 vote. The majority turned to the United States Supreme Court's statements on true threats. The Court, according to the majority, defined true threat to mean "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Further, to constitute a true threat under the Court's true threat jurisprudence, the majority pointed out that the speaker does not have to actually intend to act upon the threat. The majority indicated that this objective test demands a fact-intensive inquiry and is usually left to a jury, unless the speech or expressive conduct is clearly protected by the First Amendment.

Here, the majority stated that, under previous case law, a conditional threat can still be considered a true threat. While a conditional threat indicates that that violence will only occur if the recipient fails to comply with the speaker's demands, it still can constitute a true threat because of the prospect of actual violence. Thus, the majority concluded that the letter, despite being a conditional threat, could be a true threat.

The majority next addressed the district court's conclusion that the letter was not a true threat because it did not suggest imminent harm. The majority stated that other circuit courts have held that a true threat does not have to indicate an imminent threat of violence, but merely has to have a likelihood of execution.
The majority turned to the district court's final conclusion that the letter was not a true threat because it stated a third party, not the author, may cause the harm. The majority concluded that it was not necessary for the speaker to directly threaten violence.

The majority stated that the essence of their holding was that a speaker cannot avoid a true threat label by using the passive voice or insinuating that "someone" might cause the harm. A holding to the contrary would render FACE "powerless against the ingenuity of threateners who can instill in the victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat," the majority noted.

The Defendant argued that the government was improperly linking her to Scott Roeder. The majority rejected this argument, stating that a reasonable juror could conclude that this association might be relevant to whether the letter is a true threat.

The Defendant next argued that the government failed to establish a subjective
intent to threaten Dr. Means, which is a requirement under FACE. The majority stated that the government met its burden by creating a triable issue as to whether the Defendant intentionally mailed the threatening letter and intended the consequential act of intimidation.

The Defendant lastly argued that the intent element in the FACE statute requires the underlying reproductive health services must be operational at the time of the threat rather than contemplated in the future. The majority found no support for this theory in the language of the statute.

The majority concluded that a reasonable jury could find the letter to be a true threat. Thus, the district court's grant of summary was reversed and the case was remanded.

The majority briefly addressed the government's standing to bring this issue under FACE. The Defendant argued that the government's standing derived from Dr. Means. The statute states, however, that if the United States "has reasonable cause to believe that any person or group of persons is being, or has been, or may be injured by the conduct constituting a violation of this section, the Attorney General may commence a civil action in any appropriate United States District Court." Thus, the government had standing to bring this action since it had reasonable cause to believe that someone may be injured.

The Defendant made additional standing arguments as to FACE's constitutionality under the Commerce Clause and its potential violation of the Religious Freedom Restoration Act. The majority dismissed these arguments, stating they were not raised at the district court.

Judge Baldock dissented, arguing that the majority's holding extended the true threat jurisprudence too far and that the facts of this case did not warrant this extension. The dissent stated that the Defendant's letter was not a true threat because it was a prediction that violence may come, rather than an actual threat of violence. The dissent cited several previous cases in which the threats had more immediacy and indicated violence would occur, whereas here the letter conditionally stated that violence might happen.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3253.pdf

Panel: McHugh, McKay, and Baldock

Date of Issued Opinion: July 28, 2015

Docket Number: Nos. 13-3253 & 13-3266

Decided: The Tenth Circuit reversed the district court's order granting summary judgment in favor of the Defendant. The case was remanded to the district court.

Case Alert Author: Leland Churan

Counsel:

Thomas E. Chandler, Attorney, Department of Justice, Civil Rights Division, Appellate Section (Jocelyn Samuels, Acting Assistant Attorney General; Diana K. Flynn and Dennis J. Dimsey, Attorneys, Department of Justice, Civil Rights Division, Appellate Section, with him on the briefs), Washington, D.C., for Plaintiff - Appellant/CrossAppellee.

Theresa Lynn Sidebotham of Telios Law, PLLC, Monument, Colorado (Donald A. McKinney of McKinney Law Firm, Wichita, Kansas, with her on the briefs), for Defendant - Appellee/Cross-Appellant.

Author of Opinion: Hon. Monroe G. McKay

Case Alert Circuit Supervisor: Dawinder S. Sidhu

Edited: 08/02/2015 at 10:31 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 08/02/2015 10:22 PM     10th Circuit     Comments (0)  

July 7, 2015
  Bonidy v. United States Postal Service - Tenth Circuit
Case Name: Bonidy v. United States Postal Service

Headline: Tenth Circuit Holds that Ban on Carrying or Storing Firearms on Post Office Property Does Not Violate the Second Amendment.

Area of Law: Second Amendment

Issue Presented: Does a federal regulation banning the carrying and storing of firearms on United States Postal Service ("USPS") property, including post office parking lots, a violation of the Second Amendment?

Brief Summary:

32 C.F.R. § 232.1(1) provides, in relevant part, that "no person while on postal property may carry firearms... either openly or concealed, or store the same on postal property, except for official purposes." Tab Bonidy ("Mr. Bonidy"), who possessed a concealed carry permit under Colorado law, was informed by the USPS that he would be in violation of the regulation if he carried a firearm on USPS property or stored the gun in his vehicle on a USPS parking lot. Mr. Bonidy challenged the firearm restriction as an infringement on his Second Amendment rights. The district court upheld the regulation as it applied to the post office building, but invalidated insofar as it applied to the post office parking lot. The Tenth Circuit affirmed in part and reversed in part, holding that 32 C.F.R. § 232.1(1), whether applied to the post office building or the parking lot, is consistent with the Second Amendment. The majority reasoned that D.C. v. Heller explicitly excluded the regulation of firearms in government buildings which extends to parking lots and that the government is entitled to discretion when it is regulating as a government-run business, as opposed to regulating as a sovereign. The majority concluded that even if the parking lot is not a government building, 32 C.F.R. § 232.1(1) is a general safety regulation that passes intermediate scrutiny.

Extended Summary:

32 C.F.R. § 232.1(1) prohibits carrying or storing firearms on USPS property. Mr. Bonidy, who possessed a license to carry a concealed firearm, challenged this regulation as a violation of the Second Amendment because (1) he cannot bring a firearm into the post office building; and (2) he cannot store his firearm in his vehicle while it is on the post office parking lot. The district court concluded that the regulation was constitutional insofar as it applied to the building itself, but unconstitutional as it applied to the parking lot. USPS appealed the district court ruling.

The majority initially stated that USPS was authorized to regulate firearms possession and storage on its property because D.C. v. Heller stated that "nothing in this opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms...in sensitive places such as schools and government buildings." Mr. Bonidy countered by arguing that this language was mere dicta. However, the majority concluded that the Tenth Circuit is still bound by the Supreme Court's dicta.

The majority next stated that while the USPS is a state actor subject to the Constitution, it also functions as a private business. That said, the majority acknowledged that courts have given the government greater discretion when it is regulating as a private business as opposed to regulating as a sovereign. Therefore, a significant distinction can be made between this scenario and Heller and McDonald v. City of Chicago, Illinois, in which the government was regulating wholly private conduct and not state-owned business operations. The majority concluded that 32 C.F.R. § 232.1(1) was directly related to business objectives, mainly providing a safe environment for patrons and employees. The majority further stated that 32 C.F.R. § 232.1(1) only applies to the specific spatial area of the post office building and the adjacent parking lot.

Mr. Bonidy made the argument that 32 C.F.R. § 232.1(1) is overinclusive with respect to its safety objectives because the building is relatively unsecured and requiring him to pick-up his mail there forces him to "risk his life." The majority disposed of this argument by stating that USPS is not required to tailor its safety regulations to each customer or to each of its 31,000 nationwide locations. The majority pointed to U.S. Postal Serv. v. Council of Greenburgh Civic Associations in which the Supreme Court stated that the USPS must adopt general regulations that apply equally to all its nationwide locations. In any case, the majority added, tailoring safety protocol to each specific location would present an impossible burden.

The fact that Mr. Bonidy had a valid concealed firearm permit under Colorado law, the Court briefly noted, did not invalidate 32 C.F.R. § 232.1(1). As state concealed firearm laws do not trump federal law, state firearms licenses do not undermine USPS regulation.

With respect to the parking lot, the majority stated that post office parking lots often include collection boxes and that patrons must traverse through them in order to gain access to the post office building. For this reason, post office security is intertwined with security in the parking lot. The building and the parking lot are operated as a single integrated facility.

The majority stated that Second Amendment cases apply an intermediate level of scrutiny. The majority concluded that 32 C.F.R. § 232.1(1) is defensible under this level of scrutiny for the aforementioned reasons.

Judge Tymkovich issued a lengthy opinion concurring in part and dissenting in part. Judge Tymkovich agreed that intermediate scrutiny applied and that 32 C.F.R. § 232.1(1) was valid as it applied to the post office building itself. He disagreed insofar as the regulation applied to the parking lot on the grounds that the government had not met its burden under intermediate scrutiny. Specifically, USPS had not shown that prohibiting the storage of a firearm in the parking lot would promote safety in the post office building. Therefore, he would have held that 32 C.F.R. § 232.1(1) is overinclusive as it applied strictly to Mr. Bonidy.

To read the full opinion, please visit:
https://www.ca10.uscourts.gov/opinions/13/13-1374.pdf

Panel: Tymkovich, Ebel, and Phillips

Date of Issued Opinion: June 26, 2015

Docket Number: Nos. 13-1374, 13-1391

Decided: The Court affirmed the district court order upholding the constitutionality of 32 C.F.R. § 232.1(1) as applied to the post office building and reversed the district court order invalidating the regulation as applied to the parking lot.

Case Alert Author: Leland Churan

Counsel:

Daniel Tenny, Attorney (Stuart F. Delery, Assistant Attorney General, John F. Walsh, United States Attorney, and Michael S. Raab, Attorney, with him on the briefs), Civil Division, United States Department of Justice, Washington, D.C. for Defendants-Appellants/Cross-Appellees.

Steven J. Lechner (James M. Manley, with him on the briefs) Mountain States Legal Foundation, Lakewood, Colorado, for Plaintiffs-Appellees/Cross-Appellants.

Jonathan L. Diesenhaus, S. Chartey Quarcoo, and Kathryn L. Marshall, Hogan Lovells US LLP, Washington, D.C.; and Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Legal Action Project, Washington, D.C., filed an amicus curiae brief for Brady Center to Prevent Gun Violence.

Author of Opinion: Hon. David M. Ebel

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Dawinder Sidhu @ 07/07/2015 10:47 PM     10th Circuit     Comments (0)  

June 13, 2015
  Browder v. City of Albuquerque - Tenth Circuit
Case Name: Browder v. City of Albuquerque

Headline: Tenth Circuit Holds Qualified Immunity Did Not Shield An Off-Duty Police Officer Who Killed a Civilian While Speeding Through Traffic Because The Actions Were Considered Arbitrary

Area of Law: Tort, Qualified Immunity

Issue Presented: Can an off-duty police officer use the defense of qualified immunity when he was speeding through traffic on private business and his actions led to a car accident in which one passenger was killed and another seriously injured?

Brief Summary:

Sergeant Adam Casaus of the Albuquerque Police Department turned on his emergency lights and drove his police cruiser 8.8 miles through city traffic averaging 66 miles per hour. Sergeant Casaus proceeded through a red light and struck an oncoming vehicle, killing one passenger and seriously injuring another. He argued that the civil lawsuit against him should be dismissed because of qualified immunity. The Tenth Circuit disagreed as his conduct was considered arbitrary and shocking to the conscience of the court. Sergeant Casaus was acting as a private person and not a police officer at the time of the accident. Therefore, qualified immunity did not apply.

Extended Summary:

Sergeant Adam Casaus of the Albuquerque Police Department finished his shift and, despite being off-duty, proceeded to drive at high speeds through traffic with his emergency lights on. He averaged speeds of 66 miles an hour and drove through ten busy city intersections for a distance of 8.8 miles. At the eleventh intersection, Sergeant Casaus drove through a red light, this time striking another car. One passenger in the car was killed and another was seriously injured. Sergeant Casaus was charged criminally with reckless vehicular homicide. The Plaintiffs brought this suit in civil court for damages. The group of Plaintiffs included the father of the two passengers who was the representative of the estate of the deceased passenger, the deceased passenger's sister who was the individual who sustained the serious injuries, and the two sisters' mother.

At the trial level, Sergeant Casaus argued that he was protected by qualified immunity and asked the court to dismiss the complaint on these grounds. The trial court denied this motion, and the Tenth Circuit affirmed.

The majority started the opinion by briefly discussing the implications of Section 1983, which allows a citizen to sue when their constitutional rights have been violated "under the color" of state law. The Court concluded Sergeant Casaus' actions were "under the color" of state law. However, the Court made clear that Section 1983 is only a vehicle for bringing a claim against a government official and it is the burden of the Plaintiffs to prove a violation of a constitutional right.

The Plaintiffs in this case argued that, under the 14th Amendment, their rights to due process were violated. The due process clause prohibits government from depriving anyone of their lives, liberty, or property without due process of law. Substantive due process further guarantees certain deprivations will not take place without sufficient justification.

The majority indicated that the Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997), has offered guidance for determining a substantive due process violation. First, a court must make a careful description of the right that was violated. Second, the court asks if this right is a fundamental one which is described as "objectively, deeply rooted in this Nation's history and tradition." Lastly, a court must determine whether the infringement of the right was direct and substantial. If the Plaintiffs meet this burden, it is up to the government to offer sufficient justification for its actions.

The majority briefly stated that mere negligence towards a fundamental right will not constitute a violation. The government's actions must at least be characterized as recklessness.

The majority felt that it was indisputable that the Plaintiffs met their burden in this case. Serious injury and death are a direct and substantial impairment of the right to life. The majority also declined to accept that Sergeant Casaus had proffered any evidence of sufficient justification for his actions. The majority indicated that there cannot be sufficient justification in circumstances where the government actions are "arbitrary" or "conscience shocking".

The majority held that Sergeant Casaus' actions of activating his emergency lights and speeding through city traffic for 8.8 miles fit this description, and the history of qualified immunity supported this conclusion. Historically, police officers acting as private individuals on private time did not enjoy the benefit of qualified immunity.

The majority further pointed to state law to support its conclusion. Under New Mexico law, when a police officer is pursuing a criminal he or she is not insulated from "the consequences of his [or her] reckless disregard for the safety of others." Additionally, New Mexico law also indicated that it was an abuse of their position for police officers to use their emergency lights while conducting private business.

Sergeant Casaus offered several defenses for his actions. First, he argued that he was pursuing a car and thus was acting on official business. If this were the case, qualified immunity would apply. However, the majority noted that the well-pleaded facts of the complaint indicated that, contrary to this assertion, he was not pursuing a car. The complaint indicated that Sergeant Casaus did not radio dispatch that he was on official police business and witnesses at the scene said that he was not pursuing another car. The majority noted that at this stage of the lawsuit they must accept the facts of Plaintiffs' complaint as true.

Sergeant Casaus next argued that because he activated his emergency lights that he was not acting recklessly. These lights are typically activated as a means to ensure the safety of those around the police car. However, the majority stated that granting qualified immunity in this circumstance would simply permit police officers to drag race with their emergency lights on. Further, the majority noted Sergeant Casaus relied on no authority for this position.

Lastly, Sergeant Casaus argued that running the red light only took 2.5 seconds and thus he did not have enough time to form a reckless state of mind. While continuing to view the facts most favorable to the Plaintiffs, the majority stated that one could conclude that Sergeant Casaus actually had the eight minutes it took to ravel the 8.8 miles for reflection on his conduct.

The majority indicated that Sergeant Casaus could have raised a defense left open in Parratt v. Taylor. 451 U.S. 527 (1981), that the Plaintiff is required to show that state law supplies no adequate remedy for the constitutional violation before they can proceed to federal court. However, the majority concluded that Sergeant Casaus abandoned this defense.

Judge Gorsuch, despite authoring the majority opinion, also issued a concurrence, arguing that Parratt would actually preclude a federal court from hearing this case. Because a state court offers the same remedy as a federal court, jurisdiction in state court is proper. The concurrence noted that the Supreme Court has warned about this specific activity, an auto accident with a state official, and the danger of essentially turning constitutional violations into state tort law. Sergeant Casaus did not raise this defense on appeal. Therefore, the majority was only able to decide the case on the issues raised on appeal. If he had raised this defense, the concurrence indicated that he would have reached the opposite conclusion in his majority opinion and dismissed the case because state courts, or common law courts as he referenced them, provide the necessary remedies for auto accidents. However, neither of the other two judges in the majority joined in the concurring opinion.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-2048.pdf

Panel: Gorsuch, Holmes, Tymkovich

Date of Issued Opinion: June 2, 2015

Docket Number: No. 14-2048

Decided: The court concluded that the conduct alleged in Plaintiffs' complaint could give rise to a 14th Amendment claim and thus the district court's decision was affirmed.

Case Alert Author: Leland Churan

Counsel:

Deborah D. Wells of Kennedy, Moulton, & Wells, P.C., Albuquerque, New
Mexico (Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque
Legal Department, Albuquerque, New Mexico, with her on the briefs), for
Appellants.

Sean P. McAfee of the Law Office of Brian K. Branch, Albuquerque, New
Mexico (Brian K. Branch of the Law Office of Brian K. Branch, Albuquerque,
New Mexico, and Erik R. Thunberg, Albuquerque, New Mexico, with him on the
brief), for Appellees.

Author of Opinion: Hon. Neil M. Gorsuch

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 06/13/2015 12:40 PM     10th Circuit     Comments (0)  

  Sierra Club v. Bostik - 10th Circuit
Case Name: Sierra Club v. Bostik

Headline: Tenth Circuit Holds Government Not in Violation of National Environmental Policy Act (NEPA) and the Clean Water Act.

Area of Law: Environmental, Government, Water

Issue Presented:
(1) Did the U.S. Army Corps of Engineers violate NEPA by issuing Nationwide Permit 12 without considering the risk of oil spills and the cumulative environmental impacts of pipelines; (2) Does Nationwide Permit 12 violate the Clean Water Act; (3) Is a cumulative effects analysis required to verify compliance with Nationwide Permit 12?

Brief Summary:
The U.S. Army Corps of Engineers issued Nationwide Permit 12, which allows anyone to construct utility lines in U.S. waters provided the activity does not result in the loss of greater than ½ acre of [U.S. waters] for each single and complete project. TransCanada Corporation proposed to rely on the nationwide permit to build an oil pipeline, the Gulf Coast Pipeline 2, which would run approximately 485 miles and cross over 2,000 waterways. The Corps issued letters verifying that Nationwide Permit 12 would cover the proposed construction. Shortly thereafter, TransCanada began constructing the pipeline, which has since been completed and is currently transporting oil. Three environmental groups challenged the validity of the nationwide permit and verification letters. The district court rejected these challenges and entered judgment for the defendants. The Tenth Circuit majority concluded that in issuing Nationwide Permit 12 the Corps did not violate NEPA or the Clean Water Act, and the agency did not issue the verification letters in violation of NEPA or the nationwide permit.

Extended Summary:
In August 2012, construction began on the Gulf Coast Pipeline 2, a part of TransCanada Corporation's Keystone XL Pipeline. The Gulf Coast Pipeline Project is an approximate 485-mile (780-kilometre), 36-inch crude oil pipeline beginning in Cushing, Okla., and extending south to Nederland, Texas, to serve the Gulf Coast marketplace. TransCanada Corporation proposed to rely on Nationwide Permit 12 to build this pipeline.
The U.S. Army Corps of Engineers has the authority to issue nationwide permits under Section 404(e) of the Clean Water Act. Exercising this permitting authority, the Corps issued Nationwide Permit 12, which allows anyone to construct utility lines in U.S. waters "provided the activity does not result in the loss of greater than ½ acre of [U.S. waters] for each single and complete project." Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012). The Corps issued letters verifying that Nationwide Permit 12 would cover the proposed construction. Shortly thereafter, TransCanada began constructing the pipeline, which has since been completed and is currently transporting oil.
The Plaintiffs, Sierra Club, Inc., Clean Energy Future Oklahoma, and East Texas Sub Regional Planning Commission challenged the validity of the nationwide permit and verification letters. The environmental groups argued that the Corps violated NEPA by issuing the nationwide permit without considering the risk of oil spills and the cumulative environmental impacts of the pipelines. The majority began by highlighting the three claims by the Plaintiffs and the standard of review. Under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (2012): "[T]he agency need only demonstrate that it considered relevant factors and alternatives . . . and that the choice it made was reasonable based on that consideration." Mt. Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir. 1994).
The majority next examined the Plaintiffs' challenge to the district court's disposition of the NEPA claims. The majority concluded that the Plaintiffs waived their claims involving failure to address oil spills and cumulative impacts, and the Corps was not required to conduct an environmental analysis when verifying compliance with the nationwide permit.
NEPA requires an agency to take a "hard look" at the environmental impacts of proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). If the venture involves a "major Federal action" that would "significantly affect the quality of the human environment," the agency must prepare a detailed environmental impact statement. 42 U.S.C. § 4332(2) (C) (2012). But if the future effects are unclear, the agency can prepare an environmental assessment instead of a more detailed environmental impact statement. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004). If the environmental assessment shows that the impact would be insignificant, the agency need not provide any further environmental report. Id. at 757-58. The Corps prepared an environmental assessment of activities permitted under Nationwide Permit 12, which was challenged by the Plaintiffs. They contend that the Corps unlawfully failed to consider: (1) the risk of oil spills associated with pipelines and d (2) the cumulative impacts of pipelines. The majority concluded that these challenges are waived based on Pub. Citizen, 541 U.S. at 764-65, in which the court articulated that parties challenging an agency's compliance with NEPA must ordinarily raise relevant objections during the public comment period.
Under Pub. Citizen, two exceptions exist. First, commenters need not point out an environmental assessment's flaw if it is "obvious." Second, a commenter does not waive an issue if it is otherwise brought to the agency's attention. Plaintiffs conceded that no commenter raised the oil spill issue. Nonetheless, the Plaintiffs contend that the issue is not waived because (1) the risk of oil spills is obvious, and (2) the Corps knew about the risk of oil spills when issuing the nationwide permit. The majority rejected both of these contentions. In addressing the "obviousness" exception, the majority held that the Plaintiffs needed to have shown that the omission of any discussion of oil-spill risks entailed an obvious flaw in the environmental assessment. The majority points out that the Plaintiffs must show that the assessment for the construction, maintenance and repair of utility lines contained an obvious flaw, not that the agency failed to discuss impacts of an obvious risk associated with certain activity. The fact that pipelines create a risk of spillage does not mean that the alleged deficiency in the Corps' environmental assessment for the construction, maintenance, and repair of utility lines would have been obvious.
Plaintiffs also argued that the Corps violated NEPA by failing to consider the cumulative impacts of oil pipelines. Because the Plaintiffs failed to raise this issue during the comment period, the majority found this issue waived as well.
Plaintiffs also argued the Corps should have prepared a NEPA analysis for the entire Gulf Coast Pipeline before issuing the verification letters. The majority disagreed, as the verifications do not constitute "major Federal action" warranting NEPA review, and the agency was not required to assess impacts of the entire pipeline.
In issuing the verifications, the Corps simply confirmed that TransCanada's activities would fall within the terms of Nationwide Permit 12. There would have been little reason for the Corps to conduct a new NEPA analysis at that point.
The majority then examined Plaintiffs claim that Nationwide Permit 12 violates section 404(e) of the Clean Water Act, which authorizes the Corps to issue nationwide permits when dredge-and-fill activities would result in minimal adverse environmental effects. 33 U.S.C. § 1344(e) (1) (2012). Plaintiffs contended that Nationwide Permit 12 violates § 404(e) by (1) authorizing linear projects with substantial environmental impacts and (2) deferring part of the minimal-impacts determination to project- level personnel. The Court disagreed and rejected these contentions based on the fact that the Plaintiffs did not show that the permit authorizes linear projects with more-than-minimal impacts, and the Corps has permissibly interpreted the statute to allow partial deferral of its minimal-impacts analysis.
Finally, Plaintiffs argued that the Corps violated the terms of its own permit by failing to document analysis of cumulative impacts in the verification letters or administrative record. The majority disagreed, stating that though district engineers must analyze cumulative impacts, the engineers need not include a written analysis of cumulative impacts within the verification letters. Though this analysis is absent in the letters, it appears in the record. Thus, the majority concluded that the Corps' issuance of the verification letters was not arbitrary or capricious.
The Court concluded that district engineers considered cumulative impacts of the proposed crossings. The Court points to three facts in particular: (1) District engineers prepared verification memoranda that describe the Corps' analysis of pipeline impacts, impose special conditions to ensure minimal impacts, and conclude that the pipeline (with proposed mitigation) would "result in no more than minimal individual and cumulative adverse environmental effects . . . ."; (2) The verification letters state that district engineers analyzed "all proposed crossings" of the pipeline "relative to the definition of single and complete project for linear projects"; and (3) Corps officials from separate districts communicated about the pipeline's verification to ensure that officials had necessary information and had fully considered the pipeline's collective impact. Based on the combination of these three facts, the Court concluded that the agency analyzed the cumulative impacts of the proposed crossings and held that the Corps' issuance of the verification letters was not arbitrary or capricious.
Judge McHugh issued a concurring opinion agreeing with the approach the majority took in analyzing and resolving the claims. However, he articulated a differing opinion on the Corps' compliance with its obligations under NEPA. The concurrence would impose a broader scope of analysis of what constitutes a major Federal action under NEPA, and a narrower scope under the Clean Water Act. The concurrence suggests that the Corps' NEPA obligations extend beyond the narrow scope of dredge and fill.
Judge Baldock also issued a concurring opinion agreeing with the Court's clear and concise opinion, but asserted that the Court should have found this case to be prudentially moot. "A case is prudentially moot if circumstances have changed since the beginning of litigation that forestall any occasion for meaningful relief." Citizen Ctr. v. Gessler, 770 F.3d 900, 909 (10th Cir. 2014). Here, the pipeline has been complete and operational for years. All the waters have been filled or rerouted and nearly all associated mitigation is complete. The concurrence points to this scenario as appropriate for prudential mootness. The concurrence acknowledged that prudential mootness is a matter of discretion and that reasonable minds can certainly differ on what is prudent here.

Panel: Bacharach, Baldock, McHugh

Date of Issued Opinion: May 29, 2015

Docket Number: No. 14-6099

Full Opinion: https://www.ca10.uscourts.gov/opinions/14/14-6099.pdf

Decided: Affirmed the decision of the trial court, entering judgment for the defendants.

Case Alert Author: Daniel T. Cornish

Counsel:

Douglas P. Hayes, Sierra Club, Boulder, Colorado (Eric E. Huber, Sierra Club, Boulder, Colorado, with him on the briefs), for Appellants.

David C. Shilton, U.S. Department of Justice, Washington, D.C. (Sam Hirsch, Acting Assistant Attorney General, Michele Walter, Maureen E. Rudolph, and Ty Bair, U.S. Department of Justice, Washington, D.C.; and Ann P. Navaro, Assistant Chief Counsel and Milton S. Boyd, Assistant Counsel, U.S. Army Corps of Engineers, with him on the brief), for Appellees.

Peter R. Steenland, Sidley Austin LLP, Washington, D.C. (Lauren C. Freeman, Lisa E. Jones, Sidley Austin LLP, Washington, D.C.; and Deidre G. Duncan, Andrew J. Turner, and Karma B. Brown, Hunton & Williams LLP, Washington, D.C., with him on the brief), for Intervenors-Appellees.

Author of Opinion: Hon. Robert E. Bacharach

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 06/13/2015 12:46 AM     10th Circuit     Comments (0)  

May 25, 2015
  Ortiz v. United States - Tenth Circuit
Headline: Tenth Circuit Holds Government Not Liable for Negligently Causing Significant Injuries to a Service Woman's Child During Birth

Area of Law: Tort, Government Immunity

Issue Presented: Is the government immune from damages under the Federal Tort Claims Act ("FTCA") when serious injuries were incurred by an active-duty service woman's baby during child birth at a military operated hospital?

Brief Summary:

A pregnant Ortiz was admitted to a military run hospital in March 2009. As a result of negligent conduct by hospital staff her baby sustained significant brain injuries. The majority concluded that the Feres doctrine barred Ortiz's claim for damages under the FTCA because the injuries were incident to service. The injuries to the child were barred from recovery because they were derivative of Ortiz's injuries. The majority expressed displeasure with applying this doctrine, but indicated it is still the governing precedent when it comes to injuries incurred by service members because of the negligent actions of other military personnel.

Extended Summary:

In March 2009, Captain Heather Ortiz was admitted to Evans Army Community Hospital for a scheduled Caesarean section. Captain Ortiz was administered Zantac by a hospital nurse to prevent aspiration of gastric acid during labor. It was evident in Captain Ortiz's hospital records that she was allergic to Zantac. As a result of the dose she suffered an allergic reaction which was further treated with Benadryl. The Benadryl caused a drop in Captain Ortiz's blood pressure resulting in hypotension and serious brain trauma in the child including cerebral palsy.

The father of the child, Jorge Ortiz, brought this lawsuit seeking damages for medical care as a result of the child's injuries. Ortiz argued that the government was not immune from liability because the FTCA is applicable. The FTCA is a legislative exception that waives government immunity in certain circumstances and Ortiz argued this instance was one of those circumstances. The United States argued that the Feres doctrine applied and the government was, in fact, immune from suit.

The majority began by highlighting the fact that this was a threshold issue concerning subject matter jurisdiction. If the United States possessed governmental immunity, then federal courts lacked jurisdiction to hear the case. The FTCA is a broad exception to government immunity, but is superseded by several exceptions. One of these exceptions the United States Supreme Court articulated in Feres v. United States. 340 U.S. 135 (1950).

In Feres, the Supreme Court tackled the issue as to whether or not the families of deceased service personnel could recover damages for the negligent actions of other military employees. The Supreme Court found that the FTCA did not apply as injuries that arise out of or are in the course of activity incident to service are exempted from the statute. This is what is known as the Feres doctrine. From this doctrine courts have developed the incident-to-service test which bars recovery by service members for injuries that were "incident to service." The purpose of this test is to protect military discipline.

The majority expressed concern that the Feres doctrine lacks clarity. The doctrine has received criticism from other circuits as well as in passionate dissents in the Supreme Court.

Despite these concerns, the majority indicated that it was required to enforce the Feres doctrine because it is still the governing precedent from the highest court in the country. They noted that this issue was more complex than a typical Feres inquiry because the injury occurred to an unborn baby who is a third party civilian.

The majority found the framework for this type of analysis in Stencel Aero Engineering Corp. v. United States. 431 U.S. 666 (1977). In that case a service member sued the manufacturer of an ejection seat for damages. The manufacturer cross-claimed against the United States for indemnity. The Supreme Court held that this third party indemnity action was the same as Feres and thus barred. The majority indicated that it has used this rule and applied it to cases concerning derivative claims by family members for injuries sustained in war and claims by a wife for her husband's negligent vasectomy.

Courts have developed the "genesis test" from the holding in Stencel Aero. The test concerns third party civilian plaintiffs and asks whether their injury has it origin in an incident-to-service injury to a service member. The injury to the service member needs to be the "but for" cause of the injury to the third party civilian. If the injury meets this criterion, then the claim is barred.

The Court utilized both Feres and Stencel Aero to develop a two-step analysis for this case. The majority indicated it first would need to apply Feres to determine if the injury to Captain Ortiz was an incident-to-service injury. Next it would need to apply Stencel Aero to determine whether the injury to the baby was derivative in nature. The majority considered this an injury focused approach.

The majority concluded that the injuries to the baby could not overcome this analytical framework. The majority found that the baby's injuries were derivative of the injury to the mother. Ortiz did not indicate in his complaint if the mother was uninjured. Further, Ortiz also indicated that the mother had an allergic reaction, blood pressure problems, and hypotension. These facts would indicate that the mother was, in fact, injured during the medical episode.

The majority could not see how the injuries sustained by the mother were separate from the injuries sustained by the child. The child's brain injury was caused by a lack of oxygen which was caused by the negligent administration of Benadryl to the mother. The majority found further support for this in the testimony of Ortiz's own expert who conceded this very fact.

The Court concluded that Captain Ortiz was injured incident to service. The injuries suffered by the child were derivative of this injury. Therefore, Ortiz's claim was barred.

Judge Ebel issued a concurring opinion disagreeing with the approach the majority took in analyzing claims by third party civilians for in utero injuries sustained because of negligent actions by military personnel. The concurrence would utilize Feres in a different fashion and take a conduct approach rather than an injury approach. This approach would simply ask if the in utero injuries sustained by the child were a direct result of the negligent conduct taken by service personnel towards the mother. If so, then Feres bars the recovery.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-1500.pdf

Panel: Phillips, Ebel, Tymkovich

Date of Issued Opinion: May 15, 2015

Docket Number: No. 13-1500

Decided: Affirmed the decision of the trial court granting summary judgment in favor of the United States.

Case Alert Author: Leland Churan

Counsel:

Laurie M. Higginbotham, Whitehurst, Harkness, Brees, Cheng, Alsaffar &
Higgonbotham, P.L.L.C., Austin, Texas (James E. Puga, Sean B. Leventhal, and
Benjamin I. Sachs, Leventhal, Brown & Puga, P.C., Denver, Colorado, and Joseph
F. Bennett, Cross & Bennett, L.L.C., Colorado Springs, Colorado, with her on the
briefs) for Appellant.

Lowell V. Sturgill, Jr., Attorney (Stuart F. Delery, Assistant Attorney General,
John F. Walsh, United States Attorney, and Marleigh D. Dover, Attorney, with
him on the brief), Civil Division, Appellate Staff, Department of Justice,
Washington, D.C., for Appellee.

Author of Opinion: Hon. Timothy M. Tymkovich

Case Alert Circuit Supervisor: Barbara Bergman

Edited: 05/26/2015 at 08:09 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 05/25/2015 12:52 AM     10th Circuit     Comments (0)  

April 24, 2015
  United States v. Huff - Tenth Circuit
Case Name: United States v. Huff -- Tenth Circuit

Headline: Tenth Circuit holds that district courts may reconsider motions to suppress evidence without requiring the government to justify why it failed to present evidence or raise a legal argument at the first hearing.

Areas of Law: Criminal Law

Issues Presented:

1. Can the district court reconsider a motion to suppress based on new evidence or a new legal argument advanced by the government without requiring the government to justify its failure to present it during the earlier motion hearing?

Brief Summary:

Kansas City, Kansas police offers arrested the appellant who was later indicted on counts of being a felon in possession of a firearm and possession of an unregistered, short-barreled rifle. The appellant moved to suppress evidence of the firearms found in his vehicle because the police lacked probable cause to arrest him. The district court granted the motion to suppress. The government then moved to reconsider, offering a new legal argument for why the appellant was arrested without justifying why it failed to raise those arguments in the initial suppression hearing. The district court granted the motion to reconsider and denied the appellant's motion to suppress. The appellant was later found guilty of being a felon in possession of a firearm. He appealed the district court's grant of the government's motion to reconsider.

The Tenth Circuit observed that the exclusionary rule does not automatically apply when the government fails to raise a legal argument during a suppression hearing, as prosecutorial oversight differs from the police misconduct that the exclusionary rule is designed to deter. It held that discretion lies with the district court to decide if the government must justify its earlier failure to raise a legal argument. The court affirmed the district court's decision to grant the motion to reconsider. It found that the police officers had probable cause to arrest the appellant and affirmed the district court's decision not to suppress evidence of the firearms.

Extended Summary:

In June 2011, two Kansas police officers initiated a traffic stop after observing a vehicle veer into another lane before correcting itself. While approaching the vehicle, one officer spotted a handgun beneath the driver's seat. The officers had the driver and passenger place their hands on the dash. An officer reached into the vehicle to remove the keys and noticed a rifle by the passenger seat. The officers had the two occupants exit the vehicle, handcuffed them, and placed them in the back of the patrol car.

The driver, Mr. Huff, was indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered, short-barreled rifle. Acting pro se, Mr. Huff moved to suppress any evidence of the two firearms found in his vehicle. The district court found that the officers had not asked Mr. Huff any questions about the firearms before arresting him, concluded that the officers had no evidence of any legal violation by Mr. Huff at the time of the arrest, and granted the motion to suppress. The government provided no evidence of probable cause for the arrest during the motion hearing.

Two days after the motion to suppress was granted, the government filed a motion to reconsider the suppression. It admitted that it failed to identify the statute Mr. Huff had violated during the initial hearing. The government argued that the arrest was actually based on Kansas City Municipal Ordinance § 22-177(a)(5), which prohibits the transporting of any firearm that is not unloaded and completely encased in a container. The district court granted the motion for reconsideration, found that the officers had probable cause to arrest Mr. Huff, and un-suppressed evidence of the firearm. Mr. Huff was later convicted of being a felon in possession of a firearm.

The Tenth Circuit reviewed the district court's decision to reconsider a prior ruling for abuse of discretion. The court explained that motions to reconsider should "not be used to revisit issues already addressed or advance arguments that could have been raised earlier", citing its earlier decision in United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). The court noted that the government offered no excuse for failing to mention the Kansas City, Kansas ordinance during the initial suppression hearing even though it had ample opportunity to do so.

The court considered its Christy decision in the context of suppression hearings. It observed that, when the government seeks reconsideration based on a new legal argument, the Eleventh and the D.C. Circuits require the government to justify its failure to raise the argument during the initial hearing. However, the Second, Fifth, Seventh, and Ninth Circuits do not. The court observed that, in those circuits, "[a] defendant is entitled to have evidence suppressed only if it was obtained unconstitutionally. If matters appearing later indicated that no constitutional violation occurred, society's interest in admitting all relevant evidence militates strongly in favor of permitting reconsideration. . . . [A] criminal defendant acquires no personal right of redress in suppressed evidence because the rationale for suppressing unlawfully obtained evidence is to deter official misconduct, not to compensate criminal defendants for the violation." In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196-97 (2d Cir. 2008).

The court also considered the Supreme Court's stated rationale for the existence of the exclusionary rule. In Herring v. United States, 555 U.S. 135 (2009), the Court explained that the exclusionary rule exists to deter police misconduct. That misconduct must be "sufficiently deliberate that exclusion can meaningfully deter it". The Tenth Circuit reasoned that the exclusionary rule was meant to deter police misconduct and not prosecutorial oversight and that it was inappropriate to apply it to the prosecutor's failure to raise legal arguments during the first suppression hearing. The court therefore held that discretion lies with the district court to decide if the government must justify its failure to raise legal arguments during an initial suppression hearing and that the district court did not abuse its discretion by not requiring the government to provide such justification.

The court then turned to the appellant's argument that the district court erred in denying his motion to suppress evidence after the motion to reconsider was granted. It reviewed this denial using a totality of the circumstances standard of review. The appellant argued that, regardless of the motion to reconsider, the police still lacked probable cause to arrest him and that the reason for his arrest given by the government after the motion to reconsider was mere pretext. He argued that the police officer did not intend to arrest him for violation of Kansas City Municipal Ordinance § 22-177(a)(5) because, at the motion to reconsider, the officer testified that he knew of the ordinance but did not testify that he arrested the appellant for a violation of that ordinance.

The court highlighted the Supreme Court's decision in Devenpeck v. Alford, 543 U.S. 146, 153 (2004), in which the Court held that the subjective state of mind of the officer during an arrest was irrelevant to the existence of probable cause. As per Whren v. United States, 517 U.S. 806, 814 (1996), the officers need only have specific factual knowledge to justify a search or arrest. They do not need to believe that a person has violated a specific ordinance or statute for there to be probable cause. The officers in this case clearly saw the uncased firearm in the appellant's car prior to removing the keys and arresting the appellant and his passenger. The court held that the initial search and subsequent arrest were both lawful. It affirmed the district court's ruling denying the appellant's motion to suppress.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3216.pdf

Panel: McHugh, McKay, Baldock

Date of Issued Opinion: April 14, 2015

Docket Number: No. 13-3216

Decided: Affirmed the ruling of the district court.

Counsel:
James L. Spies of the law office of James L. Spies, P.A., Kansas City, Kansas for Defendant - Appellant.

Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant United States Attorney, District of Kansas, Kansas City, Kansas, for Plaintiff - Appellee.

Author: McKay

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 04/24/2015 05:23 PM     10th Circuit     Comments (0)  

April 15, 2015
  United States v. Paetsch - Tenth Circuit
Case Name: United States v. Christian Paetsch

Headline: Tenth Circuit Holds the Detaining of 29 people and 20 Cars Was Not an Unreasonable Search and Seizure When the Danger Posed by a Bank Robber Was High

Area of Law: Criminal Procedure, Fourth Amendment

Issue Presented: Is it a violation of the Fourth Amendment when police officers barricaded off 20 cars on a street after they tracked stolen money containing a GPS tracking device to the location?

Brief Summary:

Police officers tracked a bank robber to within a 60-foot radius utilizing a tracking device in the stolen money. The police officers barricaded off the area and stopped 20 cars. The 29 individuals in these cars were detained for 30 minutes while police waited for a homing beacon to arrive so that the money could be tracked at a decreased radius. Once the homing beacon arrived the Defendant was detained and the money was found in his car. The majority concluded that this was not a Fourth Amendment violation and utilized a three prong test from Brown v. Texas. The court weighed the gravity of public concern and the public interest against the interference with private liberty. The majority concluded that the public concern and public interest was significant while the interference with private liberty was limited. Therefore, there was no Fourth Amendment violation.

Extended Summary:

On June 2, 2012, the Defendant robbed a bank in Aurora, Colorado. The Defendant did not know that one of the stacks of money he was stealing contained a GPS tracking device. The tracker transmitted a signal to the Aurora Police Department which allowed them to follow the money to the general area of the Defendant. The tracking device could only be pinpointed to within a 60-foot diameter. Police officers blocked off an entire intersection, keeping 20 cars carrying 29 passengers immobilized in their vehicles.

The police officers then waited for an FBI agent to arrive on the scene with a homing beacon which would allow them to track the signal of the money to within 10 feet. Before the homing beacon arrived, officers removed two drivers, including the Defendant, from their vehicles because they were acting suspiciously. Both drivers were handcuffed and placed on a curb. One officer did a visual check from outside the Defendant's vehicle and saw a band used to wrap stacks of money.

At this point, police officers were able to use a properly calibrated homing beach to track the money to the Defendant's car. Inside they discovered the stolen money, two hand guns, two fake license plates, and the clothing used during the robbery.

The Defendant was convicted of armed robbery and a firearm charge. On appeal the Defendant argued that the procedure utilized by police officers during the stop was a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Specifically, the Defendant argued that the group seizure was not appropriately tailored. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Further, the Defendant argued that the seizure failed the balancing test in Brown v. Texas, 443 U.S. 47 (1979), because it did not advance the public interest to a sufficient degree when weighed against its resulting interference with individual liberty.

The majority disagreed and reaffirmed the district court's ruling that this was not a Fourth Amendment violation.

The court began its analysis by conceding that a search and seizure without individualized suspicion is considered unreasonable. When the police initially set up the barricade, they did not have individualized suspicion of the particular Defendant in this case.

However, the majority indicated that this concept is a general rule which contains several exceptions. The court emphasized that the Fourth Amendment is about reasonableness, not individualized suspicion. The majority pointed to two major exceptions the United States Supreme Court has carved out of this general rule for group seizures that go beyond policing ordinary crime. The first occurred in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), which upheld the use of roadblocks by border patrol agents to intercept illegal immigrants.. The second was case involved roadblocks designed to stop drunk drivers. Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990). The majority noted that in those cases the Supreme Court utilized a balancing test instead of individualized suspicion. Therefore, it reasoned that individualized suspicion was not necessary in this circumstance.

The majority continued by analyzing whether or not the group seizure was a violation of the Fourth Amendment when the public interest justifying the seizure is weighed against the intrusion on individual liberty. The majority used a three factor test from Brown to do this. The test requires a court to weigh the gravity of the public concern served by the seizure and the degree to which the seizure advances the public interest against the severity of the interference with individual liberty.

The majority considered the gravity of the public concern significant. It focused on the fact that the Defendant was fleeing a bank robbery and the fact that he was armed.

The court looked at the next prong statistically. It considered the fact that police officers detained 20 cars to catch one bank robber to be significant. The court considered this 5% "hit rate" to be significant when weighed against other Supreme Court precedent which upheld checkpoints that only had a 1.6% "hit rate". However, the court stressed that this precedent did not implicate an emergency situation which was the situation in this case. Further, the police officers had reliable information the bank robber was present within the 20 cars because of the tracking beacon. The majority indicated these factors reasonably advanced the public interest while stressing that police do not have to utilize the least intrusive means for a group seizure, but rather one choice among reasonable alternatives.

The majority then proceeded to the last prong of the test and indicated that the interference with individual liberty was the detaining of 29 innocent people in their cars for close to 30 minutes. It found that this was not an unreasonable interference with individual liberty. The majority noted three major criteria that factored into their conclusion. First, the Fourth Amendment has afforded less protection in automobiles than it has in domiciles. Second, police officers limited the search to the radius of the tracking device. Third, the police officers acted with diligence and did not take longer than reasonably necessary to identify the Defendant. This factor, when weighed against the other two, lead the majority to its conclusion that the procedure utilized by the police was not a violation of the Fourth Amendment.

Having concluded that the group seizure as a whole was not a Fourth Amendment violation, the majority turned to whether or not it was a violation once police officers had developed individualized suspicion of the Defendant. The court analyzed the individual seizure as an investigatory stop and utilized a two prong test. First, the majority asked if the means used to detain the Defendant were not unreasonably intrusive. The court concluded that handcuffing and detaining the Defendant on a curb was not unreasonable, particularly after he started acting suspiciously. Second, the court asked if the duration the Defendant was detained was unreasonably long. It concluded that the Defendant was only detained an hour and a half while the police waited for the homing beacon to arrive and that this was not unreasonably long.

The majority concluded by reiterating that this was not a Fourth Amendment violation because the public interest outweighed the intrusion on private liberty. The district court's ruling was affirmed.

Judge Briscoe issued a concurring opinion. The concurrence disagreed with the majority stating that police officers had not developed individualized suspicion before detaining the Defendant. However, Judge Briscoe indicated that the conduct of the police officers was in good faith and the delay in identifying the Defendant at the group seizure did not amount to the level that would constitute a Fourth Amendment violation.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-1169.pdf

Panel: Phillips, Briscoe, Tymkovich

Date of Issued Opinion: April 8, 2015

Docket Number: No. 11-1169

Decided: Affirmed the order of the district court denying Defendant's motion to suppress

Case Alert Author: Leland Churan

Counsel:

John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson, Federal
Public Defender, Interim, and Virginia L. Grady, Federal Public Defender, Interim, with
him on the briefs), Denver, Colorado, for Defendant - Appellant.

Robert M. Russel, Assistant United States Attorney (John F. Walsh, United States
Attorney, and W. Aaron Vandiver, Special Assistant United States Attorney, with him on
the brief), Denver, Colorado, for Plaintiff - Appellee.
Author of Opinion: Hon. Gregory A. Phillips
Case Alert Circuit Supervisor: Barbara Bergman

Edited: 04/15/2015 at 01:39 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 04/15/2015 01:25 PM     10th Circuit     Comments (0)  

April 10, 2015
  United States v. White-- Tenth Circuit
Case Name: United States v. White

Headline: Tenth Circuit Holds Categorical Approach Applies to Tier Classification under the Sex Offender Registration and Notification Act ("SORNA").

Areas of Law: Criminal Procedure, Sentencing

Issues Presented:

1. Does the North Carolina offense of taking indecent liberties with a child qualify the defendant for classification as a tier III sex offender?

2. Does the categorical approach apply to tier classification of sex offenders under the SORNA?

3. Does the SORNA violate the Commerce Clause, Tenth Amendment, or Ex Post Facto Clause?

4. Were the defendant's special conditions of release improper for delegating authority to the probation office to approve contact with defendant's grandchildren and nieces?

Brief Summary:

Defendant was convicted of failing to register as a sex offender under the SORNA after moving from Oklahoma to Texas. Defendant unsuccessfully argued that his conviction under the SORNA violated the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. Defendant then challenged his sentence because the district court classified him as a tier III sex offender as opposed to a tier I sex offender. The Tenth Circuit reversed the district court's finding that defendant was a tier III sex offender after determining that the categorical approach applied to tier classification under the SORNA, and that defendant's crime did not satisfy the elements of the federal crimes necessary for tier III classification. The Tenth Circuit then vacated defendant's special conditions of release and provided guidance for the district court in the event that defendant challenged the conditions of release on remand.


Extended Summary:

Defendant White is a convicted sex offender who was charged with failing to update his sex offender registration after moving from Oklahoma to Texas. Although he pleaded guilty to the offense, he reserved five issues for appeal - constitutional challenges to the Sex Offender Registration and Notification Act (SORNA) under the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause, and two challenges to his sentence for calculating his sentence as a tier III sex offender and for imposing conditions of supervised release that limited his contact with his grandchildren and nieces. The Tenth Circuit affirmed the conviction, but held that the district court erred in classifying White as a tier III sex offender and thus remanded for resentencing.

Mr. White was convicted of being a sex offender in North Carolina in 2007. In 2013, he moved to Texas from Oklahoma without registering in Texas or updating his Oklahoma registration. Thus, he was indicted in Oklahoma for failing to register as a sex offender.

Mr. White's Presentence Investigation Report (PSR) treated Mr. White as a tier III sex offender, but then gave him credit for acceptance of personal responsibility and determined a three-level reduction in sentence for a total offense level of 13. Due to Mr. White's prior criminal history and the offense level, the PSR determined that Mr. White's Sentencing Guidelines range was 18-24 months of imprisonment. Although Mr. White argued that he was a tier I sex offender, the district court relied on documents from Mr. White's initial conviction that the victim was the seven-year-old daughter of his girlfriend and that the incident involved contact with her. The district court then compared the offense to the federal crime of abusive sexual contact of a minor under thirteen, which would make him a tier III sex offender. As a result, Mr. White received an 18-month sentence with special conditions of supervised release that prevented Mr. White from being at a residence where children under the age of 18 reside without prior written permission from the U.S. Probation Office. Further, Mr. White was prohibited from associating with children under age 18 without the presence of a "responsible adult" who was aware of the defendant's background and current offense and had been approved by probation.

After dismissing Mr. White's constitutional claims and affirming his sentence, the Tenth Circuit addressed Mr. White's sentencing challenges. The court noted an abuse of discretion standard was the appropriate standard of review for a sentence imposed by the district court. The court explained that it is necessary to address procedural and substantive reasonableness when determining if the sentence is reasonable. It began by explaining the importance of the tier that Mr. White qualifies under as a sex offender. If Mr. White should actually have been considered a tier I sex offender, his base level for sentencing under the Guidelines should have been only 10 to 16 months' imprisonment.

The court then explained the way that tier classification works under the SORNA. Tier III sex offenders are offenders who have committed a crime that is comparable to the federal crime of aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age 13. A tier II offender is an offender who has committed a crime comparable to the crime of abusive sexual contact. All other offenders are classified as tier I offenders.

Next the court noted that the use of the word "offense" in 42 U.S.C. § 16911 -- the statute that lays out tier classifications-- is ambiguous. As a result, the court stated that there are two approaches that may be taken when comparing a conviction with a federal statute - the categorical approach and the circumstance-specific approach.

The court explained that when a statute refers to a generic crime, the categorical approach should be used. This compares the elements of the statute that the individual was convicted of, and the elements of the predicate crime. Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). If a statute is divisible, the court will look beyond the elements of the offense to the actual conduct of the defendant. A statute is divisible when several types of activity can satisfy the elements of the statute in the alternative. See id. When a statute is divisible, under the modified categorical approach the court may look at documents such as plea colloquies, indictments, and jury instructions to determine which type of conduct the defendant's conviction was based on.

The court then noted that where Congress uses the terms "offense," "crime," or "felony" in reference to specific prior acts, the circumstance-specific approach applies. This allows the court to look beyond the elements and examine the underlying facts of the defendant's conviction.

The court then explained that when the elements of statutory construction are used, it is apparent that Congress intended for a categorical approach because of Congress' reference to a general intent section of the criminal code. However, because subsection (4)(A)(ii) refers to the abusive sexual contact of a minor under age 13, the court must use a circumstance-specific approach to consider the age of the victim. In all other respects, the traditional categorical approach will apply.

The court also found the legislative history of § 16911 informative because a House report on the Act stated that one of the primary purposes of the bill was to protect children. Congress intended sex offenses against children to be punished more severely than sex offenses against others.

With that analysis in mind, the court reviewed the actions of the district court in determining that Mr. White was a tier III sex offender. It looked at his North Carolina indictment, which specified that the victim was less than sixteen years old, and that Mr. White was at least five years older than the victim, and older than sixteen. It also stated that he took "immoral, improper, and indecent liberties with the victim for the purpose of arousing and gratifying his sexual desire." The district court also reviewed police reports which listed the victim's age and stated that physical contact was involved. The court held that it was proper for the district court to review the documents in reference to the victim's age, but not for comparing the offense with the federal crime.

The court then engaged in a categorical approach analysis for Mr. White's state crime. It noted that the statute is divisible, so it then reviewed the North Carolina indictment to determine under which section of the North Carolina statute Mr. White was indicted. It determined that he was indicted for the first alternative listed in the statute - "willfully taking and attempting to take immoral, improper, and indecent liberties with a victim under the age of sixteen for the purpose of arousing and gratifying sexual desire."

Next, it compared the crime with the elements of the federal crime, listed in
§ 16911(4)(A) AND (3)(A). It noted that the elements necessary to commit the North Carolina crime involved that Mr. White (1) willfully, (2) took or attempted to take indecent liberties, (3) with a minor, (4) for the purpose of arousing and gratifying sexual desire. Physical contact is not listed as an element of the North Carolina crime.

The court determined that when the crime is compared with comparable federal statutes, he cannot be considered a tier II or tier III sex offender. Tier III classifications are reserved only for convictions similar to aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age thirteen. The only one that potentially applies in this case is abusive sexual contact against a minor under age thirteen. The court explained that aggravated sexual abuse and sexual abuse require a sexual act, which in turn requires a physical act. Further, abusive sexual contact also requires physical contact, though it is broader than the sexual act required to satisfy the elements of aggravated sexual abuse or sexual abuse. As a result, Mr. White had to be considered a tier I sex offender because his state crime did not require physical contact as an element of the statute.
The court determined that the sentence was procedurally unreasonable and remanded Mr. White's case for resentencing.

Finally, the court addressed Mr. White's conditions of supervised release, and vacated the conditions of supervised release because it vacated Mr. White's sentence. It briefly engaged in a discussion of Mr. White's claims to provide guidance to the district court, addressing the right to familial association and the delegation of judicial authority to a probation officer. It instructed the district court to consider the nature of Mr. White's relationship with his grandchildren to determine if a parent-like right is impacted, and if there is, then the conditions of release must be supported by compelling circumstances. The court also noted that the district court did not improperly delegate authority to the probation office to preapprove Mr. White's contact with his grandchildren and nieces.


To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-7031.pdf

Panel: Kelly, Lucero, McHugh

Date of Issued Opinion: April 6, 2015

Docket Numbers: 14-7031

Decided: Conviction was affirmed but sentence and conditions of supervised release were vacated and remanded.

Counsel:

Carl Folsom, III, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, with him on the brief), Muskogee, Oklahoma, for Appellant.

Edward Snow, Assistant United States Attorney (Mark F. Green, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, Oklahoma, for Appellee.

Author: McHugh

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 04/10/2015 05:58 PM     10th Circuit     Comments (0)  

March 27, 2015
  United States v. Figueroa-Labrada -- Tenth Circuit
Case Name: United States v. Figueroa-Labrada

Headline: Tenth Circuit Holds Defendants Eligible for Reduced Sentences After Providing Helpful Information Upon Remand of Proceedings

Areas of Law: Criminal Procedure, Sentencing

Issue Presented:

1. Does the "safety valve" sentence reduction apply when a defendant provides information to the government for the first time on remand, but before a resentencing hearing?

Brief Summary:

The majority determined that when a defendant provides information to the government for the first time on remand but before resentencing, the district court must consider the information provided in determining whether the defendant qualifies for a reduced sentence under the "safety-valve" provision of 18 U.S.C. § 3553(f).

Judge Phillips issued a dissenting opinion. He stated that although he agreed that a defendant may first request safety-valve relief for the first time at resentencing, a defendant could not rely on information provided after the initial sentencing hearing as the basis for the request.

Extended Summary:

The defendant was convicted of conspiracy to possess methamphetamine with intent to distribute and was sentenced to 120 months in prison. The court attributed to Figueroa the entire 746.19 grams of a substance containing a detectable amount of methamphetamine that was involved in the incident, without making a particularized finding as to why this amount was attributed to him. On appeal, the court noted that 56.7 grams was a reasonably probable amount of the substance to attribute to Figueroa, and that amount is what the district court attributed to Figueroa on remand.

Before the re-sentencing hearing, Figueroa asserted that he was entitled to a lower sentencing range than the district court's determination that the range should be 63 to 78 months, because he had provided the government with all of the information that he had about his offenses. This information, he alleged, entitled him to a sentencing range of 51 to 63 months. The government supported Figueroa's safety valve request due to the nature of the information he provided. The court denied the request, however, because he did not provide the information before his initial sentencing hearing. Figueroa was sentenced to 63 months.

The majority held that the plain language of the statute directed that a defendant is eligible for a safety-valve reduction when information is provided before a resentencing hearing.

The court noted that there are five requirements for a reduced sentence using the safety-valve provision of § 3553(f). The only requirement that was at issue is the last one, which says the court is to impose a sentence within the sentencing guidelines "without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation that" not later than the time of the sentencing hearing that the defendant provided all information or evidence he has about an offense. 18 U.S.C. § 3553(f). The defendant has complied with the requirement, even if the government is already aware of all of the information the defendant has shared, or does not find the information useful. Id.

The district court stated that the language in § 3553(f) precluded information provided before a resentencing hearing, because the statute says "not later than the time of the sentencing hearing." On appeal, Figueroa argued that the word "sentencing" also included "resentencing" hearings.

The majority noted that a district court's legal interpretation of the safety-valve provision is subject to de novo review. It began by looking to the plain language of the statute. It explained that the words "the sentencing hearing" referred to whichever sentencing hearing was at issue - not just the initial sentencing hearing. The government conceded that point and did not give a reason for why the word should be interpreted differently in § 3553(f)(5).

The majority stated that there was nothing in the text to suggest that the phrase "sentencing hearing" should be construed as the initial sentencing hearing, and that doing so ignores the statutory context. It explained that the phrase "not later than the time of the sentencing hearing" refers back to the generic phrase "at sentencing," which, as the court stated above, is a generic phrase that can refer to any sentencing hearing.

The majority also explained that reading § 3553(f) as a whole supports their position that the information simply needs to be provided before a resentencing hearing. Section 3553(c) provides that the reasons for imposing a particular sentence shall be given in open court. Thus, if resentencing hearings were supposed to be excluded, a court could impose a sentence without providing reasons for doing so, as long as it was a resentencing hearing.

The majority stated that the government conceded that § 3553 generally applies at resentencing hearings. However, the government argued that 18 U.S.C. § 3742(f)(1) should guide the meaning of "the sentencing hearing." This interpretation would essentially make a resentencing hearing simply a continuation of the initial sentencing hearing. The majority responded by noting that § 3742(g) actually directs the court to resentence the defendant in accordance with § 3553.

The majority stated that its interpretation of the statute means that the defendant must make disclosures before the hearing so that the government has the opportunity to make the recommendation. Thus, the disclosures cannot be made at the sentencing hearing.

The majority noted that precedential opinions from this circuit and others do not directly address the question presented here. The government attempted to rely on United States v. Galvon-Manzo, 642 F.3d 1260 (10th Cir. 2011) and United States v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995). Galvon-Manzo involved defendants who tried to make disclosures during the sentencing hearings to alter untruthful statements they had previously made, thus failing to satisfy the requirements for the safety-valve reduction. In Acosta-Olivas, the district court stated that § 3553(f) only required a defendant to reveal information about his own crime, not that of participants. The Tenth Circuit panel reversed and remanded the case, giving the defendant the opportunity to provide all of the information he had. The court stated that in several opinions of sister circuits, courts have assumed without deciding that the safety-valve exception applies at resentencing hearings.

The majority also stated that a Ninth Circuit opinion relied on by the government, United States v. Ferret-Castellanos, 108 F.3d 339, 1996 WL 733198 (9th Cir. 1996) (Table) (unpublished) was distinguishable. In that case, the court's primary concern was the truthfulness of the information, rather than the timeliness.

Finally, the majority made a finding that the district court's error was not harmless. After reviewing the transcript, the majority disagreed with the government that the district court would have denied the safety-valve reduction based on the merits of the request. The case was remanded for resentencing, including a determination on Figueroa's eligibility for safety-valve relief.

Judge Phillips issued a dissenting opinion. He stated that although a defendant was entitled to request a safety-valve reduction for the first time at a resentencing hearing, he disagreed with the majority that the defendant could rely on information provided to the government for the first time after the initial sentencing.

To read the full opinion, please visit:
https://www.ca10.uscourts.gov/opinions/13/13-6278.pdf

Panel: Matheson, Phillips, Moritz

Date of Issued Opinion: March 24, 2015

Docket Numbers: 13-6278

Decided: Remanded to district court for resentencing.

Counsel:

Virginia L. Grady, Federal Public Defender, Interim, and O. Dean Sanderford, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant Jesus Figueroa-Labrada, a/k/a Chuy.

Sanford C. Coats, United States Attorney, Steven W. Creager, Special Assistant U.S. Attorney, and David P. Petermann, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee United States of America.

Author: Moritz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 03/27/2015 06:59 PM     10th Circuit     Comments (0)  

March 11, 2015
  Seifert v. Unified Government -- Tenth Circuit
Case Name: Seifert v. Unified Government -- Tenth Circuit

Headline: Tenth Circuit holds that sworn testimony of law enforcement officers in civil lawsuits about matters observed while on duty is protected speech under the First Amendment.

Areas of Law: Constitutional Law

Issues Presented:

1. Is sworn testimony by a law enforcement officer in a civil lawsuit about matters observed while on duty protected by the First Amendment to the United States Constitution?

2. Did the Wyandotte County Sheriff's Department, through the Sheriff and Undersheriff, unlawfully retaliate against the Plaintiff for testifying against other law enforcement officers in a civil lawsuit?

Brief Summary:

The Plaintiff, a former officer of the Kansas City, Kansas Police Department and former Reserve Deputy of the Wyandotte County Sheriff's Department, provided sworn testimony in a civil lawsuit against several Drug Enforcement Administration agents. The testimony centered on the Plaintiff's investigation of the agents' use of excessive force against a criminal suspect. During the course of this civil trial, several of the Defendants removed the Plaintiff from investigations and revoked his reserve commission, effectively terminating his employment. The Plaintiff filed a lawsuit against the Sheriff, Undersheriff, and the Unified Government representing the Wyandotte County Sheriff's Department (WCSD), arguing that they retaliated against him because of his testimony and that this retaliation violated his First Amendment rights. The district court granted summary judgment for the Defendants, holding that the Plaintiff's testimony in the civil trial against the DEA agents was not legally protected speech and, therefore, the Defendants' actions were not unconstitutional.

The Tenth Circuit reversed the district court's award of summary judgment, holding that such testimony of a law enforcement officer can be (and was in this case) protected speech and that a reasonable finder of fact could find that the Defendants improperly retaliated against the Plaintiff because of his testimony.

Extended Summary:

The Plaintiff, Max Seifert, was a detective with the Kansas City, Kansas Police Department (KCKPD). He investigated a car accident in which a federal Drug Enforcement Administration (DEA) agent, Timothy McCue, illegally attempted to pass another vehicle driven by Barron Bowling. McCue sideswiped Bowling's vehicle, but Bowling did not stop. McCue called another agent for assistance and followed Bowling, who stopped his car once McCue turned on his sirens. McCue and the other agent pulled Bowling from the car, pinned him against the pavement, and "pummeled, kicked, insulted, and arrested" him. Despite calls from his colleagues and superiors to engage in a cover-up, the Plaintiff investigated McCue's conduct and testified as to Bowling's injuries during the trial against him. The Plaintiff was shunned by his colleagues and, ultimately, forced to retire from the KCKPD. He obtained a reserve commission from the WCSD that allowed him to work as a security guard. The commission required Plaintiff to volunteer 16 hours per month with the WCSD, which he did by assisting with criminal investigations.

The Plaintiff continued in his reserve capacity for three and a half years, until Defendant Donald Ash, who had previously served with the KCKPD for 34 years, was elected Sheriff. Ash appointed Defendant Larry Roland as Undersheriff. Shortly thereafter, Ash and Roland removed the Plaintiff from investigations, citing issues with the Plaintiff's credibility. Assistant U.S. Attorney Morehead and/or District Attorney Gorman allegedly told the Sheriff that, several years ago, the Plaintiff had provided testimony in federal court that the judge believed to be false. The judge expressed that belief in an order suppressing evidence.

Meanwhile, Bowling brought a civil lawsuit against the DEA agents involved in his arrest, various KCKPD members, and several other governmental entities. The Plaintiff in this case, Max Seifert, testified for Bowling. Five days after the Bowling trial concluded, the WCSD revoked the Plaintiff's reserve commission. Its stated reason for doing so shifted between arguments that the Plaintiff's commission violated "the Fair Standards Labor [sic] Act", that it was a purely administrative decision, and that it was in response to the Plaintiff's refusal to work at the short-staffed county jail.

The Plaintiff filed his lawsuit in the United States District Court for the District of Kansas, arguing that the acts of removing him from investigations and revoking his reserve commission were in retaliation against him for his Bowling testimony. His 42 U.S.C. § 1983 claim was that this retaliation violated his First Amendment rights, and his 42 U.S.C. § 1985 claim was that these actions were an unlawful conspiracy to deter him from testifying or injure him because of his testimony. The District Court dismissed part of the Plaintiff's claims, holding that the two-year statute of limitations precluded his 42 U.S.C. §§ 1983 and 1985 claims for any retaliatory actions preceding June 9, 2009. The district court granted Defendants' summary judgment motion on any remaining claims.

The Tenth Circuit reviewed the district court's award of summary judgment using a de novo standard of review. It began by considering the Plaintiff's 42 U.S.C. § 1983 claim. Under § 1983, a plaintiff is entitled to recover damages from a person who, while acting under the color of state law, violates the plaintiff's constitutional rights. The court noted that, as a reserve deputy, the Plaintiff did not enjoy First Amendment rights to the same extent that private citizens do. Citing the recent Supreme Court case of Lane v. Franks, 134 S. Ct. 2369 (2014), the court explained that the First Amendment protections for a government employee must balance that person's interest as a citizen in engaging in free speech against the government's interest, as an employer, in "promoting the efficiency of the public services it performs through its employees."

The court applied the Garcetti/Pickering test, which has five elements, to determine if the Plaintiff had a valid First Amendment retaliation claim. The Defendants only disputed three of the five elements, arguing that the speech was made pursuant to the Plaintiff's official duties (and was, therefore, not the protected speech of a private citizen), that the protected speech was not a motivating factor in the actions taken against the Plaintiff, and that the Defendants would have taken the same actions against the Plaintiff absent his testimony in the Bowling case.

The court first sought to determine whether the Plaintiff's testimony was speech made pursuant to his official duties. The court reviewed the holding in Lane, in which the Supreme Court held that "the First Amendment . . . protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." The court noted that this protection might not be extended to law enforcement officers who are regularly called to testify in court as a part of their job duties, but concluded that the Plaintiff's testimony was not compelled by the WCSD as a part of his duties as a reserve officer. Though the Defendants argued otherwise, the court noted that they cited no evidence to suggest that the Plaintiff regularly provided court testimony as part of his official duties. The court also noted that, even if he were to regularly testify against criminal suspects in court proceedings, the testimony provided in the Bowling civil trial was not of the kind of testimony he would otherwise provide in his official capacity. The court held that the Plaintiff satisfied this element of the Garcetti/Pickering test. It further held that, as per Lane, the testimony was protected speech under the First Amendment.

The Defendants also argued that the Plaintiff's testimony in the Bowling trial was not a motivating factor in their decision to remove him from investigations and revoke his commission. The court considered each of these issues in turn, focusing its analysis on whether there was a sufficient evidentiary basis for a reasonable finder of fact to conclude that the Defendants' actions were in retaliation for the Plaintiff's Bowling testimony.

The court quickly dispatched the Defendants' argument that the Plaintiff was removed from investigations solely because he had a veracity issue that, as per the Supreme Court's holding in Giglio v. United States, 405 U.S. 150 (1972), precluded the Plaintiff from serving on investigations or testifying in either state or federal court. The court began its analysis by explaining the holding and implications of Giglio. That case involved a prosecutor who promised immunity from prosecution to a state witness but failed to disclose that promise to the defense. As the defense would almost certainly have used that information to impeach the witness, the Supreme Court ordered a new trial. The Supreme Court further held that "'[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility' will require a new trial." The Defendants argued that the Plaintiff had a Giglio issue because of the federal court order suppressing evidence, arguing that prosecutors would need to disclose that to the defense in any case the Plaintiff were to investigate. The court dispelled this notion and observed that, even if the prosecutors felt compelled to disclose the 1998 federal order to the defense counsel, there are evidentiary limits to what any defense counsel could do with such a disclosure. It reasoned that the order and any testimony about the judge's comments would be inadmissible in both federal court because of Fed. R. Evid. 608(b) and Kansas state court because of Kansas' own evidentiary rules. The court also noted that Undersheriff Roland had a similar Giglio issue arising from an opinion by the same federal judge who questioned the Plaintiff's credibility. The disparate treatment of Undersheriff Roland and the Plaintiff, as well as the other issues discussed, could allow a reasonably jury to find that the removal of Plaintiff from investigations was motivated by the Bowling testimony and not by any Giglio issue.

The court then considered the revocation of the Plaintiff's reserve commission. The Defendants had argued in the district court that the Plaintiff did not even have a commission to be revoked, as all such commissions are automatically revoked upon the election of a new Sheriff under Kan. Stat. Ann. § 19-805a (West 2008). The court quickly dismissed this argument because the Defendants waived the issue by failing to properly raise it on appeal. The court further explained that, even if it were to consider the issue, it would affirm the district court's rejection of the argument because it could well be inferred that the Sheriff reappointed those with reserve commissions by continuing to utilize them as reserve deputies indefinitely after taking office. Sheriff Ash's own testimony supported that inference.

Assuming that the Plaintiff had a commission that could be revoked, the court considered whether its revocation was motivated by the Plaintiff's Bowling testimony. The Defendants argued that their motive for revocation was purely based on the Plaintiff's refusal to work in a short-staffed county jail. The court noted the evolution of gross inconsistencies in the Defendants' explanations for why Plaintiff's commission was revoked and determined that a reasonable jury could find that the Defendants' explanations were mere pretext. The court held that the Plaintiff's evidence was sufficient to satisfy the motive element of the Garcetti/Pickering test for both his removal from investigations and the revocation of his reserve commission.

The court then considered whether the Plaintiff satisfied or could satisfy the but-for element of the Garcetti/Pickering test by proving that, but for his protected speech, he would have remained on investigations and retained his commission. The Defendants argued that the Plaintiff would have been removed from investigations in any event because prosecutors refused to take cases he had been involved in. The court found this argument to be without merit, noting that neither the Sheriff nor the Undersheriff could recall any reserve deputies ever testifying in a federal proceeding. It further noted that the only district attorney to raise the Giglio issue with the Sheriff did so months after the Plaintiff was removed from investigations and, even then, only said that he would consider the issue on a case-by-case basis. The court concluded that a reasonable jury could find but-for causation for the Plaintiff's removal from investigations.

Similarly, evidence provided by several witnesses demonstrated that the Defendants only asked the Plaintiff to volunteer in the county jail and the Plaintiff only refused to do so months after his commission had already been revoked. Even if this request was accompanied by an offer to reinstate his commission, his refusal at that time could not negate his cause of action for the prior revocation of his commission. The court held that the plaintiff provided sufficient evidence to allow a reasonable finder of fact to determine that his removal from investigations and the revocation of his commission was retaliation against him for his Bowling testimony.

The court turned its focus to the potential qualified immunity enjoyed by each of the Defendants. Turning first to the Unified Government, the court reviewed its prior decision in Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281 (10th Cir. 2007). In Simmons, the court held that "a municipality is responsible for both actions taken by subordinate employees in conformance with preexisting official policies or customs and actions taken by final policymakers, whose conduct can be no less described as the 'official policy' of a municipality." The Plaintiff argued that the Sheriff served as a final policymaker for the WCSD and that his conduct represented the official policy of that Department and, consequently, the Unified Government. In support of this argument, the Plaintiff cited several Kansas statutes that provide for the authority enjoyed by the Sheriff, impose upon him responsibility for the Undersheriff's conduct, and make his power coextensive with the county board. The Unified Government offered no argument in response to the Plaintiff's contentions, and so the court reversed the district court's award of summary judgment in favor of the Unified Government.

The court then considered the potential qualified immunity of Sheriff Ash and Undersheriff Roland. Citing the Supreme Court case of Pearson v. Callahan, 555 U.S. 223, 231 (2009), the court explained that "[t]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The court noted that the Lane opinion was not handed down until June 2014 and, prior to that, the Tenth Circuit had not considered whether testimony such as the Plaintiff's Bowling testimony was protected speech under the First Amendment. Because the law was not clearly established when the Plaintiff was removed from investigations and his commission revoked, Sheriff Ash and Undersheriff Roland were entitled to qualified immunity. The court affirmed the district court's award of summary judgment on the Plaintiff's 42 U.S.C. § 1983 claims as they applied to Defendants Ash and Roland.

The court reviewed the district court's award of summary judgment in favor of the Defendants as to the Plaintiff's 42 U.S.C. § 1985 conspiracy claims. The court swiftly reversed this decision. It explained that the evidence considered in the 42 U.S.C. § 1983 claims could be enough to demonstrate a conspiracy to prevent the Plaintiff from testifying in the Bowling case or otherwise injure him for doing so. The court did not consider any sovereign immunity or qualified immunity defenses to the Plaintiff's conspiracy claims because the Defendants did not raise any. The court reversed the award of summary judgment relating to the Plaintiff's 42 U.S.C. § 1985 claim as to all Defendants.

Finally, the court affirmed the district court's dismissal of the Plaintiff's state common-law claim for retaliatory employment action. Under Kansas state law, that cause of action is suspended if there is an adequate alternative remedy under state or federal law. In this case, 42 U.S.C. § 1983 provided an adequate alternative remedy to the Plaintiff.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3153.pdf

Panel: Kelly, Lucero, Hartz

Date of Issued Opinion: February 27, 2015

Docket Number: No. 13-3153

Decided: Affirmed in part, reversed in part, and remanded for further proceedings.

Counsel:
Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, for Plaintiff - Appellant.

Carl A. Gallagher (Teresa A. Mata with him on the brief), of McAnany, Van Cleave &
Phillips, P.A., Kansas City, Kansas, for Defendants - Appellees.

Author: Hartz

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 03/11/2015 09:37 PM     10th Circuit     Comments (0)  

February 7, 2015
  United States v. Rentz-- Tenth Circuit
Case Name: United States v. Rentz -- Tenth Circuit

Headline: Tenth Circuit Rules Government Must Prove Multiple Instances of Use, Carry or Possession to Bring Separate Charges under 18 U.S.C. § 924(c)(1)(A)

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

Does 18 U.S.C. § 924(c)(1)(A) allow multiple charges to be brought against the defendant when it is agreed that there is only one single use, carry, or possession?

Brief Summary:

The Tenth Circuit held an en banc rehearing of the case to determine whether the government may bring multiple charges under 18 U.S.C. § 924(c)(1)(A), when a firearm is used only one time, but results in two crimes of violence. After engaging in a textual analysis of the statute and applying the rule of lenity, the majority held that the government would have to prove a separate "use, carry, or possession" of a firearm for each charge it brings. Judges Hartz and Matheson wrote concurring opinions, and Judge Kelly wrote a dissenting opinion.


Extended Summary:

Defendant Philbert Rentz used a gun one time, but after firing one shot, he hit and injured one victim and then hit and killed another victim. Thus, the use of the gun was "during and in relation to" two separate "crimes of violence" contrary to 18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) requires that five years be added on to the sentence imposed for the commission of the crime of violence if a gun is used "during and in relation to" a crime of violence or a drug trafficking crime.

Judge Gorsuch authored the majority opinion, and was joined by Judges Lucero, Tymkovich, Holmes, Bacharach and Moritz. The majority noted that federal courts have found this statute difficult to interpret, noting that Bailey v. United States, 516 U.S. 137 (1995), United States v. Castleman, 134 S. Ct. 1405 (2014), and United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009), addressed questions related to the statute's interpretation, but had not yet addressed the issue presented in this case - what is the unit of prosecution? The court was presented with the question of whether Defendant Rentz may be charged with two violations of § 924(c)(1)(A) because he hit two victims, even though he only fired one shot.

The majority stated that the Second, Fifth, Seventh, and D.C. Circuits have stated that the government does need to prove a separate crime of using, carrying, or possessing a gun in order to bring separate charges under § 924(c)(1)(A). The Eighth Circuit, on the other hand, appears to have said no. The majority emphasized the importance of this decision, because it means the difference between Mr. Rentz receiving between 5 and 10 years for the § 924(c)(1)(A) charge, or a mandatory sentence of 25 years to life for the second charge in addition to the time he was sentenced for the first § 924(c)(1)(A) conviction. Further, all of this time is to be served consecutive to his sentences for the underlying assault and murder of the victims.

The court began by stating that there are a number of dilemmas presented by the variety of federal criminal offenses that are similar to Mr. Rentz's situation, citing to other federal cases with fact patterns that pose a § 924(c)(1)(A) question, and noted that the court has not clearly decided whether a separate "use, carry, or possession" is needed for each individual count under § 924(c)(1)(A).

The majority then discussed issues related to this case, stating that in Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court determined that the double jeopardy clause prohibited punishing a defendant under two different statutes for the same conduct unless the statutes each "requires proof of a fact with the other does not." The court noted that in previous cases, Tenth Circuit panels have rejected appeals arguing that double jeopardy also prohibits multiple punishments under a single statutory provision like § 924(c)(1)(A) when the single use of a gun results in two crimes. Previous panels have decided that if each underlying offense charged required proof of a fact that the other did not, the use of enhancement for the underlying gun crime was permissible.

The majority stated that this case is a unit of prosecution case, which discusses the "minimum amount of activity for which criminal liability attaches" for each charge under a single criminal statute. United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir. 2014). This type of inquiry, the court explained, requires a thoughtful analysis of the verbs used in the statute. Because the statute requires that a person use, carry, or possess a firearm during the commission of certain offenses, the language suggests that each new conviction requires a new act that falls under using, carrying, or possessing. Further, the statute does not prohibit using, carrying, or possessing a firearm generally, which supports the idea that each new conviction requires a new act of using, carrying, or possessing. The majority also noted that the structure of the statute shows that you cannot have a number of charges that exceeds the number of uses, carries, or possessions.

The majority explained that the government's position is that it only has the burden to show using, carrying, or possessing as part of the first conviction. The majority stated that this view would require them to ignore language that is present in the statute for all charges except for the first one.

Next, the majority considered taking a broader view of the statute, but stated that doing so does not change the outcome. Section 924(c)(1)(C) provides specific instructions for cases involving multiple convictions, but it also does not appear to change the government's burden for convictions other than the first. Further, § 924(c)(1)(C) calls for a much greater sentence upon a second conviction than it does for a first. If Congress did not intend for the government to have to prove a second use, carry, or possession, then the leap in the mandatory sentence does not make sense.

The government stated that the legislative history of the statute is favorable to its position. It cited a paragraph in a 1984 committee report from when Congress amended the statute, which explicitly states that the sentences for violation of § 924(c)(1) are to be served consecutively with the underlying offense. The majority found this argument unpersuasive because it did not address the proper unit of prosecution or the language of the statute. The majority speculated that perhaps the government pointed to this to show that Congress meant for harsh sentences to result from violations of § 924(c)(1)(A), but the majority found no basis for that argument in the statute. In fact, the majority stated that one could make the argument that Congress intended to run sentences consecutive to the underlying offense because of the seriousness of making a conscious choice to use, carry, or possess a gun while committing specific crimes.

Further, the majority relied on the rule of lenity to resolve any ambiguities that remain in interpreting § 924(c)(1)(A), meaning that if the directions from the statute are unclear, the presumption is resolved in favor of the citizen, not the government. This keeps the power in the hands of the legislature as opposed to prosecutors, and also gives citizens fair warning of what types of conduct are against the law. The majority noted that the Supreme Court has applied the rule of lenity in similar situations, citing to Bell v. United States, 349 U.S. 81 (1955), addressing whether the transportation of multiple women for prostitution constituted multiple violations of federal law, or just one. It also cited to Ladner v. United States, 358 U.S. 169 (1958), where the court held that the single discharge of a weapon which injured two police officers should result in only one violation of law.

The majority also noted that in United States v. Anderson, 59 F.3d 1323, 1325 (D.C. Cir. 1995) (en banc), the government argued that the number of uses alone, not the number of predicate crimes limited the number of charges available - this argument is the exact opposite of what it argues here. The majority stated that if a statute is so obscure that even the government has been unable to maintain a consistent position, it is likely that citizens may lack notice about what conduct it prohibits.

Next the majority addressed the Eighth Circuit's holding in Sandstrom, where the Eighth Circuit did allow multiple charges after one gun use. However, the Eighth Circuit relied on reasoning from a Tenth Circuit panel which rejected a Blockburger challenge to multiple § 924(c)(1)(A) convictions. The majority explained that if the Eighth Circuit were presented with the same question that the Tenth Circuit addresses now, the Eighth Circuit would likely agree with the majority's reasoning in this case.

The majority acknowledged that a number of other questions regarding the statute's interpretation remain, but saves those questions for another day. Both sides concede that this case involves only one use, carry, or possession, so it is not necessary for the court to determine when one use, carry, or possession begins and another ends. The majority affirmed the ruling of the district court and vacated the previous opinion given by the panel.

Judge Hartz wrote a concurring opinion, and joined the concurrence of Judge Matheson. In the Hartz concurrence, Judge Hartz writes to express his belief that the government maintains a compelling position, but that it simply does not overcome the rule of lenity. Judge Hartz states that the language of § 924(c)(1)(A) in isolation is favorable to the government's position, but that this interpretation leads to very harsh consequences for a defendant, and that as a result, it should not be assumed that Congress intended the harshest possible consequence.

Judge Matheson also wrote a concurring opinion joined by Chief Judge Briscoe, and Judges Hartz and Phillips. His concurrence first discusses the difference between the elements of an offense and the unit of prosecution, the overlap between double jeopardy and unit of prosecution, the ambiguity of the statute regarding the unit of prosecution, the application of the rule of lenity, and the relationship between this case and Tenth Circuit precedent. Judge Matheson stated that charging two offenses based on one unit of prosecution is a violation of double jeopardy. The ambiguity of § 924(c) and the rule of lenity suggest that only one violation of the statute should be charged. Further, Judge Matheson stated that the court is less restricted by previous Tenth Circuit case law than the panel was, because it is an en banc hearing.

Judge Kelly issued a dissenting opinion in the case. Judge Kelly suggested that the unit of prosecution should be determined by the combination of the conduct specified in the statute. He stated that § 924(c) is a combination crime, because neither the underlying crime, nor the use of a gun is sufficient for a conviction. Judge Kelly stated that this fact is significant, and that the majority and concurring opinions should have given that fact greater weight. Further, Judge Kelly stated that the majority's concern that the government will overcharge is groundless, because the government's desire to bring multiple charges under § 924(c) is reasonable given the severity of the underlying offenses.

To read the full opinion, please visit:

http://www.ca10.uscourts.gov/opinions/12/12-4169.pdf

Panel: Briscoe, Chief Judge, Kelly, Lucero, Hartz, Tymkovich, Gorsuch, Holmes, Matheson, Bacharach, Phillips and Moritz.

Date of Issued Opinion: February 3, 2015

Docket Number: No. 12-4169

Decided: Previous panel decision was vacated and the ruling of the district court was affirmed.

Counsel:

Diana Hagen, Assistant United States Attorney (Carlie Christensen, Acting United
States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-
Appellant.

Jeremy M. Delicino, Delicino Lorenzo, LLC (Elizabeth A. Lorenzo, Delicino
Lorenzo, LLC, Salt Lake City, Utah, and Stephen R. McCaughey of Salt Lake
City, Utah, with him on the brief), for Defendant-Appellee.

Author: Gorsuch

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 02/07/2015 05:40 PM     10th Circuit     Comments (0)  

February 3, 2015
  United States v. Wray
Case Name: United States v. Wray -- Tenth Circuit

Headline: Tenth Circuit holds that age-related sexual offenses are not per se crimes of violence under the federal Career Offender sentencing guidelines.

Areas of Law: Criminal Law

Issues Presented:

1. Is age-related statutory rape a per se forcible sex offense under Application Note 1 of the Career Offender sentencing guidelines?

2. Is age-related statutory rape a per se crime of violence under the residual clause of the Career Offender sentencing guidelines?

Brief Summary:

The defendant pleaded guilty to being a felon in possession of a firearm. During sentencing, his previous conviction for "Sexual Assault - 10 Years Age Difference" under Colorado state law was cited as a prior "crime of violence" and used as a predicate for increasing his sentence under the federal Career Offenders sentencing guidelines. The defendant objected to this use, arguing that the district court erred in concluding that violation of the Colorado statute was a per se crime of violence.

The Tenth Circuit held that violation of Colorado's statutory rape law was not a forcible sex offense under the federal Career Offenders sentencing guidelines, nor was it a crime of violence under the residual clause. The court remanded the case to the district court for resentencing.

Extended Summary:

The defendant, Mr. Wray, pleaded guilty to being a felon in possession of a firearm. He was sentenced to 77 months imprisonment and three years' supervised release. His presentence investigation report (PSR) contained a prior conviction under Colo. Rev. Stat. § 18-3-402(1)(e) for "Sexual Assault - 10 Years Age Difference". This was cited as a prior "crime of violence" and used as a predicate for increasing his base offense level from a 20 to 24. This resulted in an increased term of imprisonment. The defendant objected to this use of his prior conviction, but the district court found that it constituted a crime of violence. The defendant appealed to the Tenth Circuit Court of Appeals.

The court applied a de novo standard of review. It began its analysis by reviewing the sentencing guidelines at issue. Under U.S.S.G. § 2K2.1(a)(2), a defendant is assigned a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The commentary to that statute points to the career-offender guideline, U.S.S.G. § 4B1.2, for the definition of a "crime of violence". That definition of a "crime of violence" includes "(a) any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Application Note 1 to U.S.S.G. § 4B1.2 provides that "forcible sex offenses" constitute crimes of violence but does not define forcible sex offenses.

All parties agreed that the defendant's prior conviction did not satisfy the elements of § 4B1.2(a)(1). Rather, the government contended that Colorado's statutory rape law under which the defendant was convicted addressed "forcible sex offenses" such that the defendant's conviction fell within the ambit of Application Note 1 to U.S.S.G. § 4B1.2. Alternatively, the government argued that the statutory rape law addressed conduct that fell within the residual clause of § 4B1.2(a)(2).

The court noted that the crime of violence definition contained within § 4B1.2 is virtually identical to the definition of a "violent felony" contained in the Armed Career Criminal Act (ACCA). In James v. United States, 550 U.S. 192, 206 (2007), the Supreme Court crafted an analysis to determine if crimes constitute a violent felony under the ACCA. The Tenth Circuit and several other circuit courts adopted the James analysis to determine if criminal offenses constitute "crimes of violence" under § 4B1.2. That analysis utilizes a categorical approach, looking at the fact of conviction and the statutory definition of that prior offense without considering the facts unique to the defendant's own conviction. In James, the Court considered whether the defendant's prior conviction for attempted burglary "otherwise involv[ed] conduct that presents a serious risk of physical injury to another" under a provision of the ACCA that closely mirrors the residual clause of § 4B1.2(a)(2). The Court concluded that the attempted burglary was a violent felony because it posed the "same kind of risk" as completed burglary, such as the potential for violent confrontation between the burglar and an innocent bystander. The Court focused on the potential risk contemplated by the statute instead of the actual or factual risk in the defendant's particular situation.

A year after the James decision, the Supreme Court decided Begay v. United States, 553 U.S. 137 (2008). In Begay, the Court held that Driving Under the Influence (DUI) convictions were not violent felonies under the ACCA. The Court concluded that the Sentencing Commission's use of enumerated offenses in the ACCA's "violent felony" definition showed an intent that the residual clause only encompass crimes "roughly similar, in kind as well as in degree of risk posed" to the enumerated offenses. The Court held that the risk posed by DUI offenses was not similar in nature to those considered by the enumerated offenses. It noted that the enumerated crimes "all typically involve purposeful, violent, and aggressive conduct" whereas DUI statutes impose strict liability without concern for criminal intent or the aggressive nature of the conduct. Prior convictions under such statutes would therefore provide little (if any) indication that the defendant would engage in the kind of violent criminal behavior contemplated by the sentencing guidelines.

The Tenth Circuit then considered the most recent Supreme Court case to address the ACCA residual clause. In Sykes v. United States, 131 S. Ct. 2267 (2011), the Court held that the crime of vehicle flight from law enforcement fell within the residual clause because risk of violence is inherent in vehicle flight and that risk is similar to that of the ACCA's enumerated crimes. The Court distanced itself somewhat from the qualitative risk analysis it employed in Begay, noting that "in general, levels of risk divide crimes that qualify from those that do not." The strict liability DUI statutes in Begay involved a level of risk clearly distinct from the enumerated crimes in the ACCA, whereas the vehicle flight crime involved a level of risk similar to that seen in the ACCA.

The Tenth Circuit began its analysis within the framework of the Supreme Court precedent by first considering whether the defendant's prior conviction was a "forcible sex offense". The government argued that, because Colorado's statutory rape statute at issue presupposes any possible consent from the victim, any sexual conduct covered by the statute is inherently forcible. The court disagreed, citing to the Fourth Circuit's reasoning in United States v. Leshen, 453 F. App'x 408, 415 (4th Cir. 2011) (unpublished). In Leshen, the Fourth Circuit noted that the use of the term "forcible" demonstrates that the Sentencing Commission contemplated some sex offenses as nonforcible. It also suggested that all other criminal offenses listed in commentary to § 4B1.2 entail the use of physical force, are repetitions of the enumerated offenses, or "present a serious potential risk of physical injury that is similar in kind and degree to the listed offenses". In the present case, the court noted the absence of legal consent does not preclude the possibility of factual consent in statutory rape cases. As such, the act prohibited by the statutory rape law will not always be inherently "forcible" in the sense that is more generally contemplated by § 4B1.2. The court further noted that Colorado has a separate statute for sex offenses it deems to be forcible, indicating a legislative belief that the statutory rape was not "forcible" per se.

The government also argued that the statutory rape was a forcible sex offense because statutory rape and sex offenses "where consent is not legally valid" are included in the definition of forcible sex offenses provided by commentary to U.S.S.G. § 2L1.2. This particular sentencing guideline pertains to the unlawful entry into or unlawful remaining in the United States. The court was unconvinced by this argument, noting that the Sentencing Commission could have easily pointed the Career Offenders sentencing guidelines to § 2L1.2 for the definition of a crime of violence, but instead referred to § 4B1.2 and its less inclusive definition. It further noted that the Commission's explicit inclusion of statutory rape as a forcible sex offense under § 2L1.2 but not under § 4B1.2 demonstrated a clear intent for statutory rape to not be considered a per se forcible sex offense.

In dismissing the government's two arguments that the defendant's statutory rape conviction was a per se forcible sex offense, the court cited to its decision in United States v. Dennis, 551 F.3d 986 (10th Cir. 2008). In Dennis, the court held that the defendant's violation of Wyoming's "indecent liberties with a minor" statute was not a crime of violence under § 4B1.2 because that statute "lack[ed] force or assault as an element, let alone lack of consent." In accordance with this decision and other guiding precedent, the court held that violation of age-based sexual contact statutes are not per se "forcible sex offenses" under Application Note 1 to U.S.S.G. § 4B1.2.

The court then considered whether the defendant's prior conviction fell within the residual clause of § 4B1.2(a)(2) because it "otherwise involves conduct that presents a serious potential risk of physical injury to another." It further explained the effects of Begay and Sykes on its analysis, observing that Sykes limited the Begay "purposeful, violent, and aggressive" test to strict liability, negligence, and recklessness crimes. It explained that "[t]he commission of a strict liability offense, while potentially posing a serious risk of physical injury, does not involve purposeful, violent, or aggressive conduct."

The court turned its analysis to determining whether the statute under which the defendant was previously convicted, Colo. Rev. Stat. § 18-3-402(1)(e), is a strict liability statute. Under that statute, a person is guilty of sexual assault if they "knowingly inflict sexual intrusion or sexual penetration on a victim [and] . . . (e) [a]t the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age." The parties agreed that the phrase "knowingly" does not apply to the age of the victim, the statutory element that makes the conduct illegal. However, the government argued that the absence of a mens rea regarding the victim's age does not render the statute one of strict liability because the sexual act itself requires a mens rea. The court disagreed because the only element of the statute that distinguishes unlawful consensual sex from consensual sex is the age of the victim and that element does not have a mens rea requirement. The court also pointed to People v. Salazar, 920 P.2d 893, 895 (Colo. App. 1996), in which the Colorado Court of Appeals held that the sexual assault of a child statute, similar in nature to the statute at issue here, provided for strict liability even though it contained the word "knowingly". Here, the court found that Colorado's statute was one of strict liability. It held that the Begay exception applied and precluded a conviction under that statute from falling within the residual clause of the crime of violence definition.

The court held that the defendant's prior conviction was not a crime of violence and remanded to the district court for resentencing.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1086.pdf

Panel: Kelly, Hartz, Matheson

Date of Issued Opinion: January 27, 2014

Docket Number: No. 14-1086

Decided: Remanded for resentencing.

Counsel:
Matthew Belcher, Assistant Federal Public Defender, (and Virginia L. Grady,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.

Paul Farley, Assistant United States Attorney, (and John F. Walsh, United States
Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.

Author: Kelly

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 02/03/2015 10:32 PM     10th Circuit     Comments (0)  

January 18, 2015
  Warner v. Gross- Tenth Circuit
Case Name: Warner v. Gross -- Tenth Circuit

Headline: Tenth Circuit Rules Oklahoma Death Penalty Procedures Not Cruel and Unusual Punishment

Areas of Law: Constitutional Law

Issue Presented:

Is the use of midazolam as part of a three-drug lethal injection procedure violative of the Eighth Amendment's ban on cruel and unusual punishment?

Brief Summary:

The plaintiffs filed a Section 1983 lawsuit challenging the constitutionality of Oklahoma's lethal injection procedures. Plaintiffs sought a preliminary injunction to stay their executions until the district court was able to issue a ruling on the merits of their claims. The district court denied the injunction, and plaintiffs appealed. The Tenth Circuit affirmed the district court's ruling, stating that the plaintiffs were unable to show a likelihood of success on the merits of their claims sufficient for the court to issue a preliminary injunction.

Extended Summary:

Plaintiffs Charles Warner, Richard Glossip, John Grant, and Benjamin Cole are Oklahoma state prisoners that were convicted of first-degree murder and sentenced to death. Plaintiffs filed a 42 U.S.C. § 1983 lawsuit challenging Oklahoma's lethal injection procedures as part of a group of twenty-one inmates. The plaintiffs sought a preliminary injunction to stop the State of Oklahoma from carrying out their executions pending a ruling from the district court on the merits of their claims. After the district court denied their request for preliminary injunction, the plaintiffs appealed. The Tenth Circuit affirmed the ruling of the district court, holding that plaintiffs had not demonstrated a likelihood of success on the merits of their claims.

The majority began by stating the factual basis for the plaintiffs' murder convictions. Warner was convicted of the first degree rape and first degree murder of the eleven-month-old daughter of his girlfriend. Glossip was convicted of first degree malice murder for hiring a coworker to kill the owner of the hotel where he worked. Grant was convicted of first degree murder for stabbing a food service supervisor with a shank at the correctional facility where he was incarcerated. Cole was convicted of first-degree murder for causing the death of his nine-month-old daughter.

The State of Oklahoma has scheduled execution dates for each of the plaintiffs over the course of the next few months (Plaintiff Warner was executed on January 15, 2015). All of the plaintiffs have exhausted their state and federal remedies.

The State of Oklahoma used to use three drugs for its lethal injection procedure, including sodium thiopental, pancuronium bromide, and potassium chloride. Sodium thiopental was used to induce unconsciousness, panucronium bromide was used as a paralyzing agent, and potassium chloride was used to induce cardiac arrest. However, in 2010, the State of Oklahoma had been unable to obtain sodium thiopental for use in its executions, and has since implemented the use of midazolam hydrochloride to render an inmate unconscious for the lethal injection procedure.

The first inmate to be executed using midazolam was Clayton Lockett on April 29, 2014. Although Lockett's execution was successful, the execution team ran into a variety of issues when attempting to complete the execution procedure. In addition to a number of errors regarding the IV access, Lockett appeared to regain consciousness during the administration of the potassium chloride and began to move and speak during the procedure.

After discovering that the IV had not properly entered Lockett's blood stream, and noting that there were no viable veins left in Mr. Lockett's body to administer the drugs through, the execution team stopped the procedure. Ten minutes later, Mr. Lockett was pronounced dead. An autopsy revealed later that the amount of midazolam in Mr. Lockett's body should have been more than enough to render an individual unconscious.

After the complications surrounding Mr. Lockett's execution, the State of Oklahoma provided for alternative execution procedures designed to prevent similar situations from happening in future executions. The new procedures, in particular require primary and backup IV catheters, and allow for postponement of an execution if the execution team encounters trouble regarding the establishment of an IV line within one hour. The new procedures also allow for four different drug combinations for the lethal injection process: (1) 5,000 milligrams of pentobarbital; (2) 5,000 milligrams of sodium pentothal; (3) 500 milligrams of midazolam and 500 milligrams of hydromorphone or (4) 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. Officials must notify inmates of the method to be used in their execution in writing, ten days before the scheduled execution. The plaintiffs have been notified that the fourth alternative has been selected for their executions.

Plaintiffs alleged eight counts in their Section 1983 suit, two of which are at issue in this appeal. In Count 2, plaintiffs allege that the use of midazolam in the lethal injection protocol violates the Eighth Amendment, because the "ceiling effect" and risk of paradoxical reactions make it an unsuitable anesthetic, thus exposing inmates to the risk of pain, suffering, and lingering death. Further, plaintiffs allege the risk that the drug will be negligently administered. In Count 7, the plaintiffs allege that the changes in the drug combinations amount to biological experimentation on unwilling human subjects.

The Tenth Circuit started its analysis by stating that the standard of review for the denial of a preliminary injunction is abuse of discretion. It also noted that a preliminary injunction is a drastic remedy, and explained that a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm without the injunction, that the "balance of equities tips in his favor," and that the injunction is in the public interest in order to succeed. Winter v. Natural Res. Def. Council., 555 U.S. 7, 20 (2008).
The court then stated the rules on which it relies in addressing constitutional challenges to State execution methods. First, that capital punishment in and of itself is not cruel and unusual punishment under Baze v. Rees, 533 U.S. 35, 47 (2008). Next the court noted that the Supreme Court has never ruled that a State's execution procedure is cruel and unusual punishment. Id. at 48. Finally, the Supreme Court has explained that the risk of some pain is inherent in any method of execution. Id. at 47.

The court explained that subjecting individuals to a risk of future harm might qualify as cruel and unusual punishment. Baze, 533 U.S. at 49. The harm must be sure or very likely to cause needless suffering and imminent danger. Id. at 49-50. It then reviewed the district court's analysis of plaintiff's claims regarding midazolam. The district court found that midazolam, in the dosage recommended by the lethal injection protocol, was highly likely to render the individual unconscious and to keep him unconscious during the administration of the second and third drugs. The district court made findings of fact after hearing the testimony of the defendant's expert witnesses that 500 milligrams of midazolam can paralyze the brain by shutting down respiration and making the individual unaware of pain. It also found that there is only a "speculative" risk that midazolam could cause a paradoxical reaction. Finally, with respect to the negligent administration claim, the district court concluded that the revised lethal injection protocol is facially constitutional.

Next, the court recounted the district court's findings regarding sodium thiopental. Plaintiffs stated that using sodium thiopental as a single-drug procedure would be possible. The district court noted that the defendants showed that sodium thiopental and pentobarbital are not available to the state for use in lethal injection procedures.

The court then addressed the plaintiffs' allegations in Count 7. The district court noted that successful executions with midazolam in a three-drug combination has occurred 12 times in the United States. Thus, plaintiffs' claim that the lethal injection protocol involves human experimentation fails. Further, the district court stated that the plaintiffs failed to establish that Oklahoma's lethal injection protocol involves a risk of severe pain that is substantial compared to available alternatives.

The plaintiffs argued that the district court misapplied Baze. Plaintiffs stated that they did not need to provide an alternative remedy to succeed under Baze; that the grounds asserted in this case were not similar to Baze; that the district court erred in finding that the potential risk was cured by the three factors built in to the revised lethal injection protocol; and that the court did not consider evolving standards of decency. The court noted that the difference in Baze is that the petitioners agreed that the drugs used in their executions would result in a humane death if properly administered.

The court responded to plaintiffs' assertion that the requirement that proof of known and available alternatives is irrelevant when challenging the characteristics of a drug used in lethal injection by stating that it had already decided the opposite in Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010), where the plaintiff challenged the use of pentobarbital as a replacement for sodium thiopental.

The court noted that they were bound by Pavatt, but that even if they were not, the plaintiffs had failed to establish that the use of midazolam in a lethal injection procedure caused a risk of severe pain. Additionally, the court disagreed with plaintiffs' assertion that the principles from Baze do not apply to the present case. The court also found no error with the district court's reliance on the three factors in the revised lethal injection protocol. Such a finding, it held, was not contrary to Baze.

Next, the court addressed the plaintiffs' "evolving standards of decency" argument. Plaintiffs stated that Florida was the only other state that uses a three-drug procedure using midazolam, which makes the revised lethal injection protocol "objectively intolerable." The court responded by stating that this was not a requirement from Baze, and that if it were, no state would ever be able to revise its execution protocol.

The plaintiffs also challenged the district court's reliance on Dr. Evans, an expert witness provided by the defendants, stating that the findings based on his testimony were clearly erroneous. The majority found no issue with the district court's reliance on Dr. Evans' testimony or the gatekeeping procedure in which it engaged in allowing him to testify as an expert witness.

Finally, the court rejected the plaintiffs' argument that the district court erred in analyzing count 7 by using the risk-analysis test in Baze as opposed to the "evolving standards of decency" analysis. The court stated that it rejected the same argument earlier, and stated that it rejected the plaintiffs' argument.

Thus, because the plaintiffs did not demonstrate to the panel a likelihood of success on the merits, the decision of the district court was affirmed. The court found it unnecessary to engage in an analysis of the other factors needed to obtain a preliminary injunction.

The plaintiffs also made an emergency motion for a stay of execution pending appeal. That motion was denied because the argument for the stay of execution was the same as those for the preliminary injunction.


To read the full opinion, please visit:


http://www.ca10.uscourts.gov/opinions/14/14-6244.pdf

Panel: Briscoe, Gorsuch, Matheson

Date of Issued Opinion: January 12. 2015

Docket Number: No. 14-6244

Decided: The holding of the district court was affirmed.

Counsel:
Patti Palmer Ghezzi and Randy A. Bauman, Assistant Federal Public Defenders, Western District of Oklahoma, Oklahoma City, Oklahoma, and Mark Henricksen and Lanita Henricksen, Henricksen & Henricksen, Oklahoma City, Oklahoma, and Dale A. Baich and Robin C. Konrad, Assistant Federal Public Defenders, Phoenix, Arizona, for Plaintiffs-Appellants.

John D. Hadden, Jeb E. Joseph, and Aaron J. Stewart, Assistant Attorneys General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendants-Appellees.

Author: Briscoe

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 01/18/2015 06:09 PM     10th Circuit     Comments (0)  

December 31, 2014
  iMatter Utah v. Njord - Tenth Circuit
Case Name: iMatter Utah v. Njord - Tenth Circuit

Headline: Tenth Circuit holds that insurance and indemnification requirements of Utah's parade permit scheme violate the First Amendment of the United States Constitution.

Areas of Law: Constitutional Law

Issues Presented:

1. Does the First Amendment require that an exception to costly permit requirements be given to indigent applicants?

2. Did Utah's insurance requirements for the issuance of parade permits violate the First Amendment?

3. Did Utah's indemnification requirements for the issuance of parade permits violate the First Amendment?

Brief Summary:

Two environmental groups applied for permits to hold parades on State Street, a public state highway in Utah. Utah requires such applicants to obtain insurance naming Utah, the Department of Transportation, and its employees as additional insured parties. It also requires applicants to indemnify, hold harmless, and promise to defend Utah, its agencies, and its employees. The permit applications were denied because the environmental groups could not afford to purchase the necessary insurance.

The environmental groups filed suit against the Utah Department of Transportation and several officials challenging the insurance and indemnification provisions of the permit scheme as unconstitutional. The district court awarded summary judgment in favor of the plaintiffs, holding that both provisions were facially invalid restrictions in violation of the First Amendment. The Tenth Circuit affirmed the judgment of the district court, holding that both provisions were invalid time, place, and manner restrictions because they were not narrowly tailored to a significant governmental interest.

Extended Summary:

The State of Utah requires that the organizers of parades taking place on state highways first obtain a permit from the Utah Department of Transportation. As part of the application process, an applicant must "obtain and provide proof of liability insurance at time of application naming the 'State of Utah, the Department and its employees' as additional insured under the certificate, with a minimum of $1,000,000 coverage per occurrence and $2,000,000 in aggregate." Additionally, the applicant must sign an agreement to indemnify, hold harmless, and defend the State of Utah, its agencies, and its employees against various claims resulting from the event or the conduct of the organizers.

Two environmental groups, iMatter Utah and Positive Change Utah, applied separately for permits to hold parades on State Street, a state highway in Salt Lake City, Utah. Both groups were unable to afford the necessary insurance policies, and their applications were later denied. They each filed suit against the Utah Department of Transportation and several of its officials (collectively "Utah"), challenging the insurance and indemnification provisions of the permit scheme as unconstitutional. Their cases were consolidated in the district court, which granted summary judgment in favor of the plaintiffs and held that both requirements were facially invalid under the First Amendment because neither was narrowly tailored to any significant governmental interest espoused by the state. Utah appealed to the Tenth Circuit Court of Appeals.

The court used a de novo standard of review. It began by explaining some of the well-established First Amendment jurisprudence that would form the basis of its analysis. It explained that a law's proponent has the burden of establishing its constitutionality when that law infringes on the exercise of First Amendment rights, citing Ass'n of Cmty. Orgs. for Reform Now (ACORN) v. Municipality of Golden, Colo., 744 F.2d 739, 746 (10th Cir. 1984). It further explained that, as per Supreme Court precedent, the government is allowed to establish reasonable time, place, and manner restrictions on the use of government property considered a traditional public forum. The court did not address whether State Street was a traditional public forum because both parties agreed that it was.

The court first addressed the plaintiffs' argument that the insurance and indemnification provisions were unconstitutional as applied to them because they were unable to afford the insurance coverage necessary for a permit. The court noted that the Supreme Court itself has yet to address whether the First Amendment requires that an exception to costly permit requirements be given to indigent applicants. It highlighted a circuit split in which the Third and Eleventh Circuits have held that such an exception is required while the First and Sixth Circuits have not, particularly when there are "ample alternative forums" for the protected speech. The court adopted the position of the Third and Eleventh Circuits, holding that there is no broad indigency exception required by the First Amendment. While it acknowledged that there may be instances when the First Amendment requires accommodation of indigent people whose "rights are infringed upon by fees they are not capable of paying", the facts of this case did not render Utah's permit scheme unconstitutional.

Turning to the facial challenge to Utah's insurance and indemnification requirements, the Tenth Circuit applied the four-prong test adopted by the Supreme Court in Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992) and McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014). The Supreme Court had held that time, place, and manner restrictions must be justified without reference to the content of the regulated speech, be narrowly tailored to serve a significant governmental interest, leave open ample alternative channels for communication of the information, and not delegate overly broad licensing discretion to a government official. The Tenth Circuit did not address the requirement of content neutrality in this case because the district court had concluded (and the parties agreed) that the permit requirements were content neutral.

The court then turned to the question of whether the insurance and indemnification requirements of the permit scheme were narrowly tailored to serve a substantial governmental interest. Utah argued that it had several significant interests to which the requirements were narrowly tailored: the interest in maintaining public order, preventing traffic and sidewalk obstructions, and promoting safety, and the interest in recovering expenses it incurs as a result of the parade and protecting itself from liability resulting from the use of its property.

The court quickly addressed the first set of interests espoused by Utah. The district court previously concluded that neither the insurance nor the indemnification requirement would have any effect on the likelihood that an accident would occur during an event. Utah did not present any evidence to demonstrate otherwise, and so the Tenth Circuit held that the insurance and indemnification requirements were not narrowly tailored to the government's interest in maintaining public order, preventing traffic and sidewalk obstructions, and promoting safety.

The court also quickly addressed Utah's interest in recovering expenses incurred in the production of parades, summarizing it as an interest in "protecting the fisc". The court found that Utah had not presented any evidence to show that the insurance and indemnification requirements are tailored to address that interest, noting that neither requirement forces the permittee to reimburse the state for the various costs it incurs.

The court turned its analysis to whether the requirements were narrowly tailored to Utah's last identified interest: protecting itself from liability. The parties agreed that such an interest is a significant one. The court began its analysis with Utah's insurance requirement. Utah argued that the requirement was narrowly tailored because the sidewalk was "an available, worthy alternative to the street" and the use of it does not require a permit. It also argued, more generally, that requiring the permittee to have insurance and name the state agencies as additionally insured was an "exact fit" to the state's interest of protecting itself from liability. The court rejected both of these arguments.

The court rejected the first argument because satisfaction of the requirement that a valid time, place, and manner restriction "leave open ample alternative channels for communication of the information" does not automatically satisfy the requirement that the restriction be narrowly tailored to a significant governmental interest, nor does it eliminate that requirement. The two requirements are distinct and both must be satisfied for such a restriction to be constitutional.

The court rejected the second argument because Utah had not provided any evidence to support its assertion that the insurance requirement was an "exact fit" to the state's interest in protecting itself from liability. The court explored various hypothetical scenarios in which restricting parades to sidewalks would actually result in greater liability for the state than if it allowed the permit to take place on the street with proper precautions in place. The court then explored the case law cited by Utah as grounds to uphold its insurance requirement. Those cases saw various courts uphold permit fees as constitutional, but those same cases all advanced the proposition that those fees must be demonstrably related to the costs or liability incurred by the state. Utah cited Sullivan v. City of Augusta, 511 F.3d 16 (1st Cir. 2007), where the court held that "it [was] a violation of the First Amendment to have charged [the plaintiff] more than the actual administrative expenses of the license". Id. at 38. Because the insurance premiums to be paid by the permittee would vary based on the policy amounts, Utah was required to demonstrate that its requirement of $1,000,000/$2,000,000 in insurance coverage was aligned to its potential liability. The Tenth Circuit found that Utah had failed to do so.

The court further addressed Utah's potential liability by noting how improbable it was that Utah would incur liability for damages arising from parades. Under the Governmental Immunity Act of Utah (GIAU), Utah Code §§ 63G-7-101 to 63G-7-904, the state waived sovereign immunity for injuries "proximately caused by a negligent act or omission of an employee committed within the scope of employment" and for injuries caused by defective, unsafe, or dangerous conditions of highways, roadways, and streets unless the injury was caused by a "latent" condition. In short, Utah's only potential parade liability would be for its own negligence. The court further explained that "Utah cannot require the permittee to bear the cost of insuring Utah against Utah's own negligence."

Finally, the court reasoned that the insurance requirement was not narrowly tailored because it forced permittees to bear the cost of insuring against conduct that the permittees could not be held liable for, such as reactions of third-party bystanders and the actions of police officers or employees of the state. In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982), the Supreme Court held that such liability cannot be imposed on organizations exercising their First Amendment rights to free speech unless those organizations actually or apparently authorized or afterwards ratified unlawful conduct. The court held that Utah's insurance requirement was not narrowly tailored to its interest in protecting itself from financial liability and that it violated the First Amendment.

The court then shifted its analysis to determine whether the indemnification requirements were narrowly tailored to the significant governmental interest of protecting the state from liability. It acknowledged that Utah's indemnification provision was narrower in scope than the insurance provision. The court then recalled that, because Utah would avoid liability in most situations because of sovereign immunity, the only real duty imposed by the indemnification clause would be for the permittee to defend Utah against frivolous or meritless lawsuits. The court noted that this duty could easily result in a "heckler's veto" through which third parties who disagree with the reason for or content of a demonstration could punish the demonstrators after the fact through meritless lawsuits against the state.

Utah argued that its indemnification requirement should be upheld because of its similarity to Hawaii's, which was recently upheld by the Ninth Circuit in Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012). That provision required permit applicants to indemnify, defend, and hold harmless the state, but it only extended to claims arising from the applicant's conduct. The Tenth Circuit noted that Hawaii's indemnification provision did not, on its face, regulate core expressive conduct as Utah's provision does. Utah's indemnification provision was part of a permit scheme designed to regulate parades which, by their very nature, involve expressive conduct. Hawaii's indemnification provision, by contrast, regulated people engaging in "commercial activities of any kind" on a public beach. This core distinction rendered Kaahumanu inapplicable to the present case.

The court held that Utah's indemnification requirement was not narrowly tailored to its interest in protecting itself from liability and so violated the First Amendment.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-4173.pdf

Panel: Briscoe, Hartz, Holmes

Date of Issued Opinion: December 22, 2014

Docket Number: No. 13-4173

Decided: Affirmed district court's award of summary judgment in favor of plaintiffs.

Counsel:
J. Clifford Petersen, Assistant Attorney General (Joni J. Jones and Kyle J. Kaiser,
Assistant Utah Attorneys General, with him on the briefs), Salt Lake City, Utah,
for Defendants-Appellants.

Stewart Gollan, of the Utah Legal Clinic, (John Mejia and Leah Farrel, ACLU of
Utah, with him on the brief), Cooperating Attorney for the Utah Civil Rights &
Liberties Foundation, Salt Lake City, Utah, for Plaintiffs-Appellees.

Author: Briscoe

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 12/31/2014 06:24 PM     10th Circuit     Comments (0)  

December 28, 2014
  United States v. Cruz- Tenth Circuit
Case Name: United States v. Cruz -- Tenth Circuit

Headline: Tenth Circuit Holds that Lack of Signature Does Not Make Warrant Invalid

Areas of Law: Criminal Procedure, Constitutional Law

Issue Presented:

1. Must a search warrant be signed and dated by the issuing judge in order to be valid?

Brief Summary:

The Tenth Circuit held that a warrant is not invalid under the Fourth Amendment simply because it lacked the signature of a judge on the face of the warrant. After losing on direct appeal, Defendant Cruz filed a motion to vacate, set aside, or correct his sentence on the basis of ineffective assistance of counsel. Cruz alleged that his trial counsel failed to adequately advise him about the immigration consequences of going to trial and about various plea agreements offered by the state. Further, he argued that his trial counsel failed to file a motion to suppress evidence found based on the search warrant, and argued that the warrant was invalid because it lacked a signature and date. The Tenth Circuit affirmed the district court's decision that the warrant was valid, and affirmed the district court's determination on resentencing.

Extended Summary:

Defendant Raul Cruz was convicted of knowingly and intentionally possessing with intent to distribute methamphetamine and was sentenced to 63 months in prison. After a failed direct appeal, Cruz filed a motion to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel because his trial attorney did not make a motion to suppress evidence based on the warrant not being signed or dated by the issuing judge. The district court denied relief on that basis, and Cruz appealed.
A search warrant for Cruz's residence was issued on the affidavit of a law enforcement officer who swore that he had reason to believe that methamphetamine, other controlled substances, drug paraphernalia, and money from narcotics transactions was present in the residence. The affidavit referenced information gathered from a confidential source and stated that the officer had conducted a controlled purchase of methamphetamine.
The warrant was signed and dated by an assistant district attorney on March 26, 2010, and presented to District Judge Kenneth Martinez. Judge Martinez signed the last page of the affidavit, and the date line provided was also filled in by either Judge Martinez or the officer. The warrant form itself was not signed, but the affidavit that Judge Martinez had signed and dated was incorporated by reference.
Nearly one month after the search warrant was executed, Judge Martinez signed and dated the search warrant, indicating that the warrant was dated on the 26th of March, 2010 at 10:00. Judge Martinez also hand-wrote "Nunc Pro Tunc on this April 23, 2010."
Cruz was convicted in September 2010, sentenced in June 2011, and was found subject to removal proceedings because he was born in Mexico and granted permanent residency. The conviction and sentence were affirmed on appeal.
In 2012, Cruz filed the motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 alleging two claims of ineffective assistance of counsel. The first claim stated that the warrant was invalid because Judge Martinez did not sign or date the warrant, and his trial attorney did not move to suppress the evidence or statements gathered as a result of the execution of the warrant. Cruz also alleged that he was not adequately advised concerning plea offers. These claims were both found by a magistrate judge to have merit, and a district court order amended and adopted in part the magistrate judge's proposed findings and recommended disposition. The district court found that the signature on the affidavit and the nunc pro tunc signature on the warrant was sufficient to show that Judge Martiinez had found probable cause and authorized the search. Further, the district court found that the warrant would have been entitled to the good faith exception to the exclusionary rule. Thus, the failure to file a motion to suppress did not prejudice Cruz because the evidence would not have been suppressed even if the motion were filed. The district court also noted that vacating the conviction would not be the proper remedy for the failure to properly advise about the plea agreement, but rather setting aside the sentence. Thus, the district court resentenced Cruz to 46 months followed by 3-years of supervised release and still noted he was subject to removal.
The Tenth Circuit noted that the appeal was timely, and that the appeal was an appeal of the § 2255 proceeding. It applied a de novo standard of review.
With respect to the motion to suppress, Cruz argued that the search warrant was invalid because it had not been signed or dated by the judge, and thus had not been "issued" by the judge. He argued that a motion to suppress would have resulted in the suppression of the evidence seized at his residence and the suppression of his statements, which would have led to dismissal of the charges or an acquittal.
The majority agreed with the First Circuit, which stated in United States v. Lyons, 740 F.3d 724 (1st Cir.), cert. denied, 134 S. Ct. 2743 (2014), that there is nothing in the Fourth Amendment that states that the lack of a signature makes a warrant invalid. Rather, only probable cause and a description of the place to be searched are required by the Fourth Amendment. It also noted that the federal and state rules of criminal procedure that refer to search warrants do not require a signature.
The majority explained that Lyons had very similar facts to the present case, with a state judge reviewing the application for the warrant, determining that probable cause existed, signing the application and the affidavit, but forgetting to sign the warrant itself. The day after the execution of the warrant, law enforcement noticed the omission. The prosecutor returned to the judge, who signed the warrant and wrote a note explaining the mistake. The First Circuit rejected the argument that the lack of signature before the execution of the warrant made it invalid, finding that there was no reason to find implicit in the Fourth Amendment that the magistrate must sign the warrant. Further, the First Circuit noted that federal appellate courts in other situations rejected "formalistic approaches to signatures in warrants." United States v. Lyons, 740 F.3d at 725. The First Circuit stated that it would not find a constitutional violation because the express mandates of the Constitution were satisfied. The Tenth Circuit agreed, but gave special attention to language in Lyons that stated that law enforcement still has ample reason to acquire signatures, and that the signature of the warrant provides easy and certain proof that the warrant was in fact issued.
Cruz responded to Lyons by arguing that it did not address whether the warrant was facially valid under Groh v. Ramirez, 540 U.S. 551 (2004). Under Groh, a warrant must contain (1) a finding of probable cause; (2) be supported by oath; (3) describe what is to be searched and (4) describe what is to be seized. Cruz argued that the lack of signature showed no indication that a magistrate had made a determination of probable cause. 540 U.S. at 557.
The majority stated that Groh did not impose a facial requirement under the Fourth Amendment, but rather a substantive requirement of probable cause. It also noted that Groh dealt with the requirement that the warrant describe the items or individuals to be seized.
The majority then addressed Cruz's argument that the reasoning in United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007), should be followed. In Evans, a law enforcement agent requested a warrant, and presented the magistrate judge with an affidavit summarizing his investigation. The judge then placed the agent under oath and had the agent sign the application and the affidavit. The judge then signed the application and affidavit, in two places, but did not indicate the date before which the warrant must be executed. The magistrate judge later testified that it was an oversight, and that his usual practice was to sign an application and an affidavit only when he intended to issue a warrant.
In Evans, law enforcement did not notice until after the warrant was executed that the search warrant was unsigned. The U.S. Attorney's Office advised law enforcement to do nothing about it because the damage was already done. The defendants moved to suppress the evidence and statements obtained arising from the execution of the search warrant, and the motions were granted by the district court, which held that an unsigned warrant was not a warrant under the Fourth Amendment. The district court in Evans relied on Groh, and stated that the search warrant contained no indication that it was an officially authorized warrant.
The majority explained that the court in Evans rejected the idea that the search warrant was officially authorized because the magistrate judge signed the warrant application and affidavit. Further, the court in Evans rejected the idea that the warrant was valid because the magistrate judge intended to sign it. The Evans court also rejected the government's argument that the good faith exception to the exclusionary rule should apply. However, the majority stated that the decision in Evans was erroneous, and declined to follow its reasoning. Further, the majority analyzed the meaning of the term "issue" and hesitated to follow Evans. "Issue" is defined by the Oxford English Dictionary Online as "[t]he action of going, passing, or flowing out." By replacing the word "issue" with its definition, the majority found that this definition matches up with Groh's interpretation of the Fourth Amendment, which does not have any particular technical requirements.
Finally, the majority noted that even if the warrant were deficient, the good faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), would apply. In Leon, the court explained that suppression is appropriate if "(1) the magistrate or judge was misled by information that the affiant was false or would have known was false except for reckless disregard for the truth; (2) where the issuing magistrate abandoned his judicial role; (3) when the warrant was based on an affidavit that lacked indicia of probable cause so as to make belief in its existence unreasonable and (4) when the warrant is so facially deficient that the executing officers cannot reasonably assume that it is a valid warrant. Leon, 468 U.S. at 922. The majority explained that none of these factors applied to the warrant issued by Judge Martinez, and stated that the only unusual thing was the lack of the judge's signature on the face of the warrant. Thus, the Leon good faith exception applied.
The majority affirmed the district court's decision to deny the motion with respect to the ineffective assistance of counsel claim.

To read the full opinion, please visit:

http://www.ca10.uscourts.gov/opinions/14/14-2017.pdf

Panel: Briscoe, Holmes, Bacharach

Date of Issued Opinion: December 22, 2014

Docket Number: No. 14-2017

Decided: The Defendant's sentence and conviction were affirmed.

Counsel:

Todd A. Coberly of Coberly & Attrep, Santa Fe, New Mexico, for Defendant-Appellant.

Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Author: Briscoe

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 12/28/2014 05:38 PM     10th Circuit     Comments (0)  

December 15, 2014
  United States v. Black - Tenth Circuit
Case Name: United States v. Black - Tenth Circuit

Headline: Tenth Circuit holds that, under SORNA, sex offenders are "more than 4 years" older than their victims if they are more than 48 months or 1,461 days older.

Areas of Law: Criminal Law

Issues Presented:

1. What does it mean for a sex offender to be "no more than 4 years older" than a victim for the purposes of the Sex Offender Registration and Notification Act?

Brief Summary:

The defendant pleaded guilty to one count of sexual abuse of a minor in Indian Country. At sentencing, the defendant argued that the Sex Offender Registration and Notification Act ("SORNA") did not require him to register as a sex offender because SORNA excludes consensual sexual acts if the victim was at least 13 years old and the offender was not more than 4 years older than the victim. At the time of the incident, the defendant was 18 years old, the victim was 14 years old, and the defendant was 55 months older than the victim. The defendant argued that he was not more than four years older than the victim; subtracting the victim's 14 years of completed life from his 18 years of completed life yielded only four years. The district court disagreed and concluded that SORNA requires a comparison of the defendant's and victim's birth dates to determine the difference in age.

The Tenth Circuit upheld the district court's interpretation of the statute. Following the Third Circuit's approach to this issue, it held that "not more than 4 years older than the victim" means that no more than 1461 days or 48 months can separate the birthdays of the sex offender and the victim. The court affirmed the district court's order requiring the defendant to comply with SORNA's registration requirements.

Extended Summary:

SORNA provides a national database in which sex offenders are generally required to register. In defining a "sex offender" for this purpose, SORNA excludes those who committed offenses involving consensual sexual contact between individuals of certain ages. This case centers on a provision of SORNA's registration statute that states: "An offense involving consensual sexual conduct is not a sex offense for the purposes of [SORNA] if the victim . . . was at least 13 years old and the offender was not more than 4 years older than the victim." 42 U.S.C. § 16911(5)(C).

The defendant in this case pleaded guilty to one count of sexual abuse of a minor in Indian Country. At sentencing, the defendant argued that SORNA did not require him to register as a sex offender because, as an 18-year old, he was not more than four years older than his 14-year old victim even though he was 55 months older than her. The district court disagreed and concluded that SORNA requires a comparison of the defendant's and victim's birth dates to determine the difference in age.

The defendant argued that the district court's interpretation of SORNA's registration requirement was erroneous and suggested that the Tenth Circuit measure the age difference by subtracting the victim's completed years of life from the offender's completed years of life. Alternatively, the defendant argued that SORNA's registration requirement is ambiguous enough to warrant application of the rule of lenity. The Tenth Circuit reviewed both the question of statutory interpretation and applicability of the rule of lenity using a de novo standard of review.

In United States v. Brown, 740 F.3d 145 (3d Cir. 2013), the Third Circuit became the first circuit court to consider this issue. The district court in that case decided that the SORNA's registration provision in 42 U.S.C. § 16911(5)(C) was "susceptible to more than one reasonable interpretation". The Third Circuit disagreed. It began its process of statutory interpretation by looking at the plain language of the statute. It explained that words not otherwise defined in the legislative act would be construed as per their "ordinary or natural meaning". It also explained the need to consider the legislative act as a whole to determine if the legislature intended such an interpretation.

The Third Circuit turned its focus toward the common use of the term "year", finding it to mean 365 consecutive days (or 366 in leap years). This was supported by Black's Law Dictionary 1754 (9th ed. 2009), which defines a year as "[a] consecutive 365-day period beginning at any point." The court applied that definition and held that "no more than 4 years" in the statute means no more than 1,461 days or 48 months.

The Third Circuit also noted that applying the defendant's proposed interpretation of the statute would yield inconsistent results. It provided such an example: if an offender were 18 years old while the victim 14 years old, registration would not be required. If that offender became 19 years old while the victim remained 14, registration would then become required until the victim became 15 years of age (at which time, registration would no longer be required). The court concluded that Congress could not have intended for SORNA to be interpreted in a way that would lead to such inconsistency.

The Tenth Circuit wholly adopted the Third Circuit's analysis as grounds for rejecting the defendant's interpretation of the SORNA registration provision. It provided a further justification for doing so by reasoning that such an interpretation would have an "untoward collateral impact on the interpretation of substantive federal criminal provisions." The court noted that the statute under which the defendant pleaded guilty to statutory rape had a very similar age requirement. The statute only applies if the victim is between the ages of 12 and 16 and "at least four years younger" than the offender. Applying the defendant's interpretation to that statute would yield an opposite but equally undesirable result; using the colloquial understanding of "whole years of aging" would mean that the statute could reach defendants who are no more than three years and one day older than a sexual partner. It joined the Third Circuit in concluding that Congress could not possibly have intended for the random and inconsistent results that would follow such statutory interpretation.

The court then addressed the defendant's argument that the rule of lenity should apply. For the rule of lenity to be applicable, there must be a "grievous ambiguity or uncertainty in the statute". The court concluded that the term "4 years" in SORNA's registration provision is not ambiguous and, therefore, found the rule of lenity inapplicable.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1000.pdf

Panel: Gorsuch, Sentelle, Murphy

Date of Issued Opinion: December 9, 2014

Docket Number: No. 14-1000

Decided: Affirmed the order of the district court.

Counsel:
Dean A. Strang, StrangBradley, LLC, Madison, Wisconsin (Robin Shellow, The
Shellow Group, Milwaukee, Wisconsin, on the brief), for Defendant - Appellant.

Catherine M. Gleeson, Office of the United States Attorney, Denver, Colorado
(John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special
Assistant United States Attorney, Denver, Colorado, on the brief), for Plaintiff -
Appellee.

Author: Murphy

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 12/15/2014 08:26 PM     10th Circuit     Comments (0)  

November 17, 2014
  Citizens United v. Gessler- Tenth Circuit
Headline: Tenth Circuit issues preliminary injunction against Colorado campaign disclosure laws, rules nonprofit group Citizens United qualifies for exemption from disclosure for film

Areas of Law: Constitutional Law

Issues Presented:

1. Does barring Citizens United from qualifying for an exemption from campaign disclosure laws as a media entity for its film, Rocky Mountain Heist, and its advertisements violate Citizens United's First Amendment rights?

Brief Summary:

Citizens United sought review of the district court's denial of a preliminary injunction barring the Colorado Secretary of State from enforcing its disclosure laws against its film, Rocky Mountain Heist, and its advertisements. Citizens United asserted that the Colorado disclosure provisions violated the First Amendment both on its face and as applied to Citizens United because it is treated differently from exempted media. The court held that the disclosure laws were likely to be found unconstitutional as applied to the film, and that a preliminary injunction should have been granted. The case was reversed and remanded. Judge Phillips issued an opinion concurring in part and dissenting in part, agreeing with the majority that the advertisements were not exempted from disclosure laws, but disagreeing with the majority's determination that the film was exempted from disclosure laws.

Extended Summary:

Non-profit organization Citizens United brought suit against the Colorado Secretary of State, challenging Colorado disclosure provisions as contrary to the First Amendment both on their face and as applied to Citizens United because it is treated differently from various media that are exempted from the disclosure provisions. The suit arises out of a film titled Rocky Mountain Heist, which is to be distributed through DVD, television, online streaming and downloading. Some of the advertising for the film mentions Colorado officials running for office, and shows footage of events in favor of, or against, specific candidates. The film falls under what Colorado's campaign-practices laws term "electioneering communications" and "independent expenditures." Citizens United also asked for a preliminary injunction against enforcing the provisions that do not apply to exempted media. The district court denied that injunction, giving rise to this appeal.

The majority reversed the district court without addressing Citizens United's facial challenge to the laws. The majority explained that because Citizens United was likely to succeed on the merits of the case, that it was entitled to the injunction. The court noted three things in particular in support of its decision that the Secretary had not shown a substantial relation between the government's interest in the disclosure requirements and treating Rocky Mountain Heist as an "electioneering communication" or "independent expenditure": "(1) the Colorado disclosure exemptions for printed periodicals, cable and over-the-air broadcasters, and Internet periodicals and blogs, (2) the rationale presented for these exemptions, and (3) Citizen United's history of producing and distributing two dozen documentary films over the course of a decade." Citizens United failed to show, however, that its advertisements should be exempted, because it failed to show how it would be treated differently from exempted media.

The majority began by noting that "electioneering communications are statements about candidates made shortly before an election," while expenditures are "money spent to endorse or oppose a candidate." It also quoted from the Colorado Constitution and Colorado's Fair Campaign Practices Act for the definition of independent expenditure as "an expenditure that is not controlled by or coordinated with any candidate or agent of such candidate." It also noted that the term "candidate" only means candidates for office in Colorado. Under the Colorado Constitution, any person who spends $1000 or more in one year on electioneering communications must make a report to the Secretary that includes the amounts spent, the name of the candidate in the communication, and the name, address, occupation and employer of anyone who donates more than $250 per year for the communication. The reports are due every two weeks in the two months before a general election, and a final report must be submitted 30 days after the election.

The court noted that the Secretary admitted an oversight of this section of the disclosure requirements at oral argument, explaining that he does not require disclosure because there is no communicative aspect to the production. Further, the disclosure requirements only require disclosure of amounts that are donated specifically for electioneering communications.

With respect to independent expenditures, the Colorado Constitution states that any person who makes an independent expenditure of $1000 or more in one year must give notice to the Secretary describing the use of the independent expenditure, stating the amount and the candidate the expenditure is intended to support or oppose. Anyone who wishes to make an independent expenditure or accept a donation to make an independent expenditure must create a committee and register with the secretary. If the person is a corporation, it must also report details about its corporate form and ownership structure. Finally, the person must maintain a separate bank account for independent expenditure purposes.

Any person that makes more than $1000 of independent expenditures in one year must report the amounts spent and the name, address, occupation, and employer of anyone who donated more than $250 for the making of an independent expenditure. Additionally, any donation over $20 for the making of an independent expenditure during the reporting period must be disclosed. The same timeline for electioneering communications applies, except that expenditures made within 30 days of a general or primary election must be reported 48 hours after obligating the money for an independent expenditure.

The majority explained that the expenditure laws would require disclosure of production costs if Rocky Mountain Heist attacked or supported a candidate, but did not require donations to be disclosed if they were not specifically earmarked for the purpose of supporting or attacking Colorado candidates.

Next the majority noted that any person who feels there has been a violation of the disclosure laws may seek enforcement by filing a complaint with the Secretary, who then refers it to an administrative law judge. If the judge finds a violation and the Secretary does not file an enforcement action within 30 days, the complainant may file suit in state district court. The penalty for violating the disclosure requirements is $50 per day for every day that the information is not filed. If the party fails to file three or more reports in a row, it is subject to a penalty of $500 per day for each day the report is not filed.

The court then set forth the exceptions excluded from the definition of expenditure listed in the Colorado Constitution and the statutes. It also noted that there are four exemptions from the definition of electioneering communication, three of which are practically the same as the expenditures exemption. The court noted that the Secretary has interpreted the first two exemptions broadly - for printed periodicals and broadcast facilities. Although there is a question as to whether something like a blog is a periodical, the Secretary stated that he uses court decisions as guidance for his decisions. The court noted that not all campaign-related activity by exempted media qualifies for an exemption. For example, an advertisement that expressly states support for a candidate, or opposes one may be treated as an electioneering communication or expenditure.

Citizens United filed for a Declaratory Order with the Secretary asserting that Rocky Mountain Heist and related advertisements were not electioneering communications or expenditures, arguing that the Federal Election Commission granted it an exemption from disclosure, and noting that the Federal Election Campaign Act of 1971 had definitions of electioneering communications and expenditures similar to Colorado's. The Secretary denied the order, holding that the film and advertising did not qualify for an exemption as print media, and that Citizens United is not a broadcast facility. Further, it stated that the regular-business exemption did not apply because the exemption only applied to persons who distribute content as a service, relying on Colorado Citizens for Ethics in Government v. Committee for the American Dream, 187 P.3d 1207 (Colo. Ct. App. 2008). Additionally, the Secretary stated that it could not read a "press exemption" similar to the FEC's exemption for Citizen United's films into the plain language of Colorado law. The Secretary determined it was an electioneering communication, but did not determine whether it was an independent expenditure. Rather than having the Order reviewed by a Colorado Court, Citizens United filed suit in federal court and requested an injunction.

Citizens United attacked the exemptions for print and broadcast media arguing that the exemptions are facially invalid because they discriminate based on the identity of the speaker and alternatively that Citizens United should qualify for the same exemptions as print and broadcast media.

The majority stated that the court must consider "(1) the likelihood that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the relative weight of the harm alleged by the movant and the harm to the non-moving party; and (4) the public interest" in deciding whether to grant a preliminary injunction. The standard of review of a court denying a preliminary injunction is abuse of discretion.

The majority did not address Citizens United's facial challenge, but stated that it did agree with Citizens United's position on the as-applied challenge. The majority began by stating that the laws had to reach the standard of exacting scrutiny.

The majority considered the government's interest in disclosure, which the Secretary stated were to ensure that electors can discern who is attempting to influence their votes and to discourage corruption by making independent expenditures public record. The majority recognized that the Supreme Court had already recognized that disclosures is helpful to keep voting citizens informed. Citizens United v.Fed. Election Comm'n , 558 U.S. 310 368 (2010), but did not accept the Secretary's assertion of the need for disclosure laws to prevent corruption. The Secretary relied on McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1459 (2014) and Buckley v. Valeo, 424 U.S. 1 at 67 (1976), but the court explained that these cases were distinguishable because the disclosure requirements applied to more than independent expenditures. Further, the majority pointed to the Supreme Court's decision in Citizens United, where the Court determined that independent expenditures are not tied to corruption. Under Citizens United, the majority stated that the Secretary failed to show how disclosures of independent expenditures would deter quid pro quo corruption.

Next the majority explained the rationale for exempting the media. No reporting is required for news or opinion pieces in periodicals, or for letters to the editor or op-eds. Additionally, newspapers and blogs are considered "printed" even if they have an ideological bias. Further, opinions stated in broadcasts are exempt. News reports by broadcast media are treated the same as news reports in print media by the Secretary even though there is not a stated exemption for them.

The Secretary offered a number of explanations for the media exemptions. The first -- that corporations which are part of the media industry are different than those that are not in the news business -- the court determined was not valid after the Supreme Court's decision in Citizens United, and that such a distinction cannot be the basis for disparate treatment under the First Amendment. The second, that political advertisements disrupt the transparent, balanced, and accountable manner of journalism, the court stated was invalid because newspapers and broadcast station are not all transparent, balanced and accountable. The third justification, that the electorate can properly assess a statement by exempted media because it is familiar with the source, the court stated does have some merit, and stated that it was at least reasonable to allow a media exemption on this ground. The length of time and frequency of communications with the electorate gives the electorate the ability to evaluate the source. The Secretary, however, has not explained why Citizens United does not qualify for this same exemption.

Although the Secretary analogized Citizens United to "drop-in" advocates, the majority analogized Citizens United to exempted blogs and opinion shows because of their history of producing works similar to TV reports or magazines than to advertising clips. The length of time and variety of topics provide information about the organization that the public may use for evaluation.

The majority then addressed the dissent's critique that it should not focus on the disclosure but on the substantial relation between the State's interest and the disclosure scheme as a whole. It responded by explaining that this approach precludes review of as-applied challenges, and noted that courts often uphold laws while eliminating them in specific instances. Further, the dissent argued that a statutory imposition can withstand constitutional scrutiny when it recognizes exemptions because statutes can be constitutionally sound when there are no exemptions. The majority responded that exemptions call the validity of a governmental interest into question because it suggests that the governmental interest may be narrower than it asserts. The majority explained that in Greater New Orleans Broadcasting Ass'n v. U.S., 527 U.S. 173 (1999), the Supreme Court struck down a ban on broadcasting advertisements for casino gaming because the statute allowed for exemptions for other forms of legal gaming that undermined the asserted governmental interests. Finally, the majority stated that the dissent's concerns about figuring out who qualifies for a media exemption was not a sufficient reason to avoid deciding a constitutional question, and noted that this is an issue that the Secretary has already had to deal with.

The majority stated that its holding does not apply to advertisements for Rocky Mountain Heist. The advertisements do not come within the media exemption and Citizens United has not shown that it should be treated differently from exempted media.

Finally, the court held that the other issues regarding the preliminary injunction were easily resolved. Citizens United would suffer irreparable injury if it were forced to comply with the disclosure provisions. Additionally, because the challenge includes issues of constitutional law, the government's interests do not outweigh Citizens United's interest in protecting its constitutional rights. Further, the public interest is always protected in preventing the violation of constitutional rights. Thus, the preliminary injunction factors weight in favor of Citizens United.

Judge Phillips issued an opinion concurring in part and dissenting in part. He agreed with the majority that Citizens United should comply with the disclosure requirements for the advertisements related to Rocky Mountain Heist, but dissented from the majority opinion that the disclosure requirements violated Citizens United's First Amendment rights.

Judge Phillips agreed that exacting scrutiny was the proper standard of review, and that the government interest in ensuring that electors are able to evaluate who is trying to influence their votes is a sufficient reason to uphold the disclosure requirements against a First Amendment challenge. Judge Phillips, however, agreed with the reasoning of the district court that the governmental interest and the disclosure scheme should be evaluated as a whole as opposed to as a "single hypothetical."

Judge Phillips criticized the majority's approach to the case because he believes it is essentially a First Amendment/Equal Protection legal theory, for which the court cites no cases. Additionally, Judge Phillips asserts that the Denver Post is distinguishable from Citizens United because unlike subscribers, advertisers or lenders from the Post, voters may wish to know who is contributing to the making of Citizens United's films. Furthermore, Judge Phillips believes that the assumption that Citizens United is being treated differently from exempted media is an error. Judge Phillips also pointed out that traditional news organizations do not do fundraising for advocacy pieces in the same way that Citizens United does.

Judge Philips also criticized the majority's remedy upon finding that the disclosure scheme is contrary to the First Amendment, because it should either sever the media exemption or strike the disclosure scheme altogether. Judge Phillips stated that the majority's approach of essentially adding in a category of entities that have a right to an exemption is very close to lawmaking.

Finally, Judge Phillips states that although the majority does not adopt this reasoning explicitly, he disagrees with Citizens United's argument that the FEC advisory opinions supports its position. The advisory opinions grant the exemption under the federal disclosure provisions, not under the First Amendment.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1387.pdf

Panel: Hartz, Tymkovich, Phillips

Date of Issued Opinion: November 12, 2014

Docket Number: No. 14-1387

Decided: Decision by the district court to deny a preliminary injunction was reversed and remanded.

Counsel:

Theodore B. Olson, Gibson, Dunn & Crutcher LLP, (Matthew D. McGill, Amir C.
Tayrani, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, and Michael Boos,
Citizens United, with him on the brief), Washington, D.C., for Plaintiff -Appellant.

Matthew D. Grove, Assistant Solicitor General, (Daniel D. Domenico, Solicitor General; Leeann Morrill, First Assistant Attorney General; Kathryn A. Starnella, Assistant Attorney General; with him on the brief), Public Official Unit, State Services Section, Denver, Colorado, for Defendants - Appellees.

Martha M. Tierney and Edward T. Ramey, Heizer Paul LLP, Denver, Colorado, filed an Intervenor-Defendants' Brief for Colorado Democratic Party, Garold A. Fornander, Lucía Guzmán, and Dickey Lee Hullinghorst.

David R. Fine and Lino S. Lipinsky de Orlov, McKenna Long & Aldridge LLP, Denver, Colorado; Luis A. Toro and Margaret G. Perl, Colorado Ethics Watch, Denver, Colorado, filed an amicus curiae brief for Citizens for Responsibility and Ethics in Washington, Colorado Common Cause, Colorado Ethics Watch, and Progressive United.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 11/17/2014 09:22 AM     10th Circuit     Comments (0)  

November 2, 2014
  WildEarth Guardians v. EPA - Tenth Circuit
Case Name: WildEarth Guardians v. EPA - Tenth Circuit

Headline: Tenth Circuit upholds EPA's decision allowing New Mexico, Utah, and Wyoming to use a regional cap-and-trade program instead of the Best Available Retrofit Technology ("BART") regulations.

Areas of Law: Environmental Law, Administrative Law

Issues Presented:

1. Did the EPA use proper standards of analysis when determining that the regional cap-and-trade program will achieve greater reasonable progress than BART regulations?

2. Could the EPA have reasonably concluded that the cap-and-trade program would be effective with only three states participating?

3. Was the EPA required to consider emissions from New Mexico's Escalante coal plant when approving the state's implementation plan?

Brief Summary:

Three states adopted a regional cap-and-trade program that would allow them to remain compliant with the Clean Air Act. They convinced the Environmental Protection Agency that this program would yield better results than the standard BART regulations, and the EPA approved its use and implementation. Several environmental groups filed petitions for review, arguing that the EPA should not have approved the program.

The Tenth Circuit considered each of the petitioners' arguments and held that the EPA had not acted arbitrarily or capriciously in finding that the regional cap-and-trade program would achieve greater reasonable progress than BART and that it would achieve reasonable progress towards eliminating visibility impairment, even though it did not consider emissions from New Mexico's Escalante coal plant in its analysis. The court denied the petitions for review.

Extended Summary:

The Clean Air Act requires the Environmental Protection Agency to establish regulations requiring states to develop implementation plans to improve visibility and adopt, maintain, and enforce air quality standards. The EPA then monitors the states' implementation plans to ensure compliance. Once approved, those implementation plans become enforceable as federal law under 42 U.S.C. §§ 7413, 7604.

Congress also tasked the EPA with establishing a visibility transport commission to study regional haze in the Grand Canyon area and recommend solutions to reduce it. The EPA went a step further by establishing a commission to consider visibility in the greater Colorado Plateau area. This commission's role was passed onto the Western Regional Air Partnership, which made recommendations that resulted in the Regional Haze Rule. Under this rule, the nine states contributing to the regional haze were required to submit an implementation plan for reducing emissions. States could either apply the Best Available Retrofit Technology ("BART") approach under 40 C.F.R. § 51.308 or, alternatively, use a cap-and-trade program recommended by the transport commission if the states would expect better results than they would under BART regulations. This approach is authorized by 40 C.F.R. § 51.309, and is therefore referred to as a "309 program".

The states of New Mexico, Utah, and Wyoming, the County of Bernalillo, and the City of Albuquerque (collectively referred to as "participants") opted to participate in the 309 program. They convinced the Environmental Protection Agency that this program would yield better results than they would achieve under BART regulations, and the EPA approved their use of the 309 program in lieu of BART. WildEarth Guardians, Heal Utah, National Parks Conservation Association, Powder River Basin Resource Council, and Sierra Club (collectively referred to as "petitioners") filed petitions for review, arguing that the EPA should not have approved the 309 program.

The Clean Air Act authorizes judicial review of the EPA's approval of state implementation plans. The court noted that its standard of review was governed by the Administrative Procedure Act, which allows the court to reverse agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). If the EPA considered the relevant data and rationally explained its decision, its decision would not be overturned. The court further noted that administrative agencies are given great deference when operating under an "unwieldy and science-driven statutory scheme", citing Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C. Cir. 2007).

The petitioners made three arguments against the EPA's approval of the 309 program. The first argument was that the 309 program was not better than the standard BART rules. The Regional Haze Rule, 40 C.F.R. § 51.308(e)(2), outlines a three-step process for determining if an alternative program is better than BART. It requires establishing a BART benchmark and predicting emission reductions if BART were implemented, predicting the emission reductions if the alternative program were implemented, and comparing the two. The petitioners argued that this process was not followed because the BART benchmark inappropriately adopted the presumptive emission rate in Appendix Y of the BART guidelines, the 309 program participants misapplied the "clear weight of the evidence" standard, and the participants overstated the effectiveness of the 309 program through inappropriate use of qualitative factors. The court considered each of these sub-arguments in turn and held that the better-than-BART determination was not arbitrary or capricious.

In 2006, the EPA amended the Regional Haze rule and recognized that "the [Appendix Y] presumptions represent[ed] a reasonable estimate of a stringent case BART." 71 Fed. Reg. at 60,619. The EPA decided that states could rely on them when attempting to meet requirements other than BART and avoid the need to perform a source-by-source emissions prediction. The Appendix Y presumptive emission rate was 0.15 pound per million British thermal units.

The petitioners argued that the participants should have determined a BART benchmark by performing a source-by-source analysis of each BART-regulated source, rather than relying on the Appendix Y presumptive rate. The court declined to consider this argument because it was untimely. It explained that, under 42 U.S.C. § 7607(b)(1), a petitioner only has 60 days to bring a lawsuit after an agency acts. In this instance, the petitioners had 60 days from the EPA's publication of the amended Regional Haze Rule. It was published to the Federal Register on October 13th, 2006. The petitions for review were not filed until December 2012 and January 2013, more than six years later. The court therefore lacked jurisdiction over the petitioners' challenge to the EPA regulation authorizing Appendix Y's use in lieu of a source-by-source determination, and so declined to consider it.

The petitioners also argued that the EPA should have considered whether the use of category-wide information was appropriate under 40 C.F.R. § 51.308(e)(2)(i)(C), which mandates the use of source-specific and category-wide information "as appropriate". According to petitioners, certain source-specific and category-wide information demonstrated that the BART benchmark grossly underestimated the sulfur dioxide reductions possible through use of the BART system. This information was provided by Ms. Stamper, the petitioners' expert witness. The court disagreed with the petitioner's contentions because, when the Western Regional Air Partnership submitted its better-than-BART determination in 2010 and the 309 program participants relied on the determination in their 2011 implementation plans, the data cited by the petitioners was not available. The EPA could reasonably conclude that inclusion of this data was infeasible because the determination resulted from years of coordinated efforts that took place before much of the petitioners' data existed. The court concluded that this determination was not arbitrary or capricious, comparing the circumstances to those in San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 620-21 (9th Cir. 2014) (holding that use of an imperfect analysis is not arbitrary or capricious when removal of those imperfections would not be feasible). The court further reasoned that reliance on Ms. Stamper's data would have been invalid under EPA regulations allowing for the use of the presumptive benchmark, noting that imprecision is inherent in simplifying assumptions such as those used to establish that benchmark.

The petitioners' next sub-argument was that the method used to compare the 309 program's effectiveness to the effectiveness of the BART program was improper. They reasoned that the EPA should not have compared the 309 program as a whole to BART but, rather, should have compared the 309 program's "milestones" to the effectiveness of BART. The court declined to entertain the argument because it was only raised in the petitioners' reply brief and was not mentioned in their opening brief. The court also declined to hear the argument because it was "unexhausted". Only "an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review." 42 U.S.C. § 7607(d)(7)(B). The petitioners failed to raise the issue in the EPA proceedings. As such, the issue was unexhausted and could not be heard.

The petitioners further argued that the consideration of qualitative factors when determining its effectiveness was improper, contending that a fully quantitative approach was required by 40 C.F.R. § 51.308(e)(3). The court rejected this argument. In 2006, the EPA amended 40 C.F.R. § 51.308(e)(2)(i) to provide a "clear weight of the evidence" standard as an alternative to the quantitative approach. The EPA clarified this standard as one that "attempt[s] to make use of all available information and data which can inform a decision while recognizing the relative strengths and weaknesses of that information in arriving at the soundest decision possible." Even though the EPA used quantitative examples in crafting that rule, the court held that this did not preclude the use of qualitative factors.

The court then considered each of the four factors the petitioners argued was qualitative to determine the reasonableness of the EPA's decision to utilize them. When comparing the effectiveness of BART to the 309 program, the EPA included "all sources with emissions greater than 100 tons/year of [sulfur dioxide]." This included sources not otherwise subject to BART regulation. The petitioners argued that the EPA should have only considered BART-eligible emission sources. The court disagreed, holding that the EPA could reasonably have interpreted 40 C.F.R § 51.308(e)(2)(i)(D) and (E) as allowing the use of all sources regulated by the 309 program.

The petitioners also argued that the EPA should not have considered emissions reductions from new sources of emissions, as those already would not have been subject to BART; they are regulated separately under the Clean Air Act. The court disagreed, reasoning that the EPA could reasonably conclude that the 309 program would "go beyond the existing regulatory process" in reducing emissions from new sources. It recognizes the EPA's two-fold strategy of regulating emissions for new sources while also encouraging voluntary reductions in emissions through the 309 program. In light of that strategy, it held that the EPA's decision to include emissions from new sources was not arbitrary or capricious.

The petitioners then argued that the EPA should not have relied on the purported benefits of a mass-based cap on emissions because it could not outperform BART. The mass-based cap was designed to allow for an increase in production of emissions-producing sources to accommodate an increased demand for electricity. It assumed that current sources were producing at 85% of their capacity, and estimated potential future emission levels using that assumption. The petitioners argued that many such sources were operating at far less than 85% capacity and, as such, those sources could ultimately exceed those estimated emission levels. The court noted that the EPA had a "reasonable foundation" for disagreeing with the petitioners' conclusion that this made the 309 program less effective than BART, and held that the EPA's decision was not arbitrary or capricious.

The petitioners' final sub-argument was that the EPA should not have considered early reductions in emissions when comparing the 309 program to BART. These were emission reductions that were achieved prior to formal implementation of the 309 program. It reasoned that the early reductions that had already been achieved could not have been causally linked to the 309 program, so they were impermissibly considered when comparing the program's effectiveness to that of BART regulation. The court sided with the EPA, noting that it was not required to show a causal relationship between the already achieved emissions reductions and the 309 program. The already-achieved reductions "tended to support the soundness of a strategy encouraging early reductions through the 309 program" and the EPA's decision to consider them was not arbitrary or capricious.

The second of the petitioners' three main arguments was that the 309 program should not have been approved because only three of the nine eligible states opted to participate in it, while the other six chose BART regulation. The petitioners reasoned that the 309 program could not be effective if only three states implemented it. The EPA opposed the argument as an untimely attack on the Regional Haze Rule. The court disagreed, considering it a timely challenge to the EPA's approval of the states' implementation plans. The court then concluded that the argument was invalid because neither the Clean Air Act nor the EPA's own regulations required participation by a certain number of states or tribes. It examined the EPA's rulemaking process and found that the EPA had not imposed any requirement that a minimum number of states participate.

The court considered the petitioners' argument that the 309 program will be ineffective with so few states participating. Petitioners argued that, even if the EPA wasn't precluded from allowing only three states to participate, it should not have allowed the program to go forward for lack of effectiveness. The court noted that states not participating in the 309 program would still be regulated under BART and held that the EPA could have reasonably concluded that the two different means of regulation would, together, be effective. The petitioners challenged the factual basis for that conclusion, noting that the three states generating the most emissions (California, Nevada, and Arizona) opted not to participate in the program, while the states that did choose to participate only contribute 36% of the emissions over the Colorado Plateau. The program also excluded dozens of coal-fired power plants while only including 15. The court held that, these arguments notwithstanding, the EPA could still have reasonably concluded that the 309 program would achieve the stated purpose of making "'reasonable progress' toward improvement of visibility over the Colorado Plateau."

The petitioners also argued that the exclusions from the 309 program prevented it from qualifying as a regional program, and that the program must be a regional program to satisfy statutory and regulatory purposes. The court disagreed with the assertion that the 309 program was not a regional program, noting that 42 U.S.C. § 7492(c)(1) does not require a minimum number of state participants for a program to qualify as a "regional program".

The petitioner's next sub-argument was that the EPA changed its position on the "critical mass" issue without sufficient explanation, making its decision arbitrary and capricious. The court agreed that unexplained deviations from past practices can indicate an arbitrary and capricious decision, but noted that such an inconsistency first requires analyzing the agency's interpretation. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). In this instance, the court found that the EPA never made a definitive statement that the 309 program required a "critical mass of participating states" to succeed. Since there was no prior policy, there was no inconsistency and the approval of the 309 program was not arbitrary or capricious.

The petitioners' third main argument was that approval of the implementation plans was inappropriate because the EPA failed to consider emissions from the Escalante Coal Plant, New Mexico's second-largest non-BART coal plant. In considering this argument, the court examined the "regulatory and factual setting" for New Mexico's implementation plan. 40 C.F.R. § 51.308(d)(1) requires states to establish reasonable progress goals that would improve visibility on the most impaired days while not reducing visibility on the least impaired days. States must first consider the cost of compliance, the amount of time needed for compliance, the energy and non-air quality environmental impacts of compliance, and remaining useful life of potentially affected sources. Id. § 51.308(d)(1)(i)(A). States must then determine the rate of required progress by comparing the baseline visibility with natural visibility conditions expected by 2064. Id. § 51.308(d)(1)(i)(B). If a state cannot achieve the uniform rate of progress, "it must demonstrate that a slower rate of progress is reasonable and that a greater rate of progress is unreasonable". Id. § 51.308(d)(1)(ii).

New Mexico determined that the uniform rate of progress would not be "reasonably achievable". It used a source-specific study by the Western Regional Air Partnership to argue that it could not achieve natural visibility conditions by 2064. It proposed a less ambitious reduction in emissions. When that proposal came under fire, the state offered to consider additional emission reductions in its analysis for 2013. It did so, but did not consider emissions from the Escalante Coal Plant.

The EPA argued that petitioners had not exhausted the argument and so could not bring it before the court. The court disagreed, holding that the petitioners had properly exhausted the argument because of prior comments to the EPA that had put them on notice. The form of the comments was imperfect. The petitioners did not initially argue that the EPA was required to analyze the Escalante plant, nor did they cite to 40 C.F.R. § 51.308(d). The court still held that the comments were "adequate notification of the general substance of the complaint", citing the standard adopted by S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006).

The crux of the petitioners' argument was that New Mexico should have included the Escalante plant in its reasonable-progress analysis, and that the EPA's approval of the state's implementation plan was unreasonable without that inclusion. The court disagreed. It noted that the regulations outlining the four-factor reasonable-progress analysis did not include the source-specific analysis that petitioners insisted was necessary. Rather, that language was a part of the better-than-BART analysis, a distinct and unrelated analysis. Likewise, nothing in the Clean Air Act or the Regional Haze Rule required a source-specific analysis in this instance.

Having rejected all of the petitioner's arguments, the court held that the Environmental Protection Agency did not act arbitrarily or capriciously when it approved the participants' implementation plans. It denied the petitions for review.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-9596.pdf

Panel: Bacharach, Seymour, Murphy

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-9596

Decided: Petition for review of final decisions issued by the United States Environmental Protection Agency was denied.

Counsel:
Jenny K. Harbine, Earthjustice, Bozeman, Montana (John Barth, Hygiene, Colorado, and Ashley D. Wilmes, WildEarth Guardians, Boulder, Colorado, with her on the briefs), for Petitioners.

Chloe H. Kolman, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Stephanie J. Talbert, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., Robert G. Dreher, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; M. Lea Anderson, Of Counsel, United States Environmental Protection Agency, Washington, D.C.;
Matthew C. Marks, Of Counsel, United States Environmental Protection Agency, Washington, D.C.; Brian Tomasovic, Of Counsel, United States Environmental Protection Agency, Dallas, Texas; Sara L. Laumann, Of Counsel, United States Environmental Protection Agency, Denver, Colorado, with her on the brief), for Respondent.

E. Blain Rawson, Ray Quinney & Nebeker, P.C., Salt Lake City, Utah (Emily Smith Loeffler, Quinney & Nebeker, P.C., Salt Lake City, Utah, Michael G. Jenkins, Assistant General Counsel, PacifiCorp Energy with him on the brief), for Intervenor PacifiCorp Energy.

Matthias L. Sayer, Assistant Attorney General, Wyoming Office of Attorney General, Cheyenne, Wyoming (Jay A. Jerde, Deputy Attorney General, Wyoming Office of Attorney General, Cheyenne, Wyoming, with him on the brief), for Intervenor State of Wyoming.

Christopher L. Colclasure, Holland & Hart LLP, Denver, Colorado, for Intervenor Basin Electric Power Cooperative;

Richard L. Alvidrez and Robert H. Clark, Miller Stratvert P.A., Albuquerque, New Mexico; Kallie H. Kuehl, Corporate Counsel, Albuquerque, New Mexico, on the brief for Intervenor Public Service Company of New Mexico.

Jeffrey M. Kendall, General Counsel and William G. Grantham, Assistant General Counsel, for New Mexico Environment Department, on the brief for Intervenor New Mexico Environment Department.

Carol Parker, Assistant City Attorney and Adelia W. Kearny, Deputy City Attorney, Albuquerque, New Mexico, on the brief for Intervenor City of Albuquerque.

H. Michael Keller and Mary Jane E. Galvin-Wagg, Van Cott, Salt Lake City, Utah; Mason Baker, General Counsel, Salt Lake City, Utah, on the brief for Intervenor Utah Associated Municipal Power Systems.

John E. Swallow, Utah Attorney General and Christian C. Stephens, Assistant Attorney General, Salt Lake City, Utah; Craig W. Anderson, Division Chief and Assistant Attorney General, Environment Division, Utah Attorney General's Office, Salt Lake City, Utah, on the brief for Intervenor Utah Division of Air Quality.

Paul M. Seby and Marian C. Larsen, Seby Larsen LLP, Denver, Colorado, on the brief for Amicus Curiae American Coalition for Clean Coal Electricity.

Author: Bacharach

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 11/02/2014 01:52 PM     10th Circuit     Comments (0)  

October 29, 2014
  United States v. Baker- Tenth Circuit
Case Name: U.S. v. Baker - Tenth Circuit

Headline: Tenth Circuit Construes Rule 35(b) Narrowly; Denies Government's Motion to Reduce Defendant's Sentence as Out of Time

Area of Law: Criminal Procedure

Issue Presented: Does a district court have jurisdiction to grant a reduction in a defendant's previously imposed sentence under Fed. R. Crim. P. 35(b) for providing substantial assistance to the Government in the prosecution of another individual when the information provided to the government was useful both before and after the one-year anniversary of his sentencing?

Brief Summary:

Rule 35(b) authorizes the district court, upon the Government's motion, to reduce a previously imposed sentence if the defendant, after sentencing, provided substantial assistance to the Government in investigating or prosecuting another person. Generally, the Government must file a motion for a sentence reduction within the year following sentencing, but Rule 35(b)(2)(B ) permits the Government to file a motion more than one year after the sentencing if the information provided by the defendant did not become useful to the government until more than one year after sentencing In this case, the government conceded that the defendant's information was useful both before and after the one-year mark. As a result, the Tenth Circuit held that the plain language of Rule 35(b) precluded the district court from reducing the defendant's sentence since the government filed the motion more than one year after the defendant's sentencing.

Extended Summary:

Defendant Baker was indicted on eighty offenses arising out of a fraudulent investment scheme. Baker pled guilty to two of the offenses and was sentenced to the bottom range of the sentencing guidelines, to forty-one months in prison. After sentencing, Baker provided information about his co-defendant Akins' role in the fraud and offered to testify against Akins. As a result of his cooperation, the Assistant United States Attorney told Baker that he would recommend a reduction in sentence.

Akins pled guilty to two of the charged offenses and was sentenced to 27 months. The plea and sentencing happened within one year of Baker's sentencing, and during this time Baker twice requested that the government file the Rule 35(b) motion to have his sentence reduced. The government delayed filing the motion in case it needed Baker to testify at a restitution hearing, and the one-year time period lapsed before the restitution hearing took place. The government did not file the Rule 35(b) motion until January 28, 2013 - over fifteen months after Baker's sentencing.

The district court held that it had limited jurisdiction because the motion was filed more than a year after the sentencing. The government then filed the motion under Rule 35(b)(2)(B), giving the court jurisdiction to reduce a defendant's sentence if the information provided within one year of sentencing did not become useful to the government until more than one year after sentencing. The district court ruled that it did not have jurisdiction because the government conceded that the information was useful both before and after the one year. The court reviewed the district court's determination on jurisdiction de novo.

The court noted that a district court's ability to modify a sentence is limited, and it may only do so when expressly authorized by Congress. The ability to modify sentences is granted in 18 U.S.C. § 3582(c). That section refers the reader to Rule 35 of the Federal Rules of Criminal Procedure for the rule on when a district court may modify a sentence.

Rule 35(b)(1) requires the government file its motion to reduce a sentence within one year of the defendant's sentencing. Rule 35(b)(2) extends that time period in some circumstances, including when information provided during the year after sentencing does not become useful until more than a year after sentencing. The court held that the language of Rule 35(b)(2)(B) did not include times when information is valuable to the government both before and after the one-year mark.

The court noted that the purpose of Rule 35 is to promote finality and encourage defendants to quickly disclose information to the government. The limited circumstances in 35(b)(2) that extend past the one-year deadline are reserved from times when the defendant does not know the information within one year, or could not reasonably have known that the information would be useful to the government, or the information itself was not useful until more than a year after sentencing. Under the circumstances in Baker's case, the court concluded that the district court did not have jurisdiction to reduce the sentence. The parties argued that the full extent of Baker's assistance was unknown until more than one year after the sentencing, but the court concluded that Congress intended the word "until" to mean specifically that the information could not become useful before the one-year mark.

The government conceded that it could have filed the 35(b) motion to preserve the court's jurisdiction over the matter and then ask the court to wait to make a ruling until after the restitution hearing. Further, the government conceded that it did not realize the need to do so until it was too late.

The court then addressed the defendant's reliance on United States v. Morales, 52 F.3d 7 (1st Cir. 1995). In Morales, the First Circuit interpreted an earlier version of Rule 35, construing it broadly. The First Circuit stated that a defendant cannot be said to know useful information until she knows the value of that information, or is specifically asked. The court noted that other circuits have declined to follow this reasoning, and that in the present case, it would decline to do so as well. The court stated that it did not have the authority to interpret Rule 35(b) in any way that is not the clear and explicit language stated in the rule.

The court affirmed the district court's decision, noting that the requirements of Rule 35(b) are jurisdictional. It sympathized with Baker's plight, noting that it was unfortunate for Baker that the government did not file the motion in a timely manner. Finally, it noted that the government only sought a six-month reduction of his forty-one month sentence.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-1042.pdf

Panel: Kelly, Ebel, and Phillips

Date of Issued Opinion: October 28, 2014

Docket Number: No. 13-1042

Decided: Decision of the district court was affirmed

Counsel: Warren R. Williamson, Federal Public Defender and Jill M. Wichlens, Assistant Federal Public Defender, Denver Colorado, for Defendant-Appellant Frederick H.K. Baker.

John F. Walsh, United States Attorney and Robert Mark Russel, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee United States of America.

Author: Ebel

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/29/2014 05:14 PM     10th Circuit     Comments (0)  

October 26, 2014
  Citizen Center v. Gessler- Tenth Circuit
Headline: Tenth Circuit holds that non-profit organization may bring suit against Colorado Secretary of State for violation of members' constitutional rights arising from use of traceable ballots

Areas of Law: Constitutional Law

Issues Presented:

1. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for mootness after the voting procedures in Colorado were changed?
2. Should Citizen Center's claims that traceable ballots violated members' constitutional rights be dismissed for lack of standing?
3. Did Citizen Center sufficiently state a claim against the clerks when they failed to allege that the clerks discriminated against voters because voting procedures varied by county?

Brief Summary:

Colorado non-profit Citizen Center brought suit against the Secretary of State and clerks from five Colorado counties, alleging that the use of traceable ballots violated their rights to voting, free speech and association, substantive due process, procedural due process and equal protection. After addressing the mootness and standing challenges raised by the defendants, the court held that the first amended complaint failed to state a valid claim against the clerks, but that a valid claim remained against the Secretary of State for federal equal protection and procedural due process claims.

Extended Summary:

Election officials in six Colorado counties had the ability to potentially learn how individuals voted because ballots were traceable in May, 2012. Colorado non-profit organization Citizen Center sued the Secretary of State and the clerks from five of the six counties, stating that the use of traceable ballots violated the constitutional rights of members. Citizen Center alleged that the ballots violated members' constitutional rights involving voting, free speech and association, substantive due process, equal protection and procedural due process. Citizen Center also alleged violations of the Colorado Constitution.

Defendants moved to dismiss for lack of standing, and alternatively, for failure to state a claim. The district court dismissed the complaint on standing grounds, and Citizen Center appealed. On appeal, three issues were considered: (1) mootness, (2) standing, and (3) sufficiency of the allegations against the clerks under Federal Rule of Civil Procedure 12(b)(6). The majority ruled that (1) the claims were partially moot due to new regulations banning some of the challenged regulations; (2) Citizen Center had standing on the equal protection and procedural due process claims, but that the injury is too speculative for standing on the other claims; and (3) The first amended complaint failed to state a valid claim against the clerks for denial of equal protection or procedural due process. Thus, the only claim that remained was the claim against the Secretary of State for denial of equal protection and procedural due process.

The ballots at issue had unique barcodes, and some of them may be unique among those cast on an electronic voting machine, and some were unique within a batch of ballots. Unique barcodes were used in three of the counties and could identify the ballot as belonging to a specific voter. For those that were unique among those cast on an electronic-voting machine, officials could record the date of voting, the machine's identifier, and the precinct number or type of ballot used by the voter. If compared with other data, election officials could trace a ballot when it was unique among the ballots cast on a specific voting machine. These ballots were used in all six counties. Finally, for the ballots that could be unique within a single batch, a batch sheet listing names, voter identification numbers, precinct numbers, ballot styles and other information were included. Due to the small size of the batches, some of the ballots could have been unique, and election officials may have been able to trace a ballot by comparing it to information on the batch sheet on some occasions. Four of the counties used this method.

Citizen Center alleged that the ballots' traceability subjected members to fear that they might be identified by government officials and thus limited their ability to freely exercise their fundamental right to vote. Further, Citizen Center alleged that the election procedures "substantially burden, infringe and chill" the members' constitutional rights to vote, engage in free speech and association, enjoy substantive and procedural due process and equal protection.

Colorado election officials are banned from disclosing how any elector voted, and all mail ballots have secrecy envelopes to prevent officials from learning how a citizen voted. Citizen Center argued that the election officials in three counties traced the ballots or failed to safeguard the secrecy of the voters' ballots. In Mesa and Larimer Counties, the ballots of public officials were traced and publicized, and in Jefferson County, the electoral choices of 30 voters were published for 1.5 years.

The court noted that the Secretary of State changed its voting regulations, which now prohibit counties from printing ballots with unique numbers or barcodes; require counties that use rotating numbers to print at least ten ballots of each ballot style for each number; and direct county clerks to "dissociate any batch number that could trace a ballot back to the specific voter who cast it from the counted ballots not later than the final certification of the abstract of votes cast." Defendants argued that the action was moot because (1) only the 2012 procedures were challenged and that election had passed; (2) the Secretary of State adopted new regulations and; (3) the action was prudentially moot (the court explained that a case is prudentially moot if "circumstances [have] changes since the beginning of the litigation that forestall any occasion for meaningful relief." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)).

The court began by addressing the mootness issue over standing issues. It noted that a live controversy was required in order to establish federal jurisdiction. The court held that the passing of the 2012 election did not render Citizen Center's claim moot because it was not trying to enjoin the use of traceable ballots for just the 2012 election, but for all future elections as well.

The court stated that the new regulations moot only Citizen Center's challenges to the use of unique numbers and barcodes and the use of a unique ballot within a batch after final certification of a vote. The court noted that even if ten copies of every ballot style are used, some ballots may remain traceable because they could still be unique when cast on a voting machine or within a batch before final certification.

The court rejected Citizen Center's argument that the voluntary-cessation exception to the mootness doctrine should apply. The court explained that voluntary cessation rarely works because a party should not be allowed to temporarily change behavior in order to avoid judicial review. In the present case, however, the government has not openly expressed the intent to reenact the repealed regulation, and the clerks have not threatened to ignore the new regulations.

The court then stated that the doctrine of prudential mootness does not apply to the part of the case that otherwise survives. The regulatory changes did not completely eliminate the threat of traceable ballots when voters use unique numbers or barcodes and they are unique in a batch prior to certification. Thus, because a judgment for Citizen Center could give meaningful relief, the prudential mootness doctrine did not apply.

The majority then addressed the issue of standing, reviewing the district court's decision de novo. In order to have constitutional standing there must be (1) injury in fact; (2) causation; and (3) redressability. Citizen Center's members must have standing to sue in their own right for Citizen Center to be able to pursue its claims.

The Secretary of State argued that Citizen Center failed to proffer any members who were harmed, but the court stated that it would conclude that Citizen Center satisfied its burden of identifying members who were harmed by providing affidavits from eleven individuals who were harmed by the traceable ballots.

The court then addressed injury in fact, rejecting the district court's rationale that there was no injury in fact because absolute anonymity is not a "legally protected federal interest." The court noted that for standing purposes, it must assume that each claim is legally valid and must not address the merits of the claim with standing. The plaintiffs must, however, have a legal right to do what they claim is being infringed. The court addressed Citizen Center's theories of injury and determined that they did not support standing.

First, the risk that election officials could determine how a member voted did not constitute an injury in fact because the risk was speculative. The majority noted that safeguards in the Colorado Constitution prevented this from happening and noted that Citizen Center did not allege that its members were among those whose ballots were actually traced and did not allege that election officials were likely to trace members' ballots. The court stated that the two cases relied upon by Citizen Center, Gredinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), and Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), were distinguishable. Greidinger was distinguishable because the plaintiff in that case was denied the right to vote, whereas in the present case, the argument was that the use of traceable ballots discouraged voting. Stewart was distinguishable because in that case, it was inevitable that mistakes in voting would be made, whereas here, Citizen Center cannot say that the votes of members would inevitably be traced.

The court also rejected Citizen Center's argument that injury in fact arises from the chilling effect that the traceable ballots may have on its members. The court noted that the Supreme Court has held that a chilling effect does not create an injury in fact, citing Laird v. Tatum, 408 U.S. 1, 13-14 (1972). It also cited Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc), in which the court required the plaintiffs to present evidence that they actually intended to refrain from the activity in question. In the present case, Citizen Center has not provided evidence that members intend to refrain from voting because their ballots might be traced. In fact, members stated that they do intend to continue voting in spite of this possibility. The court held that the chill was too speculative to constitute an injury in fact.

With respect to the equal protection claims, the court held that Citizen Center sufficiently pled an injury in fact that there was an unequal imposition of the risk that a traceable ballot could reveal how a member voted, based on where the voter lives. The court referred to American Civil Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008), where the court held that in-person voters could challenge the requirement that in person voters had to present a photo identification to vote, but absentee voters did not. Citizen Center alleged an injury in fact based on the difference in treatment similar to the in person voters in Santillanes.

The majority concluded that the procedural due process claims sufficiently alleged an additional injury in fact that there were inadequate safeguards protecting the member's interest in the secrecy of the ballot guaranteed by the Colorado Constitution. The court stated that Citizen Center sufficiently alleged causation and redressability.

The clerks argued that Citizen Center could not show redressability on the procedural due process claim because it was asking for an injunction on practices that had been reformed, and had not shown that the clerks could satisfy their constitutional and statutory obligations without the practices at issue. The court rejected both of these arguments - the first for mootness and the second because Citizen Center alleges that another Colorado county uses untraceable ballots and is able to comply with the Colorado Constitution. The court concluded that the proposed injunction would redress the injury.

The court disagreed with the clerks' contention that they lacked the power to redress the injury alleged for the equal protection claim. The court stated that a judicial order enjoining the clerks from using traceable ballots would eliminate the alleged inequality, and, as such, the equal protection claims were redressable.

The court then rejected the Secretary of State's argument that it lacked the authority to remedy the issues raised. The court noted that Colorado law requires the Secretary of State's approval for ballot plans set forth by clerks. This approval makes the claims redressable against the Secretary of State.

The court rejected the clerks' argument that Citizen Center's request for secret ballots is too vague or generalized for constitutional standing. It first noted the inadequacy of the argument in the brief itself, and then noted that Citizen Center did identify the right being invoked, which made the claim specific enough for constitutional standing.

Next, the court addressed the clerks' motion to dismiss for failure to state a claim. With respect to the procedural due process claim the court found that the complaint was facially deficient because Citizen Center lacks a liberty interest in an untraceable ballot. Traceability alone is not a violation of the Colorado Constitution's guarantee of ballot secrecy, because Colorado courts have ruled that voter secrecy is preserved when officials do not actually learn how an individual voted. The court cited to Jones v. Samora, 318 P.3d 462 (Colo. 2014), where the Colorado Supreme Court held that election officials' use of traceable ballots did not violate the Colorado Constitution, because nobody actually took advantage of the opportunity to learn how an individual voted. There was no protected liberty interest alleged by Citizen Center, because the Colorado Constitution dd not protect against traceable ballots themselves. Without establishing a protected liberty interest, the procedural due process claims must fail.

The equal protection claims failed because Citizen Center did not allege that a county clerk discriminated between voters who resided in the same county, so there was no equal protection violation by any of the clerks. The court cited to Dunn v. Blumstein, 405 U.S. 330, 336 (1972), which stated that in the context of voting, citizens have a constitutional right to participate in elections on an equal basis with others in the same jurisdiction. In the present case, each voter in the same county was treated alike. Citizen Center's allegation that the equal protection right extends to voters in different counties went beyond the right set forth in Dunn. Further, there was no basis for holding the clerks responsible for inter-county differences. Each clerk only had power in his or her county and could not have violated the Equal Protection Clause by acting differently than a clerk in a different county.

The court concluded that Citizen Center did not have standing on its substantive due process claims and the rights to vote and to free speech, but that it did have standing on the federal claims against the Secretary of State and the clerks for denial of procedural due process and equal protection, as well as against the clerks for state claims involving denial of procedural due process and equal protection. It affirmed the dismissal of the claims involving denial of substantive due process, the right to vote, and the right to free speech. The court also agreed with the clerks' alternative argument for dismissal for failure to state a valid claim under Rule 12(b)(6). The claims against the Secretary of State, however, were valid because the Secretary of State did not move for dismissal under 12(b)(6). Thus, the court reversed and remanded on the dismissal of the federal claims against the Secretary of State for denial of procedural due process and equal protection.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-1414.pdf

Panel: Holmes, McKay, Bacharach

Date of Issued Opinion: October 21, 2014

Docket Number: No. 12-1414

Decided: Dismissal of the federal claims against the Secretary of State was reversed and remanded; all other claims were affirmed.

Counsel: Robert A. McGuire, III, McGuire Bains LLC, Lone Tree, CO (Jeffrey David Baines, McGuire Baines LLC, Denver, CO, on the briefs), for Plaintiff-Appellant.

David Hughes, Boulder County Attorney, Boulder CO, and LeeAnn Morrill, First Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, CO (Writer Mott and David Wunderlich, Assistant Jefferson County Attorneys, Golden, CO, David Ayraud and William G. Ressue, Larimer County Attorney's Office, Fort Collins, CO, Gillian Dale and Tom Lyons, Hall & Evans, Denver, CO, Bryan Treu, Eagle County Attorney, Eagle, CO and Jennifer Davis, Chaffee County Attorney, Salida, CO, and John W. Suthers, Attorney General, with them on the briefs) for Defendants-Appellees.

Author: Bacharach

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/26/2014 09:17 AM     10th Circuit     Comments (0)  

October 12, 2014
  United States v. Lewis - Tenth Circuit
Case Name: United States v. Lewis - Tenth Circuit

Headline: Tenth Circuit holds that sex offenders who relocate and fail to register under SORNA in their new state of residence can be prosecuted in the state they departed from.

Areas of Law: Criminal Law, Criminal Procedure

Issues Presented:

1. Can a sex offender who moves to a new state but fails to register under the Sex Offender Registration and Notification Act ("SORNA") be prosecuted under 18 U.S.C. § 2250 in the state from which he departed?

Brief Summary:

Defendant was convicted of statutory rape in Missouri and required to register as a sex offender. He registered in his residential state of Kansas, but afterwards relocated and failed to register in Missouri and Georgia. He was charged and convicted in Kansas for violations of SORNA and sentenced to two years in prison.

He appealed his conviction, arguing that Kansas was an improper venue because his failure to register occurred in Missouri and Georgia. The 10th Circuit affirmed the defendant's conviction, holding that venue for prosecuting 18 U.S.C. § 2250 violations is appropriate in multiple jurisdictions which include the departure jurisdiction.

Extended Summary:

In 1996, the defendant pleaded guilty to statutory rape in Missouri. He was required by the federal Sex Offender Registration and Notification Act ("SORNA") to register as a sex offender in his state of residence. He registered in 2011 in Kansas, but then abandoned his residence and left the state. Law enforcement officers in Kansas were unable to locate him in connection with an unrelated warrant and turned the matter over to U.S. Marshals, who tracked the defendant as far as Missouri but did not find him. The defendant was ultimately arrested in July 2012 in Atlanta, GA, where he had not registered as a sex offender. He was indicted in the District of Kansas for one count of failing to register under 18 U.S.C. § 2250(a).

The defendant first filed a motion to dismiss for improper venue because the alleged violations had not occurred in Kansas, arguing that he had registered appropriately in Kansas and only failed to register after he left the state. The district court denied the motion. After trial, he filed a motion for judgment of acquittal, again raising the improper venue issue and challenging the sufficiency of the evidence of venue.

The 10th Circuit reviewed the district court's legal finding of sufficient evidence to support venue using a de novo standard of review. The court described its role as deciding whether, when "viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the finder of fact, the Government proved by preponderance of direct or circumstantial evidence that the crimes charged occurred within the district." United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985).

The court began its analysis by describing the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. The first relevant provision in SORNA is the civil registration requirement, 42 U.S.C. § 16913, which requires a convicted sex offender to register and keep that registration current "in each jurisdiction where the offender resides". The court interpreted SORNA's § 16913(c) reporting obligation to require that an offender update his registration within three days of abandoning his residence. In the defendant's case, this required him to update his registration with Missouri after leaving Kansas and again with Georgia after settling there. The second relevant provision, 18 U.S.C. § 2250, is the criminal enforcement mechanism that prescribes fines or imprisonment for knowingly failing to comply with the registration provision of SORNA. To prove that the defendant violated 18 U.S.C. § 2250, the government was required to show that Lewis had an obligation to register under SORNA, that he travelled in interstate commerce, and that he knowingly failed to register or update his registration during the time period specified in the indictment.

The defendant did not dispute that the government properly established a § 2250 violation, but challenged its choice of venue. He argued that Kansas was an inappropriate venue because his reporting obligation only arose when he was in Missouri and Georgia, and so his SORNA violations only occurred in those two states. The court described the venue requirements of the United States Constitution and the Federal Rules of Criminal Procedure as requiring that prosecution take place in the district where the offense occurred unless the criminal statute or other procedure requires a different venue. 18 U.S.C. § 2250 does not have a specific venue provision, so the court was required to ascertain "the nature of the crime alleged and the location of the act or acts constituting it." United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir. 1987).

The court considered its prior holding in United States v. Murphy, 664 F.3d 798, 803 (10th Cir. 2011). In Murphy, the defendant relocated from Utah to Belize. The government prosecuted that defendant in the departure state of Utah and the 10th Circuit affirmed the conviction. The court in Murphy did not directly address the question of whether a § 2250 offense occurs in the departure district. It held that, when traveling abroad, a sex offender is required to update his registration in his departure district because of the plain language of § 16913. The requirement to update his registration "triggered" when the defendant left his permanent residence in Utah and, because SORNA does not apply extraterritorially, his departure state was the only appropriate state with which to update his registration. The court reasoned that this necessarily permitted venue to lie in the departure state.

Murphy also held that the departure district remains a "jurisdiction involved" for purposes of § 16913 even after the sex offender has left the state. The reporting obligation to that state does not end simply because the defendant leaves it. It noted that this view is shared by the National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01 (July 2, 2008), which requires that a sex offender's updated registration in a new district be provided to the departure district. This allows for an "interconnected web of state registries."

The defendant argued that Murphy was wrongly decided, citing the 8th Circuit's decision in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Lunsford held that "an offender who leaves a domestic jurisdiction for a foreign jurisdiction" need not "necessarily . . . update his registration in the domestic jurisdiction where he formerly resided" depending on the circumstances. The 10th Circuit disagreed with the defendant, finding Lunsford unpersuasive because that case did not contemplate the issue of venue existing in the departure district when the defendant fails to register in any subsequent domestic jurisdiction. Lunsford was critical of the argument that a sex offender is required by federal law to notify the departure jurisdiction of their relocation. The 10th Circuit noted that neither Murphy nor the present case imposed such a requirement; they only require that a sex offender update his registration after relocating, but provide that an offender can be prosecuted in the departure jurisdiction if they fail to do so.

The 10th Circuit held that Murphy was the controlling case because it established that a violation of § 2250 occurs in the departure district. Murphy relied on cases from other circuits that also found venue to be proper. Those cases relied on 18 U.S.C. § 3237, the Federal Venue Statute that allows offenses begun in one district and completed in another to be "inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). The 10th Circuit previously held that a § 2250 violation is a continuing offense. In United States v. Hinckley, 550 F.3d 926, 936 (10th Cir. 2008), the court held that "[a]n interpretation of the sex offender registration requirement that defines it in any way other than as a continuing offense would result in absurdity." The court held that a SORNA violation extends from the moment a sex offender abandons his residence in the departure jurisdiction until the moment he either registers or is arrested, and that this creates multiple venues in which the sex offender can be prosecuted under § 2250.

The court noted that its decision was consistent with those of other circuits that have also considered the matter of venue in a § 2250 prosecution. It also noted that other district courts within the 10th Circuit have reached the same conclusion. The court held that Murphy and § 3237 both provide that venue for a § 2250 violation is appropriate in the departure district.

The defendant's next argument challenged Murphy's applicability to the case. The defendant alleged that he left Kansas before the dates specified in the government's indictment. He argued that, because Murphy involved a defendant who was in Utah in the temporal time frame alleged by the government, Murphy is inapplicable when a defendant's abandonment of his residence does not fall within the indictment's prescribed timeframe. The court disagreed with this contention.

The defendant then argued that the limited factual record allowed for an inference that he had not violated the registration requirements of SORNA prior to October 1, 2011 because he had not abandoned his Kansas residence. The court disagreed, noting that the government proved by a preponderance of the evidence that the defendant had abandoned his Kansas residence.

The defendant's final argument was that the government's theory of the case relied on the premise that a sex offender has an affirmative duty to notify the state from which he departs that he is moving to another state. His challenge relies on the 9th Circuit's decision in United States v. DeJarnette, 741 F.3d 971, 984 (9th Cir. 2013), in which the defendant was convicted of sex crimes before SORNA's enactment. The defendant in DeJarnette ignored existing state and federal registration laws and moved from California to Georgia in March of 2008. SORNA became retroactively applicable to pre-Act offenders in August 2008, but the 9th Circuit held that pre-Act offenders were not required to register in the jurisdiction of their conviction if it differed from their residence when SORNA's retroactivity came into effect. The 10th Circuit disagreed with the defendant's interpretation of this case, noting that it merely established the reach of SORNA's retroactivity and was inapplicable to the defendant's case. The court held that venue for a § 2250 violation can lie in the departure district and affirmed the defendant's conviction.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3173.pdf

Panel: Tymkovich, Baldock, Bacharach

Date of Issued Opinion: September 30, 2014

Docket Number: No. 13-3173

Decided: Affirmed the district court's decision to deny Lewis's motion for a judgment of acquittal based on insufficient evidence of proper venue.

Counsel:

John K. Henderson, Jr., Assistant Federal Public Defender, Federal Public
Defender's Office, Wichita, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), United States Attorney's Office, Topeka,
Kansas, for Appellee.

Author: Tymkovich

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/12/2014 03:10 PM     10th Circuit     Comments (0)  

October 9, 2014
  In re Urethane Antitrust Litigation - Tenth Circuit
Case Name: In re Urethane Antitrust Litigation - Tenth Circuit

Headline: Tenth Circuit affirms $1.06 billion judgment against Dow Chemical Company under Sherman Antitrust Act for its role in price-fixing conspiracy.

Areas of Law: Antitrust Law, Civil Procedure

Issues Presented:

1. Do individualized issues relating to damages preclude Fed. R. Civ. P. 23(b)(3) class certification?

2. Did the District Court err in admitting the testimony of the plaintiffs' expert witness on statistics?

3. Is there sufficient evidence to support a price-fixing conspiracy claim without a causal connection between parallel price-increase announcements and increased prices?

4. Does distribution of damages through a pro rata reduction of the plaintiffs' damages model violate the Seventh Amendment to the United States Constitution?

Brief Summary:

The defendant (Dow Chemical Company) appealed the district court judgment against it, arguing that the plaintiffs class should not have been certified under Fed. R. Civ. P. 23(b)(3) or that certification should have been revoked on its motion because the class members had individualized issues relating to damages. It also argued that the testimony of expert witness Dr. McClave was unreliable and should not have been admitted into evidence, that evidence presented against it was insufficient to establish its liability, and that the manner in which the damages award was distributed violated the Seventh Amendment to the United States Constitution.

The Tenth Circuit held that the district court did not abuse its discretion in certifying and subsequently refusing to decertify the class because the existence and impact of a conspiracy raises common liability-related questions that predominate over the individualized questions of each class member's damages. It held that the district court did not err in admitting the expert witness' testimony because the defendant's criticism of the expert's use of statistical models spoke to the weight of the evidence and not its admissibility. It held that the evidence presented at trial was sufficient to allow the jury to find liability. Finally, the court held that allocating damages based on a pro rata reduction of the expert witness' damages model did not violate the defendant's Seventh Amendment rights because the defendant has no legal interest in the method of distribution for aggregate damages amongst class members.

Extended Summary:

A group of industrial purchasers of polyurethane products (collectively plaintiffs) sued Bayer AG, Bayer Corporation, Bayer Material Science, BASF Corporation, Huntsman International LLC, Lyondell Chemical Company, and Dow Chemical Company under the Sherman Antitrust Act, alleging a conspiracy to fix prices and allocate customers and markets. Every defendant but Dow Chemical Company settled prior to the trial. Plaintiffs subsequently dropped their allocation theory and focused solely on the price-fixing conspiracy. The jury found that the defendant participated in a price-fixing conspiracy, that the conspiracy caused plaintiffs to pay more for polyurethane products than they would have in a competitive market, and that plaintiffs suffered damages of $400,049,039. After trebling (tripling) damages under antitrust law and deducting settlements paid by the other defendants, the district court entered a judgment against the defendant for $1,060,847,117. The court allowed the plaintiffs to distribute the damages based on their expert witness' damages model with a pro rata reduction to reflect the jury's award of a lesser damages amount than the expert proposed.

The defendant challenged the district court's certification of the plaintiffs as a class under Fed. R. Civ. P. 23(b)(3), arguing that individualized questions relating to the damages suffered by different plaintiffs predominated over questions common to all members of the plaintiffs class. The defendant further argued that certification of the class in this instance was contrary to the Supreme Court's holdings in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).

The court addressed the defendant's challenge to the class certification by first evaluating, using a de novo standard of review, whether the district court applied the proper legal standard by requiring "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Holding that the correct legal standard was applied, the court reviewed the district court's decision to certify and refusal to decertify the class for abuse of discretion.

The court summarized Wal-Mart, in which the plaintiffs were female employees who had alleged discrimination by their supervisors in decisions of pay and promotions. The district court in Wal-Mart certified a class of female employees, and the Ninth Circuit Court of Appeals upheld that certification. The Supreme Court disagreed with the Ninth Circuit and reversed. It reasoned that the evidence did not show a company-wide policy of discrimination or "common mode of exercising discretion that pervade[d] the entire company". Emphasizing the need for a class action to be capable of yielding common answers that would drive the resolution of litigation, the Supreme Court decertified the class because there was no common answer to the cause of the individual plaintiffs' pay and promotion disparities. The Court further held that the district court's method of deciding class-wide liability based on a sampling of class members, or "trial by formula", violated Wal-Mart's right to individual proceedings to present and litigate statutory defenses to individual claims.

The defendant here argued that it was entitled to individual proceedings to show that some plaintiffs could have escaped or mitigated their damages through price negotiations. The 10th Circuit disagreed because the defendant failed to show that the district court abused its discretion in finding that there were class-wide issues that predominated over those individualized issues. The district court held that the existence of a conspiracy and impact raised common questions capable of class-wide proof. Citing other courts that have addressed the matter, the court held that price-fixing affects all market participants and results in an inference of class-wide impact even if the prices are individually negotiated, especially when the conspiracy artificially inflates the baseline for price negotiations. The court noted that courts often tend to treat proof of a conspiracy as a common question that predominates over other issues. The district court did not abuse its discretion when it weighed the evidence and found that these common issues predominated over the individualized damages issues.

The defendant also argued that the district court ran afoul of Wal-Mart by allowing the use of extrapolations provided by Dr. McClave to prove class-wide impact and damages. It compared these extrapolations to the "trial by formula" prohibited by Wal-Mart. The 10th Circuit disagreed, holding that liability was not established using extrapolation; extrapolation was only used to approximate damages, while liability was established through common evidence. Dow also argued that class certification was inappropriate because Dr. McClave's models for extrapolation were defective, but Dow did not attempt to explain how this may have caused individualized questions to predominate over common questions or how it related to an abuse of discretion by the district court. The court declined to consider the issues because Dow failed to raise them at the district court level.

The court similarly declined to adopt the defendant's Comcast arguments. Comcast involved a class action lawsuit based on four theories of antitrust impact. The district court rejected three of the four theories as being incapable of class-wide proof. The only evidence used to support class-wide damages was the testimony of Dr. McClave, who, in that case, based his models on all four of the theories of antitrust impact. Because three of those four theories were rejected by the district court, the Supreme Court held that the models Dr. McClave used were defective and that the class did not satisfy its burden of proving damages on a class-wide basis. Without the models, the plaintiffs had no proof of class-wide damages and, as the Court reasoned, individualized questions would "inevitably overwhelm questions common to the class." Therefore, class certification could not survive.

The Tenth Circuit distinguished the present case from Comcast. It noted that Dr. McClave's benchmarks in the present case differed from those used in Comcast and were not necessarily defective. It also noted that the class certification in Comcast required proving class-wide damages, whereas class certification in the present case did not. Finally, the court noted that the individual issues that could have predominated in Comcast were not present in this case.

The defendant also challenged the admission of Dr. McClave's testimony into evidence. The 10th Circuit applied a de novo standard of review to whether the correct legal standard for admissibility was applied, citing the "relevant and reliable" standard of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Finding that it was, the court reviewed the decisions of the district court for abuse of discretion.

The defendant argued against the reliability of Dr. McClave's multiple-regression analysis models, claiming that he engaged in "variable shopping" and "benchmark shopping" by choosing variables that would yield the supra-competitive prices he believed to exist. The court disagreed. The court referred to Bazemore v. Friday, 478 U.S. 385 (1986), as the standard for regression analysis models, which allows for admissibility as long as the models consider all of the major factors and variables.

The defendant argued that the use of toluene diisocyanate (TDI) without also including domestic demand variables violated the Bazemore standard. In his own testimony, Dr. McClave explained that he did so because domestic demand variables had no statistically significant relationship to price. The court held that allowing this was not an abuse of discretion by the district court.

The defendant also argued that Dr. McClave's use of domestic MDI and polyols variables without also using export variables constituted the omission of major variables. The defendant did not raise this objection in his Motion to Exclude Dr. McClave's testimony, however, and the court opted to apply a plain-error standard of review. Finding that there was no obvious error in Dr. McClave's choice of variables, the court declined to reverse on these grounds.

Similarly, the defendant argued that Dr. McClave engaged in "benchmark shopping" by moving the year 2004 from the "conspiracy period" to the competitive market "benchmark" period to produce more favorable results for the plaintiffs. The court held that this argument was without merit. Expert testimony must be reliable to be admitted into evidence. The court cited Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013), which held that reliability "is primarily a question of the validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or conclusions produced." The district court considered the defendant's arguments but determined that they went to the reliability of Dr. McClave's underlying data and not his methodology. The 10th Circuit held that this was not an abuse of the district court's discretion and declined to reverse on these grounds.

The defendant also challenged the sufficiency of the evidence used to demonstrate its liability, arguing that the district court erred in denying its motion for judgment as a matter of law. The 10th Circuit engaged in a de novo review of that decision. In the 10th Circuit, judgment as a matter of law is inappropriate "unless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion." (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996)).

The court reviewed each of the defendant's three component arguments of this challenge. The defendant first argued that there was insufficient evidence that a price-fixing agreement was effectively implemented. It did not dispute the existence of an agreement to coordinate price increases and make them stick, nor did it dispute the existence of evidence involving coordination of those price increase announcements. Rather, it argued a lack of evidence of follow-through by the alleged conspirators to make the price increases stick. It further argued that this lack of evidence meant that the plaintiffs could not prove that there was an evidentiary connection between the parallel price-increase announcements and the increased prices plaintiffs were alleging.

The court considered this argument by first examining the evidence presented against the defendant at trial. This evidence included the testimony of insiders privy to knowledge of the conspiracy, including employees of the defendant Dow Chemical Company and executives from several of the defendant companies that settled prior to trial. It also included instances of collusive behavior, evidence of the susceptibility of the particular market to collusion, and the setting of prices at supra-competitive levels. Ultimately, the court determined that this evidence went beyond parallel announcements of price increases.

The court further held that the plaintiffs did not need to establish a causal connection between the price-increase announcements and actual price increases. Rather, both the announcements and the actual price increases were caused by the conspiratorial agreement. Upon reviewing the evidence presented to support a jury's inference of the success of those announcements, the court held that the jury could have reasonably made those inferences.

The defendant then argued that there was insufficient evidence of a conspiracy involving Lyondell, who was one of the defendants who settled prior to trial. The court found this argument to be without legal or factual merit. Establishing liability under Section 1 of the Sherman Antitrust Act, 15 U.S.C. §1, only requires that the defendant not act unilaterally. Even without Lyondell's participation in the conspiracy, there was sufficient evidence of a conspiracy between Dow and the other defendant companies to withstand Dow's motion for judgment as a matter of law. Furthermore, the evidence presented was sufficient to allow a reasonable jury to infer Lyondell's participation in the conspiracy.

The defendant also argued that the jury necessarily rejected Dr. McClave's models, which therefore left insufficient evidence of impact and damages. This was based on the jury's finding that there was no injury for the 23-month period preceding November 24th, 2000. The defendant reasoned that the jury partially rejected Dr. McClave's models and that this rejection invalidated the models in their entirety. It further reasoned that, without these models, the plaintiffs lacked sufficient evidence of impact and damages.

The defendant's argument primarily relied on the D.C. Circuit Court of Appeals' decision in In re Rail Freight Fuel Surcharge Antitrust Litigation, 725 F.3d 244, 252 (D.C. Cir. 2013). In In re Rail Freight, the expert witness' damages model yielded damages for a time period in which prices were freely set, which meant finding damages for plaintiffs who could not have possibly been injured. The defendant in that case challenged class certification through an interlocutory appeal to the D.C. Circuit, arguing that the expert's testimony and flawed damages model were inadmissible and, without them, individualized questions would predominate in trial. The D.C. Circuit Court agreed.

The 10th Circuit held that In re Rail Freight did not apply to this case. The court did not share the D.C. Circuit's concern that individualized questions might possibly predominate because the trial had already occurred. Furthermore, although the jury found no damages for a specific period of time, the defendant did not demonstrate that any plaintiff in the class could not possibly have suffered injuries. The court reasoned that the jury could have limited the conspiracy period based on the defendant's explanation of prices before November 24th, 2000 while agreeing with Dr. McClave's analysis for the conspiracy period afterwards. The court declined to disturb the jury's unequivocal findings on impact and damages.

The defendant argued that the damages award violated its rights provided by the Seventh Amendment to the United States Constitution. Because of the implication of a constitutional question, the 10th Circuit reviewed this challenge using a de novo standard of review. Defendant argued that the apportionment of damages based on a pro-rata reduction of Dr. McClave's damages model was problematic because the reason for the jury's reduction in damages was unknown, and so applying Dr. McClave's model took from the jury "the question of liability and the extent of the injury by an assessment of damages", citing Dimick v. Schiedt, 293 U.S. 474, 486 (1935). The court disagreed.

It began its analysis by noting that the defendant had no legally recognizable interest in the apportionment of an aggregate damages award, particularly because it never requested individualized findings on damages. The defendant claimed an interest because it wanted to ensure that all of the plaintiffs were bound by the judgment, but it did not identify any threat to the binding effect of that judgment. The three cases the defendant cited to support its position involved issues pertaining to jurisdiction, a decertified class, and additur. The facts were so far removed from the present case as to render them inapplicable. The court held that the defendant had not properly established a Seventh Amendment violation, and so declined to reverse on those grounds.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3215.pdf

Panel: Lucero, Murphy, Bacharach

Date of Issued Opinion: September 29, 2014

Docket Number: No. 13-3215

Decided: Affirmed the district court. Rejected the defendant's challenges to the order for class certification, the refusal to decertify the class, the admission of Dr. McClave's testimony, the sufficiency of the evidence, and the award of damages.

Counsel:

Carter G. Phillips, Sidley Austin LLP, Washington, D.C. (Joseph R. Guerra, C. Frederick Beckner III, Kathleen Moriarty Mueller, Jeffrey S. Beelaert, Sidley Austin LLP, Washington, D.C.; and Charles J. Kalil, General Counsel, the Dow Chemical Company, Duncan A. Stuart, Associate General Counsel, the Dow Chemical Company, Midland, MI, on the briefs) for Defendant-Appellant.

Paul D. Clement, Bancroft PLLC, Washington, D.C. (Zachary D. Tripp, Candice Chiu, William R. Levi, Bancroft PLLC, Washington, D.C.; Roberta D. Liebenberg, Donald L. Perelman, Gerard A. Dever, Matthew Duncan, Fine, Kaplan, & Black, RPC, Philadelphia, PA; Richard A. Koffman, Kit A. Pierson, Christopher J. Cormier, Sharon K. Robertson, Laura A. Alexander, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.; Joseph Goldberg, Freedman Boyd Hollander Goldberg Urias & Ward, P.A., Albuquerque, N.M.; Michael J. Guzman, Rebecca A. Beynon, Michael N. Nemelka, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, D.C.; and Robert W. Coykendall, Roger N. Walter, Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, KS, on the briefs) for Plaintiffs-Appellees.

Kathryn Comerford Todd, Tyler R. Green, National Chamber Litigation Center, Inc., Washington, D.C.; Jeffrey L. Kessler, George E. Mastoris, Winston & Strawn LLP, New York, NY; and Gene C. Schaerr, Robert F. Ruyak, William A. Roach, Jr., Winston & Strawn LLP, Washington, D.C., filed an Amicus Curiae brief for the Chamber of Commerce of the United States.

Jonathan D. Selbin, Jason L. Lichtman, Lief Cabraser Heimann & Bernstein, LLP, New York, NY; Jordan Elias, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; and Ian J. McLoughlin, Rachel M. Brown, Shapiro Haber & Urmy, LLP, Boston, MA, filed an Amicus Curiae brief for the American Independent Business Alliance.

Author: Bacharach

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

Edited: 10/09/2014 at 03:22 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 10/09/2014 03:16 PM     10th Circuit     Comments (0)  

October 2, 2014
  United States v. Trent- Tenth Circuit
Headline: Tenth Circuit Rules Modified Categorical Approach Applies to Oklahoma Conspiracy Conviction

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

1. Should the modified categorical approach apply to conspiracy convictions to determine whether a prior felony is a "serious drug offense" under the Armed Career Criminal Act (ACCA)?

Brief Summary:

Defendant was convicted of being a felon in possession of a firearm. He raised several issues on appeal, but the court focused primarily on the issue of whether his prior conspiracy conviction is considered a "serious drug offense" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court held that the modified categorical approach should be applied to his prior conviction under the general Oklahoma conspiracy statute, and that as a result, the conviction qualified as a serious drug offense. The court affirmed his conviction. Judge Seymour concurred in the judgment.

Extended Summary:

Defendant was arrested after being pulled over in a car with two other individuals after officers found a handgun wedged in the back seat, behind an armrest. Defendant was arrested because he had a prior felony conviction. At trial, the main issue was whether the gun was the Defendant's. The jury convicted the Defendant. At sentencing, Defendant argued that the mandatory minimum sentence under the Armed Career Criminal Act (ACCA) did not apply, because his conviction under the Oklahoma general conspiracy statute did not qualify as the third conviction that would give rise to the ACCA enhancement. The district court disagreed and sentenced Defendant to 196 months in prison with five years of supervised release.

The majority first addressed Defendant's challenges for sufficiency of the evidence, improper admission of his prior conviction for being a felon in possession of a firearm, improper jury instructions, and that his sentence was substantively unreasonable. The majority disagreed with the Defendant on each of these arguments, quickly dismissing them before turning to the ACCA issue.

The majority first explained that the ACCA increased the penalty for being a felon in possession of a firearm if the defendant has three prior convictions for a "violent felony" or a "serious drug offense." The Defendant conceded that he had two prior convictions for serious drug offenses under the ACCA but argued that his 2007 conviction under the Oklahoma general conspiracy statute could not be characterized as a serious drug offense. The majority conducted a de novo review on this issue.

The majority noted that the categorical approach is generally used to determine whether a conviction qualifies as a violent felony or a serious drug offense under the ACCA. Under the categorical approach, the court looks only at the elements of the statute under which the Defendant was convicted. In order for the conviction to fall under the ACCA, the court must find that all violations of the statute would qualify, regardless of the actual conduct of the Defendant. The majority stated that under the categorical approach, the defendant's conspiracy conviction would not be considered a serious drug offense, because the statute could be violated in a number of ways that do not involve drugs.

The majority then addressed the applicability of the modified categorical approach, which is to be used when a statute is divisible - meaning that one or more of the elements are set out in the alternative. When using the modified categorical approach, a court may turn to certain documents, including charging documents, plea agreements, plea colloquy transcripts, findings of fact and conclusions of law from bench trials, jury instructions, and verdict forms. In the Tenth Circuit, admissions from defense counsel may also be considered.

The majority then summarized Descamps v. United States, 133 S. Ct. 2276 (2013), in which the defendant was convicted of being a felon in possession of a firearm and had a previous conviction for burglary under a California Statute. The government argued that the burglary conviction was a violent felony, but the defendant argued that the California offense of burglary was broader than generic burglary. Thus, the offense did not qualify as a violent felony under the ACCA because some crimes punishable under the California statute did not fit the generic definition of burglary.

On appeal, the Ninth Circuit in Descamps relied on its en banc decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and held that the modified categorical approach applied to "missing element" crimes, which are crimes that are "missing an element of the generic crime." In Aguila-Montes, the Ninth Circuit stated that divisible statutes are subject to the modified categorical approach, and then stated why it believed that "missing element" statutes should also be subject to the modified categorical approach, because they are not "meaningfully different" from divisible statutes. A "missing element" statute, according to Aguila-Montes, was merely a list of hypothetical alternatives as opposed to an explicit list. Using Aguila-Montes, the Ninth Circuit held that the inquiry is whether "the factfinder [was] actually required to find the facts satisfying the elements of the generic offense" (emphasis removed). Using this test, the Ninth Circuit found that the defendant had been convicted of generic burglary.

The Supreme Court in Descamps disagreed with the Ninth Circuit and reversed. The Supreme Court held that the modified categorical approach is inapplicable when the statute contains a single, indivisible set of elements. The modified categorical approach applies only when the multiple, alternative elements are present, effectively creating several different crimes within the same statute.

The Supreme Court specified three reasons for adopting an elements-based focus. First, the focus on convictions indicated that Congress intended for the sentencing court to look at the fact there are prior convictions, without looking at the facts underlying those prior convictions. Second, the categorical approach steers clear of any Sixth Amendment issues that could arise from sentencing a defendant without a jury making a finding of fact beyond a reasonable doubt. Third, it is unfair for a court to look at the facts underlying the prior convictions, particularly when litigating collateral facts were irrelevant to guilt under the statute.

The majority then held that a statute which cross-references other statutes is divisible. It noted that in United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012), the court had previously held that a statute that cross-references another statute is divisible. Further, the Ninth Circuit in Coronodo v. Holder, 759 F.3d 977 (9th Cir. 2014), found that a California drug statute was divisible because it identified a number od controlled substances by reference to other California drug schedules and statutes. Additionally, the Sixth Circuit, relying on Descamps, held that the Ohio incitement-to-violence statute was divisible because it turned on the violence underlying the incitement. The majority noted that before Descamps was decided, the Third Circuit found that the modified categorical approach applied to the Delaware statute prohibiting body armor because it incorporates by reference "the disjunctive list of all felonies." The Seventh Circuit also decided, pre-Descamps, that an Illinois armed violence statute was divisible.

The majority then addressed pre-Descamps Supreme Court precedent. In James v. United States, 550 U.S. 192 (2007), the Supreme Court considered whether the defendant's previous conviction under a Florida statute for attempted burglary qualified as a violent felony under the ACCA. Although the attempt statute was not divisible on its face, the Supreme Court looked at the burglary statute, because burglary was the specific offense stated in the charging document. Thus, the Court held that the offense was a violent felony. The Court did not mention, however, that the attempt statute was divisible.

Next, the majority analyzed the Oklahoma general conspiracy statute and held that it was divisible because it cross-references all state criminal offenses. The majority stated that the Oklahoma legislature could have elected to write out a list of all Oklahoma crimes within the conspiracy statute, but that doing so would have been redundant. The majority reasoned that although this statute made the list lengthy, it did not make the list hypothetical.

After finding that the statute is divisible, the majority looked at the defendant's conviction in order to determine if his conviction fell within the purview of the ACCA. The amended information in the plea agreement stated that he was pleading guilty to "conspiracy to manufacture a controlled dangerous substance", and specifically mentioned methamphetamines. Further, at his plea colloquy, the defendant stated "I conspired to manufacture methamphetamines."

The majority stated that the conspiracy to manufacture methamphetamines is a serious drug offense under the ACCA. The ACCA offense includes the manufacturing of a controlled substance, and the majority agreed with other circuits that have held that manufacturing also includes attempts and conspiracy.

The majority then had to determine if the statutes cross-referenced in the conspiracy statute were alternative elements. If the specific object of the offense is not an element of the offense, then the modified categorical approach would not apply. The majority stated that simply because alternatives are listed does not mean that they are elements. Several alternatives may be presented to a jury without all jurors having to decide which alternative act was committed. In such a case, the alternative is not an element.

To demonstrate this principle, the majority discussed Schad v. Arizona, 501 U.S. 624 (1991), where the defendant was convicted of first-degree murder and sentenced to death. In Schad, the defendant argued that the jury instructions should have required the jury to agree unanimously on a single theory of first-degree murder. The Supreme Court, however, stated that the Arizona statute did treat the alternative theories as alternative elements. Thus, defendant's conviction was affirmed because the jury simply had to agree unanimously that first-degree murder had been committed.

The majority explained that Descamps did not adopt this view of elements, because that would mean that the court could never use the modified categorical approach without determining if the alternatives are means or elements. The court pointed to Justice Alito's dissent in Descamps to show that it would be difficult to engage in this analysis because the amount of case law regarding means versus elements is staggering. The majority pointed again to Coronado, where the jury did not need to agree on which controlled substance the defendant possessed, but the modified categorical approach was still used. It also cited to California case law demonstrating that the actual drug possessed is not an element of the crime. Regardless, the majority agreed with the Ninth Circuit's holding and stated that the Ninth Circuit approach satisfies the three reasons that the Supreme Court applied the categorical approach in Descamps.

The majority noted that the alternative statutory phrases are not always elements. Further, the charging document will typically reflect the relevant element, which can easily be examined in order to determine whether the defendant committed an ACCA crime.

The majority then conceded that it may be incorrect. Thus, it determined whether the general conspiracy statute is divisible even if it misunderstood the holding of Descamps. The majority held that the jury must unanimously agree on the crime that the conspirators agreed to commit. It noted that some jurisdictions may have determined that the jury does not need to determine the target crime unanimously. It then reviewed Oklahoma state law and Oklahoma Uniform Jury Instructions to make the determination that the jury likely would have to agree on the target offense. The majority agreed with the Fourth Circuit that the court should look to how state courts instruct juries n order to determine the elements of an offense. The majority also found support for its position in Richardson v. United States, 526 U.S. 813 (1999), where the court held that for conviction under the federal continuing-criminal-enterprise statute, the continuing series of violations of a federal drug law was an element of the statute, as opposed to alternative means.

The majority noted that Supreme Court interpretation of federal statutes is not binding, but that it is helpful. Further, it noted that allowing an Oklahoma jury to convict someone without deciding what the object of the conspiracy was, might result in unfairness. The majority concluded that even under the traditional use of the word elements allows for the application of the modified categorical approach.

Defendant argued that the modified categorical approach should not be applied because the parties treated the charge as lying outside the purview of the drug statutes. The state could have charged Defendant under the conspiracy statutes related to drug offenses. The majority, however, stated that regardless, the offense he pleaded guilty to satisfied the requirement of the ACCA.

Judge Seymour concurred in the judgment, noting that he did not join Section II(F)(4) of the opinion, in which the majority explains the meaning of the term "element."

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/12/12-6283.pdf

Panel: Hartz, Seymour, Tymkovich

Date of Issued Opinion: September 25,2014

Docket Number: No. 12-6283

Decided: Defendant's conviction and sentence were affirmed.

Counsel:

Julia C. Summers, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark R. Stoneman, Special Assistant United States Attorney, (Sanford C. Coats, United States Attorney, and Robert D. Gifford, II, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/02/2014 08:33 PM     10th Circuit     Comments (0)  

September 22, 2014
  United States v. Brune- Tenth Circuit
Case Name: United States v. Brune - Tenth Circuit

Headline: Tenth Circuit Holds Registration Requirement of SORNA is constitutional under Necessary and Proper Clause, and that the statute criminalizing the possession of child pornography, 18 U.S.C. 2252(A)(a)(5)(B), is constitutional under the First Amendment

Areas of Law: Criminal Law, Constitutional Law

Issues Presented:

1. Does the registration requirement of the Sex Offender Registration and Notification Act ("SORNA") violate the Necessary and Proper Clause of the United States Constitution?

2. Does 18 U.S.C. § 2252(A)(a)(5)(B) violate the First Amendment for being overbroad?

Brief Summary:

Defendant challenged his convictions for failure to register as a sex offender under the Sex Offender Registration and Notification Act and the Kansas Offender Registration Act, arguing that the statute was unconstitutional under the Necessary and Proper Clause. The court held that Defendant's argument was inconsistent with the Supreme Court's recent holding in United States v. Kebodeaux, 133 S. Ct. 2496 (2013).

Defendant also challenged his conviction for possession of child pornography under 18 U.S.C. § 2252(A)(a)(5)(B), arguing that the statute was overbroad, and potentially criminalized constitutionally protected speech. The majority held that Defendant did not carry his burden of demonstrating that protected speech was substantially chilled by the statute.

Judge Phillips concurred in part and concurred in the judgment. He asserted that because the statute specifically targeted individuals who intended to access child pornography, the statute was not overbroad, because access to child pornography is categorically excluded from First Amendment protection.


Extended Summary:

Defendant was arrested for failing to update his sex offender registration under Kansas and federal law. The arresting agents found child pornography on his computer when he was arrested, and as a result, he was convicted for failure to update the sex offender registry and for possession of child pornography.

Defendant challenged the constitutionality of the Sex Offender Registration and Notification Act, 42 U.S.C. § 16913, for exceeding Congress's powers under the Necessary and Proper Clause of Article 1. Defendant also challenged 18 U.S.C. § 2252(A)(a)(5)(B), which criminalizes images containing child pornography, for being unconstitutionally overbroad such that it prohibits speech and conduct protected by the First Amendment. The majority disagreed with the Defendant and affirmed his convictions.

Defendant pleaded guilty in 2001 to possessing child pornography, served 27-months in prison and afterward was placed on supervised release. His supervised release was revoked in 2004 because he violated a condition of release. He served another 21 months in jail. After serving this time, he was released without supervision, but had to register as a sex offender under the Wetterling Act, SORNA and the Kansas Offender Registration Act (KORA). Defendant failed to meet his registration requirements between 2006 and 2011, but relevant to this case was the time he failed to register between August 2009 and May 2011. After an investigation, Defendant was arrested at his home, which was searched incident to his arrest. The search led to the discovery of child pornography on his home computer. Defendant pleaded guilty to the charges but reserved his right to appeal.

The court addressed Defendant's Necessary and Proper challenge to the SORNA under a de novo standard of review. The majority found that his argument was inconsistent with the Supreme Court's decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Court reviewed Kebodeaux's conviction by court-martial for having sex with a minor while on active duty in the United States Air Force. Kebodeaux was not on supervised release, but was required to register as a sex offender under the Wetterling Act but failed to do so, and was prosecuted under SORNA. Kebodeaux argued that the Constitution did not allow regulation of intrastate activities of convicted sex offenders through registration, but reading the Necessary and Proper Clause in conjunction with the Military Regulation Clause, the Court found the statute constitutional.

The majority began its analysis by identifying the standard recognized in United States v. Comstock, 560 U.S. 126, 134 (2010), that the statute must be rationally related to the implementation of a constitutionally enumerated power. In doing so, it applied a two-part test - first, the statute must be an exercise of one of Congress's enumerated powers, and second, the statute must be necessary and proper for carrying out the enumerated power under the statute. In Kebodeaux, the first prong was met because Congress had the power to regulate the military, including sex crimes committed during military service. The second prong was met because the court found that the SORNA and the Wetterling Act were "eminently reasonable."

The majority noted that Kebodeaux had two dissenting opinions and two concurrences. Justice Thomas' dissent criticized the SORNA for being unconstitutional because it does not "carry into execution" any of Congress's enumerated powers. Kebodeaux, 133 S. Ct. at 2512 (Thomas, J., dissenting). Justice Thomas stated that the SORNA does not help implement the Military Regulation clause, or any other Article 1 power, and thus usurped the general police powers reserved for the states. Chief Justice Roberts' and Justice Alito's concurring opinions also noted this concern about usurping police powers, but found that the SORNA was necessary and proper to Congress's power "[t]o make Rules for Government and Regulation of the land and naval Forces." See id. at 2508 (Alito, J., concurring in the judgment) (quoting U.S. Const., art. I, § 8, cl. 14); see also id. at 2506 (Roberts, C.J., concurring in the judgment). The majority stated that even though case before it did not involve the Military Regulation Clause, Kebodeaux was binding. The majority stated that SORNA's relation to the Military Regulation Clause was not the only reason that the SORNA was constitutional.

Applying the two-part test to the present case, the majority found that SORNA survives Defendant's challenge. Defendant's original conviction was under Section 2242(a)(4)(B), which arises under the Commerce Clause, regulating trafficking of child pornography. Thus, because the underlying statute is constitutionally sound the SORNA is a rational extension of that congressional power under the Necessary and Proper Clause.

The majority then reviewed Defendant's challenge of 18 U.S.C. § 2252(A)(a)(5)(B) under a de novo standard of review. The court reviewed First Amendment precedent, explaining that certain types of speech, including defamation, incitement, obscenity, and pornography produced with real children were not protected by the First Amendment. In order to succeed on an overbreadth challenge, the majority stated that a challenger must show that the chilling effect on protected speech is both real and substantial, emphasizing that showing only some overbreadth is insufficient. Further, the majority explained that facial challenges to statutes are generally disfavored because they tend to counteract both judicial restraint and separation of powers as well as cause courts to anticipate a constitutional challenge before it may be necessary to answer a question of constitutionality. It also noted that the overbreadth doctrine should be applied sparingly, and as a last resort.

Defendant argued that the statute is overbroad because it did not specify that an individual "inten[d] to view" the pornography directly, and that the phrase "any other material" is too far-reaching. The majority noted that it must take a common sense approach to construing the statute, appreciating that some others may refrain from engaging in constitutionally protected speech because of its enactment, but also not speculating about hypothetical cases. It explained that it is the Defendant's burden to show that substantial overbreadth exists by showing protected materials that would be targeted by the statute. Because Defendant failed to produce any specific examples of protected speech showing that a considerable amount of speech is restricted. Defendant's hypothetical that a 500-page book with one image of child pornography would be outlawed did not rise to the level of showing that the statute outlaws a considerable amount of constitutionally protected speech. The court stated that regardless of whether the statute requires specific intent to view child pornography, it is not overbroad. It was sufficient that there were no specific examples of substantial overbreadth to decide that the statute is constitutional.

With regard to the "any other material" challenge, the court stated that it may look around to provide context for a term that is potentially unclear. It relied on the ordinary meaning of the terms "material" and "any other material" because they were not specifically defined in the statute. The majority noted that it is to construe terms in a limited fashion in order to avoid making a statute more broad than Congress intended. Further, the court applied ejusdem generis - the principle that when general words follow specific words in a statute, the general words are interpreted to mean only objects similar in nature to those enumerated in the specific words. Applying this principle to the present case, "any other material" cannot be more expansive than "book, magazine, periodical, film, videotape, [and] computer disk." Thus, the terms refer to tangible forms of media that "capture, store or deliver information as a means of communication." Here, the medium is the Internet.

The court also explained that statutes must be construed in a way that makes them constitutionally valid, if possible. If "any other material" were read expansively, it would effectively invalidate the scienter element of the statute and criminalize innocent conduct, by making Internet users who are aware that there is child pornography somewhere in the expanses of the Internet criminals the moment they log on to use the Internet. The court held that it was appropriate to construe "any other material" as meaning the "Internet" in the present case. Once the term "Internet" was removed from "any other material," the overbreadth challenge fell flat. There is no "realistic danger" that the statute will significantly chill protected speech, and the court was unaware of cases where the government was prosecuting Internet browsing under this statute.

Judge Phillips concurred in part and concurred in the judgment. He did not join the majority's conclusion that the statute requires "(1) knowing possession of, or accessing with intent to view, (2) any print, material, film, or computer media (3) containing an image of child pornography[.]" The majority concluded that the government must prove that the defendant intended to view material containing child pornography, not the child pornography itself. Judge Phillips' understanding of the statute is that the government must prove that the defendant intended to view an image of child pornography. Therefore, it was unnecessary for the majority to determine what qualifies as "any other material," because obtaining child pornography is excluded from First Amendment protection. He asserted that the statute only applies to people who are accessing child pornography and intending to view it, so there is no way that the statute could implicate protected speech.

To read the full opinion, please visit:


https://www.ca10.uscourts.gov/opinions/12/12-3322.pdf

Panel: Tymkovich, Baldock, Phillips

Date of Issued Opinion: September 19, 2014

Docket Number: No. 12-3322

Decided: Defendant's convictions were affirmed.

Counsel:

Tim Burdick, Assistant Federal Public Defender (Cyd Gilman, Federal Public Defender with him on the briefs), Office of the Federal Public Defender for the District of Kansas, Kansas City, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief) Office of the United States Attorney for the District of Kansas, Topeka Kansas, for Appellee.

Author: Tymkovich

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 09/22/2014 04:54 PM     10th Circuit     Comments (0)  

September 21, 2014
  United States v. Heineman- Tenth Circuit
Case Name: U.S. v. Heineman - 10th Circuit

Headline: Tenth Circuit holds that conviction for sending an interstate threat requires intent for recipient to feel threatened.

Areas of Law: Criminal Law, Constitutional Law

Issue Presented:

Does 18 U.S.C. § 875(c) require a finding that the defendant intended for the recipient to feel threatened?

Brief Summary:

Defendant was convicted of sending an interstate threat after sending an e-mail to a professor at the University of Utah that caused the professor to fear for his safety. The court reversed the decision of the district court that the government did not have to prove that the defendant intended for the communication to be received as a threat. The court held that the First Amendment required the government to prove that the defendant intended for the recipient to feel threatened. It relied primarily on Virginia v. Black, 538 U.S. 343 (2003).

Judge Baldock concurred in the judgment only. He opined that the case should be resolved by looking only to the text of the statute, without reaching the constitutional question. He also stated that this issue is currently before the Supreme Court, and that the decision in this case should have waited until after the Supreme Court's ruling.

Extended Summary:

Defendant was convicted at a bench trial of one count of sending an interstate threat after sending emails containing white supremacist ideas to a professor at the University of Utah. Defendant sent three emails to the professor, the third of which contained a poem that caused the professor to fear for his safety and that of his family.

At trial, the defendant requested an instruction stating that the government is required to prove that the defendant intended the communication to be perceived as a threat. He explained that he has Asperger's Disorder, which makes it difficult for him to appreciate how others will perceive his actions. The district court denied the instruction, and the defendant moved to dismiss the charge, arguing that Section 875(c) was facially unconstitutional without the proof of intent to cause fear. The motion was denied, and the parties agreed to have a bench trial so that the defendant could preserve his legal arguments. In convicting the defendant, the district court did not make a finding that the defendant intended the victim to feel threatened.

The majority noted that the law in the Tenth Circuit is well settled regarding most of the elements of Section 875(c). The government must establish that a reasonable person, under the circumstances, would understand that the communication was a serious declaration of an intention to harm another, but does not need to show that the defendant intended to carry out the threat.

In spite of the fact that the statute does not contain a mens rea requirement, the majority noted that statutes which criminalize speech must comply with the First Amendment. The majority then noted that because the issue is one of constitutional law, the standard of review was de novo.

The majority quickly dismissed two cases set forth by the government - United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999), because the decision predated Black, and United States v. Wolff, 370 F.App'x 888 (10th Cir. 2010), because that was an unpublished decision that was not binding. It next addressed the government's reliance on Nielander v. Board of County Commissioners, 582 F.3d 1155 (10th Cir. 2009), by explaining that it did not address the question at issue, but rather decided that the defendants were entitled to qualified immunity. Finally, the court addressed the government's reliance on United States v. Teague, 443 F.3d 1310 (10th Cir. 2006). In Teague, like the defendant in the present case, the defendant argued on appeal that the jury should have been instructed that he intended for the victim to feel threatened. The court in Teague reviewed for plain error, however, because the issue was not raised at the district court level. The court also noted that Teague contained no interpretation of Black.

The defendant relied on United States v. Pinson, 542 F.3d 822 (10th Cir. 2008). The court stated that although there was some language in Pinson that was helpful to the defendant's position, it did not bind the court because it involved a prosecution under a different statute and did not discuss constitutional law. Next, the court discussed the defendant's reliance on United States v. Magleby, 420 F.3d 1136 (10th Cir. 2005), where the court stated in dicta that convictions for burning and conspiring to burn a cross required an intention of placing the victim in fear. The case was decided on other grounds, however, and the language interpreting Black was not binding.

After distinguishing the cases raised by both parties, the court determined that whether the First Amendment, as interpreted by Black, required proof of intent for the recipient to feel threatened was an issue of first impression in the Tenth Circuit. The court held that it did.

The majority then provided a summary of Black. In Black, three state-law convictions for cross burning with intent to intimidate were being challenged. The Virginia Supreme Court held that the statute was facially unconstitutional because the statute chose cross burning because of its distinct message, which was an impermissible content-based distinction under R.A.V. v. City of St. Paul, 505 U.S. 377 (1977), and because the prima facie provision of the statute made it overbroad. The Supreme Court had affirmed in part and reversed in part.

The majority discussed Justice O'Connor's opinion in Black, which noted that the First Amendment allows "free trade in ideas - even ideas that the overwhelming majority of people may find distasteful or discomforting." Black, 538 U.S. at 358. The Amendment, however, does allow restriction of content which has such slight social value that its benefit is clearly outweighed by social interest. Id. at 358-59. Imminent breach of the peace, fighting words, and "true threats" were counted among those forms of speech that could be restricted. Id. Black defined a "true threat" as a threat to a person with the intent of placing the victim in fear of bodily harm or death. Id. at 359-60. The court noted that cross-burning was a symbolic expression, and that even when speech is banned in an unprotected category, the statute may not target only a subset of that unprotected category.Id. at 360-62. The Supreme Court held that Virginia's ban on cross burning was consistent with R.A.V., because cross-burning is a "particularly virulent form of intimidation." Id. at 363.

The Supreme Court did not reach a majority on the overbreadth issue. Three Justices did not address the issue, and four would have held the statute facially unconstitutional for the language "any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Justice Scalia dissented from the plurality on the question of overbreadth. Scalia argued that the prima facie provision permitted an inference of intent only when the defendant did not put on rebuttal evidence. He stated that the statute was not overbroad, because reading it in this way was unlikely to convict individuals engaging in constitutional protected conduct, and the statute should have been remanded to the Virginia Supreme Court for interpretation, rather than construed by the Supreme Court. Justice Thomas stated that he would have upheld the statute.

The Tenth Circuit stated that it reads Black as requiring an intent for the recipient to feel threatened, highlighting language from Black that applies the "true threats" definition to intimidation, which explicitly requires intent to cause the victim fear. Further, the majority stated that the Black plurality analysis was based on the idea that the First Amendment required intent to cause fear, because the issue with the prima facie provision was that the jury may infer that the defendant intended to cause fear through the act of cross burning. Despite the fact that the overbreadth issue was decided on just a plurality, the Tenth Circuit noted that although Justice Scalia departed from the majority on the overbreadth issue, he did not challenge the assumption that the First Amendment required an intent to cause fear. Even in his dissent from the majority and plurality, the Tenth Circuit noted that Justice Souter seems to have assumed that the intent to cause fear is required by the First Amendment.

The majority stated that the Ninth Circuit has interpreted Black in the same way, and that there was some support for its position in the Seventh Circuit as well. The First, Third, Fourth, Sixth, Eighth and Eleventh Circuits do not interpret Black in the same way, but the majority stated that the reasoning in those opinions was not persuasive to them. The majority then discussed United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012), because it provided reasons for rejecting the majority's interpretation of Black. Jeffries stated that the intent requirement was not necessary because the Virginia statute already required one. The majority pointed out that if this were the case, the Court would not have been concerned that a jury could find subjective intent on inadequate grounds. The majority also noted that Jeffries read the intent element of "true threat" as meaning that the defendant meant to communicate. The majority conceded that the language was ambiguous, but that the natural reading of the language suggested that the speaker required intent to harm. The majority stated that its position is further supported by language in Black in the same paragraph that explains that the defendant need not intend to carry out the threat. Further, Jeffries stated that intimidation does require proof of intent to cause fear to the victim, but stated that intimidation was just one type of true threat. The majority responded to this by questioning why the First Amendment would require an intent to cause fear for some true threats, but not all of them. The majority also questioned Jeffries' assertion that the First Amendment allows an "effect on the listener" exception to the freedom of speech by pointing out that some speech causes fear. For example, speech that may cause fear but is only intended to be political speech, is protected by the First Amendment.

The majority concluded that the government must show an intent for the speaker to cause fear to the recipient of the message in order to be convicted under Section 875(c), and reversed the defendant's conviction, remanding to the district court for a determination of whether the defendant intended his e-mail to be threatening.

Judge Baldock wrote to concur in the judgment only. He opined that the majority did not need to reach the constitutional question of whether the statute violated the First Amendment and could have reached the same conclusion by conduction a statutory analysis alone. Judge Baldock noted that the Supreme Court recently granted certiorari in United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), in which the only question that was raised was the question that the majority answered in the present case. The Supreme Court, however, requested additional briefing on whether Section 875(c) required subjective intent to threaten the victim as a matter of statutory interpretation. Judge Baldock asserts that this indicates that the question may be resolved on statutory interpretation grounds without reaching the constitutional question.

Judge Baldock then pointed to the majority's statement in footnote 2 of the opinion that United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983) and Viefhaus precluded it from engaging in textual analysis of Section 875(c). Judge Baldock stated that this was not true, because the Tenth Circuit has never considered the statute for subjective intent to threaten before. In fact, he suggested that the opinions contained support for reading the statute as requiring subjective intent. Further, even if they did not, there is no opinion that requires the interpretation of one statute to bind the court to make the same decision concerning a different statute. Therefore, statutory analysis is not precluded.

Judge Baldock then discussed Judge Sutton's dubitante opinion in Jeffries at length (a dubitante opinion is one that generally doubts the reasoning of the majority, but is hesitant to declare it wrong). He explained that, of the many opinions that have addressed the meaning of Section 875 (c), Judge Sutton's is the only one that answers the question of whether the statute itself requires subjective intent. Judge Baldock suggested that the majority should at least have explained why Judge Sutton's view should not prevail before engaging in the constitutional analysis, particularly when the Supreme Court has suggested that it may.

To read the full opinion, please visit:
https://www.ca10.uscourts.gov/opinions/13/13-4043.pdf

Panel: Hartz, Baldock, Bacharach

Date of Issued Opinion: September 15, 2014

Docket Number: 13-4043

Decided: Conviction under 18 U.S.C. § 875(c) requires a showing that the defendant intended for the recipient to feel threatened by the transmission.

Counsel:

Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah, for Defendant - Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (David B. Barlow, United States Attorney, with her on the brief), District of Utah, Salt Lake City, Utah, for Plaintiff - Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 09/21/2014 01:33 PM     10th Circuit     Comments (0)  

August 11, 2014
  United States v. Gutierrez de Lopez- Tenth Circuit
Case Name: United States v. Gutierrez de Lopez

Headline: Tenth Circuit Affirms Conviction Despite Government's Presentation of Anonymous Witness Testimony Without Establishing Safety Concerns

Areas of Law: Criminal Law, Evidence

Issue Presented:

1. Did the District Court err in permitting a Border Patrol agent to testify about the outcome of his investigation of two undocumented individuals when he did not personally observe it?

2. Did the District Court err in permitting a Border Patrol agent to testify as an expert witness about the undocumented alien-smuggling trade?

3. Did the District Court permit a reversible error in allowing two Government witnesses to testify anonymously when the Government raised general concerns for their safety and provided defense counsel with background and impeachment material?

Brief Summary:


The Tenth Circuit held that a Border Patrol Agent's fact testimony did not violate the confrontation clause or the rules of evidence, that the same agent's expert testimony about the smuggling of undocumented individuals was helpful to the jury and permissible expert witness testimony. The District Court erred in finding that the Government provided adequate safety concerns to allow witnesses to testify anonymously, but because the defense was given the opportunity to conduct an effective cross-examination, this error was harmless beyond a reasonable doubt.

Extended Summary:

Defendant Maria Gutierrez de Lopez (Gutierrez) appealed her conviction of one count of conspiring to transport undocumented aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). On appeal, she argued that Border Patrol Agent Brian Knoll's testimony about the undocumented individual's immigration status was hearsay, that his expert testimony about alien-smuggling was not helpful to the jury, and that the Government's use of anonymous witnesses was a violation of the Confrontation Clause of the Sixth Amendment. The court affirmed the conviction.
Gutierrez was arrested after a sting operation where federal law enforcement officers caught Jesus Cabral-Ramirez and Gutierrez attempting to transport an undocumented alien to Denver, Colorado from El Paso, Texas. At trial, Agent Knoll testified about the status of the undocumented individual, and acted as an expert witness on the subject of transporting undocumented aliens, stating that moving undocumented individuals away from border regions decreased the odds that they would be apprehended.
The government also relied on testimony from confidential informants who testified anonymously at trial about conversations they had with Gutierrez. The Government supplied the witnesses' criminal backgrounds, compensation records, and immigration status to the defense, but did not provide the witnesses' actual identities. The defense was able to cross-examine the witnesses, but was not able to conduct a typical independent pre-trial investigation.
The Federal Bureau of Investigation (FBI) and United States Border Patrol arrested "John Smith" (John Smith is an alias used by the government) for attempting to transport an undocumented alien during a sting operation known as "Operation Desert Tolls," meant to investigate alien-smuggling operations in the Southwest. Mr. Smith then went to work for the FBI as a confidential informant. It was through investigation of Mr. Smith's interactions with Gutierrez regarding the transport of an individual from El Paso to Denver that the FBI apprehended Gutierrez.
The court first ruled on the hearsay issue. Agent Knoll testified that he processed the undocumented individuals in the same way that he would have processed anybody under the same circumstances. The court allowed Agent Knoll to testify that one of the individuals who was apprehended during the investigation was sent back to Mexico, while another stayed in the United States awaiting a hearing in front of an immigration judge. Although defense counsel objected that Agent Knoll did not have personal knowledge of what happened to the undocumented individuals, the trial court ruled that there was a sufficient foundation for the testimony, because Agent Knoll was an experienced Border Patrol agent and personally conducted the investigation.
The court noted that evidentiary issues are reviewed for abuse of discretion, but reviewed Confrontation Clause claims de novo. The court stated that testimony should only be excluded for lack of personal knowledge if the witness could not have actually perceived what he was testifying about. Therefore, if a rational juror could conclude that the witness had personal knowledge, the witness is allowed to testify. Because Agent Knoll was involved in the processing of the undocumented individuals and only used the immigration file to refresh his recollection of the individuals' names, a reasonable jury could conclude that he had personal knowledge sufficient to testify about the end result of the investigation. The court held that his testimony was sufficient to support the notion that he had personal knowledge of the individual's fate under Fed. R. Evid. 602. The court also held that the statements were not a violation of the Confrontation Clause because Agent Knoll appeared at trial, and testified about his own observations. Further, defense counsel had the opportunity to cross-examine the witness.
Next, the court addressed the expert testimony issue. Agent Knoll testified at trial that transporting undocumented individuals away from border towns "furthered" their ability to stay in the country undetected. The court reviewed the standard for expert testimony under Fed. R. Evid. 702, as set forth by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011). According to Rule 702, in order to give opinion testimony, an expert must have scientific, technical or specialized knowledge that will help the jury understand the evidence or determine a fact. The court held that Agent Knoll's testimony about the alien smuggling trade was helpful because the average juror was unlikely to know anything about it. The court also noted that the Fifth and Ninth Circuits had allowed experts to testify about the alien smuggling trade in criminal cases. The court also noted that Agent Knoll's comment that moving undocumented individuals away from the border "furthers" their presence was also permissible, because it was neither incorrect nor likely to cause the jury confusion, and thus was admissible.
The court then turned to the issue of anonymous witness testimony. Gutierrez argued that allowing anonymous witnesses to testify violated her Confrontation Clause rights. Additionally, she argued that the government's failure to use a curtain or disguise the witnesses' voices undermined the seriousness of the need to have the witness testify anonymously. At trial, the government explained that the ongoing alien smuggling investigation was ongoing, and that there were cartel connections to the case that made it dangerous to disclose the witnesses' names in open court, even though Gutierrez was not directly a danger to them. After the defense renewed its objection following the direct examination, the government explained that it had witnesses testify the same way in another trial because the witnesses were still part of the investigation. The government also brought up a drug and money laundering case that led to a cooperating witnesses' decapitation. Because the government relied on security concerns as the basis for not disclosing the names of the witnesses, the court allowed them to testify anonymously. The defense then cross-examined them on their criminal history, compensation, immigration status, and ties to Mexico.
The court explained that the Confrontation Clause requires the literal right to confront witnesses, and that Gutierrez had that opportunity. Additionally, the Confrontation Clause allows the defense to bring facts to the jury's attention that could allow them to draw inferences regarding the credibility of the witness. The court explained that in Smith v. Illinois, 390 U.S. 120 (1968), the Supreme Court held that the right to confrontation includes the right to ask the witness who he is and where he lives. However, the Supreme Court also noted that lower courts have a duty to protect witnesses from questions that go beyond the scope of proper cross-examination. Justice White, concurring in Smith, would have included in this category questions which endanger the safety of the witness, in addition to questions that harass, annoy, or humiliate witnesses, as noted by the majority. The court stated that in United States v. Smaldone, 484 F.2d 311, 318 (10th Cir. 1973), the Tenth Circuit interpreted the holding in Smith to include protecting the witness from danger.
Although the Tenth Circuit has not previously provided a standard for determining if anonymous testimony is permissible, it has adopted the standard used in several other circuits. Anonymous testimony should be evaluated "by asking (i) whether the government has demonstrated a threat and if so, (ii) whether anonymous testimony deprived the defendant of an opportunity for effective cross-examination."
With respect to the first prong, whether the government demonstrated a threat, the government must demonstrate why the witness need not answer the question. Smith, 390 U.S. at 134 (White, J., concurring). The threat does not have to come from the defendant. United States v. Celis, 608 F.3d 818, 832 (D.C. Cir. 2010). However, the statement must be more than a generalized statement and not just speculation. United States v. Ramos-Cruz, 667 F.3d 486, 501 (4th Cir. 2012). In Smaldone, the Tenth Circuit prevented the defense from presenting the address of a government witness who was involved in a relocation program.
After the threat has been established, a court must consider whether the defendant has been deprived of an effective cross-examination. Effective cross-examination means that the jury must have sufficient information to make a "discriminating appraisal" of the issue. Miranda v. Cooper, 967 F.2d 392, 402 (10th Cir. 1992). Again referring to Smaldone, the Tenth Circuit noted that it affirmed the district court's restriction because there was no lack of knowledge of the witnesses' background, and the defense was able to conduct a detailed cross-examination. The court noted that other circuits consider whether the defendant was given the witness's real name before testifying, and whether the defendant was allowed to cross-examine the defendant on his background.
The court noted that although one way of satisfying the effective cross-examination requirement is to provide defense counsel with the witness's name, but allow the witness to testify under an alias, there are other options. The witness's name should be considered part of a balancing inquiry. The court noted that several circuits held that the right to effective cross-examination was not violated even when the defense was not provided with the witness's name. In Ramos-Cruz, the Fourth Circuit stated that the witnesses were allowed to testify anonymously because the government disclosed the subject of the testimony. In United States v. El-Mezain, 664 F.3d 467, 493 (5th Cir. 2011), the Fifth Circuit held that the defense had access to the witnesses' "employment, nationalities, and backgrounds in order to conduct meaningful cross-examination."
Based on these decisions, the court held that if the government gives sufficient background information on the witness it wishes to call anonymously, the right to effective cross-examination is not violated. The court then conducted a de novo review of the facts in the present case to determine if the right to effective cross-examination had been violated.
Gutierrez argued that the government "failed to justify secrecy" and that the anonymous testimony deprived her of the opportunity to conduct an effective cross-examination. The government disagreed with these assertions and also argued that any error was harmless.
The court agreed that the Government did not adequately prove the need for the witnesses to testify anonymously, and that the court abused its discretion in determining that it had. The court held that specific evidence of a threat was not provided, and that the Government failed to support its generalized assertions with specific evidence of a threat.
Despite the error with regard to secrecy, the court determined that Gutierrez still had an opportunity to effectively cross-examine the witnesses. Gutierrez was able to face the witnesses before the jury and had ample impeachment material provided by the Government. The cross-examination by the defense was able to give the jury sufficient information to determine how much credibility to give to the witnesses, including a felony conviction, misdemeanor convictions for fraud and perjury, and a receipt showing payment for the testimony.
Even though the Government did not adequately show a threat to the witnesses' safety, the court determined that this was harmless error, because the Government's disclosures allowed the defense to conduct an effective cross-examination. The court noted that Confrontation Clause analyses are subject to a harmless error standard, where the beneficiary of the error must show that the error did not contribute to the guilty verdict. United States v. Chavez, 481 F.3d 1274, 1277 (10th Cir. 2007). In determining whether the error was harmless, the court considers the importance of the witness's testimony, whether the testimony was cumulative, whether there is any corroborating or contradicting evidence on material points, the extent of the permitted cross-examination and the strength of the prosecution's case. United States v. Woodard, 699 F.3d 1188, 1198 (10th Cir. 2012).
Here the prosecution had to show that the threat was harmless beyond a reasonable doubt. One witness's testimony about his conversations with the defendant about their trip from El Paso to Albuquerque was not important to the Government's case, and the other evidence presented by the Government was sufficient to convict Gutierrez beyond a reasonable doubt. The court determined that much of the anonymous witness testimony was cumulative, and that on the material points of the testimony, the Government provided corroborating evidence. Additionally, the substantial cross-examination of the anonymous witnesses based on the information provided by the Government allowed the defense to undermine the credibility of those witnesses. Finally, the Government had such a strong case that the error was harmless. The Government, in addition to surveillance evidence, had a post-arrest confession from Gutierrez. Given all of these factors, the court found that the admission of the anonymous witness testimony was harmless beyond a reasonable doubt.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/13/13-2141.pdf

Panel: Kelly, O'Brien, Matheson

Date of Issued Opinion: August 1, 2014

Docket Numbers: 13-2141

Decided: The District Court's admission of anonymous witness testimony was affirmed.

Counsel:

Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant.

James R.W. Braun, Assistant United States Attorney (Steven C. Yarbrough, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellee.

Author: Matheson

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 08/11/2014 07:41 PM     10th Circuit     Comments (0)  

August 4, 2014
  Bishop v. Smith- 10th Circuit
Case Name: Bishop v. Smith -- 10th Circuit

Headline: Tenth Circuit upholds district court decision declaring Oklahoma state constitution prohibition on same-sex marriage unenforceable

Areas of Law: Constitutional Law

Issue Presented:

Is the State of Oklahoma's ban on same-sex marriage licenses unconstitutional?

Brief Summary:

The Tenth Circuit affirmed the Northern District of Oklahoma's ruling that Oklahoma's same-sex marriage ban was unconstitutional, using the court's previous decision in Kitchen v. Herbert. The court found that the plaintiffs had standing to challenge the laws, and that the Tulsa County Court Clerk was a proper defendant. The plaintiff's non-recognition claim, however, was not properly preserved for appeal.

Extended Summary:

The majority addressed the issue of standing prior to discussing the facts or the merits of the case. First, defendants challenged whether state constitutional provisions can be attacked without also challenging similar state statutes. Second, defendants challenged whether the Court Clerk is a proper defendant for the non-recognition aspect of the case. The majority concluded that state constitutional amendments subsume all existing state laws in Oklahoma. Therefore, an injunction against the constitutional provision would provide relief for the claimed injury. With respect to the second issue, the court held that because the Tulsa County Court Clerk does not have the power to redress the non-recognition issue, plaintiffs Gay Phillips and Susan Barton do not have standing to sue.

The majority noted that its ruling from Kitchen v. Herbert, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014) controls the outcome of the case. The majority noted its holdings from that decision:

(1) plaintiffs who wish to marry a partner of the same sex or have such marriages recognized seek to exercise a fundamental right; and (2) state justifications for banning same-sex marriage that turn on the procreative potential of opposite-sex couples do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Using this criteria, the Court affirmed the district court's decision.

Plaintiffs Bishop and Baldwin sought a marriage license from the Tulsa County Court Clerk in February 2009 and were denied because they were of the same gender. Bishop and Baldwin alleged that they had to pay $1,300 in legal fees for power of attorney and health care proxy procedures because of their inability to marry. Additionally, they alleged that their inability to marry tells others that their relationship should not be respected. Plaintiffs Bishop and Barton took part in a civil union in Vermont in 2001, were married in Canada in 2005, and were married again in California in 2008. Oklahoma, however, refused to recognize their marriage. Bishop and Barton also alleged that they suffered tax consequences as a result of the Defense of Marriage Act ("DOMA").

Plaintiffs filed suit against the Oklahoma Governor and Attorney General in 2004 challenging State Question 711 (SQ 711), which bans the marriage or recognition of a marriage between a same-sex couple. Plaintiffs also named the United States President and Attorney General in their challenge to DOMA. The district court denied the Governor and State Attorney General's motion to dismiss in 2006. On appeal, the Tenth Circuit stated that the Plaintiffs did not have standing to sue because the recognition of marriages in Oklahoma was within the purview of the judiciary, not the executive branch. Plaintiffs then filed an amended complaint, naming Sally Howe-Smith as the defendant in her official capacity as Court Clerk for Tulsa County.

In 2011, the United States stated that it would not defend DOMA on the merits. Instead, the Bipartisan Legal Advisory Group intervened to defend the law. At summary judgment, Howe-Smith filed an affidavit stating that she had no power to recognize a marriage license issued in another state regardless of whether the couple were a same-sex or opposite-sex couple.

After U.S. v. Windsor, 133 S. Ct. 2675 (2013), was issued, the district court held that Plaintiffs Phillips and Barton lacked standing to challenge DOMA because state law, not federal law resulted in the non-recognition of their marriage; that any challenge to Section 3 of DOMA was moot under Windsor; that Phillips and Barton lacked standing to challenge the non-recognition part of the Oklahoma amendment because Smith was not involved in the recognition of marriages; and that Part A of SQ 711 violated the Equal Protection Clause, permanently enjoining it. The injunction was stayed pending appeal.

Howe-Smith asserted that Bishop and Baldwin lacked standing to bring the suit because they did not challenge a state statute that bars same-sex couples from marrying, thus failing to establish redressability. Howe-Smith relied on White v. U.S., 601 F.3d 545 (6th Cir. 2010), where a group of plaintiffs challenged the Animal Welfare Act. The plaintiffs alleged that they had suffered economic injury as a result of the Act, but the court found that the plaintiffs lacked standing because all fifty states and the District of Colombia banned cockfighting, so the plaintiffs' injuries would not have been redressed. Howe-Smith also relied on a number of sign ordinance cases.

The majority held that the cases relied on by Howe-Smith were distinguishable, because the Oklahoma statute banning same-sex marriage was not independently enforceable from SQ 711. SQ 711, the majority held, took the place of the state statute.

Next, Howe-Smith argued that the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is controlling because lower federal courts may not reject on-point summary dismissals regardless of doctrinal developments. The majority noted, however, that in Hicks v. Miranda, 422 U.S. 332 (1975), lower federal courts could reject a summary dismissal if doctrinal developments indicated that the decision is no longer controlling.

Howe-Smith then raised the argument that children have an interest in being raised by their biological parents, and that serving this interest is a compelling governmental goal. The majority responded by noting that banning same-sex marriage is not narrowly tailored to meet that goal. The majority noted several Oklahoma statutes that allow children to be raised by people other than their biological parents, including egg and sperm donation laws, human embryo transfer laws, and adoption laws. Furthermore, it noted that Oklahoma allows infertile opposite-sex couples to marry, even though they may raise non-biological children. The majority found that the law was both under-inclusive of couples who will raise children that are not their biological children, and over-inclusive of same-sex couples that have the fundamental right to choose not to raise children.

The majority then addressed a law of the case issue where, in Bishop v. Okla. ex rel. Edmonson, 333 F.App'x 361 (2009) (unpublished) ("Bishop I"), the court found that neither the Barton nor the Bishop couple had standing to bring the lawsuit because they could not prove redressability because the Governor and the Attorney General were not proper defendants. The majority noted that this conclusion did not necessarily become law of the case, because it could have been dicta, it could have dealt only with an older marriage of the Barton couple, or that, as a jurisdictional issue, it was not subject to law of the case. However, the majority found none of these reasons persuasive.

Applying the law of the case doctrine, the court determined that Bishop I did not require standing to sue on the non-recognition claim brought by the plaintiffs. Three exceptions apply to the law of the case - "(1) when new evidence emerges; (2) when intervening law undermines the original decision; and (3) when the prior ruling was clearly erroneous and would, if followed, create a manifest injustice." (Citations omitted.)

The majority stated that the first exception was the most applicable because Howe-Smith did not explain the "manifest injustice" required for the third exception on which she wished to rely. Additionally, the affidavit that she relied on to make her law of the case argument was not given to the court until after Bishop I was decided. The majority explained that the affidavit could properly be considered new evidence. However, the new evidence demonstrated that the Barton couple lacked standing to challenge the non-recognition aspect of the law. The majority considered and rejected a number of counter-arguments to their position.

Plaintiffs then attempted to establish standing by stating that Howe-Smith has "shut the courthouse doors" on them, and that an injunction against the non-recognition aspect of SQ 711 would redress this injury. Plaintiffs' failure to challenge the law on that ground, rather than on equal protection and due process grounds deprived the district court of the opportunity to evaluate standing on that claim. The majority found that the non-recognition challenge was properly dismissed.

Finally, the court addressed Plaintiffs' assertion that the non-recognition claim should be struck down under severability law regardless of standing. The majority concluded that this argument was not properly preserved for appeal, and that no sufficient reason for overlooking that lack of preservation was presented.

Judge Holmes issued a concurring opinion. Although Judge Holmes fully endorsed the reasoning of the majority, he wrote a concurrence to comment on the district court's decision not to rely upon animus doctrine in striking down SQ 711, noting that several district court opinions from other jurisdictions have done so. Judge Holmes reviewed what animus is, how it is found, and what a court must do if it is found. Judge Holmes concluded that applying the animus doctrine was inappropriate because the law was not broadly sweeping, and could not be considered unusual.

Judge Kelly concurred in part and dissented in part. Judge Kelly concurred that the Barton couple lacked standing to challenge the non-recognition provision, but disagreed with the majority on whether the law of the case doctrine applied. Additionally, Judge Kelly dissented that the plaintiffs had standing because they did not challenge the state statutes in addition to the constitutional provisions, and would have dismissed the appeal without reaching the merits of the case. On the merits, Judge Kelly disagreed with the majority and would have concluded that rational basis review applied and would have upheld Oklahoma's definition of marriage, using the same analysis he used in his dissent in Kitchen.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/14/14-5003.pdf

Panel: Kelly, Lucero, Holmes

Date of Issued Opinion: July 18, 2014

Docket Numbers:
14-5003 & 14-5006

Decided: The District Court for the Northern District of Oklahoma was affirmed, but a stay was issued pending any potential writ of certiorari.

Counsel:

James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona (Byron J. Babione and David Austin R. Nimocks, Alliance Defending Freedom, Scottsdale, Arizona, and John David Luton, Assistant District Attorney, District Attorney's Office, Tulsa, Oklahoma, with him on the briefs), for Defendant - Appellant/Cross-Appellee.

Don G. Holladay, Holladay & Chilton PLLC, Oklahoma City, Oklahoma (James E.Warner III, Holladay & Chilton PLLC, Oklahoma City, Oklahoma, and Joseph T. Thai, Norman, Oklahoma, with him on the briefs), for Plaintiffs Appellees/Cross-Appellants.*

Author: Lucero

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 08/04/2014 09:25 PM     10th Circuit     Comments (0)  

June 29, 2014
  Kitchen v. Herbert-- 10th Circuit
Case Name: Kitchen v. Herbert -- 10th Circuit

Headline: Tenth Circuit holds that right of same-sex couples to marry and have marriages recognized by the state is fundamental; state laws banning same-sex marriage violate Fourteenth Amendment right to due process.

Areas of Law: Constitutional Law

Issue Presented:

May a state deny a citizen the benefit and protection of State marital laws based on the gender of person the citizen chooses to marry?

Brief Summary:

The State of Utah passed a series of laws, including Utah Code § 30-1-2(5), which voided marriages between same sex couples, § 30-1-4.1, which provided that Utah will only recognize marriages between a man and a woman, and a constitutional amendment, Amendment 3, which added a provision to the Utah Constitution that defined marriage as a legal union between a man and woman, and stated that only marriages between a man and woman would be recognized. This Amendment was passed by voters, and became article I, section 29 of the Utah Constitution. Collectively, the laws are known as "Amendment 3."

Plaintiffs sued the Governor of Utah, the Attorney General of Utah, and Salt Lake County Clerk in Federal District Court for the District of Utah, alleging that Amendment 3 violated their rights to due process and equal protection under the law. Plaintiffs asked the court for a declaratory judgment that Amendment 3 was unconstitutional and requested an injunction stopping its enforcement. The district court ruled for the plaintiffs on their cross-motion for summary judgment, holding that the laws denied the plaintiffs equal protection, because it classified the plaintiffs on the basis of sex and sexual orientation.

The Tenth Circuit affirmed the decision of the district court, but found that the laws violated the plaintiff's substantive due process right, because the right to marry is a fundamental right. After finding that the right to marry was fundamental, the Tenth Circuit held that the State of Utah had provided no compelling reason for the law, and that the law was not narrowly tailored enough to meet the strict scrutiny standard necessary to overcome a substantive due process challenge. Additionally, although the issue was not raised by the parties, the court addressed the appellant's standing to challenge the ruling of the district court, because the Salt Lake County Clerk did not appeal the ruling. The majority found that the Governor and Attorney General were proper defendants to the underlying suit and did have standing to challenge the ruling.

Judge Kelly concurred and dissented in part, agreeing with the majority that the appellants did have standing to challenge the decision, but disagreeing that same sex marriage fell into the category of a fundamental right, and stating that the State of Utah had met the rational basis standard for justifying a law facing an equal protection challenge.

Extended Summary:

The State of Utah passed Utah Code Sections 30-1-2(5), 30-1-4.1, and, with the approval of voters, Amendment 3 to the Utah Constitution to ensure that same-sex marriages would not be legally performed or recognized in the State of Utah (collectively known as Amendment 3). The laws included marriages performed in other states. The laws were passed because state legislators and citizens felt threatened by state-court opinions allowing same-sex marriage.

Plaintiffs challenged the laws on the grounds that they were denied several marriage benefits afforded to opposite-sex couples, including the ability to file joint state tax returns, hold marital property, claim benefits under their partners' pension or make medical decisions when their partners become ill. Additionally, plaintiffs state that they were not afforded the "dignity, respect, and esteem" of marriage. Plaintiffs Archer and Call were married in Iowa, but the State of Utah refused to recognize their marriage.

Plaintiffs brought suit in United States District Court for the District of Utah against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County in their official capacities. Plaintiffs stated that the laws violate their right to due process under the Fourteenth Amendment by depriving them of the fundamental right to choose the person they want to marry and to have that marriage recognized. Additionally, they claimed that Amendment 3 violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs asked the court for a declaratory judgment that Amendment 3 was unconstitutional and an injunction barring its enforcement.

On cross motions for summary judgment, the district court ruled for the plaintiffs, holding that all citizens, regardless of sexual orientation, had a fundamental right to marry. Additionally, the District Court found that Amendment 3 violated the Equal Protection Clause because the laws classified citizens on the basis of sex and sexual orientation, without a rational basis. The district court permanently enjoined enforcement of Amendment 3. The Governor and Attorney General then appealed and moved to stay the district court's decision. Both the Tenth Circuit and the district court denied the stay, but the Supreme Court granted the stay pending a decision by the Tenth Circuit.

The majority first addressed the issue of standing, even though it was not raised by the parties. The court held that at least four of the plaintiffs had standing because they were unable to obtain marriage licenses from the Salt Lake County Clerk and identified harm that flowed from this denial, including financial injury. The plaintiffs proved that the County Clerk caused their injury because the Clerk denied them a marriage license and demonstrated that an injunction barring enforcement of Amendment 3 would cure the injury. Therefore, the plaintiffs demonstrated the necessary "meaningful nexus" between the defendant and the injury.

The majority then considered whether the Governor and the Attorney General had standing to challenge the district court's ruling, because the Salt Lake County Clerk did not appeal the decision. The court noted that it determined in Bishop v. Oklahoma ex rel. Edmondson, 333 F.App'x 361 (10th Cir. 2009), that Oklahoma's Governor and Attorney General were not the proper defendants in a challenge to Oklahoma's prohibition on same-sex marriage. In that opinion, the court based its decision on the fact that marriage licensing in Oklahoma was a judicial power. The district court clerk in Oklahoma was charged with issuing marriage licenses, and as such, the executive branch did not have the authority to issue a marriage license or record a marriage. In contrast, Utah marriage licenses are issued by county clerks. The Governor is charged with supervising executive and ministerial offices, like the county clerk, and as such had standing to challenge the suit. Furthermore, the Attorney General had the duty to supervise or assist county, district, and city attorneys in the discharge of their duties. Because knowingly issuing a marriage license to a same-sex couple is a misdemeanor in Utah, the Attorney General would supervise any charges filed against a county clerk who issued a marriage license to a same-sex couple. This authority, combined with the Governor and Attorney General's "willingness to exercise" their duties related to the enforcement of Amendment 3, made them appropriate defendants in this appeal. Particularly because the Attorney General is empowered to direct the Utah State Tax Commission to recognize Archer and Call's out of state marriage, Archer and Call had standing to sue the Attorney General for their injuries related to Amendment 3's non-recognition provisions. Archer and Call were able to sue the Governor for the same reason - the Governor had the ability to appoint and remove state tax commissioners from office. Therefore, by nature of their supervisory power, the Governor and the Attorney General had the requisite nexus between Amendment 3 and the injuries suffered by plaintiffs. As proper defendants to the underlying lawsuit, they had standing to challenge the district court's decision on appeal, even without the Salt Lake County Clerk.

The majority began its analysis of Amendment 3 by discussing the history of litigation regarding same-sex marriage. The court stated that Baker v. Nelson, 409 U.S. 810 (1972) was decided on a summary dismissal for want of a federal question. In Baker, the Minnesota Supreme Court upheld a ban on same-sex marriage, stating that marriage meant a union between two persons of the opposite sex, and uniquely involved procreation and child rearing. It then stated that the Fourteenth Amendment was not to be used to restructure the institution of marriage, and that there was no irrational discrimination that violated Equal Protection Clause. The majority noted that although summary dismissals are to be treated as a decision on the merits, it agreed with the district court that "doctrinal developments" found in Lawrence v. Texas, 539 U.S. 558 (2003) and United States v. Windsor, 133 S.Ct. 2675 (2013) had superceded Baker, noting that nearly every federal court since Windsor was decided has determined that Baker is no longer controlling. Because doctrinal developments had occurred since Baker, the majority determined it could make a decision on the merits of the issue. Lawrence held that individuals have the right to make intimate contact with another person, including homosexual persons. Windsor determined that the federal government does not have the right to deny recognition of a marriage license issued by a state to a same-sex couple. Although the court recognized the federalism concerns set forth in Windsor and stressed by the appellants, the majority stated that the federal government has the power to make determinations that affect marital rights, including insurance proceeds, immigration, and Social Security benefits. Furthermore, the court stated that Windsor framed the issue as a question of essential liberty rather than a federalism issue.

Next, the majority explained the standards of review to be used. A grant of summary judgment is reviewed de novo, and a permanent injunction is reviewed for an abuse of discretion. Summary judgment is granted to a moving party only if the evidence viewed in the light most favorable to the non-moving party entitles the moving party to judgment as a matter of law. In order to obtain a permanent injunction, a plaintiff must show "(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued will not adversely affect the public interest." The court only reviewed the merits aspect, because the appellants only challenged the merits.

The majority then determined whether the right to marry an individual of the same sex qualified as a fundamental liberty. A fundamental liberty must be deeply rooted in the Nation's history and "implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed." The majority noted that the right to marry itself is unquestionably a fundamental right.

Appellants argued that the right to marry only applied to opposite-sex marriage, and that same-sex marriage was not deeply rooted in the Nation's tradition because it had only recently been considered by citizens that two same-sex individuals might aspire to marry. The majority responded to this argument by showing that the court had always discussed the right to marry as a broad right, pointing to Loving v. Virginia, 388 U.S. 1 (1967), which held that banning interracial marriage was unconstitutional, and Zablocki v. Redhail, 434 U.S. 374 (1978), which held that a state cannot ban individuals in arrearage of child support obligations from marrying. Appellants asserted that Loving and Zablocki were distinguishable because they both discussed opposite-sex couples, and only opposite-sex couples are procreative. Appellants pointed to Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), and Carey v. Population Servs. Int'l, 31 U.S. 678 (1977), for evidence that the Supreme Court had discussed the rights of marriage and procreation together. The majority responded to this by stating that the Supreme Court has discussed the fundamental right to marry and the right to procreate as separate. The majority noted that Washington v. Glucksberg, 521 U.S. 702 (1997), which appellants relied on heavily, described Loving as a marriage case, where it described Skinner as a procreation case. Furthermore, the majority stated that Turner v. Safley, 482 U.S. 78 (1987), invalidated the concept that marriage is fundamental because of procreation potential. In Turner, the Supreme Court considered the right of inmates to marry, and invalidated a law barring inmates who had not procreated from marrying. The majority stated that the issue in Turner was framed broadly - not as the right of "inmate marriage," but whether the fact of incarceration made it impossible for inmates to benefit from marriage. Turner stressed that the importance of marriage is based on personal aspects, including emotional support and public commitment. The majority then stated that this holding is consistent with other Supreme Court decisions where the court has discussed the freedom to marry, including the freedom to choose one's spouse, in Cleveland Bd. of Educ. V. LaFleur, 414 U.S. 632 (1974), Hodgson v. Minnesota, 497 U.S. 417 (1990), Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) and Carey.

Appellants argued that the personal elements inherent in the institution of marriage, such as the freedom to choose one's spouse, to decide whether to have children, and to publicly proclaim commitment to one another are not the principal interests the State has in regulating marriage. The majority found that these personal elements reinforce the childrearing family structure and support the dignity of each person. It then noted that the dignity factor was emphasized in Windsor.

The majority then noted the similarity of Windsor to the difficulties faced by plaintiffs Archer and Call, who were married in Iowa but could not have their marriage recognized in Utah. It stated that the fundamental right to marry included the right to remain married.

Next, the majority stated that the appellants' assertion that the right to marry is fundamental because of its connection with procreation is undermined by the fact that individuals have a fundamental right to choose not to procreate, citing Eisenstadt v. Baird, 405 U.S. 438 (1972), which stated that individuals have the right to choose whether to bear a child regardless of if they are married or single, and Griswold v. Connecticut, 381 U.S. 479 (1965), which recognized the right of married couples to use contraception. Furthermore, the court noted that nearly 3,000 children in Utah were being raised by same-sex couples, even though same-sex couples are banned under Utah law from jointly adopting children. The majority pointed to this information as evidence that childrearing is exercised by both opposite-sex and same-sex couples, and even single individuals.

The majority also noted that biological relationships are not determinative of the existence of a family, citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977). It noted that Windsor stated that restrictions on same-sex marriage humiliated children of same-sex couples and made it difficult for them to understand the integrity of their own family. The laws, as stated in Windsor, discouraged those children from being considered members of a family.

Appellants stated that the Tenth Circuit would have to define marriage in order to find that there is a right to marriage, and that marriage, by definition, excluded same-sex couples. The majority responded to this by stating that the Supreme Court has described the right to marry in broad terms, and stated that a claimed liberty cannot be framed as being exercised by a specific class of persons. The court noted that before Windsor, many courts had found that that the right to marry could not be exercised by same-sex couples, but the majority stated that it is impermissible to focus on class-membership of the individual exercising a right when determining a liberty interest. The court rejected the appellants' assertion that plaintiffs are excluded from marriage by definition as circular, because many states do permit same-sex marriage, and because appellants' reliance on the definition of marriage is not meaningful. The majority again pointed to Windsor, where the Court invalidated Section 3 of DOMA, which limited the federal definition of marriage to a legal union between a man and woman. The majority then noted that definitions are not immune from constitutional scrutiny.

The majority then noted that Lawrence precluded the narrow definition of the fundamental right sought by appellants. In Lawrence, the Court rejected its previous holding in Bowers v. Hardwick, 478 U.S. 186 (1986), where the court framed the liberty right as the right of homosexuals to engage in sodomy. In Lawrence, the Court recognized that there was no history of a right to engage in homosexual sex, but stated that the characterization of the right in Bowers was too narrow. The majority then noted that Lawrence alluded to marriage, stating that individuals in a homosexual relationship may seek autonomy for the personal decisions related to marriage, just as heterosexual people do.

The majority then stated that the Fifth and Fourteenth Amendments have not changed, but that as knowledge and understanding of what it means to be gay or lesbian changes, the liberty of those who were previously excluded should be recognized.

Having determined that the right to marry is a fundamental liberty, the majority then analyzed whether Amendment 3 was "narrowly tailored to serve a compelling state interest." The court considered the four justifications for Amendment 3 - that the laws furthered the state's interest in "(1) 'fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children'; (2) children being raised by their biological mothers and fathers - or at least by a married mother and father in a stable home'; (3) 'ensuring adequate reproduction'; and (4) accommodating religious freedom and reducing the potential for civic strife.'"

The majority stated that the first three interests did not meet strict scrutiny. The common thread between the first three claims is the link between marriage and procreation. However, the majority found that the law is under-inclusive, because the recognition of valid marriages does not differentiate between couples that procreate and couples that do not. The elderly, infertile, and those who do not wish to have children or choose to adopt are still free to marry and have out-of-state marriages recognized in Utah. The majority further illustrated its point by demonstrating that marriages between first cousins in Utah are predicated on the inability to have children. The majority also noted that several district courts had rejected similar attempts to ban same-sex marriage. The majority also explained that under-inclusiveness also invalidated the prohibition on marriage by child-support debtors in Zablocki, because the challenged provisions did not limit the incurrence of financial commitments of those debtors other than through marriage. The law in Eisenstadt, which prohibited distribution of contraceptives to unmarried persons, was also under-inclusive on the grounds that using contraceptives is immoral. The majority also noted that a law basing marriage on a couple's ability and willingness to procreate also raised its own set of concerns. Finally, in response to appellant's statement that banning non-procreative individuals from marrying is impracticable, the majority explained that administrative challenges do not render a system constitutional, and noted that the statute authorizing marriage of non-procreative first cousins was inconsistent with appellant's position.

The majority stated that the State's interest in childbearing and childrearing did not share a causal connection to a ban on same-sex marriage. The majority relied on Windsor that the recognition of same-sex couples will not alter the personal decisions of opposite-sex couples.

Appellants asserted that the same-sex marriage ban is justified by the preference for children to be raised by a man and woman. However, the majority found that law was not narrowly tailored to meet this goal because the state does not restrict the right to marry based on parenting guidelines. The majority relied on Stanley v. Illinois, 405 U.S. 645 (1972), where the Court invalidated a law making the State the custodian of children of unwed parents upon the death of the mother. The Court concluded that not all unmarried fathers are unfit to raise their children, as asserted by the state. Similarly not all opposite-sex couples are preferable over any same-sex couple. The majority was unwilling to accept on faith the argument that children raised by opposite-sex parents are better off than children raised by same-sex parents, because arguments based on speculation cannot survive strict scrutiny. The court again pointed to Windsor, stating that the refusal to recognize same-sex marriage harms the children of those couples.

The majority addressed the final justification of accommodating religious freedom and reducing civic strife by stating that the Supreme Court has held that public opposition cannot form the basis for violating a fundamental right. Furthermore, the decision related only to civil marriage, not to religious ceremonies. Religious institutions, the majority emphasizes, are still free to practice their own traditions as they always have.

The majority then addressed appellants' concerns about the value of democratic decision-making by stating that fundamental rights may not be limited by voters, nor does the experimental value of federalism outweigh an individual's right to due process and equal protection.

Appellants raised a concern that recognizing same-sex marriage began a slippery slope toward recognizing polygamy and incest. However, the majority explained that its basis for finding that the plaintiffs were seeking to exercise a fundamental right was based on Supreme Court jurisprudence recognizing a right to engage in same-sex relationships, whereas the Court had not recognized a right to engage in polygamy or incest. Appellants also contended that the decision would lead to the privatization of marriage, but the majority dismissed that because the appellants provided no authority to support that this would render the statutes constitutional.

Finally, the majority stressed that its opinion did not endorse a finding that those who oppose same-sex marriage are intolerant. The court stated that it was not making a judgment on the minds and hearts of those who support Amendment 3.

The court stayed its decision pending the filing of a petition for a writ of certiorari.

Judge Kelly, concurring in part and dissenting in part, agreed with the majority that the Governor and Attorney General were proper defendants, that the appeal was permissible without the Salt Lake County Clerk, and that the plaintiffs had standing to challenge Amendment 3. Judge Kelly disagreed, however, that Baker was not controlling and that there was a fundamental right to marry that could be exercised by the plaintiffs. Judge Kelly performed an analysis of the issue under the equal protection clause, and determined that Amendment 3 was rationally related to the State's interests in "(1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area."

The dissent stated that because the Constitution makes no mention of the regulation of marriage, it is a power that should be exercised by the States. Furthermore, although the Court has determined that marriage is a fundamental right, those decisions have always involved opposite-sex couples. The dissent emphasized the importance of allowing states to be "laboratories of democracy," stating the forcing all States to recognize same-gender marriage "turns the notion of a limited national government on its head."

The dissent stated that Baker must still be controlling because summary dismissals by the Supreme Court are still considered decisions on the merits that are to be followed by lower courts until the Supreme Court makes a contrary decision.

The dissent addressed plaintiffs' argument that excluding same-sex couples from marriage is a gender-based classification. However, the dissent noted that Amendment 3 does not treat men and women differently - same-sex male and same-sex female couples are equally subject to the laws. Because there is no disparate treatment between men and women, there is no basis for a gender discrimination equal protection claim.

Plaintiffs then argued that discrimination on the basis of sexual orientation required heightened scrutiny. However, the dissent noted that the Supreme Court had not assigned a level of scrutiny to sexual orientation, and that the Tenth Circuit had already rejected heightened scrutiny in Price-Cornelson v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008), Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir. 1995), and Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992).

The dissent explains that the fundamental right to marry does not extend to same-sex couples because same-sex marriage is a recent concept. Thus, there is no deeply rooted tradition in the Nation's history required for a fundamental rights classification. Romer, Lawrence and Windsor created protection for "moral and sexual choices" of same-sex couples, but did not create a fundamental right to same-gender marriage, or state that heightened scrutiny should be applied to classifications based on sexual orientation. Furthermore, the dissent noted that the Court in Lawrence specifically did not address the issue of same-sex marriage. Additionally, the dissent notes that Windsor did not limit the ability of a state to outlaw same-sex marriage or create a fundamental right to same-sex marriage, but mandated that the federal government defer to States to make decisions regarding marriage.

With respect to rational basis, the dissent noted that extreme deference should be given to the decisions of the State, and that any plausible reason that the classification could advance will satisfy rational basis. Furthermore, the legislature need not have actually been motivated by the reason given, and a law may be over-inclusive or under-inclusive and still meet rational basis. The dissent noted that the procreative capabilities of opposite-gender couples are a permissible consideration by the legislature. Simply because the fundamental right to marriage has been discussed separate from procreation does not mean that legislatures may not consider procreation in regulating marriage.

Finally, the dissent urged that the court should refrain from using the Fourteenth Amendment as a means for imposing its views upon others.


To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf

Panel: Kelly, Lucero, Holmes

Date of Issued Opinion: June 25, 2014

Docket Number: 13-4178

Decided: Ruling that Amendment 3 is unconstitutional and preliminary injunction was affirmed, but a stay enforcing the injunction was issued until the Supreme Court of the United States had made a decision on any potential writ of certiorari.

Counsel:

Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, Michigan, and Monte N. Stewart, Boise, Idaho, with him on the briefs), for Defendants - Appellants

Peggy A. Tomsic, Magleby & Greenwood PC, Salt Lake City, Utah (James E. Magleby and Jennifer Fraser Parrish, Magleby & Greenwood PC, Salt Lake City, Utah, and Kathryn D. Kendell, Shannon P. Minter, David C. Codell, National Center for Lesbian Rights, San Francisco, California, with her on the brief), for Plaintiffs - Appellees.*

Author: Lucero

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 06/29/2014 07:58 PM     10th Circuit     Comments (0)  

April 4, 2014
  Planned Parenthood of Kansas and Mid-Missouri v. Robert Moser - 10th Circuit
Case Name: Planned Parenthood of Kansas and Mid-Missouri v. Robert Moser

Headline: The Tenth Circuit holds that private parties have no cause of action under the Supremacy Clause against state agencies that refuse to provide these private parties with federal funds under statutes passed under the Spending Clause.

Area(s) of Law: Public Health Law, Constitutional Law, Statutory Interpretation

Issue(s) Presented:

1. Does the Supremacy Clause provide a cause of action to private entities claiming that an act of state law is preempted by a federal statute passed under the Spending Clause?

2. Does the unconstitutional-conditions doctrine of the First Amendment prohibit adverse discretionary legislative action against a private entity based on the content of that entity's speech and/or association?

Brief Summary:

Section 107(l) of a Kansas appropriations bill imposed facially neutral conditions interfering with Planned Parenthood's ability to receive federal funding under Title X of the Public Health Service Act. Planned Parenthood sought an injunction, arguing that Section 107(l) contravened the broad legislative purposes of Title X and was preempted under the Supremacy Clause, and that it violated Planned Parenthood's rights to speech and association under the First Amendment. The district court granted the injunction.

The Tenth Circuit reversed. Although the issue had been explicitly waived by the defendant in briefing, the majority exercised its discretion to address issues sua sponte and held that the Supremacy Clause provided no cause of action to private entities claiming that an act of state law is preempted by federal legislation rooted in the Spending Clause. The majority also held that while the unconstitutional-conditions doctrine prohibited adverse discretionary executive action against private entities based on the content of their speech or association, there was no equivalent prohibition (under Supreme Court or Tenth Circuit caselaw) on adverse discretionary legislative action - even in the face of strong evidence that such discretionary legislative action had been taken in retaliation for a private entity's exercise of its rights of speech and association.

In a strong dissent, Judge Lucero criticized the majority for exercising its sua sponte discretion to effectively overrule prior Tenth Circuit holdings regarding the Supremacy Clause question.

Extended Summary:

Family-planning services for low-income individuals are subsidized through Title X of the Public Health Service Act ("Title X"). In May of 2011, Governor Sam Brownback of Kansas signed into law an appropriations bill containing a provision - Section 107(l) - that restricted Title X funds to public entities, hospitals, and federally qualified comprehensive health centers. Section 107(l) effectively denied Title X funding to two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri ("Planned Parenthood"). Planned Parenthood sued Robert Moser, Secretary of the Kansas Department of Health and the Environment, arguing that Section 107(l) 1) violated Title X and therefore the Supremacy Clause, and 2) violated Planned Parenthood's First Amendment rights.

The district court found that Planned Parenthood had established a likelihood of success on the merits on its first two claims, and granted a preliminary injunction prohibiting Moser from implementing Section 107(l). Moser appealed the injunction. The Tenth Circuit reviewed the district court's findings with regard to Planned Parenthood's Supremacy Clause claim and First Amendment claim.

In reviewing Planned Parenthood's Supremacy Clause claim, the Tenth Circuit began by acknowledging that Planned Parenthood was eligible to receive funds under Title X, and had in fact received Title X funds for over 25 years prior to the passage of the Section 107(l) in May of 2011. Similarly, the court noted the agreement of the parties that Planned Parenthood was not eligible for Title X funding under Section 107(l).

Setting aside a number of arguments by the plaintiffs and defendants, the court began its analysis by asking a simple question: does Planned Parenthood, as a private entity, have a cause of action to assert a claim for injunctive relief? Eschewing the opportunity to claim a cause of action under either 42 U.S.C. § 1983 or the language of Title X, Planned Parenthood restricted itself to the claim that the Supremacy Clause itself gives private parties the right to seek injunctions against state or local laws inconsistent with federal law.

The majority agreed with Planned Parenthood that the Supremacy Clause "declares that when state or local law conflicts with federal law, federal law prevails." However, the majority disagreed with Planned Parenthood that the availability of an injunctive remedy to private parties under Title X was clearly established by "federal law." Simply put, the Tenth Circuit held that "whether to recognize a private cause of action for injunctive relief is a matter of statutory interpretation," and that proper statutory interpretation did not indicate the availability of a private injunctive remedy under Title X.

The majority began its analysis by noting that any potential conflict between Title X and Section 107(l) could be resolved by the initiation of a public action by the Department of Health and Human Services (HHS) - the agency responsible for initial federal grants of Title X funds to states. The majority added that permitting private parties to seek injunctive relief for alleged Title X violations "would substantially interfere with the administration of the program by HHS" by opening the door to the possibility of different courts imposing different rules under the same statute. The majority also stated that the Supremacy Clause creates no individual federal rights and therefore provides no individual remedy to be enforced by private parties. The statutory language of Title X clearly contemplates that the distribution of Title X funds be administered and supervised by HHS.

Throughout its opinion, the majority relied heavily on the idea that Spending Clause legislation (like Title X) rarely required the provision of a private injunctive remedy due to the fact that "the federal government's power of the purse gives it a very effective means for ensuring that federal law is honored." The majority also suggested that the potential availability of a remedy under the Administrative Procedures Act indicated that a private injunctive remedy under the Supremacy Clause was potentially unnecessary.

The majority went on to address a large number of cases offered by Planned Parenthood as precedential support for the notion that Moser's implementation of Section 107(l) could be privately enjoined under the Supremacy Clause. The majority rather summarily distinguished each of these cases by noting that none of the opinions addressed the particular root of private injunctive remedies in the Supremacy Clause itself.

The majority then addressed Planned Parenthood's primary reliance on Tenth Circuit holdings in Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742 (10th Cir. 2010), and Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004). In these two cases, the Tenth Circuit held that "party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action." After a brief discussion of the dangers of an overly formalistic approach to questions of precedent and stare decisis, the majority disregarded the holdings in Edmondson and Qwest due to the fact that neither dealt with a situation where the allegedly preempting statue (cf. Title X) was Spending Clause legislation and the injunction was not to halt enforcement action.

The majority then turned to an analysis of the likelihood of Planned Parenthood's success on the merits of its First Amendment claim. Planned Parenthood's claim was that Section 107(l) violated the "unconstitutional-conditions doctrine" by imposing conditions on Planned Parenthood because of the particular content of the organization's speech and/or association. Under Supreme Court caselaw, violations of the unconstitutional-conditions doctrine occur in two contexts: where a condition imposed by statute or regulation prospectively limits or denies a government benefit to organization due to the content of the organization's speech and/or association, or where a condition imposed by discretionary executive action retrospectively terminates a government benefit to an organization due to the content of the organization's speech and/or association.

The majority agreed with Moser that Section 107(l) "neither conditions eligibility for a Title X sub-grant on the relinquishment of First Amendment rights, nor punishes entities for exercising such rights." Section 107(l) did not prevent sub-grantees from providing abortion services, from advocating for abortion rights, or from associating with abortion providers; at most, it required that organizations like Planned Parenthood to provide addition health services if they wished to continue providing their family planning services. As such, the legislation did not prospectively deny benefits to Planned Parenthood on the basis of its speech and/or association.

Planned Parenthood argued that Section 107(l) violated the second prong of the unconstitutional-conditions doctrine. In support of this contention, Planned Parenthood introduced evidence showing that Kansas legislators designed Section 107(l) for the specific purpose of defunding Planned Parenthood.

The majority quickly noted that Planned Parenthood cited "no Supreme Court or Tenth Circuit authority" for expanding the second prong of the unconstitutional-conditions doctrine to include adverse discretionary legislative actions in addition to adverse discretionary executive actions. To the contrary, the majority reminded Planned Parenthood that under United States v. O'Brien, federal courts "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." Although the majority acknowledged the propriety of examining legislative motives in the context of Establishment Clause claims, Equal Protection claims, and in the context of statutory interpretation, the majority listed a number of policy reasons for not examining legislative motives in the context of statutory creation. Having distinguished Planned Parenthood's First Amendment claim from a claim of adverse discretionary executive action under the unconstitutional-conditions doctrine, the majority found that claim unsupported by law and lacking merit. As such, the majority reversed the decision of the district court and remanded with instructions.

Judge Lucero offered a detailed dissent, focusing in large part on the majority's departure from what he viewed to be clear precedent established in Edmondson and Qwest. As a starting point, Judge Lucero noted that under the law set forth in those cases, both Moser and Planned Parenthood agreed in their respective briefs that the Planned Parenthood "possesse[d] a cause of action under the Supremacy Clause." (The majority opinion addressed this issue summarily, noting that even if Moser had waived his right to contest the matter, the court had discretion to address it sua sponte). Judge Lucero heavily criticized the majority for exercising that discretion in this case, to the effect (in his opinion) of "overruling the decisions of prior [Tenth Circuit] panels" in an improper manner.

After arguing that Planned Parenthood's cause of action under the Supremacy Clause was clearly established by Tenth Circuit caselaw, Judge Lucero went on to address the merits of Planned Parenthood's claim (which the majority opinion never reached). Finding that the loss of funding under Section 107(l) wrought sufficient injury to Planned Parenthood to justify Article III and prudential standing, and that Title X's contemplation of a broad eligibility standard for grantees was thwarted by Section 107(l)'s restrictions, Judge Lucero argued that Planned Parenthood was likely to succeed on the merits of its Supremacy Clause claim and that the preliminary injunction of the district court should be affirmed.

Finally, Judge Lucero took the majority to task for its heavy reliance on the Spending Clause characterization to distinguish Title X from the legislation at issue in Edmondson and Qwest. "Four circuits have considered the argument that Spending Clause legislation is fundamentally different than other legislation for Supremacy Clause purposes," he wrote: "None found any merit in the argument." Judge Lucero stated that the majority's reliance on the availability of an alternative remedy in the Administrative Procedures Act was "an invented claim that finds no support in precedent or practice," and noted that the same availability did not stop the Tenth Circuit from holding as it held in Qwest.

In summarizing his dismay at the majority's exercise of its sua sponte discretion, and concluding his argument that the majority opinion damaged the principle of stare decisis, Judge Lucero made the following statement: "When a panel of this court writes 'a party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action'... it should not be necessary to look past that statement and decide whether that issue was sufficiently 'disputed' to make that statement by this court binding law."

To read the full opinion, please visit: http://www.ca10.uscourts.gov/opinions/11/11-3235.pdf

Panel: Lucero, Hartz, O'Brien

Date of Issued Opinion: March 25, 2014

Docket Number: 11-3235, 12-3178, 13-3175

Decided: Preliminary injunction of the district court vacated, reversed, and remanded to the district court for further proceedings.

Counsel:

James M. Armstrong, Foulston Siefkin LLP, Wichita, Kansas, for Defendant -
Appellant.

Elissa Joy Preheim, Arnold & Porter LLP, Washington, D.C. (Lee Thompson and
Erin C. Thompson, Thompson Law Firm, LLC, Wichita, Kansas; Roger K. Evans
and Helene T. Krasnoff, Planned Parenthood Federation of America, New York,
New York and Washington, D.C., with her on the briefs), for Plaintiff - Appellee.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae.

Author: Hartz

Case Alert Author: Levi A. Monagle

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 04/04/2014 01:18 PM     10th Circuit     Comments (0)  

March 28, 2014
  Kerr v. Hickenlooper - 10th Circuit
Case Name: Kerr v. Hickenlooper

Headline: Tenth Circuit holds that Colorado state legislators have standing to bring Guarantee Clause claims against Colorado governor, and that Guarantee Clause claims are not barred by the political question doctrine.

Area(s) of Law: Constitutional Law

Issue(s) Presented:

1. Do Colorado state legislators have standing to bring Guarantee Clause claims against the Governor of Colorado, seeking enjoinder of provisions of the Colorado Taxpayers' Bill of Rights?

2. Are Guarantee Clause claims barred by the political question doctrine?

Brief Summary:

Colorado state legislators sought to invalidate key provisions of the Colorado Taxpayers' Bill of Rights (TABOR), claiming that those provisions interfered with their constitutional voting abilities and thus violated the Guarantee Clause of the federal constitution. Colorado Governor John Hickenlooper, the named party tasked with defending TABOR, argued that the legislators' claims ought to be dismissed for lack of standing, and as nonjusticiable under the political question doctrine.

The Tenth Circuit found that TABOR had caused actionable injury to the legislative plaintiffs by depriving them of their unique ability to affect Colorado tax policy by their votes, and (upon quick findings of causation and redressability) held that those plaintiffs possessed both Article III and prudential standing. The court held that a case-by-case approach to the political question doctrine was required by Baker v. Carr, and that the legislative plaintiffs' Guarantee Clause claims were not barred as nonjusticiable by any of the six factors detailed in that case.

Extended Summary:

The Colorado Taxpayers' Bill of Rights (TABOR) was enshrined in the Colorado state constitution by voter initiative in 1992. TABOR requires that all new taxes be directly approved by voters, and that all new spending (with narrow exception) be directly approved by voters. In Kerr v. Hickenlooper, the Tenth Circuit held that the Guarantee Clause of the federal Constitution served as a valid basis for a challenge by Colorado state legislators and educators to these key provisions of TABOR.

In response to the plaintiffs' Guarantee Clause claim, the named defendant (Colorado Governor John Hickenlooper) argued that the plaintiffs lacked Article III standing and prudential standing, and that plaintiffs' Guarantee Clause claims were barred by the political question doctrine. The district court found that plaintiffs possessed Article III standing and prudential standing, and that the political question doctrine did not bar plaintiffs' Guarantee Clause claims. The defendant sought permission to file an interlocutory appeal; permission was granted, and the Tenth Circuit addressed each of defendant's arguments in sequence.

With regard to Article III standing, the court recited the standard elements from Lujan v. Defenders of Wildlife, and devoted the bulk of its analysis to the "concrete and particular injury" prong. In assessing whether or not TABOR caused injury to the plaintiffs, the court examined two federal Supreme Court cases dealing with the standing of legislators: Coleman v. Miller and Raines v. Byrd. Under Coleman, legislators suffer actionable injury where their votes are "completely nullified" by some intervening cause. In contrast, under Raines, legislators facing "the abstract dilution of legislative power" - for instance, by an executive's utilization of a line-item veto - do not suffer actionable injury.

The Tenth Circuit acknowledged that "neither Coleman nor Raines maps perfectly onto the alleged injury in this case," but found that the allegations of the plaintiff legislators "[fell] closer to the theory of vote nullification espoused in Coleman than to the abstract dilution theory rejected in Raines." What TABOR effectuated, the court wrote, was function nullification - the complete inability of legislators to use their votes to bring about a tax or spending increase. The court found that under the line of precedent extending from Coleman, the deprivation of a legislator's opportunity to vote was an injury in fact. Finding in short order that this injury was both clearly traceable to TABOR and easily remedied by its invalidation, the court found that the legislative plaintiffs had Article III standing and affirmed the judgment of the district court.

The court then turned to a quick prudential standing analysis. In response to the defendant's argument that the legislative plaintiffs' injury constituted a "generalized grievance," the court reiterated that TABOR did not simply amount to a decrease in the amount of tax revenue collected by the state - it amounted to the targeted deprivation of legislative powers unique to members of the Colorado General Assembly. As such, these plaintiffs were not asserting a "generalized grievance," and dismissal on the grounds of prudential standing was not warranted.

Finally, the Tenth Circuit addressed the defendant's argument that plaintiffs' Guarantee Clause claim was barred by the political question doctrine. First, the court discussed whether or not Guarantee Clause claims against state constitutional amendments were categorically prohibited by the political question doctrine. The court found some support for a categorical bar in the language of Luther v. Borden and Pacific States Telephone & Telegraph Co. v. Oregon. In Luther - where the Supreme Court was asked to decide "which of two putative governments legitimately controlled Rhode Island" - the Court held that Guarantee Clause claims were political questions more properly directed to Congress than the judiciary. In Pacific States, a case where a corporation claimed that a recently implemented popular referendum system violated its rights under the Guarantee Clause, the Court found Guarantee Clause claims to be "political and governmental, and embraced within the scope of powers conferred by Congress."

"Had those been the Supreme Court's final words on the justiciability of the Guarantee Clause," the Tenth Circuit wrote, "a categorical approach might be proper." Of course, the court noted, this was not the case. Baker v. Carr made perfectly clear "the need for case-by-case inquiry" whenever the political question doctrine was raised, and "the Baker Court explicitly rejected a categorical Guarantee Clause bar." Since the Baker Court was able to conclude that the decision in Luther rested on four of six of its newly articulated political question factors, there was a (somewhat fictional) absence of contradiction between the two cases. After reiterating subsequent recharacterizations of Luther's holding, the Tenth Circuit decided that Baker continued to hold the field, and that case-by-case inquiry remained the proper approach to Guarantee Clause claims.

Second, the court applied the six-factor "political question" test articulated in Baker v. Carr. With regard to the first factor, the court wrote that "the omission of any mention of Congress from the Guarantee Clause, despite Congress' prominence elsewhere in Article IV" - in addition to the simple fact of the Guarantee Clause's inclusion in Article IV, rather than Article I - "indicate[d] there is no 'textually demonstrable commitment [of the Clause to a coordinate branch of government]... barring our review."

With regard to the second Baker factor - a lack of judicially discoverable and manageable standards - the court noted that "there is sparse judicial precedent interpreting the Guarantee Clause to aid our analysis," before adding (somewhat defiantly) that it was "unwilling to allow dicta suggesting that the Guarantee Clause is per se nonjusticiable to become a self-fulfilling prophecy." In order to develop judicially manageable standards, the panel stated, analysis of the Guarantee Clause "must be permitted to reach the stage of ligation [beyond summary dismissal] where such standards are developed."

With regard to the third Baker factor, prohibiting the making of a "policy determination of a kind clearly for nonjudicial discretion," the court reiterated its interpretive responsibility under Marbury v. Madison before noting that "we 'cannot avoid [that] responsibility merely because the issues have political implications.'" The court allowed this obvious tension to hang in the air, and added (without apparent authority) that "deciding whether a state's form of government meets a constitutionally mandated threshold does not require any sort of 'policy determination' as courts applying the Baker tests have understood that phrase."

The remaining three Baker factors were summarily dismissed. The court affirmed the standing and political question rulings of the district court and remanded for further proceedings. Interestingly, the court added in the concluding lines of its opinion that anti-TABOR claims by the legislative plaintiffs under the Colorado Enabling Act were "independently justiciable for reasons that do not apply to the Guarantee Clause claim," quoting the D.C. Circuit to the effect that "the Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations."

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/12/12-1445.pdf

Panel: Briscoe, Seymour, Lucero

Date of Issued Opinion: March 7, 2014

Docket Number: 12-1445

Decided: District court rulings as to standing and the political question doctrine affirmed; remanded for further proceedings.

Counsel: Daniel D. Domenico, Solicitor General (John W. Suthers, Attorney General, Frederick R. Yarger, Assistant Solicitor General, Bernie Buescher, Deputy Attorney General, Megan Paris Rundlet, Assistant Attorney General, with him on the briefs), Office of the Attorney General for the State of Colorado, Denver, Colorado, for the Defendant-Appellant.

David E. Skaggs (Lino S. Lipinsky de Orlov, Herbert Lawrence Fenster, McKenna Long & Aldridge LLP; Michael F. Feeley, John A. Herrick, Geoffrey M. Williamson, and
Carrie E. Johnson, Brownstein Hyatt Farber Schreck LLP, with him on the briefs),
Denver, Colorado for the Plaintiffs-Appellees.

Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado and Karen R. Harned and
Luke A. Wake, NFIB Small Business Legal Center, Washington, DC, filed an amicus
curiae brief for National Federal of Independent Business, Tabor Foundation, Oklahoma Council for Public Affairs, Howard Jarvies Taxpayers Foundation, Freedom Center of Missouri, 1851 Center for Constitutional Law, Freedom Foundation, and Goldwater Institute on behalf of Defendant-Appellant.

David B. Kopel, Independence Institute, Denver, Colorado, and Ilya Shapiro, Cato
Institute, Washington, DC, filed an amicus curiae brief for Independence Institute and Cato Institute on behalf of Defendant-Appellant.

James M. Manley, Mountain States Legal Foundation, Lakewood, Colorado, filed an
amicus curiae brief for Sen. Kevin Lundberg, Rep. Jerry Sonnenberg, Rep. Justin Everett, Rep. Spencer Swalm, Rep. Janak Joshi, Rep. Perry Buck, Sen. Ted Harvey, Sen. Kent Lambert, Sen. Mark Scheffel, Sen. Kevin Grantham, Sen. Vicki Marble, Sen. Randy Baumgardner, Rep. Dan Nordberg, Rep. Frank McNulty, Rep. Jared Wright, Rep. Chris Holbert, Rep. Kevin Priola, Sen. Scott Renfroe, Sen. Bill Cadman, and Colorado Union of Taxpayers Foundation on behalf of Defendant-Appellant.

D'Arcy W. Straub, Littleton, Colorado, filed an amicus curiae brief for D'arcy W. Straub, on behalf of Defendant-Appellant.

Andrew M. Low, Emily L. Droll, and John M. Bowlin, Davis Graham & Stubbs LLP,
Denver, Colorado, filed an amicus curiae brief for Colorado Association of School
Boards and Colorado Association of School Executives on behalf of Plaintiffs-Appellees.

Melissa Hart, University of Colorado Law School, Boulder, Colorado, filed an amicus
curiae brief for Erwin Chemerinsky, Hans Linde, William Marshall, Gene Nichol, and
William Wiecek on behalf of Plaintiffs-Appellees.

Joseph R. Guerra and Kathleen Mueller, Sidley Austin LLP, Washington, DC, filed an
amicus curiae brief for The Center on Budget and Policy Priorities on behalf of Plaintiffs-Appellees.

Stephen G. Masciocchi, Holland & Hart, Denver, Colorado, and Maureen Reidy Witt,
Holland & Hart, Greenwood Village, Colorado, filed an amicus curiae brief for The
Colorado General Assembly on behalf of Plaintiffs-Appellees.

Matthew J. Douglas, Holly E. Sterrett, Paul W. Rodney, and Nathaniel J. Hake, Arnold & Porter LLP, Denver, Colorado, filed an amicus curiae brief for the Bell Policy Center and the Colorado Fiscal Institute on behalf of Plaintiffs-Appellees.

Catherine C. Engberg, Shute, Mihaly & Weinberger LLP, San Franscisco, California,
filed an amicus curiae brief for Colorado Parent Teacher Association on behalf of
Plaintiffs-Appellees.

Harold A. Haddon and Laura G. Kastetter, Haddon, Morgan and Foreman, P.C., Denver, Colorado, filed an amicus curiae brief for Colorado Chapter of the American Academy of Pediatrics and Colorado Nonprofit Association on behalf of Plaintiffs-Appellees.

Author: Lucero

Case Alert Author: Levi A. Monagle

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 03/28/2014 06:02 PM     10th Circuit     Comments (0)  

March 16, 2014
  THI v. Patton - 10th Circuit
Case Name: THI of New Mexico v. Lillie Mae Patton

Headline: Tenth Circuit holds that the Federal Arbitration Act preempts unconscionability determinations rooted in state-level hostility to arbitration.

Area(s) of Law: Arbitration, Contracts, Constitutional Law

Issue(s) Presented: Does the Federal Arbitration Act preempt a state law determination that an arbitration clause is unconscionable because it applies primarily to claims that only one party to the contract is likely to bring?

Brief Summary:

The Federal Arbitration Act (FAA) articulates a strong federal policy in favor of arbitration. In interpreting the Act, various courts have held that that the FAA preempts both state statutes and state common law predicated on the view that arbitration is inferior to litigation as a means of vindicating rights.

In THI v. Patton, the Tenth Circuit held that the FAA preempted a determination of the unconscionability of an arbitration clause under the common law of New Mexico, insofar as that determination was rooted in an assumption by the New Mexico Court of Appeals that arbitration was inferior to litigation as a means of vindicating rights. The Tenth Circuit added that a court's reasons for finding an arbitration clause unconscionable must be carefully examined to ensure that they are not rooted in this statutorily prohibited assumption.

Extended Summary:

The FAA was passed in 1925, with the objective of overcoming judicial hostility to arbitration agreements and leveling the playing field between arbitration and litigation as methods of dispute resolution. Since the passage of the FAA, arbitration has assumed a prominent role in federal dispute resolution, and numerous opinions in recent years have reinforced the federal courts' "strong endorsement" of arbitration.
In acknowledgment of the purpose of the Act, federal courts have held that the FAA preempts both state statutes and state common law predicated on the view that arbitration is inferior to litigation as a means of vindicating rights. While acknowledging that state common law may still indicate that an arbitration clause is invalid - because it is unconscionable, for instance - the courts have repeatedly emphasized that the invalidity of an arbitration clause may not hinge on the simple fact that the clause mandates arbitration.

In THI v. Patton, a nursing home resident entered into an agreement requiring arbitration for all claims except guardianship proceedings, collection/eviction actions, and claims under $2,500. When the resident died, his estate sued THI (the nursing home operator) for negligence and misrepresentation. Pursuant to its agreement with the resident, THI sought to compel arbitration.

The district court initially ordered arbitration in keeping with the agreement. However, in the relatively simultaneous case of Figueroa v. THI, the New Mexico Court of Appeals held an identical arbitration agreement to be unconscionable, and the district court subsequently reversed its prior decision under Rule 60(b)(6). Included in the district court's reversal was a holding that the FAA did not preempt the holding of Figueroa because the holding of Figueroa hinged on the generally applicable common law rule that grossly one-sided contracts were unconscionable and thus unenforceable. THI appealed to the Tenth Circuit on the federal preemption question.

The Tenth Circuit began (and essentially ended) its analysis by noting that the New Mexico Court of Appeals found the arbitration agreement in Figueroa to be unconscionable because it "reserved" litigation for THI's most likely claims while "subjecting" residents to arbitration for their most likely claims. Finding such an arrangement unconscionable, the panel stated, depended entirely on "assuming the inferiority of arbitration to litigation" - the exact assumption prohibited by the FAA.
Stated differently, an agreement requiring litigation for THI claims and arbitration for resident claims could only be unfair to residents if arbitration was inferior to litigation in some way. Under the FAA, this could not be the case. Thus, the agreement could not be unfair to residents (much less "unconscionable"). Because the agreement could not be unconscionable, THI was entitled to compel arbitration of the claim at issue.

The Tenth Circuit noted that "the view of the New Mexico courts appears to be that so long as they are applying general unconscionability doctrine, the FAA does not limit their reasons for ruling an arbitration agreement unconscionable." This, the court declared, could not be the case: the reasons for a court's finding of unconscionability must be examined to ensure that those reasons are not "based on a policy hostile to arbitration."

Importantly, the panel concluded its opinion by distinguishing the arbitration clause at issue from a clause "that required consumers to arbitrate all their claims but allowed [a corporation] to choose between arbitration and litigation for its claims." See Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 168 - 71 (2004). The Tenth Circuit allowed the possibility that such a clause might not be preempted by the FAA - that is, might be legitimately unconscionable - because it allowed a choice of remedies for one party without allowing choice for the other. As such, a clause of this nature might be found unconscionable without assuming that arbitration was in some way inferior to litigation - the only necessary assumption being that lack of choice was in some way inferior to choice.

To read the full opinion, please visit: https://www.ca10.uscourts.gov/opinions/13/13-2012.pdf

Panel: Circuit Judges Hartz and Tymkovich, and District Judge Jackson

Date of Issued Opinion: January 28, 2014

Docket Number: 13-2012

Decided: New Mexico district court's grant of Rule 60(b)(6) relief is REVERSED; case is REMANDED to the district court with instructions to reinstate its original order compelling arbitration.

Counsel: Lori D. Proctor, Proctor & Associates, P.C., Houston, Texas, for Plaintiffs - Appellants. Jennifer J. Foote (Dusti D. Harvey, with her on the brief), Harvey Law Firm, LLC, Albuquerque, New Mexico, for Defendant - Appellee.

Author: Hartz

Case Alert Author: Levi A. Monagle

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 03/16/2014 04:15 PM     10th Circuit     Comments (0)  

January 2, 2014
  Republican Party of New Mexico v. King - 10th Circuit
Case Name: Republican Party of New Mexico v. Gary King

Headline: Tenth Circuit, in keeping with five other circuits, holds that contribution limits to independent expenditure groups cannot be reconciled with the holding in Citizens United

Area(s) of Law: Constitutional Law; Campaign Finance Law

Issue(s) Presented:
1. Can states limit contributions to independent expenditure groups in light of the Supreme Court's holding in Citizens United?
2. How much "coordination" is allowed between an independent expenditure group and a political party before the contributions to the independent expenditure group may be regulated as contributions to a political party under McConnell v. FEC?

Brief Summary:

In Citizens United, the Supreme Court clarified that all campaign finance regulations must be justified by the government's interest in preventing corruption or the appearance of corruption in representative politics. Over the past three years, the holding from Citizens United has been applied in a number of cases in a number of circuits, each finding that independent expenditures by PACs do not implicate the anti-corruption interest and thus cannot be regulated. Similarly, these circuits have found that private contributions to PACs engaged in independent expenditure do not implicate the anti-corruption interest and thus cannot be regulated.

In Republican Party of New Mexico v. King, the Tenth Circuit joins that list of circuit courts holding that private contributions to PACs engaged in independent expenditure do not implicate the anti-corruption interest and cannot be regulated. However, the facts of the case involve political action committees (PACs) with leadership, organization, and purpose overlapping the Republican Party of New Mexico (NM-GOP). Since the regulation of contributions to political parties is viewed as a valid anti-corruption exercise under McConnell v. FEC, and since "coordination" between PACs and political parties brings McConnell into play, the case raises (but does not answer) interesting questions about the fine line between "independent" and "coordinated" campaign finance expenditures.

Extended Summary:

In 2010, New Mexico introduced campaign finance laws that imposed a number of limitations on contributions to and by political parties, political action committees, and private donors. Specifically, the state limited the amount of money an individual could contribute to a political action committee engaged in independent political expenditures. Later in 2010, the Supreme Court issued its opinion in Citizens United, which held that restrictions on the independent political expenditures of corporate entities violated the First Amendment. After Citizens United, the NM-GOP and a number of PACs made an as-applied challenge to the New Mexico campaign finance laws; the lower court issued a preliminary injunction prohibiting the attorney general of New Mexico from enforcing the laws.

The Tenth Circuit began its opinion with a discussion of Buckley v. Valeo. In that case, the Supreme Court held that politically-motivated monetary donations were a form of political speech. As a form of political speech, political donations cannot be burdened by campaign finance regulations unless those regulations are narrowly tailored to advance a compelling government interest.

The one compelling government interest recognized by the Court in Buckley was the interest in preventing corruption or the appearance of corruption. As such, the Court drew a distinction between independent political expenditures and contributions to candidates for political office - allowing regulation of the latter where regulation of the former would be impermissible. In the Court's view, the risk of quid pro quo corruption was greater in cases of contribution to candidates than it was in cases of independent political expenditure - provided, of course, that the expenditure was truly independent (i.e., not coordinated with the offices of any political candidate).

In Citizens United, the Court clarified that the anti-corruption interest was the only valid interest for the restriction of political speech. In doing so, the Court overruled the holding in Austin v. Michigan Chamber of Commerce, which had recognized a broader permissible interest in "reducing the distorting financial influence of business corporations on the political process." Citizens United effectively placed corporate entities in the position of individual citizens for purposes of political speech analysis, allowing corporate entities to make unlimited independent expenditures on behalf of (or in opposition to) candidates for political office, so long as the expenditures were not coordinated with that candidate or any other.

There remained a question, after Citizens United, as to the constitutionality of regulating contributions to entities devoted to independent political expenditure (distinct from contributions to political candidates themselves, which remain subject to regulation). In subsequent decisions, five circuit courts have struck down regulations limiting contributions to independent expenditure groups. The question in Republican Party of New Mexico v. King was whether or not the Tenth Circuit would follow suit.

For its part, New Mexico offered two arguments that Citizens United did not govern the case at hand: first, that Supreme Court opinions prior to Citizens United held that regulation of contributions to independent expenditure groups was permissible in some instances; and second, that New Mexico retained a compelling interest in preventing the circumvention of valid contribution limits (i.e., limits on contributions to political candidates).

In support of its first argument, New Mexico pointed to McConnell v. FEC. In that case, the Supreme Court held that the government could regulate contributions to political parties because "contributions to a federal candidate's party in aid of that candidate's campaign threaten to create - no less than would a direct contribution to the candidate - a sense of obligation" implicating the anti-corruption interest recognized in Buckley. New Mexico argued that because there was overlap between the leadership of the plaintiff PACs and the leadership of the state and local branches of the NM-GOP, that the PACs served as stand-ins for the party itself and were thus subject to the permissible party-contribution limitations from McConnell.

In support of its second argument - really an implied extension of its first - New Mexico argued that the Supreme Court's holding in FEC v. Colo. Republican Fed. Campaign Comm. (Colorado I) made allowance not only for anti-corruption regulation but also for regulation designed to prevent the circumvention of anti-corruption regulation. New Mexico argued that the campaign finance laws were intended to prevent circumvention of its permissible restrictions on direct contributions to political candidates and parties - in this case, by making unlimited contributions to "independent expenditure groups" that were really state and local NM-GOP branches otherwise subject to regulation under McConnell.

The Tenth Circuit held that Citizens United governed the outcome in Republican Party of New Mexico v. King, stating that "because there is no corruption interest in limiting independent expenditures, there can also be no interest in limiting contributions to non-party entities that make independent expenditures." Addressing New Mexico's first argument - that the plaintiff PACs were not really "non-party entities" due to their shared membership with the NM-GOP leadership - the court stated that the question on the existing record was limited to formal affiliation between the PACs and political parties. Since there was no formal affiliation between the plaintiff PACs and the NM-GOP, the state could not avail itself of the party-contribution holding in McConnell.

The court acknowledged that an inquiry into "coordination" of PAC and political candidate spending was important, insofar as "expenditures coordinated with a candidate are seen as indirect contributions." The court added that since "political parties are so affiliated with candidates [as] to justify a presumption that money a contributor might give to a party will be spent on that candidate," separate factual inquiry into coordination was appropriate where there was allegation of indirect control of PACs by political parties. The court stated that "there must be some attendant coordination with [a] candidate or political party to make corruption real or apparent," and admitted that "if a PAC were making expenditures that were coordinated with a political party, then such expenditures could be deemed contributions to a political party" subject to regulation under the framework of Buckley and McConnell. While this seemed to be New Mexico's allegation in the case, the court did not remand for additional factfinding on this point, although it noted - in addition to joint membership of the plaintiff PACs and NM-GOP leadership - that one of the plaintiff PACs was "organized" by NM-GOP.

Addressing New Mexico's related second argument - that the permissible anti-circumvention interest from Colorado I justified the regulation of "independent expenditures" that were really indirect contributions to political parties by virtue of coordination - the court noted that "there can be no freestanding anti-circumvention interest" and then reiterated its earlier logic: that only corruption or the appearance of corruption could justify regulation of political speech; that independent expenditures carried no risk of corruption or the appearance of corruption; that non-contribution expenditures by PACs were independent unless they were coordinated with a candidate or political party; and that the question of coordination, on the record at hand, was limited to one of formal affiliation (of which there was none).

To read the full opinion, please visit: http://www.ca10.uscourts.gov/o.../12/12-2015.pdf


Panel: Circuit Judges McKay, O'Brien, and Tymkovich

Date of Issued Opinion: December 18, 2013

Docket Number: 12-2015

Decided: Preliminary injunction against New Mexico District Attorney affirmed.

Counsel:

Phillip Baca, Assistant Attorney General (Gary K. King, Attorney General, with
him on the briefs) Office of the Attorney General, Albuquerque, New Mexico, for
Appellants.

Randy Elf, James Madison Center for Free Speech, Terre Haute, Indiana (James
Bopp, Jr., James Madison Center for Free Speech, Terre Haute, Indiana, and Paul
M. Kienzle III, Scott & Kienzle, P.A., Albuquerque, New Mexico, with him on
the brief) for Appellees.

William H. Sorrell, Attorney General of Vermont, and Eve Jacobs-Carnahan,
Assistant Attorney General of Vermont, Montpelier, Vermont, David M. Louie,
Attorney General of Hawaii, Honolulu, Hawaii, Steve Bullock, Attorney General
of Montana, Helena, Montana, Darrell V. McGraw, Jr., West Virginia Attorney
General, Office of the Attorney General, Charleston, West Virginia, Tom Miller,
Attorney General of Iowa, Des Moines, Iowa, and Peter F. Kilmartin, Attorney
General, State of Rhode Island, Providence, Rhode Island, filed an Amici brief on
behalf of Appellants.

Author: Tymkovich

Case Alert Author: Levi Monagle, UNM School of Law, Class of 2014

Case Alert Circuit Supervisor: Professor Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 01/02/2014 09:21 AM     10th Circuit     Comments (0)  

November 17, 2013
  United States v. Chavez
Headline: The Tenth Circuit reverses district court's order allowing the government to involuntarily medicate the defendant to make him competent to stand trial.

Area(s) of Law: Criminal law, Criminal procedure

Issue(s) Presented: Whether the district court erred in permitting the government to involuntarily medicate a defendant pursuant to United States v. Sell, 539 U.S. 166 (2003).

Brief Summary: Following an indictment, counsel for the defense and the government agreed that the defendant should be evaluated to determine whether or not he was competent to stand trial. A psychologist with the Federal Bureau of Prisons issued a report and concluded that the defendant suffered from paranoid schizophrenia and was not competent to stand trial. The defendant refused to consent to treatment, and the government filed a motion for involuntary psychiatric treatment and compulsory medication. The district court granted the government's motion.

The defendant appealed this decision arguing that the government failed to satisfy the requirements for involuntarily medicating a defendant under the United States Supreme Court precedent United States v. Sell, 539 U.S. 166 (2003). After reviewing the testimony presented at the evidentiary hearing, the Tenth Circuit agreed and concluded that the district court had erred and vacated the district court's order

Extended Summary: Mr. Reydecel Chavez, a native of Mexico, was charged with being a felon in possession of a firearm, being an illegal alien in possession of a firearm. and reentry of a removed alien. After his indictment, all counsel agreed that Mr. Chavez need to be evaluated for competency. He was committed to a Bureau of Prisons medical center in Missouri where Dr. Richart DeMier concluded that Mr. Chavez suffered from paranoid schizophrenia.

In the competency report prepared by Dr. DeMier, the psychologist determined that with antipsychotic medication Mr. Chavez could be rendered competent. Mr. Chavez refused to consent to treatment, and the district court subsequently found Mr. Chavez incompetent to assist properly in his defense due to mental disease or defect. The government filed a motion for psychiatric treatment and compulsory medication in order to render Mr. Chavez competent to stand trial. At the evidentiary hearing, relying upon U.S. v. Sell, the district court granted the government's motion.

The controlling case is United States v. Sell, in which the Supreme Court of the United States held that the government may involuntarily administer drugs to a mentally ill, non-dangerous defendant in order to render him competent to stand trial only upon a four-part showing. The government must establish that:
1) "important governmental interests are at state;"
2) the "involuntary medication will significantly further" those interests;
3) the "involuntary medication is necessary to further those interests;
4) the administration of the medication is medically appropriate" and in the defendant's best medical interests.

With regard to the second and fourth factors, Mr. Chavez argued that the district court had insufficient evidence to find both that involuntary medication would "significantly further" governmental interests and that forcibly medicating him would be "medically appropriate." At the evidentiary hearing, the government's sole witness was Dr. DeMier who testified that no individualized treatment plan for Mr. Chavez had been prepared. Mr. Chavez argued that by not requiring that the government prepare a treatment plan specific to him, it was impossible for the district court to determine that there would be any side effects or that involuntarily medicating him would be medically appropriate. Mr. Chavez's counsel objected at the hearing to the lack of an individualized treatment plan as being so open ended as to allow "experimentation" on Mr. Chavez. The district court overruled this objection and concluded that the government had met its burden under Sell.
The Tenth Circuit determined that the district court's decision was erroneous under Sell. The circuit reasoned that without an individualized treatment plan, a proper analysis could not be conducted to determine whether the government had satisfied the required factors. Furthermore, Dr. DeMier testified to the possible side effects and success rates of different antipsychotic drugs, but no particular drug or plan to administer such a drug had been provided to the court for Mr. Chavez. Without more information, the Tenth Circuit concluded that important matters under Sell could not be accurately considered by the district court.

In addition to the government failing to provide the court with an individualized treatment plan, the Tenth Circuit found the district court's order lacked necessary limitations on the government's administration of drugs to Mr. Chavez. Although the court in Sell did not identify what level of specificity is required in a court's order for involuntary medication, the circuit court determined that the need for a high level of detail is plainly contemplated by the required comprehensive findings. Specifically, the Tenth Circuit held than an order to involuntarily medicate a non-dangerous defendant solely in order to render him competent to stand trial must specify which medications might be administered and their maximum dosages.

To read the full opinion, please visit: http://www.ca10.uscourts.gov/opinions/12/12-2126.pdf

Panel: Judges Briscoe, Seymour, Lucero

Date of Issued Opinion: November 13, 2013

Docket Number: 12-2126

Decided: Reversed and remanded

Counsel:

John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson, Interim Federal Public Defender, with him on briefs), Denver, Colorado for Defendant - Appellant.

David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.

Author: Seymour

Case Alert Author:
Rikki-Lee G. Ulibarri, UNM School of Law, Class of 2014

Case Alert Circuit Supervisor:
Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 11/17/2013 04:55 PM     10th Circuit     Comments (0)  

November 11, 2013
  United States v. Pickard & Apperson - 10th Circuit
Case Name: United States v. William Leonard Pickard & Clyde Apperson

Headline: Tenth Circuit reverses district court's decision to deny motion to unseal confidential informant records

Area(s) of Law:
Criminal law, Criminal procedure

Issue(s) Presented:
Whether the district court erred in denying defendants' motion to unseal documents sealed during trial.

Brief Summary:
Defendants were charged with multiple drug offenses. At trial, the court ordered that the DEA's file on the testifying confidential informant be sealed. Eight years later the Defendants moved to have the file unsealed during ongoing litigation under the Freedom of Information Act.

On appeal, the Tenth Circuit determined that the court:
1. failed to require the United States to articulate a significant interest in continuing to keep the DEA records sealed;
2. did not apply the presumption that judicial records should be open to the public; and
3. did not consider whether unsealing a redacted version of the DEA records would adequately serve the as yet unarticulated government interest in keeping the records sealed.

Extended Summary:
In 2003, Defendants William Leonard Pickard and Clyde Apperson ("Defendants") were tried before a jury on several drug charges. During the trial, Gordon Todd Skinner ("Mr. Skinner"), testified against the Defendants after acting as a confidential informant for the DEA. At trial, the U.S. District Court for the District of Kansas ordered that the government turn the file over to defense counsel and ordered that the file be sealed. Defendants were convicted.

In 2011, during ongoing litigation under the Freedom of Information Act ("FOIA"), Defendants filed a motion with the district court asking that Mr. Skinner's file be unsealed. Defendants had some of the information contained in the DEA file on Mr. Skinner, but since the file had been sealed, the information could not be used as exhibits. Although the district court had authority over the sealed file and the Defendants' motion was properly made, the district court denied the motion.

Defendants appealed the decision. The Tenth Circuit first determined that the Defendants had the requisite standing and that the motion was not moot. The standard of review of the district court's decision is for an abuse of discretion. In this matter, the circuit court determined that the district court had applied incorrect legal principles thus resulting in an abuse of discretion.

A common-law right exists to have access to judicial records. However, that presumption of openness is overcome when there are countervailing interests that outweigh the public interest in access to such judicial records. When a district court exercises its discretion on such issues, it must weigh this presumption against the competing issues raised by the parties. The party that wishes to overcome the presumption of openness bears the burden of providing the court with reasoning showing that their position outweighs the interest in public access.

The Tent Circuit held that the district court had incorrectly ruled on the Defendants' motion. First, the Government had the burden to articulate to the court why the records should not be made public, but it failed to present a significant interest. While there could be government interests that would justify keeping the records sealed, none were articulated to the district court. Second, the district court did not apply the presumption that judicial records should be open to the public and incorrectly placed the burden on the Defendants. Lastly, the district court did not consider whether unsealing redacted versions of the records would suffice even though the Government had failed to present an interest in keeping the documents sealed.

For these reasons, the Tenth Circuit reversed the district court's decision and remanded the motion for reconsideration.

To read the full opinion, please visit: http://www.ca10.uscourts.gov/opinions/12/12-3142.pdf

Panel: Judges Tymkovich, Ebel, Matheson

Date of Issued Opinion: November 5, 2013

Docket Number: 12-3142 & 12-3143

Decided: Reversed and remanded

Counsel:
William K. Rork, Rork Law Office, Topeka, Kansas for Defendants - Appellants.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.

Author: Ebel

Case Alert Author:
Rikki-Lee G. Ulibarri, UNM School of Law, Class of 2014

Case Alert Circuit Supervisor:
Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 11/11/2013 09:19 AM     10th Circuit     Comments (0)  

September 10, 2013
  United States v. Brian William McKye - 10th Circuit
Case Name: United States v. Brian William McKye

Headline: Tenth Circuit reverses convictions following the trial court's denial of defendant's proposed jury instruction

Area(s) of Law:
Criminal law, Securities law

Issue(s) Presented:
Whether the determination of whether a note is a security for a conviction under 15 U.S.C. § 78j(b) is a question for the jury.

Brief Summary:
Defendant, who was charged with eight counts of securities fraud, tendered a jury instruction allowing the jury to decide whether the investment notes at issue were securities under the federal securities laws.

The court refused to give Defendant's instruction, and instead instructed the jury that the term "security" included a "note." The jury convicted Defendant on seven of the eight securities fraud charges. The Court of Appeals reversed Defendant's convictions and remanded the case.

Extended Summary:
An indictment on February 3, 2011, alleged that Brian William McKye ("Defendant") and Joe Don Johnson ("Johnson") engaged in fraud through the sale and purchase of securities. The indictment further alleged that Defendant and Johnson conspired to launder money derived from the alleged securities fraud.

Defendant operated Heritage Estate Services, LLC ("Heritage"), an entity that arranged revocable trusts for clients. Heritage charged an additional cost for the trust preparation. If this cost could not be paid in full by the client, it could be financed with a promissory note in favor of Heritage, agreeing to pay the balance over a thirty-six-month period. These notes, or trust loans, were eventually sold to another entity operated and owned by Defendant, Global West.

The government presented evidence showing that Heritage also marketed to its clients certain investment notes issued by the other entity, Global West. Defendant personally, and through his employees, informed investors that their investments in Global West were backed by real estate notes and mortgages. In reality, the investments were backed by the trust loans, but no trust loan had a value of more than $4000, so the same loan was listed on multiple investment contracts.

A government witness, IRS Special Agent Robert Summers ("Summers") testified that Defendant essentially operated a Ponzi scheme in which principal from newer investors paid the interest to older investors. At trial, Defendant testified and likened the system to placing second and third mortgages on the same piece of property.

Defendant proposed a jury instruction requiring the jury to determine whether the investment notes were securities for purposes of the charged crimes of securities fraud. In turn, the Government countered that matter was a question of law beyond the scope of the jury. The district court agreed with the Government and instructed the jury that the notes are presumed to be securities and that the Defendant did not present evidence to overcome that presumption. The jury convicted Defendant of seven of the eight counts of securities fraud and conspiracy.

On appeal, the Defendant argued that the district court tendered an erroneous jury instruction regarding an element of the charged crime, which the Government had the burden to prove beyond a reasonable doubt. Defendant further argued that the jury instruction at issue erroneously stated the law because the Supreme Court of the United States established that not all notes are securities in Reves v. Ernst & Young, 494 U.S. 56 (1990).

In response to Defendant's argument, the Court relied on the analysis in Reves and Gaudin v. United States, 515 U.S. 506 (1995). The Court in Reves used the four-part "family resemblance" test to determine whether a note is a security. The family resemblance test requires findings related to motivation, distribution, expectation, and risk. The Gaudin Court held that mixed questions of fact and law that pertain to an element of the charged crime are for the jury.

Relying on these holdings, the Court determined that the question of whether a note is a security requires a jury to determine certain predicate facts and then apply those facts to the correct legal standard. The question was also an element of the charged crime of securities fraud, as outlined by another jury instruction.

Thus, the district court erred when it instructed the jury that notes were securities. Because this error was not harmless, Defendant's conviction was reversed and the matter remanded.

To read the full opinion, please visit: http://www.ca10.uscourts.gov/opinions/12/12-6108.pdf

Panel: Judges Briscoe, Brorby, Murphy

Date of Issued Opinion: August 20, 2013

Docket Number: 12-6108

Decided: Reversed and remanded

Counsel:
Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the brief), Denver Colorado, for Defendant - Appellant.

Susan Dickerson Cox, Assistant United States Attorney (Sanford C. Coats, United States Attorney, and Suzanne Mitchell, Assistant United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.

Author: Murphy

Case Alert Author:
Rikki-Lee G. Ulibarri, UNM School of Law, Class of 2014

Case Alert Circuit Supervisor:
Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 09/10/2013 06:30 PM     10th Circuit     Comments (0)  

July 7, 2013
  Hobby Lobby Stores, Inc. v. Sebelius - 10th Circuit
Case Name: Hobby Lobby Stores, Inc. v. Sebelius

Headline: Tenth Circuit extends religious exercise rights to for-profit corporations, indicates that contraceptive coverage requirements of the Patient Protection and Affordable Care Act have the potential to violate religious exercise rights under the Religious Freedom Restoration Act

Area(s) of Law: Constitutional Law

Issue(s) Presented:
1. Can for-profit corporations be "persons exercising religion" under the Religious Freedom Restoration Act (RFRA) or the Free Exercise Clause?
2. Do the contraceptive coverage requirements of the Affordable Care Act (ACA) impose a "substantial burden" under RFRA when a non-profit employer objects to the requirements on free exercise grounds?

Brief Summary:

Two for-profit corporations, privately owned by a Christian family, moved for a preliminary injunction to exempt the corporations from parts of the ACA's contraceptive coverage requirements. The corporations claimed that forcing them to cover abortifacients in their employee health plans substantially burdened their sincerely held religious beliefs under RFRA. The motion for a preliminary injunction was denied by the district court for failure to show a likelihood of success on the merits.

The key issue on appeal was whether or not a for-profit corporation may be considered a "person exercising religion" under RFRA. A five-member majority of the court concluded that for-profit corporations could be considered "persons exercising religion" under RFRA, and that the Appellant corporations had in fact demonstrated a likelihood of success on the merits. The majority reversed the district court's holding with regard to likelihood of success on the merits, but could not muster the votes to grant the preliminary injunction outright. The case was remanded to district court for reconsideration of the balance of equities and the public interest in a preliminary injunction.

The case produced a number of dissenting opinions. In the most comprehensive dissent, Chief Judge Briscoe argued that the majority's holding was completely unprecedented and "nothing short of a radical revision of First Amendment law, as well as the law of corporations." Chief Judge Briscoe stated that the majority had "opened the floodgates to RFRA litigation challenging any number of federal statutes that govern corporate affairs."

In a separate partial dissent, Judge Matheson cautioned judicial restraint on both sides of a question that would "profoundly affect potentially millions of businesses in our society in ways we can only begin to anticipate." While Judge Matheson was unwilling to extend RFRA protections to for-profit corporations on the record presented, he was similarly unwilling to categorically state that for-profit corporations could never benefit from RFRA protections. Citing the judicial canon that constitutional questions should not be addressed unnecessarily, and noting that the case could be resolved with regard to the private owners of the corporations rather than the corporations themselves, Judge Matheson urged the court to leave the difficult question of protecting for-profit corporations under RFRA unanswered for the time being.


Extended Summary:

Appellants are two for-profit corporations, Hobby Lobby Stores, Inc. and Mardel, Inc. Both corporations are privately owned by the Green family, which runs the businesses in a manner designed to reflect the family's Christian religious beliefs. These beliefs include an opposition to abortifacients.

The ACA requires that employment-based group health plans - such as those offered by Appellants to employees - include coverage of FDA-approved contraceptives. A number of these contraceptives are possible or actual abortifacients. While there are a number of broad exceptions to the ACA's contraceptive coverage requirements (e.g., religious employers, non-profits with religious objectives, etc.), Appellants did not fit into one of these exceptions. Because they were not exempt from the requirements, they faced regulatory penalties for non-compliance ranging from twenty-six million dollars a year to four hundred and seventy-five million dollars a year.

After having requests for a preliminary injunction denied by an Oklahoma District Court, a two-judge panel of the Tenth Circuit, and the Supreme Court, Appellants moved for an en banc consideration by the Tenth Circuit. Due to the "exceptional importance of the questions presented," and recognizing that Appellants would begin to accrue regulatory penalties for noncompliance beginning on July 1, 2013, the Tenth Circuit granted that motion.

In the Oklahoma District Court and on appeal, Appellants sought a preliminary injunction against the enforcement of the regulatory penalties of the ACA, arguing that those penalties violated their right to religious exercise under RFRA. Appellants pointed out that they were willing to provide coverage for all FDA-approved non-abortifacient contraceptives, but that they should not be penalized for declining to provide coverage for abortifacients when such coverage was at odds with their sincerely held religious beliefs.

In order to assess the likelihood of Appellants' success on the merits - the first and most important element of preliminary injunction analysis - the Tenth Circuit began with a substantive assessment of RFRA protections. This required the court to answer three questions: 1) whether Appellants were "persons" exercising religion for RFRA purposes, 2) whether any religious exercise by Appellants was substantially burdened, and 3) whether the government had any narrowly tailored and compelling interest in enforcing the contraceptive coverage penalties against Appellants.

On the first question, a five-member majority of the court held that Appellants, as for-profit corporations, were "persons exercising religion" for the purposes of RFRA. While the government argued that only non-profit religious organizations had ever held such rights under RFRA, and that "the for-profit/non-profit distinction was well-established in Congress's mind long before it enacted RFRA," the majority pointed out that the Supreme Court had been careful not to exclude for-profit corporations from RFRA protection (citing Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987)). Analyzing the statutory language of RFRA itself, and the lack of a stipulated definition of "person" therein, the majority wrote that "the government has given us no reason to think that Congress meant 'person' in RFRA to mean anything other than its default meaning in the Dictionary Act" - a meaning encompassing for-profit corporations.

The government argued that the presence of narrow definitions of "person" in other statutes supported the application of a similarly narrow definition of "person" in the context of RFRA. The majority drew the opposite conclusion, finding the absence of such a narrowing definition to indicate that a broader definition was intended by Congress. Finally, analogizing to the recent decision in Citizen's United, the majority stated that "we see no reason why the Supreme Court would recognize protection for a corporation's political expression but not its religious expression."

On the second question, the same five-member majority of the court held that the severity of potential fines facing the Appellants constituted a substantial burden on sincerely held religious beliefs. The court pointed out that the contraceptive coverage requirements of the ACA forced the Appellants into a Hobson's choice - adherence to religious beliefs at the cost of massive penalties, or avoidance of penalties at the cost of religious beliefs. The majority noted that the Supreme Court had often found such dilemmas to constitute a substantial burden for the purposes of RFRA. The majority also went out of its way to clarify that the "substantial burden" inquiry only focuses on the intensity of state coercion, not on the theological merit of particular beliefs ("it is not within the judicial competence to inquire whether the petitioner... correctly perceived the commands of his faith.").

On the third question, the court held that the government's stated interests in public health and gender equality were not sufficiently compelling to justify the substantial burdens imposed on Appellants by the ACA. Reiterating that thousands of employers were exempt from the contraceptive coverage requirements of the ACA under the Act's various exceptions, the majority stated that "a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest." Since the government offered no explanation of how its stated interests would be undermined by exempting Appellants from the contraceptive coverage requirements of the ACA, the court also held that those requirements were not narrowly tailored with respect to Appellants.

The majority thus held that Appellants satisfied the "likelihood of success" element of preliminary injunction analysis. The same majority also held that Appellants satisfied the "irreparable injury" element, noting that violations of constitutional rights always constituted irreparable harm and that RFRA claims were designed to protect constitutional religious rights. However, only four judges agreed that the "balance of equities element" and the "public interest" element of the preliminary injunction analysis were satisfied. Judge Bacharach, who joined the majority with regard to the "likelihood of success" and "irreparable injury" holdings, felt that the interest balancing required of the other two preliminary injunction elements was more suited to a trial court than an appellate tribunal. Judge Bacharach also disagreed that RFRA rights should take on constitutional gloss in a manner allowing quick judgment on the question of public interest. Thus, the majority reversed the District Court with regard to the "likelihood of success" and "irreparable injury" elements of the analysis, and remanded the case to the District Court for further consideration of the "balance of equities" and "public interest" elements.

The case produced a number of concurrences and dissents (in addition to the partial concurrence of Judge Bacharach):

Judge Hartz filed a concurrence where he discussed additional rationales for extending RFRA and Free Exercise rights to for-profit corporations, and agreed with the majority that those rights should be so extended.

Judge Gorsuch (joined by Judges Kelly and Tymkovich) concurred with the majority that Appellants were entitled to a preliminary injunction, but wrote separately to argue that members of the Green family were also entitled to preliminary injunctions in their individual capacities.

Chief Judge Briscoe (joined by Judge Lucero) concurred as to a small piece of the majority's analysis and dissented as to the bulk of it. Chief Judge Briscoe noted that there was no evidence on the record as to how Appellants (as corporations) "exercised religion" on a day-to-day basis. More fundamentally, Chief Judge Briscoe argued that there was a complete lack of precedent for the extension of RFRA rights to for-profit corporations - and that this lack of precedent indicated a Congressional intent to limit corporate religious exercise to non-profit religious organizations.

Chief Judge Briscoe also balked at the degree to which individuals and corporations became interchangeable under the majority's RFRA analysis. Discussing the law of corporations, Chief Judge Briscoe stated that "it is simply unreasonable to allow the individual plaintiffs in this case to benefit, in terms of tax and personal liability, from the corporate/individual distinction, but to ignore that distinction when it comes to asserting claims under RFRA." All in all, Chief Judge Briscoe found the majority's holding "nothing short of a radical revision of First Amendment law, as well as the law of corporations," and stated that the majority had "opened the floodgates to RFRA litigation challenging any number of federal statutes that govern corporate affairs."

Judge Matheson concurred in part and dissented in part. On the question of extending RFRA rights to for-profit corporations, Judge Matheson dissented, arguing that Appellants "did not meet their burden to show that RFRA applies to them" and stating that "[Appellants'] briefs lack[ed] adequate supporting precedent." Noting that the answer to this question would "profoundly affect potentially millions of businesses in our society in ways we can only begin to anticipate," Judge Matheson emphasized the importance of judicial restraint. Although he thought that the majority's extension of RFRA rights to for-profit corporations was unwarranted on the record presented, he thought that Chief Judge Briscoe's willingness to permanently deny RFRA rights to for-profit corporations was unwarranted as well. Judge Matheson agreed with Judge Gorsuch that the Greens likely had claims in the individual capacities, and he concurred with the majority in reversing the District Court's holding that the Green family's RFRA claims were not likely to succeed on the merits.

To read the full opinion, please visit: http://www.ca10.uscourts.gov/o.../12/12-6294.pdf


Panel: Chief Judge Briscoe and Circuit Judges Kelly, Lucero, Hartz, Tymkovich, Gorsuch, Matheson, and Bacharach

Date of Issued Opinion: June 27, 2013

Docket Number: 12-6294

Decided: Denial of Appellants motion for preliminary injunction reversed; "likelihood of success" and "irreparable harm" established; case remanded to District Court for reconsideration of "balance of equities" and "public interest" elements of the motion for preliminary injunction.

Counsel:
S. Kyle Duncan (Luke W. Goodrich, Mark L. Rienzi, Eric S. Baxter, Lori H.
Windham, and Adèle Auxier Keim with him on the brief) The Becket Fund for
Religious Liberty, Washington, D.C., for Appellants.

Alisa B. Klein, Appellate Staff Attorney (Stuart F. Delery, Principal Deputy
Assistant Attorney General, Sanford C. Coats, United States Attorney, Beth S.
Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Appellate
Staff Attorney, with her on the brief) Civil Division, United States Department of
Justice,Washington, D.C., for Appellees.

Author: Tymkovich

Case Alert Author: Levi Monagle, UNM School of Law, Class of 2014

Case Alert Circuit Supervisor: Professor Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 07/07/2013 02:23 PM     10th Circuit     Comments (0)  

February 27, 2013
  United States v. Robert Garcia--Tenth Circuit
Headline:
Tenth Circuit affirms trial court's denial of defendant's motion to suppress evidence collected during a search based on a warrant that contained the incorrect address and was executed nine days after it was issued.

Area(s) of Law:
Criminal law

Issue(s) Presented:
Whether a search warrant is invalid where the warrant was executed nine days after it was issued and thus was considered stale, and whether the warrant is invalid because the address for the property to be searched on the warrant did not match the actual address of the place to be searched.

Brief Summary:
Relying on information from a confidential informant, Agent Latin applied for a search warrant of Robert Garcia's home on probable cause that Garcia was trafficking methamphetamine. While the affidavit for the warrant included a photograph of the property to be searched, the warrant actually listed an incorrect address for Garcia's property. The warrant was executed nine days after it was issued. Garcia appealed the trial judge's denial of his motion to suppress on grounds that the warrant did not state with particularity the place to be searched and was stale because the government did not execute it for nine days. The court rejected both arguments because Agent Latin had personal knowledge of the property as well as a photograph depicting the property that was included with the affidavit. Moreover, while nine days is a lengthy period of time, it did not exceed the ten-day rule.

Extended Summary:
On information provided from a confidential informant, Agent Hiram Latin of the Alamogordo Department of Public Safety's Narcotic Enforcement Unit was led to believe that there was a large quantity of methamphetamine consistent with trafficking at Robert Garcia's home. The informant described the residence as a single-wide mobile home without an address but bearing the number thirty-two on its west end. Along with this information, Agent Latin included in his affidavit for the warrant a photograph of the residence. However, Agent Latin mistakenly identified Garcia's residence as 1220 Mescalero Street (which is not another mobile home but an actual structural house), instead of the proper address, 1220 Mescalero Street Number 32. Along with this mistake, the warrant was not executed for nine days after it was issued, despite the judge's instruction to conduct the search "forthwith."

The police executed the warrant at 1220 Mescalero Street Number 32, assuming that the mobile home bearing the number 32 was Garcia's residence and relying on the photograph taken of the residence that was attached to the affidavit. Several bags of methamphetamine were discovered, along with marijuana, prescription medications, $30,000 in cash, drug paraphernalia, security cameras, ledgers, and other various drug-related items.

Garcia moved to suppress the evidence obtained during the search on account that the warrant was stale when it was executed nine days after being issued, and that the warrant did not state with particularity the things to be searched, as the warrant bore the wrong address. The trial judge denied the motion, and Garcia later pled guilty to possession with intent to distribute.

On appeal, Garcia advanced his staleness argument in two parts. First, the warrant was stale because the statements provided by the confidential informant did not provide probable cause to believe that the items to be seized would still be in his home when the search was conducted. Secondly, the warrant was stale because the issuing judge gave instructions to execute the warrant "forthwith," and the government failed to justify its nine-day delay.

Relying on one case over twenty-five years old, the court rejected Garcia's first argument, stating that the property was likely to remain in Garcia's residence for a long time because he is a trafficker and because the affidavit "recites facts indicating ongoing, continuous criminal activity." Thus, the warrant remained valid although it was executed nine days after it was issued - or twelve days after the confidential informant provided information to Agent Latin.

The court also rejected Garcia's second argument of staleness on account of the judge's language to execute the warrant "forthwith." Before its amendment in 1972, Fed. R. Crim. P. 41 required warrants to be executed within ten days of issuance and commanded officers to execute the warrant forthwith. Historically, the term "forthwith" in this regard is understood to be a requirement for officers to execute the warrant as soon as they reasonably could. However, the rule was amended and the "forthwith" language was removed, thus leaving only the ten day time limit. This amendment was interpreted by the court as a "move away from interpreting 'forthwith' as a substantive command" and is now only "a belated echo of a medieval royal command." Thus, the court treated the use of "forthwith" as just form language rather than an instruction commanding special haste.

Garcia's second argument regarding the description of the wrong premises, was also rejected by the court. Although the opinion's author stated that "obtaining a correct warrant may have been a better choice, particularly here because there was ample time to do so," the court was not persuaded that the error was sufficient to warrant suppression. Because the affidavit included a photograph of the property and Agent Latin had personal knowledge of the property, the court stated that "the issuing judge clearly intended for the officers to search the residence described and depicted in the warrant application [and that] there was never any doubt about which residence police should search." Thus, Garcia's argument was rejected and the court affirmed the trial court's order denying Garcia's motion to suppress.

To read the full opinion, please visit:
http://www.ca10.uscourts.gov/o.../11/11-2233.pdf


Panel:
Judges Lucero, Hartz, and O'Brien

Author:
Judge O'Brien

Date of Opinion:
February 13, 2013

Docket Number:
11-2233

Decided:
Affirmed

Counsel:
Leon Schydlower, El Paso, Texas, for Defendant-Appellant

David N. Williams, Assistant United States Attorney, District of New Mexico (Kenneth J. Gonzales, United States Attorney, Raul Torrez, Assistant United States Attorney, on the brief) Albuquerque, NM, Plaintiff-Appellee

Case Alert Author:
Charles B. Kraft, UNM School of Law, Class of 2013

Case Alert Circuit Supervisor:
Interim Dean Barbara Bergman, UNM School of Law

Edited: 03/03/2013 at 12:13 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 02/27/2013 12:22 PM     10th Circuit     Comments (0)  

February 20, 2013
  United States v. Lee Vang Lor--Tenth Circuit
Headline: Tenth Circuit refuses to vacate sentence after newly discovered evidence involving impeachment material of arresting officer is found in case with arguable Fourth Amendment issues.

Area(s) of Law:
Criminal law

Issue(s) Presented:
Based upon newly discovered evidence on a motion to vacate sentence under 28 U.S.C. 225, whether Defendant (1) had a full and fair opportunity to litigate his Fourth Amendment claim because he was not provided the evidence needed to impeach the government's sole witnesses establishing reasonable suspicion, and (2) is Defendant entitled to an evidentiary hearing to determine whether the Government violated Brady v. Maryland by not disclosing exculpatory material prior to trial.

Brief Summary:
Defendant learned after his unsuccessful suppression hearing that the officer who had stopped him and conducted a search of his vehicle was terminated for falsifying a police report in a different case. Not being given this information at an earlier date, Defendant appealed, claiming that his sentence should be vacated because he was deprived of a full and fair opportunity to litigate the validity of the officer's traffic stop and because the government violated Brady v. Maryland.

The court disagreed with Defendant on both claims, holding on the first claim that "[a] defendant is not deprived of a full and fair opportunity to litigate simply because he does not discover all potentially relevant evidence until after his suppression hearing." The court dismissed the Brady claim on account that it was not properly preserved below and was thus forfeited.

Extended Summary:
Lee Thao and his passenger Lee Vang Lor ("Defendant") had their vehicle stopped by Wyoming Highway Patrol tropper Ben Peech for speeding. Upon questioning by Trooper Peech, Defendant and Thao disclosed that they were traveling from Reno, Nevada, but gave different reasons for being there. The men were issued a speeding ticket, and upon request by Trooper Peech, Thao consented to a search of the vehicle. However, before Trooper Peech has begun his search, Thao asked if he had the ability to refuse consent for the search. Trooper Peech stated that he could "absolutely refuse," to which Thao then revoked his consent for the search. Trooper Peech then advised that both men would be detained until a unit with a drug dog could arrive to conduct a search of the vehicle. Feeling the pressure of Trooper Peech's statement, both men then re-consented to a search of the vehicle. The subsequent search, which Trooper Peech and three additional officers conducted, uncovered two pounds of methamphetamine.

During a suppression hearing, Thao and Defendant testified that they had yelled at the troopers to stop the search of the vehicle while the search was in progress. All four officers offered testimony that differed from Thao's and Defendant's. The officers testified that neither man made any attempt to revoke their consent to search the vehicle while the search was ongoing. The judge denied suppression, and defendants appealed. During that appeal, and relevant here, the Tenth Circuit Court of Appeals noted and relied upon the trial judge's statement that "I was more impressed with the truthfulness and testimonies of the sworn peace officers than I am of an individual who has had numerous encounters in a confrontation situation with peace officers all over and who is a convicted felon."

After Defendant had initiated his appeal, he learned that Trooper Peech had been fired from the Wyoming Highway Patrol for falsifying a report for a traffic stop. Trooper Peech's false report alleged that an individual was stopped for suspected DWI, rather than being stopped for suspicion of carrying drugs.

With this new evidence in hand, Defendant argued to the district court that because the main issue during the suppression hearing was one of credibility, which was heavily relied upon, that the outcome would have been different had this evidence been presented during that hearing. The district court denied this argument, asserting that because the newly discovered evidence was from an unrelated incident that "at best, [it only] might have provided a basis for impeaching trooper Peech's credibility," the judge's ruling would have been the same. This appeal followed.

On appeal, the Defendant made two arguments: (1) that he did not have a full and fair opportunity to litigate his Fourth Amendment claim because he did not have the evidence needed to impeach the government's sole witness establishing reasonable suspicion, and (2) that he is entitled to an evidentiary hearing to determine whether the Government violated Brady v. Maryland by not disclosing the exculpatory material prior to trial.

Addressing Defendant's first argument, the court stated that "[a] defendant is not deprived of a full and fair opportunity to litigate simply because he does not discover all potentially relevant evidence until after his suppression hearing." The court's holding was based in part on Stone v. Powell, 428 U.S. 465, which held that absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim. Because there was no evidence that the government withheld or concealed the information, Defendant was not deprived of a full and fair evidentiary hearing. In support of its holding, the court stated that "allowing evidence of Trooper Peech's false report to be introduced on collateral review would do little or nothing to deter future Fourth Amendment violations. Allowing the evidence would therefore be contrary to the purposes of the exclusionary rule...."

Defendant's second argument, concerning Brady, was not considered by the court because in his § 2255 petition, he failed to mention Brady or request an evidentiary hearing. Thus, the district court did not discuss the Brady issue, and because the issue was not properly preserved, this court held that the issue was forfeited because it did not properly raise the Brady issue.

Thus, the district court's denial of the Defendant's § 2255 petition was affirmed.

To read the full opinion, please visit: http://www.ca10.uscourts.gov/opinions/12/12-8024.pdf

Panel:
Judges Hartz, Baldock, Murphy

Date of Issued Opinion:
February 5, 2013

Docket Number:
12-8024

Decided:
Affirmed

Counsel:
Jonathan W. Rauchway (Eric C. Reese with him on the brief), Davis Graham & Stubbs LLP, Denver, Colorado, for Defendant-Appellant

David A. Kubichek, Assistant United States Attorney (Christopher A.Crofts, United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.

Author:
Judge Baldock

Circuit:
Tenth

Case Alert Author:
Charles B. Kraft, UNM School of Law, Class of 2013.

Case Alert Circuit Supervisor:
Dean Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 02/20/2013 11:53 AM     10th Circuit     Comments (0)  

December 6, 2012
  Efren Neri-Garcia v. Eric Holder - 10th Circuit
Headline: Tenth Circuit affirms Board of Immigration Appeals finding that conditions in Mexico, with respect to the treatment of gay men, have changed significantly so that peitioner is no longer at risk of persecution should he be deported to Mexico.

Area of Law: Immigration

Issue(s) Presented: Whether the conditions in Mexico, with respect to the treatment of gay men, have changed sufficiently to overcome the presumption that petitioner, a gay man, would be at risk if he was deported to Mexico.

Brief Summary: Neri-Garcia, a citizen of Mexico, argued that he should not be deported because in Mexico he faces persecution or torture on account of his sexual orientation. An immigration judge, and later the Board of Immigration Appeals (BIA), found that conditions in Mexico had changed since Neri-Garcia was last in Mexico so much that his fears of persecution or torture were no longer reasonable. The Tenth Circuit found no abuse of discretion by the BIA and affirmed its decision.

Date of Issued Opinion: 10/3/2012

Docket Number: 11-9566

Decided: Petition for Review Denied

Counsel (if known): Dario Aguirre, Aguirre Law Group P.C., Denver, CO, for Petitioner

Linda S. Wernery, Assistant Director, Civil Division, Walter Bocchini, Office of Immigration Litigation, Civil Division, U.S. Dept. of Justice, Washinton, D.C., for Respondent.

Author of Opinion: Judge O'Brien

Edited: 12/12/2012 at 10:25 AM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/06/2012 03:53 PM     10th Circuit     Comments (0)  

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