The Tenth Circuit on Thursday issued two published opinions and one unpublished opinion.
In United States v. Yeley-Davis, the Court affirmed the district court’s conviction and sentence. Petitioner was convicted of conspiracy to possess with intent to distribute, and to distribute, over 500 grams of a mixture or substance containing methamphetamine. Petitioner claims that the admission of cell phone records into evidence violated the Sixth Amendment’s Confrontation Clause. The Court, however, found that the records fall under the business records exception to the hearsay rule, and that they were not testimonial, and therefore not subject to the Confrontation Clause, because “the phone records here were ‘created for the administration of [Verizon’s] affairs and not for the purpose of establishing or proving some fact at trial.’”
In Firestone v. Imergent, the Court affirmed the district court’s decision. The securities class action against was brought on behalf of class members who purchased iMergent common stock between October 15, 2002 and October 7, 2005; they claim that Respondent’s “actions relating to the revenue recognition policy—particularly its expression of unqualified opinions on the financial statements—artificially inflated the market price of iMergent’s stock, causing them to suffer damages when the price declined upon news of the revenue recognition problems and restatement of earnings.” Following the district court’s dismissal of the case, the Public Company Accounting Oversight Board (PCAOB) imposed sanctions on Respondent, and Petitioners “moved under Rule 60(b)(2) for relief from the district court’s dismissal with prejudice, seeking leave to amend the SAC to incorporate the new evidence,” which they claimed showed Respondent’s knowing or intentional misconduct. However, the Court determined the Petitioners did not meet the requirements for a Rule 60(b) motion because they did not show that they were diligent in pursuing the information contained in the new PCAOB evidence and why they were unable to attain the information.