December 12, 2017

Archives for July 17, 2014

Tenth Circuit: Defendant’s Own Prejudicial Conduct to Jury Member Does Not Warrant Mistrial

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shaw on Friday, July 11, 2014.

Defendant Charles Shaw was convicted in the U.S. District Court for the District of Kansas of robbing a bank and two credit unions, attempting to rob one of the credit unions a second time, and four firearms-related offenses. He was acquitted on a charge of robbing a second bank. During jury selection, Defendant mouthed “call me” to a juror and made a gesture like a phone to his ear with his hand. At trial, testimony was admitted regarding a co-defendant’s confession on the charge of which he was acquitted, and evidence was admitted regarding an uncharged bank robbery. Defendant appealed his convictions to the Tenth Circuit, alleging (1) the jury was not impartial because they learned of the gesture he made to one member of the jury pool, (2) the district court erred by admitting evidence regarding the co-defendant’s confession at a different trial, (3) the district court erred by admitting evidence of the uncharged bank robbery, and (4) the court at sentencing, not the jury, found he had previously been convicted of a firearms offense.

The Tenth Circuit examined the trial transcripts regarding Defendant’s gesture during jury selection. It found no error, because the juror to whom the gesture was directed had been dismissed, and another potentially biased juror was rehabilitated through questioning. The Tenth Circuit also noted that it shared the district court’s concern regarding declaring a mistrial as a result of Defendant’s own conduct.

Next, the Tenth Circuit reviewed Defendant’s motion in limine asserting error for admitting the testimony regarding his co-defendant’s confession. The Tenth Circuit found that the admission of the testimony violated Defendant’s Sixth Amendment Confrontation Clause rights, but the error was harmless beyond a reasonable doubt because Defendant was acquitted on the sole charge related to this testimony.

The Tenth Circuit then turned its attention to the admission of evidence regarding the uncharged bank robbery, and again found error in the district court’s denial of Defendant’s motion in limine. The Tenth Circuit agreed with Defendant that it was impermissible other bad act evidence under FRE 404(b), but decided this error was also harmless because the evidence was tenuous at best and other evidence of Defendant’s guilt was strong.

Finally, the Tenth Circuit reviewed Defendant’s sentencing challenge. Defendant objected to the trial court’s judicially found fact of his prior firearms conviction, and, although he conceded that Tenth Circuit and U.S. Supreme Court precedent do not support his position, he raised the argument on appeal “to preserve Supreme Court Review.” The Tenth Circuit, following its previous precedent, affirmed Defendant’s sentence and convictions.

Tenth Circuit: Denial of Suppression Motion Upheld Where Other Evidence of Guilt Overwhelmingly Supported Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mulliken on Tuesday, July 15, 2014.

John Edward Mulliken solicited participants for purported weight loss studies in 2006 and 2008. In 2008, the FDA began investigating two studies, and as a result of the investigation, Mulliken was indicted by a grand jury sitting in the District of Colorado in November 2011. The indictment consisted of 19 counts of mail fraud. Mulliken was arrested in January 2012 at his residence. In August 2012, a superseding indictment issued asserting the same 19 counts of mail fraud, alleging that the purported weight loss studies were part of an “advance fee scheme” in which Mulliken made false representations intended to induce participants to mail deposits that Mulliken had no intention of refunding. In September 2012, Mulliken’s house was searched pursuant to a warrant, and two hard drives, a computer, two binders, and two folders were seized.

Mulliken was tried before a jury and convicted of 17 counts of mail fraud. Prior to trial, he moved to suppress the contents of the search, but the district court denied suppression. Mulliken appealed the denial of suppression to the Tenth Circuit, arguing that the affidavit underlying the search warrant failed to establish probable cause that the items would be found at his residence, that the affidavit failed to establish a nexus between the criminal acts and his residence, and that the list of items to be seized in the search was impermissibly broad.

The Tenth Circuit did not reach the merits of Mulliken’s arguments, determining instead that any error that could have come from the denial of suppression was harmless beyond a reasonable doubt. Only four exhibits were introduced at trial related to the search. Two of them were pictures of computers, one was a copy of an electronic document regarding one of the purported studies, and one was a copy of an email exchange between Mulliken and his father regarding allegations made on Good Morning America. The Tenth Circuit determined that there was overwhelming evidence of Mulliken’s guilt, including testimony from all 17 victims of the 17 counts of conviction. The Tenth Circuit further found that the two pictures could not have influenced the jury, since they were simply pictures of computers. The contents of the document regarding purported studies were largely duplicated by Mulliken’s own testimony. The only potentially harmful part of the email exchange was admitted separately, having been obtained from Mulliken’s father independent of the potentially illegal search. Because there was overwhelming evidence of Mulliken’s guilt and the four exhibits gained from the search in question had little to no impact on the jury, the district court’s denial of the suppression motion was upheld.

Tenth Circuit: Special Master Must Employ Abstraction-Filtration-Comparison Test for Copyright Infringement

The Tenth Circuit Court of Appeals issued its opinion in Paycom Payroll, LLC v. Richison on Friday, July 11, 2014.

David Richison, with his niece and nephew, Shannon and Chad Richison,  formed a payroll processing company, Ernest Group, d/b/a Paycom Payroll, in Oklahoma in the 1990s. During his time with Ernest Group, David wrote two payroll processing software programs, BOSS and Independence. He transferred his authorship interest in BOSS to Ernest Group in the 1990s. When the relationship between David and Chad deteriorated in 2001, David moved to Maryland and formed his own company called Period Financial Corporation. At Period, he wrote a new software program based in part on Independence, which he called Period Indy. In May 2009, Ernest Group filed a copyright infringement lawsuit against David, asserting that Period Indy infringed on Ernest Group’s copyright in BOSS. Ernest Group subsequently filed for copyright on Independence, stating that it was a work for hire. By 2011, David had written another program, Cromwell.

In August 2011, the parties settled and agreed to the entry of a consent decree. All of Ernest Group’s claims were released except its claim for injunctive relief based on copyright infringement, and all rights to Independence were assigned to Ernest Group. The partied agreed that the district court should appoint a special master to write a report regarding whether the Cromwell program infringed on either BOSS or Independence, and the district court should decide the issue based on the special master’s report. The parties disagreed as to which version of Cromwell should be used for the analysis, but not which versions of BOSS and Independence. The special master opined in his report, marked “Attorney’s Eyes Only,” that Cromwell infringed upon both BOSS and Independence. The district court adopted the special master’s findings and ordered that all copies of Cromwell should be destroyed.

After the report was filed, David objected to the “Attorney’s Eyes Only” restriction, noting that as the author of all the software in question, he could assist his attorneys in reviewing the substance of the report. Ernest Group opposed the motion, and the district court denied it, stating that David advanced no grounds to support lifting the restriction. David’s attorneys filed objections to the special master’s report, arguing that the special master failed to conduct the abstraction-filtration-comparison test, or at least that he did not document his application of the test. Ernest Group’s attorneys agreed with the objections to some extent and requested that the report be resubmitted to the master for further findings. Before the district court could rule, Ernest Group’s attorneys mailed David’s “highly critical” objections directly to the special master. David’s attorneys called for a new special master, claiming that Ernest Group had irrevocably tainted the master’s neutrality. The district court, instead of resubmitting the report to the special master, called on Ernest Group’s attorneys to offer a more substantive response to David’s critique of the report, which they did. The district court adopted the special master’s report in its entirety, ruled that Cromwell infringed upon Ernest Group’s copyrights in both BOSS and Independence, and ordered all copies of Cromwell destroyed. This appeal followed.

David raised four issues on appeal: (1) the “Attorney’s Eyes Only” restriction should be lifted, (2) the special master erred by evaluating versions of BOSS and Independence that were never registered with the copyright office, (3) the special master’s report was inadequate and the versions were not substantially similar, and (4) a new special master should be appointed if remand is necessary. The Tenth Circuit evaluated these claims in turn. The Tenth Circuit declined to agree with David on the first claim, noting that he agreed to the restriction in a consent decree and allowing David to view the report was not so fundamental of a right as to be unwaivable, and commenting that such restrictions are common in trade secret litigation. For the second claim, the Tenth Circuit similarly rejected David’s arguments, since he impliedly consented to the versions in two documents submitted to the court and his argument was therefore waived.

As to the third claim, the Tenth Circuit reversed the district court’s adoption of the special master’s report. The Tenth Circuit agreed that the special master should have documented his application of each step of the abstraction-filtration-comparison test, which he did not do. The report contained little evidence that the master performed the abstraction test, and in fact the report seemed to deem abstraction superfluous. Because the abstraction test was not performed, the special master’s findings regarding filtration were limited, and his entire analysis was flawed. The case was remanded for more complete reporting by the special master. In his fourth claim, David requested that a new special master be appointed, due to potential bias from the master receiving David’s critique. The Tenth Circuit disagreed, because the parties had agreed to this particular special master, and also noting that it only addressed David’s contentions in this appeal so if need arose for a different special master in the future that claim would not be barred.

The district court’s judgment was reversed and remanded for further reporting by the special master using the abstraction-filtration-comparison test.

Tenth Circuit: Unpublished Opinions, 7/16/2014

On Wednesday, July 16, 2014, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Artur v. Holder

Jackson v. Trammell

Jackson v. Martin

Brunsilius v. Hickenlooper

Milcanovic v. Colvin

Wishneski v. Andrade

United States v. Yepa

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.