June 18, 2013

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Tenth Circuit: Court Declines to Take Sides on Outrageous Governmental Conduct Defense

June 18, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Dyke on Monday, June 17, 2013.

Randy Dyke and Donald Steele labored in a small time criminal ring on a Kansas farm. They forged checks, peddled pills, and sold marijuana. The government convinced them to expand their operation, and they eventually counterfeited currency and manufactured methamphetamine. A jury found them guilty of drug, forgery, and counterfeiting charges. They appealed, arguing the charges against them should have been dismissed as a matter of law because the undercover operation amounted to outrageous governmental conduct.

A defendant asserting the outrageous governmental conduct defense bears the burden of proving either “(1) excessive government involvement in the creation of the crime, or (2) significant governmental coercion to induce the crime.” United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994).

The Tenth Circuit found that the existing cases suggested that looking to the defendants’ predisposition and his past and current conduct was appropriate because what qualifies as outrageous governmental conduct depends on an appreciation of the totality of the circumstances. After reviewing the record, the Tenth Circuit concluded that a reasonable jury could well have found Mr. Steele predisposed to manufacture methamphetamine and counterfeit currency.

The Tenth Circuit declined to take sides in the debate on the outrageous governmental conduct defense because in this case — as in so many cases before it — the right answers to the hard questions about the doctrine just don’t matter. The Court found defendants’ convictions to be legally sound, and the Tenth Circuit was confident the government had not crossed any boundary line in this case.

AFFIRMED.

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Tenth Circuit: Defendant’s Sentence for Cocaine Distribution and Revocation of Supervised Release Affirmed

June 18, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Dunbar on Monday, June 17, 2013.

Defendant appealed his cocaine distribution conviction and the revocation of supervised release. He raised four challenges: (1) that the district court conducted an inadequate inquiry into his request for new counsel and abused its discretion in denying his request; (2) that the district court abused its discretion in failing to construe his pro se pleading and various oral protests as motions to withdraw his plea; (3) that his plea was not knowing and voluntary because his counsel had given him inaccurate information; and (4) that his sentence on revocation of supervised release was procedurally and substantively unreasonable.

The Tenth Circuit held as follows: first, the district court conducted an adequate inquiry into Defendant’s request for new counsel, and did not abuse its discretion in denying the request because defense counsel’s explanation could persuade a reasonable jurist that counsel’s performance had been satisfactory and that any failures of communication had been Defendant’s fault. Second, the court did not err in declining to treat Defendant’s pro se pleading and oral statements as motions to withdraw his plea because Defendant was represented by counsel who did not make a timely motion to permit withdrawal of the plea and Defendant’s statements in any event were unclear or untimely. Third, Defendant did not raise in district court a challenge to the validity of his plea, and there was no plain error because the pertinent facts were not established in the record. And fourth, as to Defendant’s sentence on violation of the terms of supervised release, he failed to show plain error with respect to the procedural reasonableness of his sentence and his sentence was not substantively unreasonable.

AFFIRMED.

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Tenth Circuit: Unpublished Opinions, 6/17/13

June 18, 2013 by Leave a Comment

On Monday, June 17, 2013, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Flud v. United States

Wing v. Janecka

United States v. Rivas

Anderson v. Lehman Brothers Bank

United States v. Hopkins

Lowery v. Edmondson

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

 

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Tenth Circuit: Petition for Writ of Habeas Corpus Granted Because Murders Occurred in Indian Country

June 17, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Magnan v. Trammell on Friday, June 14, 2013.

On March 3, 2004, James Howard and Karen Wolf were shot to death at a house in rural Seminole County, Oklahoma. Two other people, Lucilla McGirt and Eric Coley, were shot and wounded at the house.  McGirt died approximately two weeks later from complications of her gunshot wounds. Coley survived his injuries. All of the victims except Howard were enrolled members of the Seminole Nation of Oklahoma.

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest was unobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue.

In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability.

The Tenth Circuit only addressed the status of the surface estate and agreed with Magnan that the location where the crimes occurred was “Indian country” pursuant to 18 U.S.C. § 1151. The location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met. As a result, the state trial court lacked jurisdiction over the crimes. The federal government had exclusive criminal jurisdiction over his crimes pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153.

Consequently, the Tenth Circuit reversed the judgment of the district court and remanded with instructions to grant Magnan’s petition for writ of habeas corpus.

 

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Tenth Circuit: No Merit to Double-Jeopardy Claims in Charges Stemming from Shooting of US Marshals

June 17, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Angilau  on Friday, June 14, 2013.

This appeal arises from the latest in a series of four prosecutions by Utah and federal authorities of Defendant Siale Angilau on charges stemming from the shooting of two deputy United States marshals in August 2007. In the case before the Tenth Circuit, Defendant was indicted on four counts by a grand jury for the United States District Court for the District of Utah.

The four counts were as follows: one count charged racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO); the other three were based on the shooting: assaulting a federal officer (the assault count); assault with a dangerous weapon in aid of racketeering  (the VICAR count); and using or carrying a firearm during a crime of violence (the firearm count).

Defendant moved to dismiss the three shooting-related charges as barred by double jeopardy. He founded his argument on events in the first case brought against him by the federal government, in which prosecutors dismissed charges of assaulting the marshals. The district court ordered that the dismissal be with prejudice, because the government had not provided sufficient reasons for seeking dismissal.

Defendant argued that the three counts must be dismissed because they were based on the previously dismissed charges. The court granted his motion as to the assault count, which it ruled was identical to the assault charge in the first federal case, but it denied the motion as to the VICAR and firearm counts. Also, it rejected Defendant’s separate argument that all charges against him should be dismissed because the government had violated his due process rights by repeatedly bringing and dismissing charges against him. Defendant appealed while his case was pending trial.

On appeal, he continued to press his due-process challenge to both the firearm and VICAR charges. He also maintained that the Double Jeopardy Clause compelled dismissal of the firearm count, because it was the same offense as the firearm charge dismissed with prejudice in the first federal case. He added the new argument that the double-jeopardy doctrine of collateral estoppel barred the government from prosecuting the VICAR and firearm charges because facts necessary to convict him on these charges were found in his favor when the charges in the first federal case were dismissed with prejudice.

The Tenth Circuit held that (1) it had jurisdiction to hear Defendant’s double-jeopardy claims but lacked jurisdiction to hear Defendant’s due-process claim before final judgment in the criminal proceedings; (2) there was no merit to his double-jeopardy claim that the firearm count in this case was the same as the firearm count dismissed with prejudice in the first federal case, because the predicate crime of violence in the prior case had different elements than the predicate crime of violence in this case (the VICAR offense); and (3) neither the firearm charge nor the VICAR charge was barred by collateral estoppel because the previous dismissal did not resolve in his favor any element of the two charges.

 

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Tenth Circuit: Social Security ALJ Properly Applied Medical-Improvement Standard in Finding Disability Ceased

June 16, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Newbold v. Colvin on Thursday, June 13, 2013.

Tyla M. Newbold sought disability insurance benefits (DIB) and supplemental security income (SSI) based on “fibromyalgia, chronic fatigue, depression, anxiety[,] and chronic migraines.” She appealed from a magistrate judge’s order affirming the Commissioner’s decision to grant social security benefits from October 1, 2006, through November 1, 2007, and to deny benefits thereafter. The Commissioner determined Ms. Newbold had been disabled during this closed period due to physical and mental impairments, but that her disability ceased on November 2, 2007, when she experienced a medical improvement related to her ability to work.

Newbold argued that the ALJ improperly found medical-improvement based on symptom improvement alone in making his disability-cessation decision. The Tenth Circuit disagreed. “The Commissioner’s regulations, Shepherd’s application of those regulations, preexisting Tenth Circuit case law, and the POMS demonstrate that an ALJ may find medical improvement based on an improvement in signs, laboratory findings, and/or symptoms.”

The court also concluded that substantial evidence supported the ALJ’s decision to give Newbold’s treating rheumatologist’s opinion, after November 1, 2007, diminished weight as it was at odds with his own notes on that date showing improvement. The court affirmed the district court.

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Tenth Circuit: Unpublished Opinions, 6/14/13

June 16, 2013 by Leave a Comment

On Friday, June 14, 2013, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Salgado v. Polk

Simantob v. Mullican Flooring

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

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Tenth Circuit: Unpublished Opinions, 6/13/13

June 16, 2013 by Leave a Comment

On Thursday, June 13, 2013, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Glover v. DCP

United States v. Wallace

United States v. Sitlington

United States v. Tenorio

United States v. Freeman

Cathey v. Workman

 Martinez v. Colorado Attorney General

United States v. Hunter

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

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Colorado Court of Appeals: Tenant Improvements Could be Retroactively Assessed as Personal Property Tax Because Erroneously Omitted from Tax Rolls

June 14, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Marisco Capital Management, LLC v. Denver Board of County Commissioners on Thursday, June 6, 2013. 

Special Notices of Valuation—Omitted Property Versus Omitted Value.

Marsico Capital Management, LLC (MCM) challenged the Board of Assessment Appeals’ (BAA) order upholding the Denver Board of Equalization’s (BOE) order denying several of its petitions. The order was affirmed.

MCM is an investment advisory firm that leases office space in a downtown Denver commercial building. In 2004 and 2005, MCM expanded and remodeled its leased office space and made tenant improvements. Following MCM’s filing of its first personal property declaration schedule in February 2006 for the 2005 tax year, the City Assessor issued a special notice of valuation (SNOV) assessing the value of MCM’s personal property.

In 2009 and 2010, the City Assessor audited MCM for tax years 2005 through 2009. The audit revealed that although MCM had timely reported its tenant improvements in its personal property declaration schedules, its tenant improvements were not valued or assessed personal property taxes for tax years 2005 through 2009, because the City Assessor’s computer system had not included them.

MCM filed protests challenging the five SNOVs for the missing assessments. The City Assessor granted the protests for tax years 2005 through 2007 because the statute of limitations had run, but denied the protests for tax years 2008 and 2009. MCM challenged the SNOVs before the BOE. The BOE reduced the overall value on the two SNOVs but denied the petitions. MCM appealed to the BAA, which denied the appeal.

The issue before the Court of Appeals was whether tenant improvements later discovered by a taxing authority are “omitted property” or “omitted value.” If tenant improvements constitute “omitted property,” they are subject to retroactive revaluation; if they are “omitted value,” additional taxes may not be imposed.

Tenant improvements are “personal property” under CRS § 39-1-102(11) and are subject to personal property tax. However, taxing authorities are prevented from imposing additional taxes based on revaluations of property that has already been valued and taxed. The parties disagreed on whether personal property taxes were previously assessed on the tenant improvements.

MCM argued that by retroactively adding the 2004 and 2005 tenant improvements to the assessment rolls for the 2008 and 2009 tax years, the City Assessor included an omitted value of previously taxed property that, once taxed, could not be reassessed.

The BAA and City Assessor countered that the tenant improvements were never included in the computer system due to an error by the City Assessor. Thus, they were not included in the assessment rolls for tax years 2005 through 2009 and could be retroactively assessed because they are “omitted property.” The Court agreed with the Board and City Assessor.

CRS § 39-5-125(1) allows the assessor to add omitted property to the tax rolls “whenever it is discovered that any taxable property has been omitted from the assessment roll of any year or series of years.” Here, the tenant improvements had never been assessed and therefore were “omitted property” that could be retroactively assessed. The BAA’s order was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Announcement Sheet, 6/13/13

June 14, 2013 by Leave a Comment

On Thursday, June 13, 2013, the Colorado Court of Appeals issued no published opinions and 44 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

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Tenth Circuit: In § 1983 Action Where Qualified Immunity Is Not at Issue, Excessive Force Question Is For Jury

June 14, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Cavanaugh v. Woods Cross City on Wednesday, June 12, 2013.

Shannon Cavanaugh suffered a serious head injury after being tasered by Daniel Davis, a police officer for Woods Cross City, Utah. She filed an excessive force claim under 42 U.S.C. § 1983 against the City and Davis. The jury found for the City and Davis, and the district court entered judgment in their favor.

Cavanaugh argued that the district court’s refusal to exclude testimony from Officer Davis concerning his perceptions and beliefs prior to the tasering incident was error because whether force was excessive is an objective test. The Tenth Circuit held that allowing Davis’s testimony was harmless error because the district court gave a correct jury instruction.

The court also rejected Cavanaugh’s argument that her F.R.C.P. 59 motion for a new trial should have been granted because there was insufficient evidence that she was an immediate threat. Given the testimony that she left the house with a kitchen knife, had been drinking and taken drugs, her refusal to answer Officer Davis’s questions, and rush to get back in the house, sufficient evidence she was an immediate threat was shown.

The district court’s refusal to give Cavanaugh’s proposed jury instruction on resisting arrest was also not error as use of force may be appropriate when a person is actively resisting seizure, not just arrest.

Finally, Cavanaugh argued that the district court erred in submitting to the jury the question whether Officer Davis used excessive force. Cavanaugh contended the court should have given the jury special interrogatories to decide the factual disputes and made the legal determination itself whether Davis’s conduct was reasonable under the circumstances. The court held that because there were disputed issues of material fact, it was proper for the district court to send the question of whether Officer Davis’s use of force was reasonable to the jury. The use of special interrogatories may be appropriate in some cases but was not required here. The court affirmed.

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Tenth Circuit: Unpublished Opinions, 6/12/13

June 14, 2013 by Leave a Comment

On Wednesday, June 12, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Bwika v. Holder

Lay v. Haskins

United States v. Carrillo

Perez-Castro vs. Holder

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

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