November 23, 2017

Tenth Circuit: Unpublished Opinions, 11/21/2017

On Tuesday, November 21, 2017, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Adams v. Bear

Torres-Rivera v. Sessions

United States v. Buck

Vue v. Dowling

Isham v. United States

United States v. Sanders

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 11/20/2017

On Monday, November 20, 2017, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Catanach v. Thomson

Event Security, LLC v. Redd

Parrish v. Arvest Bank

Rascon v. Douglas

Rice v. Walcher

Session v. Kim

Nda Seka v. Sessions

Brooks v. Raemisch

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Colorado RTD Manager Found Guilty of Bribery

Tenth Circuit Court of Appeals issued its opinion in United States v. Hardin on Wednesday, October 25, 2017.

Defendant Hardin was the senior manager for the Regional Transportation District (RTD) in Colorado. Part of Hardin’s job responsibilities included setting goals on projects for small business participation and ensuring compliance of small business participation on various projects. Ward was the owner of a busing company as well as a manufacturing representative for Build Your Dream, a manufacturer of automobiles and rechargeable batteries. Ward represents Build Your Dream to sell their merchandise in Denver.

Ward’s busing company contracted with RTD as a service provider for Access-a-Ride, a program that provides local bus transportation in Denver for people with disabilities. From that point on, Ward paid Defendant monthly bribes in exchange for Defendant’s help to secure a contract with RTD, as RTD was preparing to solicit bids for the purchase of shuttle buses. Ward would meet with Defendant every month and pay Defendant to help Ward win the contract. Further, Defendant gave Ward information on potential competitors to allow Ward to tailor his proposal to RTD.

Unbeknownst to Defendant, Ward had previously pleaded guilty to tax evasion and, to receive a reduced sentence, relayed Defendant’s original bribe request to the Federal Bureau of Investigation. Ward then became the FBI’s confidential informant to investigate Defendant for bribery. The meetings and conversations between Ward and Defendant were all recorded.

Defendant was charged with four counts of committing bribery involving a program that receives federal funds. The jury found Defendant guilty of three counts relating to the proposed shuttle bus contract. Defendant appealed, arguing that, by dismissing one count, it could not be shown that he had solicited the requisite $5,000 threshold that is set by the federal-program bribery statute. The Tenth Circuit found that the $5,000 pertains to the subject matter of the bribe and Ward paid for Defendant’s help with respect to the lucrative shuttle bus purchase contract. The Tenth Circuit was persuaded that the statute was sufficiently definite to give Defendant fair notice of the criminality of his conduct.

The Tenth Circuit Court of Appeals AFFIRMED Defendant’s conviction and sentence.

Tenth Circuit: Unpublished Opinions, 11/17/2017

On Friday, November 17, 2017, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

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

Tenth Circuit: Appeal of Fracking Regulation Unripe Due to Uncertainty of Future

The Tenth Circuit Court of Appeals issued its opinion in State of Wyoming v. Zinke on Thursday, September 21, 2017.

In this case, the Tenth Circuit Court of Appeals is asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it created a regulation that governed hydraulic fracturing (fracking) on lands owned by the United States.

As fracking has become more common, public concern has increased about whether fracking is contributing to contamination of underground water sources. The BLM responded by preparing a regulation that attempted to modernize the existing federal regulations governing fracking on lands owned by the United States by increasing disclosure of the chemicals used in fracking, updating the standards for wellbore construction and testing, and addressing management of water used in the fracking process.

The finalized, published fracking regulation attempted to regulate fracking in four ways: by (1) imposing new well construction and testing requirements; (2) imposing new flowback storage requirements; (3) imposing new chemical disclosure requirements; and (4) generally increasing BLM’s oversight of fracking.

Shortly before the fracking regulation was to take effect, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a petition for review under the Administrative Procedure Act (APA), opposing the new regulation. North Dakota, Utah, and the Ute Indian Tribe also intervened.

The petition for review asserted that the fracking regulation violated two provisions of the APA in two ways: (1) the regulation was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (2) it was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

The district court concluded that no statute authorized the BLM to regulate fracking. The district court reasoned that states may regulate underground injections of any substance, not the federal government. According to the district court, only the states could regulate fracking.

While the parties supporting the regulation brought an appeal, the BLM asked this court to hold these appeals in abeyance, explaining that President Trump’s Executive Order required the Department of the Interior to review its regulations, including the fracking regulation, for consistency with the policies and priorities of the new administration. Another Executive Order directed the Secretary of the Interior, as soon as practicable, to publish for notice and comment proposed rules suspending, revising, or rescinding the fracking regulation at issue. The Secretary of the Interior then stated that the BLM would rescind the regulation in full.

The issue addressed in this appeal is whether the BLM has the authority to regulate fracking on lands owned or held in trust by the United States and thereby to promulgate the fracking regulation. The Tenth Circuit Court of Appeals held that the case was not ripe for review, as there was no hardship to the parties. The only harm suffered will be the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015. Further, the BLM will be able to proceed with its proposed rule rescinding the fracking regulation, and would face more uncertainty if these appeals were to remain under advisement. The appeal was held to be unripe and unfit for judicial review.

The Circuit dismissed the appeals, finding that the subject matter is unripe and the record is notably undeveloped or the future is particularly uncertain.

The Tenth Circuit Court of Appeals DISMISSED the appeals as prudentially unripe, VACATED the district court’s judgment invalidating the fracking regulation, and REMANDED with instructions to dismiss the underlying action without prejudice.

Tenth Circuit: Unpublished Opinions, 11/16/2017

On Thursday, November 16, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Jenks

United States v. Portillos

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

Colorado Court of Appeals: Announcement Sheet, 11/16/2017

On Thursday, November 16, 2017, the Colorado Court of Appeals issued six published opinions and 31 unpublished opinions.

People v. Deleon

Miller v. Hancock

Sos v. Roaring Fork Transportation Authority

Robertson v. People

People in Interest of M.M. and P.M.

Berthold v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming.

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

Colorado Supreme Court: Plaintiff Established Sufficient Contacts Under Stream of Commerce Doctrine to Withstand Motion to Dismiss

The Colorado Supreme Court issued its opinion in Align Corp. Ltd. v. Boustred on Monday, November 13, 2017.

Stream of Commerce Doctrine—Personal Jurisdiction

In this case, the supreme court considers the stream of commerce doctrine to determine the prerequisites for a state to exercise specific personal jurisdiction over a non-resident defendant. The court concludes that World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), sets out the controlling stream of commerce doctrine. That doctrine establishes that a forum state may assert jurisdiction where a plaintiff shows that a defendant placed goods into the stream of commerce with the expectation that the goods will be purchased in the forum state. Applying that doctrine to this case, the court then concludes that the plaintiff made a sufficient showing under that doctrine to withstand a motion to dismiss. Accordingly, the supreme court affirms the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Taxpayer Entitled to File Statutory Claim for Relief After Expiration of Protest Period

The Colorado Supreme Court issued its opinion in OXY USA, Inc. v. Mesa County Board of Commissioners on Monday, November 13, 2017.

Tax Law—Taxpayer Error—Overvaluation

The supreme court holds that section 39-10-114(1)(a)(I)(A), C.R.S. (2017), allows abatement and refund for illegally or erroneously levied taxes based on overvaluation caused by taxpayer error. This result follows from the statute’s plain text that allows abatement for “overvaluation” without making a distinction between government- and taxpayer-caused overvaluations. The court rejects the court of appeals’ holding that Coquina Oil Corp. v. Larimer County Board of Equalization, 770 P.2d 1196 (Colo. 1989), and Boulder County Board of Commissioners v. HealthSouth Corp., 246 P.3d 948 (Colo. 2011), require a different result. Coquina was superseded by the 1991 legislative amendment that added “overvaluation” as a ground for abatement, and HealthSouth’s holding was limited to intentional taxpayer overvaluations. The supreme court reverses the judgment of the court of appeals and remands for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Risk-Benefit Test is Proper Test in Products Liability Action

The Colorado Supreme Court issued its opinion in Walker v. Ford Motor Co. on Monday, November 13, 2017.

In this case, the supreme court considered whether a trial court erred when it gave a jury instruction that allowed the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver’s car seat was unreasonably dangerous due to a design defect. The court concluded that the risk-benefit test is the appropriate test to assess whether a product was unreasonably dangerous due to a design defect when, as here, the dangerousness of the design is “defined primarily by technical, scientific information.” Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992). The court further concluded that the jury’s separate finding of negligence did not render the instructional error harmless in this case.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/14/2017

On Tuesday, November 14, 2017, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

United States v. Lopez-Garcia

United States v. Titties

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

Tenth Circuit: Plaintiff’s Request for Immediate Release from Federal Custody Denied Under ACCA’s Enumerated Clause

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Thursday, September 21, 2017.

This case arose from Snyder’s request for immediate release from federal custody on the basis that he had already served more than the maximum sentence allowed by law. Snyder argues that the Supreme Court’s recent decision in Johnson v. United States invalidates his sentence enhancement under the Armed Career Criminal Act (ACCA). The district court denied Snyder’s motion, and the Tenth Circuit Court of Appeals affirmed the denial, concluding that Snyder was not sentenced based on the ACCA’s residual clause that was invalidated in Johnson.

In 2004, Snyder pled guilty to being a felon in possession of a firearm. A presentence report was prepared and concluded that Snyder was subject to an enhanced sentence as an armed career criminal because he had sustained two convictions for burglary of two residences, and had a conviction of a controlled substance offense. Snyder’s argument that his burglary convictions failed to constitute predicate offenses under the ACCA were rejected by the district court.

In 2015, the Supreme Court decided Johnson. Snyder subsequently filed a motion to vacate his sentence for immediate release, asserting that, following the Court’s decision in Johnson, his burglary convictions no longer qualify as predicate offenses under the ACCA, so he is not an armed career criminal, and his enhanced sentence exceeds the maximum authorized by law.

The Circuit first determined whether the district court erred in concluding that Snyder’s motion was not timely.  By the plain language of the statute in question, the statute allows a motion to be filed within one year of the date on which the rights asserted was initially recognized by the Supreme Court. The Circuit concluded that to be timely, a motion need only to invoke the newly recognized right, regardless of whether the facts of record ultimately support the claim, and found that Snyder’s motion did just that.

The court then discussed whether Snyder had overcome the procedural-default rule, which is a general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner can show cause and prejudice.

Cause is shown if a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal. The Supreme Court has stated that if one of its decisions explicitly overrides prior precedent, then, prior to that decision, the new constitutional principle was not reasonably available to counsel, and defendant has cause for failing to raise the issue. The Johnson claim was not reasonably available to Snyder at the time of his direct appeal, and the Circuit found this sufficient to establish cause.

To establish actual prejudice, the Circuit held that Snyder must show that the error of which he complains is an error of constitutional dimensions and worked to his actual and substantial disadvantage. The Circuit found that Snyder has shown actual prejudice through his argument that the ACCA sentence enhancement is invalid after Johnson. The court concluded this by acknowledging that if Snyder is correct, he should have been sentenced to only ten years maximum, not eighteen as he had been sentenced. The sentence of eighteen years would then be unauthorized under law, creating an actual and substantial disadvantage of constitutional dimensions.

The Circuit next discusses the merits of Snyder’s claim. Snyder alleged that the sentence was imposed under an invalid legal theory and that he was, therefore, sentenced in violation of the Constitution. In order to make a determination, the relevant background of the legal environment at the time of sentencing must be evaluated. The Circuit held that the actual facts of record in this matter offered no basis whatsoever for the notion that the sentence Snyder received was based on the ACCA’s residual clause, rather than its enumerated offenses clause. The Circuit found no mention of the residual clause in the presentence report or any other pleading or transcript. Further, given the relevant background legal environment that existed at the time of Snyder’s sentencing, there would have been no need for reliance on the residual clause. The Circuit concluded that Snyder’s claim failed because the court’s ACCA’s determination at the time of sentencing rested on the enumerated crimes clause rather than the residual clause.

The decision of the district court denying Snyder’s motion is AFFIRMED by the Tenth Circuit Court of Appeals.