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On Thursday, May 9, 2013, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.
No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.
On Wednesday, May 8, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.
Murphy v. Samson Resources Company
Federal Trade Commission v. Loanpointe
Jaremko v. ERISA Administrative Committee
No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.
The Tenth Circuit published its opinion in Federal Trade Commission v. Chapman on Tuesday, May 7, 2013.
This consumer protection action was brought by the Federal Trade Commission and four states against several individual and corporate defendants who marketed and sold to consumers grant-related goods and services with false representations that the consumers were guaranteed or likely to receive grants. After the claims against the other defendants were settled or adjudicated, the district court held a bench trial on the remaining claim against Meggie Chapman. Following the trial, the court found that Ms. Chapman violated the Telemarketing Sales Rule by providing substantial assistance to the telemarketing defendants while knowing or consciously avoiding knowing of their deceptive telemarketing practices. The court ordered a permanent injunction and $1,682,950 in monetary damages against Ms. Chapman. The court also denied Ms. Chapman’s post-judgment motion to alter or amend the judgment or, alternatively, for remittitur. Ms. Chapman appealed.
It is undisputed the Kansas defendants violated § 310.3(a)(2) by misrepresenting material aspects of the grant-related goods or services they sold. Thus, the only disputed issues are (a) whether Ms. Chapman provided substantial assistance to the Kansas defendants and (b) whether Ms. Chapman knew or consciously avoided knowing of their misrepresentations.
Regardless of the standard of review, the Tenth Circuit concluded Ms. Chapman played an integral part in the Kansas defendants’ telemarketing scheme. The Court found no error in the district court’s determination that Ms. Chapman provided substantial assistance to the Kansas defendants. Additionally, the Tenth Circuit concluded that district court’s finding that Ms. Chapman knew or consciously avoided knowing of the Kansas defendants’ misrepresentations was supported by the record and was not clearly erroneous.
Ms. Chapman argued in the alternative that the district court erred in denying her post-judgment motion to alter or amend the judgment or for remittitur. She argued that if she knew or consciously avoided knowing of the Kansas defendants’ misrepresentations, this did not occur until some time during the course of their business relationship, and thus the damages award should not have included the entire amount she billed to the Kansas defendants from the start of their relationship.
In denying the post-judgment motion, the district court first noted that a motion to alter or amend judgment under Rule 59(e) may only be granted under certain limited circumstances, such as when there is a need to correct clear error or prevent manifest injustice. Similarly, remittitur is only appropriate if the award is so excessive that it shocks the judicial conscience and raises an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial. The Tenth Circuit was not persuaded the district court abused its discretion by denying Ms. Chapman’s postjudgment motion to reduce the amount of damages. Accordingly, under this deferential standard of review, the Court AFFIRMED the district court’s denial of post-judgment relief.
On Tuesday, May 7, 2013, the Tenth Circuit Court of Appeals issued two published opinions and seven unpublished opinions.
Jensen v. Utah Court of Appeals
Roberts v. America’s Wholesale Lender
No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.
The Tenth Circuit published its opinion in Browning v. Trammell on Monday, May 6, 2013.
This case turns largely on principles the Supreme Court established in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an individual’s constitutional right to a fair trial obligates the prosecution in a criminal case to turn over evidence to the defense in certain circumstances. Specifically, under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. Difficulty arises, however, when the Brady obligation to disclose comes up against the various legal privileges that protect sensitive information from disclosure, such as the psychotherapist-patient privilege at issue here. In such a situation, the Supreme Court has directed lower courts to review such information in camera to determine whether it meets the Brady standard. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).
On February 18, 2001, Harry and Teresa Hye were shot to death and their house burned to the ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and escaped the burning house. Tackett identified two perpetrators: her former boyfriend, Michael Browning, and another man named Shane Pethel. The State arrested them and charged them with capital murder.
During pretrial proceedings, Tackett’s attorney accidentally faxed two psychiatric reports to the prosecution. According to the first report, Tackett displayed “magical thinking” and a “blurring of reality and fantasy.” The second report described Tackett as manipulative, grandiose, egocentric, and stated that she typically projected blame onto others. The report noted memory deficits. It described Tackett as a “type . . . rarely seen except in inpatient facilities.” Tackett was described as assaultive, combative, or as having a homicidal potential that must be carefully considered.
When the prosecution received these reports, it revealed their existence but not their contents to the defense. Browning moved to compel production, which the trial court denied.
The trial court severed Browning’s case from that of his co-defendant, Pethel. Browning’s case went to trial first. No direct evidence besides Tackett’s testimony connected Browning to the crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness testimony and its credibility. The jury convicted Browning on all counts, and returned a sentence of death for the murders of Harry and Teresa Hye.
Having exhausted all state post-conviction remedies, Browning filed a 28 U.S.C. § 2254 habeas corpus petition in the Northern District of Oklahoma. Browning raised several arguments, including that Tackett’s mental health records should have been disclosed. Reviewing those records in camera, the district court disagreed with the Oklahoma courts’ conclusion that the records contained nothing favorable to Browning. It therefore ordered those records disclosed to Browning’s habeas counsel, and, after briefing, concluded that Oklahoma Court of Criminal Appeals’ (OCCA’s) determination of this issue was an unreasonable application of clearly established federal law. The district court therefore granted a conditional writ of habeas corpus, requiring the State to retry Browning within 180 days or release him.
The federal district court cannot grant habeas corpus simply because it disagrees with the state court. Rather, if “fairminded jurists could disagree on the correctness of the state court’s decision,” then the federal court must defer to the state court. Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011).
The defense argued they should be permitted to view the mental health records for purposes of this habeas corpus petition. The Tenth Circuit disagreed. The Tenth Circuit held that a Brady claim resolved through the process established in Ritchie, i.e., an in camera review, has been “adjudicated on the merits” for purposes of § 2254(d).
The Tenth Circuit confined its analysis of favorability and materiality to the record before the state trial court. The Court therefore could not consider Pethel’s confession and guilty plea, nor could it consider evidence Browning developed in post-conviction proceedings that he believed favored his theory of the case.
Evidence is “favorable to the defense” if it is exculpatory or impeaching. Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627 (2012). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.
On the exculpatory side, Tackett’s records describe her as hostile, assaultive, combative, and even potentially homicidal. Such evidence tends to show that a person with a motive to kill might even have a disposition to kill. On the impeaching side, Tackett’s psychiatric evaluations evinced, among other things, memory deficits, magical thinking, blurring of reality and fantasy, and projection of blame onto others. This is classic impeachment evidence.
Accordingly, the Tenth Circuit disagreed with the district court’s disposition of the favorability question: “There is no reasonable argument or theory that could support the Oklahoma courts’ conclusion that the sealed material contained nothing favorable to Browning’s defense.”
The Court then turned to the question of whether Tackett’s mental health records would have been material to Browning’s case.
Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.
The Tenth Circuit concluded it was difficult to see how the Oklahoma courts could reasonably conclude there was nothing material about a recent diagnosis of a severe mental disorder that made Tackett hostile, assaultive, combative, and even potentially homicidal, or that Tackett was known to blur reality and fantasy and project blame onto others.
The district court’s grant of a conditional writ of habeas corpus is AFFIRMED.
The Tenth Circuit published its opinion in United States v. Copar Pumice Company on Monday, May 6, 2013.
This case involves the parties’ nearly ten-year legal dispute involving mining operations in the New Mexico Santa Fe National Forest. The claims are based on allegations that the Cooks and Copar removed and used undersized pumice from a mine in violation of a settlement agreement with the United States, the Jemez National Recreation Area Act (“JNRAA”), 16 U.S.C. § 460jjj, and applicable regulations. Although the case remains pending in the district court, the Cooks and Copar have filed an interlocutory appeal from discovery orders requiring their former and present law firms to produce documents containing legal advice counsel gave to them regarding the legality of mining, transporting, processing, and marketing pumice from their mine. Specifically, the Cooks and Copar appeal the denial of their motion for protective order and their motion to quash subpoenas, contending that this court has appellate jurisdiction under the collateral order, Perlman, and pragmatic finality doctrines. The United States has filed a motion to dismiss this appeal for lack of jurisdiction.
This Court’s jurisdiction is limited to review of “final decisions of the district courts.” 28 U.S.C. § 1291. A decision is “‘final’ when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 481 (10th Cir. 2011) (quotation omitted), cert. denied, 132 S. Ct. 1004 (2012). Also, orders for the production of documents during the course of litigation are not ‘final orders’ subject to immediate appellate review. In certain limited circumstances, however, the Court has exercised jurisdiction over an interlocutory appeal under the collateral order doctrine (also known as the Cohen doctrine), the Perlman doctrine, and the pragmatic finality doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); Perlman v. United States, 247 U.S. 7 (1918). The Tenth Circuit concluded that none of these doctrines applied to this case.
Accordingly, the Tenth Circuit granted the government’s motion and dismissed the appeal for lack of jurisdiction.
On Monday, May 6, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.
United States v. Rosas-Gonzalez
No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.
The Tenth Circuit published its opinion in Wilson v. Montano on Friday, May 3, 2013.
On December 18, 2010, Deputy Montano arrested Michael Wilson without a warrant. Montano asked Deputy Fred Torres to transport Wilson to the Valencia County Detention Center (“VCDC”). Prior to booking Wilson into the VCDC, Montano prepared a criminal complaint listing the charge against Wilson as a misdemeanor offense. Neither Montano nor Torres ever filed the criminal complaint in a court with jurisdiction or brought Wilson before a judicial officer for a probable cause determination during the time he was held at the VCDC. Eleven days after his arrest, Wilson was released from the VCDC by order of a magistrate judge. In the order, the magistrate noted no complaint had been filed. On January 4, 2010, after Wilson was released, Montano filed the misdemeanor criminal charge. The district attorney’s office dismissed the charge due to insufficient evidence.
Wilson brought suit under 42 U.S.C. § 1983. Wilson alleged the deputies deliberately detained him without filing a criminal complaint or bringing him before a judicial officer for a probable cause determination. He further asserted that, prior to his detention, there were numerous incidents in which VCDC held individuals without filing criminal charges or otherwise allowing them to appear before a magistrate judge. Wilson alleged his detention was the result of a policy established by Warden Chavez in which individuals were routinely held without the filing of criminal charges. Wilson made substantially similar claims against Sheriff Rivera.
Defendants jointly filed a motion to dismiss Wilson’s claims, arguing Wilson’s complaint failed to state a claim against any of the defendants in their individual capacities and each of the defendants was entitled to qualified immunity. The district court denied the motion, and this appeal followed.
To survive a motion to dismiss based on qualified immunity, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This court requires a plaintiff to allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.
Appellants do not dispute that Wilson had a Fourth Amendment right to a prompt probable cause determination, and that such a right was clearly established at the time of Wilson’s detention. Appellants argue they are entitled to qualified immunity because there is no clearly established law delineating which of them had the obligation to provide Wilson with a probable cause hearing.
The Tenth Circuit rejected this argument and examined the allegations in the complaint as to each individual appellant to determine whether a plausible claim for relief was stated. The Court considered New Mexico state law insofar as it bore on the scope of each appellant’s responsibility to ensure a prompt probable cause determination.
Wilson’s complaint lacked sufficient allegations to state a plausible claim that Torres was personally involved in the violation of his right to a prompt probable cause determination. The district court therefore erred in denying the motion to dismiss as to Torres. The complaint alleged sufficient personal involvement on Montano’s part to state a plausible claim for under § 1983, and the district court correctly denied appellants’ motion to dismiss as to Montano.
New Mexico law charged Sheriff Rivera with the responsibility of running the VCDC and ensuring arrestees received a prompt probable cause determination. Under New Mexico law, both Warden Chavez and Sheriff Rivera were responsible for the policies or customs that operated and were enforced by their subordinates and for any failure to adequately train their subordinates.
The complaint alleged Warden Chavez established a policy or custom of holding citizens without pending criminal charges until the court filed orders of release sua sponte. The complaint further alleged Warden Chavez’s policy of holding citizens without court orders caused the violation of Wilson’s Fourth Amendment right to a prompt probable cause determination. That is, because Warden Chavez failed to require the filing of written complaints, detainees, including Wilson, were held at the VCDC without receiving prompt probable cause determinations. The complaint also alleged Warden Chavez inappropriately trained his employees, which led to the violation of Wilson’s right to a prompt probable cause determination. These allegations, taken as true, sufficiently established Warden Chavez promulgated policies that caused the constitutional harm of which Wilson complains, i.e., his prolonged detention without a probable cause hearing.
The complaint also alleged sufficient facts to establish Warden Chavez acted with the requisite mental state. To establish a violation of § 1983 by a defendant-supervisor, the plaintiff must establish, at minimum, a deliberate and intentional act on the part of the supervisor to violate the plaintiff’s legal rights. The complaint alleged Warden Chavez acted with deliberate indifference to routine constitutional violations occurring at the VCDC. This allegation is supported by Wilson’s assertions that there were numerous prior occasions in which individuals were subject to prolonged warrantless detention.
The allegations in the complaint as to Sheriff Rivera are similar to those against Warden Chavez. As with Warden Chavez, these allegations, if proven, are sufficient to establish Sheriff Rivera’s individual liability for Wilson’s unconstitutional detention, and the district court did not err in denying the motion to dismiss as to Sheriff Rivera.
The district court erred in denying the motion to dismiss as to Torres. The district court correctly denied the motion to dismiss as to Montano, Chavez, and Rivera.
AFFIRMED in part and REVERSED in part.
The Tenth Circuit published its opinion in United States v. Luna-Acosta on Friday, May 3, 2013.
In August 2011, the government filed an information charging Adrian Luna-Acosta with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b). He entered a plea agreement under which the government agreed to a downward departure of his offense level for the purposes of sentencing. The resulting range was thirty-three to forty-one months’ imprisonment. Luna-Acosta contended that when the government offered the plea agreement, it told him that it anticipated the range to be twelve to eighteen months’ imprisonment.
Defense counsel raised this issue at sentencing, but the court stated it nevertheless would sentence Luna-Acosta to the higher range. Defense counsel also raised the issue that new sentencing guidelines would take effect on November 1, 2011, regarding supervised release on this offense. The court agreed and continued the hearing. At the next sentencing hearing on November 16, the court sentenced Luna-Acosta to the lower range of twelve months imprisonment.
More than five months later, the district court reversed course. Without warning to either party, the district court entered a written judgment imposing a sentence of thirty-three months’ imprisonment without supervised release. The court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. Luna-Acosta appealed.
On appeal, Luna-Acosta argued that the district court lacked jurisdiction under Fed. R. Crim. P 35(a) to modify his twelve-month sentence.
Under Fed. R. Crim. P. 35(a), a district court “may correct a sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin 14 days after sentencing.” The rule defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). This 14-day time limit is jurisdictional.
The pivotal issue on appeal was when the “oral announcement” of the sentence occurred for purposes of Rule 35. Once the oral announcement of the sentence becomes final, it can only be modified within the 14 days following sentencing, and even then only in limited circumstances.
In this case, these “sentencings” resulted in three different outcomes: on October 19, 2011 (open court): 33 months’ imprisonment, 2 years’ supervised release; on November 16, 2011 (open court): 12 months’ imprisonment, no supervised release; and on April 26, 2012 (written judgment): 33 months’ imprisonment, no supervised release.
The Tenth Circuit adopted the standard of the Fifth Circuit, where a sentence is not final—and Rule 35(a) does not apply—when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).
In Meza, the Fifth Circuit concluded that the district court’s change of a sentence immediately after it first announced a sentence was not a modification that must comply with Rule 35(a). The court refused to impose the “draconian rule” that “the district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court.”
Applying this “formal break” standard to the case at bar, the Tenth Circuit concluded that the sentence was not final until the end of the second hearing held on November 16, 2011. Most important was the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence.
Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26.
Accordingly, the Tenth Circuit REVERSED and REMANDED with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.
On Friday, May 3, 2013, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.
O’Toole v. Northrop Grumman Corp.
No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.
The Tenth Circuit published its opinion in Karki v. Holder on Tuesday, April 30, 2013.
Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitioned for review of a decision of the Board of Immigration Appeals (BIA) affirming an order of the immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT).
Karki argued that the BIA and IJ erred in concluding he failed to show past persecution, a well-founded fear of future persecution, and a nexus between the alleged persecution and his political opinion. Karki had presented evidence that he was beaten badly by a group of Maoists who attacked him because of his political opinions. He also presented evidence that a vehicle in which he should have been traveling was bombed by the Maoists and that he was their intended target. The BIA concluded that the Maoists’ actions toward Karki were motivated only by their desire to extort money or recruit him and that “[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even partly because of his political opinion or a political opinion imputed to him.” The Tenth Circuit held that this conclusion was incorrect so the BIA’s decision could not be upheld on that ground.
The court also held that Karki “suffered past persecution, giving rise to a rebuttable presumption of a well-founded fear of future persecution.” The court granted Karki’s petition for review and remanded the case for determination of “whether Petitioner’s past persecution was sufficiently severe that he did not need to demonstrate a well-founded fear of future persecution, and, if not, (2) whether changed country conditions or the possibility of internal relocation are sufficient to rebut the presumption that he has a well-founded fear of future persecution.”
Karki also argued that the BIA and IJ erred in concluding he had not established his entitlement to relief under the CAT. The IJ and BIA concluded that Karki was not entitled to relief because he had not demonstrated that government officials would be likely to acquiesce in his torture upon his return to Nepal. Karki presented evidence that the Nepalese government is aware of and does not prevent frequent acts of torture committed by Maoists. Karki was not required to show the government would turn a blind eye to specific threats of torture against him in particular.
The court vacated BIA’s affirmance of the ALJ’s decision and remanded on both the petition for asylum and the CAT claim.
On Thursday, May 2, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.
No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.
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