April 16, 2014

Tenth Circuit: Unpublished Opinions, 3/26/2014

On Wednesday, March 26, 2014, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Davis v. Kutak Rock

Lately v. Colvin

Willess v. United States

Mann v. Turner Brothers

The Wackenhut Corporation v. Hansen

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Preliminary Injunction Enjoining Implementation of Legislation That Restricted Federal Funding to Two Kansas Planned Parenthood Facilities Vacated

The Tenth Circuit Court of Appeals published its opinion in Planned Parenthood of Kansas and Mid-Missouri v. Moser on Tuesday, March 25, 2014.

The federal government subsidizes the cost of family-planning services for low-income individuals through Title X of the Public Health Service Act, codified at 42 U.S.C. §§ 300–300a-6. Although Title X  authorizes direct federal grants to service providers, most Title X funds flow initially to state and local  governmental agencies. Nonprofit organizations function as intermediaries that distribute the funds to subgrantees who administer the programs. Kansas is one such state.

If a grantee or subgrantee materially fails to comply with any term of an award, the awarding agency may temporarily withhold payments, disallow funding to cover the cost of the noncomplying activities, terminate the award, withhold further awards, or pursue other legally available remedies.

In May 2011, Kansas Governor Sam Brownback signed into law appropriations bill § 107(l) restricting the classes of entities eligible for Title X subgrants. It limited the recipients to public entities, hospitals, and federally qualified health centers (FQHC) that provide comprehensive primary and preventative healthcare services. This restriction disqualified two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri (Planned Parenthood). These Planned Parenthood facilities performed abortions. Planned Parenthood sued Governor Brownback and Robert Moser, MD, in his capacity as the Secretary of the Kansas Department of Health and Environment (KDHE) for declaratory and injunctive relief, challenging the legislation on the grounds that (1) it violated Title X and was unconstitutional under the Supremacy Clause; (2) it violated Planned Parenthood’s First Amendment rights by penalizing it for associating with providers of abortion and for its advocacy of access to abortion services; and (3) it violated the Fourteenth Amendment by imposing an unconstitutional burden on the rights of women to choose abortion (a claim not raised on appeal).

Ruling that Planned Parenthood had established a likelihood of success on the merits of the first two claims and had otherwise satisfied the requirements for a preliminary injunction, the district court granted the preliminary injunction and enjoined KDHE from implementing the legislation. Accordingly, it enjoined any further enforcement or reliance on Section 107(l) and ordered Moser to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l).

Moser challenged the injunction in the Tenth Circuit on several grounds, most of which the Tenth Circuit did not address. As to the Supremacy Clause claim, the court held that Planned Parenthood could not  establish a likelihood of success on the merits because there was no private cause of action for injunctive relief for the alleged violation of Title X under the Supremacy Clause. The court held that when actual or threatened state action is allegedly contrary to a federal statute, the Supremacy Clause does not necessarily authorize an injunction against the state action when four conditions are all satisfied: (1) the statute does not specifically authorize injunctive relief, (2) the statute does not create an individual right (which may be enforceable under 42 U.S.C. § 1983), (3) the statute is enacted under the Constitution’s Spending Clause, and (4) the state action is not an enforcement action in adversary legal proceedings to impose sanctions on conduct prohibited by law.  The Tenth Circuit concluded that Planned Parenthood had no cause of action under Title X to enjoin the application of § 107(l). The court held Title X simply did not contemplate enforcement through private suits for injunctive relief.

The court noted that § 107(l) does not prohibit Planned Parenthood from doing anything. It does not say that all health-care providers must offer comprehensive care. It does not even prohibit those who do not offer comprehensive care from providing family-planning services. Planned Parenthood can continue to do so. The statute says only that the State will not subsidize family-planning services provided by those who do not offer comprehensive care.

As to the First Amendment claim, the court stated that the challenge would be rejected unless retaliation against the protected conduct was a substantial or motivating factor for taking the action and the official would not have taken the same action in the absence of the protected conduct. The court held that neither of these contexts was present in this case. The first was absent because nothing in § 107(l) prohibited Planned Parenthood from advocating abortion rights or associating with abortion providers. Second, the Tenth Circuit expressed reluctance to invalidate a law because of the process by which it was enacted. Planned Parenthood could not establish a likelihood of success because the legislation did not restrict the rights of speech or association of Planned Parenthood and the motives of individual lawmakers in enacting § 107(l) were irrelevant.

The court VACATED the preliminary injunction, REVERSED and REMANDED for further proceedings.


Tenth Circuit: Unpublished Opinions, 3/25/2014

On Tuesday, March 25, 2014, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. Braimah

United States v. Juarez-Sanchez

Drum v. Northrup Grumman Systems

Gray v. Farris

United States v. Pettigrew

Crawford v. Colvin

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

Tenth Circuit: Unpublished Opinions, 3/24/2014

On Monday, March 24, 2014, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

Sanders v. Farris

Marshall v. Lombardi

Stine v. Berkebile

State of Kansas v. Price

Holt v. Newton-Embry

United States v. Mitchell

United States v. Newkirk

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

Tenth Circuit: Unpublished Opinions, 3/20/2014

On Thursday, March 20, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Mayes v. Oklahoma

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

Tenth Circuit: Grant of New Trial Reversed Because Undisclosed Evidence Immaterial Under Brady

The Tenth Circuit Court of Appeals published its opinion in United States v. Reese on Wednesday, March 19, 2014.

Rick Reese owned a federally licensed firearms store and ran it with his wife, Terri, and two sons, Ryin and Remington. In August 2012, a jury convicted Rick, Terri, and Ryin under 18 U.S.C. §§ 2 and 924(a)(1)(A) for aiding and abetting straw purchases of firearms from the store. Unbeknownst to them, however, at the time of trial the FBI was investigating one of the government’s witnesses, Deputy Batts, for his alleged involvement in various criminal activities. Arguing that the government’s failure to disclose that information before trial violated Brady v. Maryland, Defendants filed a motion for a new trial. The district court concluded that the government had withheld favorable, material evidence from Defendants and granted their motion. The government appealed.

Before reaching the merits of the appeal, the Tenth Circuit clarified that de novo is the standard of review of a district court’s ruling on a Brady claim asserted in the context of a new-trial motion. It also clarified that the test for materiality of withheld evidence does not change based on whether the government withheld it negligently or intentionally.

The court focused on the materiality element of the Brady claim and concluded that the Deputy Batts investigation was immaterial because there was not a reasonable probability that the outcome of Defendants’ trial would have been different had the government disclosed the investigation. The government’s evidence on the counts of conviction was sufficiently strong that the court was confident in the jury’s verdict. The court rejected Defendants’ arguments that Deputy Batts was a critical witness or that this was a close case and reversed the district court.

Tenth Circuit: Summary Judgment for Junior Mark User Affirmed in Lanham Act Trademark Infringement Case

The Tenth Circuit Court of Appeals published its opinion in Hornady Manufacturing Co., Inc. v. DoubleTap, Inc. on Wednesday, March 19, 2014.

Hornady manufactures and sells firearm ammunition and related products. Hornady has sold various products under the name “TAP,” short for “Tactical Application Police.” In 1999, Hornady acquired trademark registration for the nonstylized word mark, “TAP.” DoubleTap was founded in 2002 by Michael McNett. DoubleTap has been described as a “niche” ammunition manufacturer.

In January 2010, Hornady sent DoubleTap a cease-and-desist letter, demanding that DoubleTap discontinue using the word “Tap” on its products, remove “Tap” from its website, and destroy any materials it created bearing “Tap.” Hornady eventually filed suit, alleging trademark infringement under Sections 32 and 43(a) of the Lanham Act, common law trademark infringement, deceptive trade practices under Utah law, and unjust enrichment. Both parties moved for summary judgment, arguing that they were entitled to judgment as a matter of law on whether DoubleTap infringed on Hornady’s TAP mark. The district court denied Hornady’s motion and granted DoubleTap’s.

In deciding whether summary judgment was properly granted, the Tenth Circuit had to determine if DoubleTap’s mark was likely to cause confusion with Hornady’s mark. The court applied “six nonexhaustive factors to evaluate whether there is a likelihood of confusion: (1) the degree of similarity between the competing marks; (2) the intent of the alleged infringer in adopting the contested mark; (3) evidence of actual confusion; (4) the similarity of the parties’ products and the manner in which the parties market them; (5) the degree of care that consumers are likely to exercise in purchasing the parties’ products; and (6) the strength of the contesting mark.”

After applying the six factors in a detailed opinion, the court held that consumers were unlikely to be confused by the marks and affirmed the award of summary judgment to DoubleTap.

Tenth Circuit: Unpublished Opinions, 3/19/2014

On Wednesday, March 19, 2014, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Shaw

United States v. Ganadonegro

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

Tenth Circuit: Ongoing Registration Obligations Under Colorado’s Sex Offender Registration Act Do Not Satisfy Jurisdictional Custody Requirement of Habeas Corpus Petitions

The Tenth Circuit Court of Appeals published its opinion in Calhoun v. Colorado Attorney General on Tuesday, March 18, 2014.

Ronald C. Calhoun, a convicted sex offender, appealed the district court’s dismissal of his habeas corpus petition filed under 28 U.S.C. § 2254. The district court held that Calhoun was not “in custody,” as required to invoke the jurisdiction of the federal courts. His probation was terminated on February 2, 2007 and he filed the current habeas petition five years later. Calhoun asserted that he was in custody for the purpose of § 2254 because he must register as a sex offender.

The Tenth Circuit held that “the future threat of incarceration for registrants who fail to comply with the [sex-offender registration] statute[s] is insufficient to satisfy the custody requirement.” The Colorado sex-offender registration requirements Calhoun is subject to are collateral consequences of conviction that do not impose a severe restriction on his freedom. The court agreed with circuits that have uniformly held that the requirement to register under state sex-offender registration statutes does not satisfy § 2254’s condition that the petitioner be “in custody” at the time he files a habeas petition.

Because the district court was without jurisdiction to consider the merits of the petition, the court affirmed its dismissal.

Tenth Circuit: Unpublished Opinions, 3/18/2014

On Tuesday, March 18, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Arrowgarp

Smith v. Central Mine Equipment Co.

Tennyson v. Carpenter

Samland v. Doe

Large v. Beckham County District Court

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

Honorable Carolyn B. McHugh Appointed to Tenth Circuit Court of Appeals

The Honorable Carolyn B. McHugh has been appointed to the United States Court of Appeals for the Tenth Circuit. President Obama nominated Judge McHugh on May 16, 2013, and renominated her on January 16, 2014. Judge McHugh’s nomination was confirmed by the Senate on March 12, 2014. Tenth Circuit Court of Appeals Judge Scott M. Matheson, Jr. administered the oath of office March 17th in Salt Lake City, Utah.

Judge McHugh practiced law in civil litigation at Kimball Parr Waddoups Brown & Gee (currently Parr Brown Gee & Loveless), where she eventually became a shareholder. She was appointed to the Utah Court of Appeals in August 2005, where she most recently served as the presiding judge. Judge McHugh will have her primary chambers in Salt Lake City.

Click here for the announcement from the Tenth Circuit Court of Appeals.

Tenth Circuit: Rule of Lenity Does not Apply in Plain Error Review

The Tenth Circuit Court of Appeals published its opinion in United States v. Williamson on Monday, March 17, 2014.

Defendant John S. Williamson has been protesting taxes for 30 years. In May 2008 the Internal Revenue Service (IRS) levied his wife’s wages to collect his back taxes. The IRS sent a notice of the levy, which Defendant returned, writing across the document: “Refused for cause. Return to sender, unverified bill.” In June 2008, Defendant sent an invoice for $909,067,650.00 to two IRS agents who had worked on the matter. The invoice listed the value of real and personal property allegedly seized by the IRS, added damages for various alleged torts, and then trebled the total “for racketeering.”

In December 2008, Defendant and Mrs. Williamson filed with the clerk of Bernalillo County, New Mexico, a claim of lien against the agents’ real and personal property for the same amount as the invoice. A grand jury indicted Defendant and Mrs. Williamson on two counts: (1) “corruptly endeavor[ing] to impede the due administration of the Internal Revenue Code by filing a false and fraudulent Claim of Lien,” in violation of 26 U.S.C. § 7212(a); and (2) “fil[ing] . . . a false lien and encumbrance against the real and personal property [of the IRS agents] on account of the performance of [their] official duties,” in violation of 18 U.S.C. § 1521.

Defendant’s defense at trial was essentially that he genuinely believed his lien was proper. A forensic psychologist testified that Defendant suffered from a delusional disorder that prevented him from abandoning his beliefs even when confronted with overwhelming evidence that he was wrong. Defendant requested instructions that would support his “genuine belief” defense to both charges, but the court rejected them and the jury returned verdicts of guilty on the two charges.

Defendant argued on appeal that the jury instruction concerning § 7212 should have informed the jury that he could be guilty only if he intentionally violated a known legal duty. The Tenth Circuit reviewed for plain error because at trial, defense counsel only argued the instruction should also contain a definition of “unlawful.” The court held that there was no plain error and that the rule of lenity did not apply because the “doubt required for the rule of lenity must be doubt raised by an adequately preserved argument.”

The court also rejected Defendant’s challenge to the § 1521 jury instruction for not including his requested good-faith defense. The § 1521 statute prohibits filing a false lien “having reason to know” it was false as well as knowingly filing a false lien. “Having reason to know” includes an objective component. A reasonable person knowing what Defendant knew would know the lien Defendant filed was false. Therefore, Defendant was not entitled to a good-faith defense instruction. The court affirmed his convictions.