November 25, 2015

Tenth Circuit: Remand Order Non-Reviewable Where Based on Lack of Unanimity

The Tenth Circuit Court of Appeals issued its opinion in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation on Thursday, August 13, 2015.

Ryan Harvey and other plaintiffs filed a complaint in Utah state court against the Ute Indian Tribe of the Uintah and Ouray Reservation, seeking a declaration regarding the authority of the Tribe over non-Indian businesses operating on certain categories of land. Plaintiffs also alleged three individuals affiliated with the Uintah Tribal Employment Rights Office had harassed and extorted Plaintiffs. Defendants filed a motion to dismiss, arguing that service of process had been insufficient, the state court lacked jurisdiction in the absence of a valid waiver of tribal immunity, the Tribe and its officers were immune from suit but were indispensable parties, and Plaintiffs failed to exhaust administrative remedies in tribal court. Following a hearing on the motion to dismiss, the state court ordered further briefing regarding whether the defendants’ motion constituted a general appearance. The court granted Plaintiffs’ motion to amend its complaint to add defendants.

Defendants filed a notice of removal in the U.S. District Court for the District of Utah, stating that certain defendants consented to removal and the others would consent. All except one eventually consented to removal. Plaintiffs then filed a motion to remand, arguing the initial defendants waived their right to remove by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and the federal court lacked subject matter jurisdiction. The district court granted the motion to remand, finding the initial defendants waived their right to consent to removal because they manifested an intent to litigate in state court, and the unanimity requirement could not be met.

The Tenth Circuit first noted that 28 U.S.C. § 1447(d) specifies that a district court order remanding to state court is “not reviewable on appeal or otherwise.” Following Supreme Court precedent establishing that some orders are reviewable despite the statute’s plain language, the Tenth Circuit noted that § 1447(d) has been interpreted to preclude review only for lack of subject matter jurisdiction or defects in removal procedure. The Tenth Circuit commented that although the circuits are split on whether remand based on waiver is reviewable, it would only address remand for lack of unanimity. The Tenth Circuit evaluated whether the remand was based on lack of unanimity and found that it was. The Tenth Circuit declined to review the remand order.

The Tenth Circuit granted appellees’ motion to dismiss and dismissed the appeal.

Tenth Circuit: Unpublished Opinions, 10/29/2015

On Thursday, October 29, 2015, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Chance v. Vandiver

United States v. Grigsby

United States v. Camargo-Chavez

United States v. Collins

Hernandez v. Bryan

KF 103-CV, LLC v. American Family Mutual Insurance Co.

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

Tenth Circuit: Unpublished Opinions, 10/28/2015

On Wednesday, October 28, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Hendrix

United States ex rel. Troxler v. Warren Clinic, Inc.

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

Tenth Circuit: Unpublished Opinions, 10/27/2015

On Tuesday, October 27, 2015, the Tenth Circuit Court of Appeals issued no published opinion and 12 unpublished opinions.

United States v. Palmer

Peavy v. Labor Source, LLC

United States v. Lopez

United States v. Gray

U.S. Commodity Futures Trading Commission v. U.S. Ventures LC

Todd v. USA

Gross v. Samudio

United States v. Hutchinson

Walker v. White

United States v. Campos

Chen v. Lynch

Cayetano-Castillo v. Lynch

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

Tenth Circuit: Unpublished Opinions, 10/26/2015

On Monday, October 26, 2015, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Delgado

United States v. Garcia-Jimenez

Gurley v. Clark

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

Tenth Circuit: Counsel’s Trial Strategy Sound and Performance Not Deficient so No Prejudice to Defendant

The Tenth Circuit Court of Appeals issued its opinion in Hanson v. Sherrod on Thursday, August 13, 2015.

John Hanson and Victor Miller went on a crime spree in Tulsa, Oklahoma in August and September 1999. Hanson and Miller carjacked Mary Bowles’ car with her inside. They drove to an isolated area near a dirt pit, where they intended to drop off Bowles, but encountered the owner of the pit, Thurman, who Miller shot and killed. The two then drove a short distance away and Miller told Hanson, “You know what you need to do.” Hanson then shot and killed Bowles; her badly decomposed body was found several weeks later. The two drove to a motel where they wiped down the inside of Bowles’ car and abandoned it. In the next several days, they robbed a video store and a credit union. After the credit union robbery, Miller’s wife (who had been the getaway driver) called Crime Stoppers and told police about the credit union robbery and Bowles’ abandoned car. She also told police where the pair were staying. Police found Bowles’ car and lifted fingerprints from both Miller and Hanson from the interior of the car. They surrounded the motel where Miller and Hanson were staying. Miller surrendered right away, but Hanson refused to leave the room. Eventually, police deployed tear gas and forced Hanson out of the room. They found two weapons with live ammunition in the room, which were the same type of weapons used in the shootings and robberies. Miller and Hanson were charged jointly with first-degree murder of Thurman and first-degree murder of Bowles. Alternatively, they were charged with felony murder for the two killings. At Miller’s request, their trials were severed.

Attorneys Jack Gordon and Eric Stall represented Hanson. Crucial evidence came from Rashad Barnes, a former coworker of Hanson’s who had been letting Hanson live in his car. Barnes testified that Hanson showed up at Barnes’ backyard acting nervous and jittery and told him several details of the killings and robberies. Hanson was convicted of first-degree murder of Bowles (Count 1) and felony murder of Thurman (Count 2). At sentencing, the jury found three aggravating circumstances: (1) Hanson’s prior felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he posed a continuing threat to society. He was sentenced to death for Count 1 and life imprisonment for Count 2. He appealed. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions but remanded for resentencing due to errors at the penalty phase. Days before the resentencing hearing began, Hanson learned that a fellow inmate of Miller’s, Ahmod Henry, would testify that Miller confessed to Bowles’ murder. Hanson filed an application for post-conviction relief based on that testimony, which he characterized as new exculpatory evidence. The state district court granted his motion for a new trial but the OCCA reversed, concluding the district court lacked jurisdiction.

Hanson’s resentencing hearing was held in January 2006, and he was again represented by Gordon. By the time the resentencing trial was held, Barnes had been killed in an unrelated incident. Barnes’ testimony from the first trial was read into the record over Hanson’s objections. In addition to testimony from Hanson’s family, a psychologist testified that she considered Hanson a low risk to society. At the end of the resentencing hearing, the jury recommended a death sentence based on three aggravating circumstances: (1) Hanson’s earlier violent felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he had committed murder to avoid lawful arrest or prosecution. Hanson again appealed, and the OCCA invalidated the second aggravating circumstance. After reweighing the evidence, the OCCA affirmed the death sentence. The U.S. Supreme Court denied certiorari.

In 2008, Hanson filed an application for post-conviction relief, which the OCCA denied. He filed a second application in 2010, which was also denied. In December 2010, he filed a federal habeas petition in the U.S. District Court for the Northern District of Oklahoma, citing nine points of error. The district court denied his habeas petition but granted a COA on six of his claims. Hanson appealed to the Tenth Circuit, which granted him a COA for the remaining three points of error in addition to the six accepted by the district court.

Hanson asserted several instances of ineffective assistance of trial and appellate counsel. He argued his trial counsel was ineffective for (1) failing to call Henry as a witness, (2) failing to raise additional grounds for the admission of Barnes’ prior trial testimony, (3) failing to investigate and introduce mitigating evidence at sentencing, (4) failing to object to prosecutorial misconduct. He argued his appellate counsel was ineffective for failing to challenge his trial counsel’s ineffectiveness and failing to put forth evidence of mental illness and brain damage. Finally, he argued both trial and appellate counsel were ineffective for failing to argue that the aggravating circumstance of avoiding arrest failed to specify which crime Hanson sought to avoid prosecution of by murdering Bowles. The Tenth Circuit analyzed each claim in turn.

The Tenth Circuit first evaluated Henry’s possible testimony. At trial, Gordon chose not to examine Henry directly; rather, he introduced the evidence through the detective to whom Henry made the statement. Gordon’s strategy allowed the confession to be presented to the jury without the opportunity for the prosecution to cross-examine Henry, who had serious credibility issues. The Tenth Circuit found no ineffective assistance, noting instead that Gordon’s decision not to call Henry was sound trial strategy. Because Gordon’s performance was not deficient, there was no prejudice.

Next, the Tenth Circuit turned to Hanson’s claim that Gordon’s performance was deficient in regards to the introduction of Barnes’ prior testimony. Gordon argued vigorously that Henry’s statement should prevent the admission of Barnes’ testimony, but he did not argue separately that Miller’s trial testimony was another grounds for objection. Gordon admitted that he never read the transcript of Miller’s trial. The OCCA concluded Gordon’s failure to admit evidence from Miller’s trial appeared strategically sound, since there were good reasons to shield the jury from Miller’s testimony, including that Miller had inculpated Hanson and that Miller’s testimony refuting Barnes was contradicted by objective facts, such as the fingerprints in Bowles’ car and the firearms found at the pair’s arrest. The Tenth Circuit acknowledged that Gordon admitted his failure to read Miller’s transcript. However, it could not find that the error constituted deficiency. The Tenth Circuit noted that even if the performance were deficient Hanson suffered no prejudice, because any potentially useful scraps of evidence were contradicted by the “inconvenient truth” that the two were found committing other crimes with the same firearms used to murder Thurman and Bowles.

Hanson also argued Gordon’s performance was deficient because he failed to call several familial witnesses to rebut the continuing threat aggravator. Gordon called one expert witness and four lay witnesses to rebut the continuing threat aggravator, all of whom testified that Hanson was kind, loving, hard-working, and a good father. Hanson argued that 13 other lay witnesses would have humanized him in the eyes of the jury. The OCCA analyzed the potential testimony and concluded it was duplicative and only of marginal value. The Tenth Circuit agreed, noting it would be troubled if Gordon had not actually interviewed any of the 13 proffered witnesses but the additional evidence would not have impacted the jury’s ultimate decision.

Turning to Hanson’s argument that both trial and appellate counsel were deficient for failing to introduce evidence of his mental illness and brain damage, the Tenth Circuit found no error. Hanson was evaluated by several mental health professionals prior to trial, who performed various tests. He was again evaluated prior to sentencing. On direct appeal of the death sentence, Hanson’s new counsel attempted to retain a neuropsychologist but was advised against it by one of the psychologists who had previously evaluated him. For his federal habeas petition, Hanson’s counsel, who was different from the previous appellate counsel, obtained evaluations from a psychiatrist and neuropsychiatrist. The OCCA found no ineffective assistance in failure to introduce this evidence previously, specifically stating, “We cannot accept as credible Hanson’s assertion that the experienced capital litigation experts and attorneys all missed these obvious indicators of mental illness and cognitive dysfunction in this case at every step.” The OCCA found the issue was reviewed and rejected by both trial and appellate counsel. The Tenth Circuit affirmed, agreeing with the OCCA that it was implausible that the other mental health professionals would have missed this issue.

Hanson argued that Gordon’s performance was deficient for failure to object to prosecutorial misconduct. The Tenth Circuit evaluated each instance and found that no prosecutorial misconduct occurred, so there was no deficiency in Gordon’s failure to object. Finally, the Tenth Circuit rejected Hanson’s claim that the government was required to specify which predicate felony it used as basis for the the avoiding arrest aggravator. The Tenth Circuit noted there was no requirement that the government specify an underlying felony, but even if the requirement existed there was evidence that the prosecution based the aggravator on Thurman’s murder. Regardless, the OCCA struck the third aggravator on review, which was the appropriate remedy. Hanson also argued that the cumulative errors rendered his counsel ineffective, but the Tenth Circuit disagreed.

The Tenth Circuit affirmed the district court and denied Hanson’s motion to expand his COA.

Tenth Circuit: Unpublished Opinions, 10/23/2015

On Friday, October 23, 2015, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Lopez-Montez

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

Tenth Circuit: Indictment Still Effective Until End of Probationary Period During Conditional Discharge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Saiz on Tuesday, August 18, 2015.

Gabriel Saiz pleaded guilty to burglary, battery, and larceny in New Mexico state court in 2011. At sentencing the court entered a conditional discharge order, under which Saiz was placed on probation but not convicted of the crimes. Upon completion of the probationary period the guilty plea would be eradicated and there would be no conviction. During the probationary period, Saiz was convicted on two federal charges of unlawful firearm possession. He pleaded guilty. The district court applied a sentence enhancement due to Saiz’s status as a “prohibited person,” meaning “any person under indictment for a crime punishable by imprisonment for a term exceeding one year.” The district court added two sentence enhancements and one reduction for acceptance of responsibility, resulting in a Guidelines range of 70 to 87 months’ imprisonment. Without the enhancements, the Guidelines range would have been 57 to 71 months. The district court varied downward and sentenced Saiz to 60 months’ imprisonment.

Saiz appealed, arguing the conditional discharge did not count as an indictment for purposes of the sentence enhancement. The Tenth Circuit disagreed, reasoning that because the charges in the indictment remain suspended during the period of probation, and because the court retains jurisdiction during the pendency of the probation, the indictment is still in effect during the probationary period. Persons under conditional discharge are neither adjudicated guilty nor convicted, and does not dispose a case to the fullest extent possible.

The district court’s sentence was affirmed.

Tenth Circuit: Unpublished Opinions, 10/22/2015

On Thursday, October 22, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Garcia

Hays v. Colvin

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

Tenth Circuit: Innocent Explanations Need Not Dissipate Officer’s Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in United States v. Padilla-Esparza on Friday, August 14, 2015.

Daniel Enrique Padilla-Esparza is a citizen of Mexico and a lawful permanent resident of the United States. On February 25, 2013, he was entering the United States from Mexico when a drug-sniffing dog alerted to his truck. Officers searched his truck and found an empty non-factory compartment above the gas tank. The officers released Padilla-Esparza but entered an alert on their communications system regarding Padilla-Esparza and his truck. On September 7, 2013, agents stopped Padilla-Esparza as he was traveling through a border checkpoint on his way to Mexico. CBP Officer Aguilera and his partner interviewed Padilla-Esparza. Their suspicions were raised because Padilla-Esparza had money hidden in a camera case that he had not originally declared, he could not name the last three clients of his landscaping business, he had been through border checkpoints every month for the past six months, and he had receipts for $1,300 in recent clothing purchases. Because of these inconsistencies, Officer Aguilera created a second alert for Padilla-Esparza and updated his license plate information. Officer Aguilera also set up an alert to be sent to his cell phone when Padilla-Esparza returned to the United States.

On September 10, 2013, Officer Aguilera received an alert that Padilla-Esparza had re-entered the United States. He issued a “be on the lookout” alert (BOLO) for Padilla-Esparza and his truck. Three days later, Padilla-Esparza entered the Las Cruces Border Patrol checkpoint, but an officer waved him through the checkpoint due to heavy rain. Another officer monitoring license plates recognized Padilla-Esparza’s and stopped traffic, but soon realized that Padilla-Esparza had already been waved through. Border Patrol agents with a drug-sniffing dog pursued Padilla-Esparza and pulled him over about 15 miles from the border. However, one of the agents mistakenly believed they had the wrong truck and let Padilla-Esparza go. When the agents realized their error, they again pursued Padilla-Esparza and pulled him over again. A drug-sniffing dog alerted to Padilla-Esparza’s truck. Due to the heavy rain, the agents asked him to return to the border patrol checkpoint, and he agreed. At the checkpoint, the agents found 16 kilograms of cocaine in the hidden non-factory compartment.

Padilla-Esparza was indicted on one count of possession with intent to distribute 5 kilograms or more of cocaine. He moved to suppress the evidence seized from his truck. After an evidentiary hearing, the district court denied his motion. He eventually pleaded guilty but reserved the right to appeal the district court’s denial of his motion to suppress. He was sentenced to 78 months in prison followed by two years of supervised release. He appealed.

On appeal, Padilla-Esparza argued the evidence seized from his vehicle should be suppressed because (1) the first stop was unlawful because Officer Aguilera lacked reasonable suspicion to issue the BOLO alert, and (2) the second stop was unlawful because any reasonable suspicion was dissipated after he was released from the first stop. The Tenth Circuit rejected both arguments. Although Padilla-Esparza argued there were innocent reasons for all the reasons Officer Aguilera found suspicious, the Tenth Circuit found that the mere possibility of innocence does not negate reasonable suspicion. As to Padilla-Esparza’s argument that the second stop was unlawful, the Tenth Circuit again disagreed, noting that the officers’ suspicions were not dissipated after the first stop. Rather, they erroneously released the vehicle based on a mistaken belief that it was not the correct vehicle. They did not investigate Padilla-Esparza at all at the first stop, so there was no basis on which their suspicions could have dissipated.

The district court’s order allowing introduction of the evidence from Padilla-Esparza’s vehicle was affirmed.

Tenth Circuit: No Avoidance of Transaction Made Within Ordinary Course of Business

The Tenth Circuit Court of Appeals issued its opinion in In re C.W. Mining Co.: Jubber v. SMC Electrical Products, Inc. on Monday, August 10, 2015.

C.W. Mining was forced into bankruptcy after creditors filed a petition for involuntary bankruptcy on January 8, 2008. In June 2007, C.W. had entered into an agreement with SMC Electrical Products, Inc., to purchase equipment in order to switch from a continuous method of mining to a longwall method. On September 18, 2007, SMC submitted an invoice to C.W. for $808,539.75, due in 30 days. C.W. made a $200,000 payment on the invoice on October 16, 2007, two days before it was due. The bankruptcy trustee initiated an adversary proceeding to avoid the transfer under 11 U.S.C. § 547(b). The bankruptcy court granted SMC summary judgment and rejected the trustee’s claim on the grounds that the transfer was made in the ordinary course of business. The BAP affirmed, and the trustee appealed to the Tenth Circuit.

The Tenth Circuit analyzed avoidance and the ordinary course of business exception, including the scrutiny applied to first-time transactions. The Tenth Circuit explained the purpose of the ordinary course of business transaction in detail, and examined its application as to both parties in the business transaction. Applying its analysis to the circumstances of this case, the Tenth Circuit found that the transaction between C.W. and SMC was within the ordinary course of business. The purchase was an arms’ length transaction for the purpose of assisting in mining operations. The Tenth Circuit dismissed the trustee’s arguments, characterizing them as an argument against a first-time transaction and finding that was not enough to avoid the transfer.

The bankruptcy court’s ruling was affirmed.

Tenth Circuit: Sixth Amendment Right to Counsel Attaches Only to Criminal Proceedings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Calhoun on Monday, August 10, 2015.

Michael Calhoun, along with two co-defendants, appeared before the Tenth Circuit seeking to appeal the district court’s denial of his motion to quash a 60-count indictment. At that time, the Tenth Circuit deemed the appeal premature and dismissed it for lack of subject matter jurisdiction. United States v. Tucker, 745 F.3d 1054 (10th Cir. 2014). Defendant then pleaded guilty to one count of conspiracy to commit wire or mail fraud, reserving the right to appeal the denial of his motion to quash. He was sentenced to five years’ probation and again appealed.

On appeal, Defendant argued that he suffered ineffective assistance of counsel at the grand jury, specifically arguing his criminal counsel encouraged him to incriminate himself in order to help the bank overturn a $65 million civil judgment related to Defendant’s scheme, thereby violating his Sixth Amendment right to counsel and requiring suppression of the grand jury testimony and quashing of the indictment. The Tenth Circuit found a fatal flaw in Defendant’s argument—the Sixth Amendment right to counsel does not attach until criminal proceedings have begun, so he had no right to counsel at the grand jury proceeding.

The district court’s denial of the motion to quash was affirmed.