March 4, 2015

Tenth Circuit: Unpublished Opinions, 2/10/2015

On Tuesday, February 10, 2015, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

Yeager v. Fort Knox Security Products

Morgan v. Tomlinson

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 2/9/2015

On Monday, February 9, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Mowery

Calvert v. Denham

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Threats Phrased as Exhortations Not Entitled to First Amendment Protections

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wheeler on Thursday, January 15, 2015.

Kenneth Royal Wheeler, angry about a recent DUI, posted several Facebook messages urging his “religious followers” to commit serious acts of violence, including killing specific police officers and their families and killing everyone at a local preschool and daycare facility. He was convicted of two counts of transmitting a threat in foreign commerce under 18 U.S.C. § 875(c) and was sentenced to forty months’ imprisonment on each count, to run concurrently, and three years’ supervised release, also concurrent. He appealed on two grounds: (1) the jury was not instructed that it was required to find that Wheeler had a subjective intent to threaten, and (2) the evidence was insufficient to show that Wheeler transmitted a “true threat.”

The Tenth Circuit recently held in United States v. Heineman, 767 F.3d 970 (10th Cir. 2014), that § 875(c) requires proof of a defendant’s subjective intent to threaten in accordance with the First Amendment. The government asserted that Heineman was wrongly decided, but conceded that under current Tenth Circuit precedent the instructions were insufficient. However, the government argued the error was harmless because no rational juror could conclude Wheeler did not intend his remarks to be threatening. The Tenth Circuit disagreed, finding that Wheeler seemed to think he had deleted all his Facebook friends prior to posting and did not believe anyone would see his posts. The Tenth Circuit reversed on the jury instruction issue.

Because the sufficiency of the evidence claim could preclude retrial, the Tenth Circuit addressed Wheeler’s argument that the evidence was insufficient to support his convictions. The Tenth Circuit first determined that Wheeler’s speech constituted a true threat and was thus unprotected by the First Amendment. Wheeler argued his speech was not a true threat because he did not threaten to harm anyone himself. The Tenth Circuit disagreed, finding instead that “[a]llowing defendants to seek refuge in the First Amendment simply by phrasing threats as exhortations would . . . leave the state ‘powerless against the ingenuity of threateners.'” The Tenth Circuit found that a reasonable person would have taken Wheeler’s exhortations as threatening, and indeed several of the intended targets did feel threatened. A rational juror could consider Wheeler’s posts true threats.

The Tenth Circuit reversed and remanded for retrial with proper jury instructions.

Tenth Circuit: Unpublished Opinions, 2/6/2015

On Friday, February 6, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Castro-Gaxiola

United States v. McManis

Miller v. Kastelic

Albright v. Raemisch

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

Tenth Circuit: Plain Language of Regulation Requires Mortgage Subordination at Date of Conservation Easement Donation

The Tenth Circuit Court of Appeals issued its opinion in Mitchell v. Commissioner of Internal Revenue on Tuesday, January 6, 2015.

Ms. Mitchell and her late husband purchased property from Mr. Sheek subject an agreement to pay the balance to Mr. Sheek in yearly installments. In 2003, they granted a conservation easement on part of their property to the Montezuma Land Conservancy. At the time of the donation, the Mitchells did not obtain a mortgage subordination agreement from Mr. Sheek, but they did obtain one in 2005. The Mitchells claimed a charitable contribution deduction on their 2003 tax return.

In 2010, the Commissioner of the IRS mailed a notice of deficiency to Ms. Mitchell disallowing the charitable contribution for failure to meet certain Code requirements, specifically for not obtaining a mortgage subordination agreement at the time of the donation. Ms. Mitchell challenged the Commissioner’s determination in Tax Court, but the Tax Court denied the claimed charitable contribution, concluding the Code and its implementing regulations mandated that the mortgage be subordinated on the date of the donation. Ms. Mitchell appealed to the Tenth Circuit.

The Tenth Circuit first analyzed the applicable Code provisions, in particular noting the Code mandates that a contribution shall not be treated as exclusively for contribution purposes unless the contribution is protected in perpetuity. The Commissioner developed the mortgage subordination provision as a means to protect the conservation in perpetuity. The Tenth Circuit accordingly focused its inquiry on whether the regulations can be interpreted to entitle Ms. Mitchell to the deduction despite the undisputed fact that the mortgage was not subordinated on the date of the donation.

The Tenth Circuit first turned to Ms. Mitchell’s claim that, because the regulations are silent on the date of subordination, she is entitled to the deduction because the mortgage was eventually subordinated. The Tenth Circuit disagreed, finding the plain language of the regulation precluded her interpretation, and even if they were to view the regulation as ambiguous, they would defer to the Commissioner’s reasonable interpretation.

Ms. Mitchell next argues that strict compliance with the regulation was unnecessary because the risk of foreclosure was so remote as to be negligible, and because of a Deed provision that allegedly protected the property in perpetuity. The Tenth Circuit found that the plain language of the regulation required it to reject Ms. Mitchell’s arguments.

The Tenth Circuit affirmed the Tax Court’s decision.

Tenth Circuit: Burden Shifts to Plaintiff to Rebut Defendant’s Claim of Termination for Misconduct

The Tenth Circuit Court of Appeals issued its opinion in Estate of Bassatt v. School District No. 1 in the City & County of Denver on Wednesday, December 31, 2014.

In 2007, Carlos Bassatt was student teaching at West High School in Denver while he pursued a Masters of Education degree from Regis University. On September 14, 2007, Bassatt left the school building, got into his Ford Focus, and reclined the seat. Maria Iams, a district employee, parked next to him, and when she bent to retrieve something in her car, she saw a man masturbating in the Ford Focus. She did not know Bassatt and did not know he worked at West. She reported the incident to school officials, and it was then relayed to West’s resource officer. After reviewing security videos, Iams was able to identify the car but not the person who left the car to enter the school building. The Dean of Students, Dan Trujillo, identified the man as Bassatt.

On the morning of September 17, 2007, Trujillo and West’s principal, Patrick Sanchez, had a meeting with Bassatt and informed him that he had been accused of masturbating in his car in the West parking lot. Bassatt was placed on administrative leave. He was summoned to the Denver Police Department, but ultimately no charges were filed against him. Sanchez sent Bassatt an email on September 19 saying that he was clear to return to West, but later spoke to the district’s Director of Labor Relations, who advised Sanchez that the District Attorney’s decision not to prosecute did not stop the district from taking action against Bassatt.

Sanchez and the Director of Labor Relations met with Bassatt and his wife, who was a teacher at West, on September 26. Bassatt declared that the accusation was racially motivated and the decision to end his placement at West was discriminatory. He was terminated from his placement on September 27, 2007.

Bassatt filed charges with the Colorado Civil Rights Commission (CCRC), alleging discrimination and retaliation by the district. After a two-day hearing, an ALJ concluded Bassatt had failed to prove either discrimination or retaliation. Bassatt appealed to the CCRC, which reversed the ALJ’s determination on the retaliation claim, finding that Bassatt had established a prima facie case of retaliation and the district’s termination was pretextual. The district appealed to the Colorado Court of Appeals, which affirmed the CCRC’s finding that Bassatt had established a prima facie case of retaliation. However, the court remanded to the CCRC to consider the ultimate issue of retaliation.

Before the CCRC could issue its opinion on remand, Bassatt filed suit in the U.S. District Court for the District of Colorado, raising a number of issues, including retaliation in violation of Title VII and in breach of his student teacher agreement. The CCRC then issued its final order on remand, concluding that the district had terminated him in retaliation for his accusations of discrimination, and the district had not provided a non-discriminatory reason for its actions. In August 2012, Bassatt died, and his estate was substituted as plaintiff in the district court action.

The district court granted summary judgment to the district, concluding the estate had failed to make a sufficient showing of pretext to defeat summary judgment on its Title VII claim. It also dismissed his §§ 1981 and 1983 claims, because Bassatt did not have a contract to student teach. The estate appealed.

The Tenth Circuit first noted that it was not bound by the administrative agency’s findings, but the state court’s factual and legal determinations had a preclusive effect as to the Tenth Circuit’s review. The Colorado Court of Appeals’ opinion that the Estate made a prima facie case of retaliation was thus binding on the Tenth Circuit. The Circuit noted that it need only find whether (1) the district provided a legitimate, non-discriminatory reason for its decision, and (2) the estate was able to demonstrate that the reason was mere pretext. The Tenth Circuit found the incident in the parking lot to be a legitimate and non-discriminatory reason for the employment decision and turned to the pretext question.

The Tenth Circuit agreed with the district court that the estate failed to provide sufficient evidence to create a triable issue on pretext. The estate argued that the district court impermissibly shifted the burden of proof, but the Tenth Circuit noted that in employment discrimination actions, the plaintiff must rebut the employer’s claim of misconduct, which the plaintiff here did not do. Next, the estate argued the district court erred in finding Sanchez made a sincere credibility determination in believing Iams, contending insufficient evidence supported her credibility. However, in this case, Sanchez had no direct evidence either way, heard stories from both sides, and decided ultimately to believe Iams. The estate also argued that Sanchez’s first email inviting Bassatt back to work was evidence that he believed Bassatt, but the Tenth Circuit disagreed, finding it was bound by the court of appeals’ decision that specifically reviewed and rejected that position. The Tenth Circuit found no evidence of pretext.

The estate also argued that the CCRC’s second order provided evidence of pretext. However, the Tenth Circuit is not bound by administrative opinions, and found it unpersuasive on review. Turning then to the §§ 1981 and 1983 claims, the Tenth Circuit found again that the estate could not show pretext, and also that there was no employment contract between Bassatt and the district. The estate argued that Bassatt’s student teacher agreement qualified as a contract, but the Tenth Circuit disagreed, finding it did not create a contract.

The Tenth Circuit affirmed the district court’s grant of summary judgment to the school district.

Tenth Circuit: Unpublished Opinion, 2/5/2015

On Thursday, February 5, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Garcia-Salas

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

Tenth Circuit: District Court Must Find Compelling Reason for Restricting Fundamental Liberty Interest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Burns on Tuesday, December 30, 2014.

James Burns was convicted of possession and attempted possession of child pornography, and was sentenced to 63 months in prison followed by 5 years of supervised release. As a condition of his release, the probation department was required to approve of any contact Burns had with minors, including his youngest daughter, S.B. Burns appealed. He did not object to the imposition of the restrictions at trial, so the Tenth Circuit reviewed for plain error.

The Tenth Circuit found that the district court restricted Mr. Burns’ contact with a family member without making constitutionally required findings. When a court imposes a restriction that invades a fundamental right or liberty interest, it must find compelling circumstances to do so. The district court made no findings of compelling circumstances for restricting Mr. Burns’ fundamental interest in parenting his child. The Tenth Circuit found a reasonable probability that the court would not have restricted Mr. Burns’ contact with S.B., since there was no evidence that Mr. Burns abused or sexually molested children and he had a good relationship with his other four children. The error seriously affected the fairness of the proceedings because there was a substantial likelihood the district court would have softened the restrictions.

The Tenth Circuit reversed and remanded for reconsideration of the supervised release condition.

Tenth Circuit: Unpublished Opinions, 2/4/2015

On Wednesday, February 4, 2015, the Tenth Circuit Court of Appeals issued one published opinion and 13 unpublished opinions.

Garrett v. Raemisch

Martinez v. Hooker

Tarpley v. Colvin

Bertolo v. Benezee

United States v. Diaz

Waymire v. McCollum

Reedom v. Crappell

Custinger v. City of Derby

Klein v. Harper

Macias v. Holder

Gonzales v. State of Utah

United States v. Hankerson

United States v. Magallon-Maldanado

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

Tenth Circuit: Officers Had Ample Evidence of Defendant’s Presence When Executing Arrest Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Denson on Tuesday, December 30, 2014.

Steven Denson was convicted of armed robbery and served prison time. After being released from prison, though, he did not report to his probation officer as required. Eventually, authorities found his name on a residential Wichita utility account and secured an arrest warrant. Officers used a hand-held Doppler device and other evidence to determine that the residence had one occupant, and, when no one answered the door, forced their way into the residence, where they found Denson and a stash of guns. Denson pled guilty to possession of firearms but reserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. He sought reversal from the Tenth Circuit on three grounds. He contended (1) officers entered his home without reason to believe he was present, (2) officers lacked a lawful basis to search his home after arresting him, and (3) officers had no right to seize his guns.

The Tenth Circuit found that the officers had probable cause to infer that Denson was home before entering the residence. Denson had opened a residential utility account in his name on only the one residence; he hadn’t reported any recent earnings, leading officers to suspect he was unemployed; he was hiding from law enforcement, making it unlikely he was out and about; and the house’s electric meter was especially active, leading officers to infer someone in the house was using electricity. Although the Tenth Circuit found the Doppler evidence to verge on an unlawful intrusion into Denson’s privacy, they found ample other evidence  to infer that someone was home when officers executed the arrest warrant.

The Tenth Circuit next addressed Denson’s argument that the search was unlawful. The Tenth Circuit relied on well-settled law to find that the officers were allowed to conduct a “quick and limited search of the premises” in order to ensure their safety. Because the officers knew Denson was a fugitive, had a history of violent crime, was a gang member, and had violent associations, they had ample reason to conduct a cursory search of the residence.

Denson’s final argument was that the officers lacked probable cause to seize the weapons. However, Denson had a prior felony conviction, and he was not allowed to possess the firearms. Addressing his contention that the weapons belonged to his roommate, the Tenth Circuit found that the possession standard is met when a felon has knowledge of and access to the weapons in question. The guns in Denson’s house were not locked and were available in a closet to anyone who wished to enter the closet. The officers were well within their rights to seize the weapons.

The district court’s judgment was affirmed.

Tenth Circuit: Panel Rehearing Granted on Limited Issue

The Tenth Circuit Court of Appeals issued its opinion in Martin K. Eby Construction Co., Inc. v. OneBeacon Insurance Co. on Tuesday, February 3, 2015. The Tenth Circuit reissued the opinion in response to Kellogg Root & Brown’s Petition for Panel Rehearing. The panel granted rehearing as to proposition IV in the rehearing request and amended the opinion accordingly. For the CBA CLE Legal Connection summary of the original opinion, click here.

Tenth Circuit: Unpublished Opinions, 2/3/2015

On Tuesday, February 3, 2015, the Tenth Circuit Court of Appeals issued two published opinions and nine unpublished opinions.

United States v. Chapman

Miller v. Scott

United States v. Castillo-Arellano

Lawrence v. Oliver

Banks v. American Baptist Churches

Fouts v. Express Recovery Services, Inc.

Judy v. Obama

Druley v. Patton

Bejar v. McDonald

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