July 28, 2015

Tenth Circuit: Unpublished Opinions, 7/6/2015

On Monday, July 6, 2015, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Templeton v. Catlin Specialty Insurance Co.

United States v. Arroyos

Jones v. Castellucci

United States v. Schmidt

United States v. Carter

Elnicki v. State of Kansas

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: No Error in Joint Conspiracy Trial Where Defendant Only Implicated in One Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Friday, May 22, 2015.

Two men robbed an Arvest Bank in Tulsa, Oklahoma in 2011, and a police officer investigating the robbery saw Dejuan Hill driving a car away from the house where the stolen money was found. During Dejuan’s brothers’ trial for the robbery, the police officer recognized Dejuan outside the courtroom. The prosecution changed its theory of the case to include Dejuan as one of the bank robbers, based largely on the officer’s testimony and other circumstantial evidence from cellphone records. Dejuan was indicted, tried, and convicted of both robbing the Arvest Bank and taking part in a larger conspiracy to rob banks, a credit union, and pharmacies in the Tulsa area. Of eight alleged co-conspirators, only three proceeded to a joint trial — Dejuan, his brother Vernon, and Deandre Hopkins. Six robberies were discussed in depth at trial, but Dejuan was only implicated in the robbery of the Arvest Bank. Dejuan appealed his convictions, arguing (1) there was insufficient evidence to convict him of robbing the Arvest Bank, (2) there was a substantially prejudicial variance between the single global conspiracy charged in the indictment and the evidence of individual conspiracies the government produced at trial, (3) the trial court erred by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants, and (4) the trial court erred by denying his motion to exclude gang evidence as unfairly prejudicial under FRE 403.

The Tenth Circuit analyzed the evidence tying Dejuan to the Arvest Bank robbery and found that although it was circumstantial and required the jury to make inferential leaps, it was sufficient to support his conviction. Dejuan was seen leaving the residence where the money was eventually found shortly after the robbery, and someone had used a cellphone right around the time the officer saw Dejuan leaving the house. Further, video footage showed that the robber was approximately the same height as Dejuan and probably had a similar skin tone. The majority of the panel found this evidence sufficient to support his conviction regarding the Arvest Bank robbery.

The Tenth Circuit next addressed Dejuan’s argument regarding the conspiracy charge. Dejuan asserted that at most he could be convicted of a smaller conspiracy to rob the Arvest Bank and the government failed to prove he was part of a larger conspiracy, causing him to be substantially prejudiced. The Tenth Circuit agreed there was a variance, since there was “scant evidence tying Dejuan to any larger conspiracy” other than the Arvest Bank robbery. The evidence presumed to establish Dejuan’s participation in the larger conspiracy was primarily the police department’s certification of his involvement in the Hoover Crips gang, and even the government’s witness was unsure whether Dejuan was a Hoover Crip. The Tenth Circuit next analyzed whether this created a prejudicial spillover, first deciding that the number of conspiracies proved and defendants tried was too small to inherently prejudice Dejuan. The majority panel found that the jury would have no problem distinguishing Dejuan’s conduct from that of his co-defendants. Likewise, the Tenth Circuit found little possibility that the variance would have caused the jury to misuse the evidence, since the evidence was not so intricate the jury could not distinguish Dejuan’s actions. The Tenth Circuit then analyzed the strength of the evidence underlying the conspiracy conviction and found that although it was a close call, the evidence proving Dejuan’s involvement in the smaller conspiracy was strong enough to minimize the danger of prejudicial spillover. The majority found possible benefit to Dejuan of the global conspiracy evidence, since it gave him an avenue to discredit the Arvest Bank evidence.

The Tenth Circuit next addressed Dejuan’s contention that the trial court improperly denied his motion for misjoinder. Dejuan argued the indictment failed to show facts demonstrating a common scheme or involving all of the defendants and all of the charged offenses. Dejuan contended he was prejudiced because the jury heard evidence about robberies in which he was not involved and this led to the possibility of the jury finding his guilt by association. He believes the trial court should have allowed him to have a separate trial to cure the inference of guilt by association. The majority disagreed, finding that Rule 14’s language that the court may provide “any other relief” supported the trial court’s use of limiting instructions. Because Dejuan did not point to any specific instances of prejudice but rather relied on a broad assertion of guilt by association, the court found his assertions insufficient to demonstrate prejudice.

Finally, the Tenth Circuit addressed Dejuan’s argument that the trial court erroneously denied his motion in limine to exclude evidence of his gang affiliation. Because the government introduced no evidence showing his gang membership was relevant to the issues at trial and it was unfairly prejudicial, Dejuan argues the evidence of his gang affiliation should have been excluded. Although the Tenth Circuit acknowledged that the trial evidence established only smaller conspiracies and the only evidence tying Dejuan to the larger conspiracy was his gang affiliation, the Tenth Circuit determined that these two determinations were subject to “hindsight bias” and there was no abuse of discretion at the time the trial court decided to include the evidence.

The majority panel concluded that although Dejuan was correct that a variance existed, it did not prejudice Dejuan so as to necessitate reversal. The district court’s judgment was affirmed in all other respects. Judge McHughs wrote a thoughtful dissent, disagreeing with the majority’s conclusion that the variance did not prejudice Dejuan and noting the weakness of the evidence against him.

Tenth Circuit: Unpublished Opinions, 7/2/2015

On Thursday, July 2, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Parks

Creamer v. City of Phillipsburg

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

Tenth Circuit: Unpublished Opinions, 7/1/2015

On Wednesday, July 1, 2015, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Deere & Co. v. Cabelka

United States v. Jenkins

United States v. Fishman

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

Tenth Circuit: Unpublished Opinions, 6/30/2015

On Tuesday, June 30, 2015, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

United States v. Lujan-Lopez

Colburn v. Patton

Williams v. Ezell

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

Tenth Circuit: Conviction Stands Despite Jury’s Lack of Instruction on “Discharge” of Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mann on Monday, May 18, 2015.

Clay Mann threw a firework into a neighbor’s bonfire at the neighbor’s peaceful gathering on an Indian reservation, and when members of the gathering approached the fenceline to confront Mann, he shot nine times, killing one man and grievously wounding one other man and the neighbor. For these acts, he was indicted on eight counts by a federal grand jury. Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment” based on the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), arguing that his conviction on Count 5 (a firearms offense based on the assault of the neighbor under § 924(c)) must be vacated because the jury did not find “discharge” of a firearm beyond a reasonable doubt. The district court conducted a plain error inquiry and determined it had erred by failing to instruct the jury on the element of discharging the firearm and the error was plain. The district court, however, found the error had not prejudiced Mann, because he had never contested that he fired shots. The district court sentenced Mann to three concurrent 51 month sentences for the involuntary manslaughter and two assault convictions, and a consecutive 120 month sentence for the § 924(c) conviction regarding the assault of the neighbor. Mann appealed.

The Tenth Circuit conducted a plain error review. Mann argued on appeal that the district court constructively amended count 5 of his indictment by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt that he knowingly discharged his firearm in relation to the assault. Finding that the district court properly instructed the jury on the elements of a § 924(c) violation, the Tenth Circuit could discern no error, much less plain error. The Tenth Circuit found that the Alleyne error (failure to instruct the jury that it must find discharge beyond a reasonable doubt) did not qualify Mann for any relief in light of the overwhelming evidence that he discharged a firearm several times during the assault, including Mann’s own FBI interview in which he admitted discharging the firearm. Any error was harmless beyond a reasonable doubt in light of this evidence.

The Tenth Circuit likewise concluded Mann could not use the error from the Alleyne analysis on his constructive amendment claim, since he was not required to show constructive amendment for his Alleyne claim. Although the government endorsed Mann’s “shortcut,” the Tenth Circuit did not. Turning to the merits of Mann’s argument, the Tenth Circuit noted the case law on which he relied for his claim of error had been rejected by the Supreme Court. The Tenth Circuit, relying on good case law, found that Mann failed to show any error and rejected his constructive amendment claim.

The district court’s conviction was affirmed.

Tenth Circuit: Insurer Who Failed to Reserve Rights Responsible for Default Judgment

The Tenth Circuit Court of Appeals issued its opinion in Cornhusker Casualty Co. v. Skaj on Monday, May 18, 2015.

Vincent Rosty, an employee of R&R Roofing, Inc., drove a company dump truck to the home of Shari Skaj, his ex, to drop off roofing supplies and see if his kids were there. At some point after Vincent stopped in an alley behind the Skaj residence, the truck was accidentally knocked into second gear and rolled forward, pinning Ms. Skaj against a parked motor home and causing serious injuries. A lab test performed later in the day confirmed the presence of marijuana and methamphetamine in Vincent’s bloodstream.

Cornhusker Casualty provided commercial liability insurance to R&R at the time of the accident, and R&R and Randy Rosty (0wner of R&R, along with Steven Rosty) were the named insureds. Within days of the accident, Cornhusker hired AmeriClaim adjuster Charles Brando to investigate the incident. Brando’s report noted that Vincent had driven off-route on personal business despite an unwritten company policy prohibiting personal use of company vehicles.

After receiving notice of Ms. Skaj’s forthcoming claim, Cornhusker wrote to R&R, Steven Rosty, and Vincent to notify them of potential excess liability exposure and to inform them of the right to retain independent counsel. Cornhusker specifically stated it would continue to defend the claim. The Skajs filed suit in Wyoming county court, asserting several claims based on negligence and requesting punitive damages since Vincent was intoxicated at the time of the accident. Cornhusker’s counsel filed an answer to the complaint as to Steven and R&R only, asserting she did not represent Vincent. Cornhusker determined Vincent was not entitled to a defense. However, Cornhusker did not attempt to inform Vincent it was no longer defending him. Default issued against Vincent, the non-defaulting defendants were dismissed, and eventually the Wyoming trial court set a default judgment hearing. Cornhusker hired separate representation for Vincent for that hearing, who opposed the default judgment, and after the hearing default entered against Vincent for $897,344.24.

One week after the default judgment hearing, Cornhusker sent Vincent a letter purporting to deny coverage for the first time. In support of its coverage denial, Cornhusker stated Vincent was not a permissive user of the truck, was not acting within the course and scope of his employment with R&R, was intoxicated, and had misappropriated roofing materials from R&R, also stating he had not cooperated with Cornhusker during the Skajs’ lawsuit. Shortly after, Cornhusker sent another letter to Vincent, characterizing its representation of him at the default judgment hearing as “pursuant to a reservation of rights” and for the limited purpose of having the default set aside. Meanwhile, Vincent’s counsel appealed the default, and eventually the Wyoming Supreme Court affirmed the judgment except insofar as it awarded punitive damages. Cornhusker refused to pay, maintaining Vincent was not covered by the policy.

Cornhusker filed suit in the U.S. District Court for the District of Wyoming, seeking a declaration that the policy did not provide coverage for Vincent because he was not an insured and had not cooperated in the investigation. Vincent counterclaimed against Cornhusker, asserting theories of negligence, intentional infliction of emotional distress, promissory estoppel, and breach of contract. The Skajs also counterclaimed, seeking a declaration that Cornhusker was required to pay the judgment in the underlying action and seeking attorney fees based on Cornhusker’s refusal to pay. Vincent and the Skajs jointly counterclaimed that Cornhusker should be estopped from asserting the defense of noncoverage because of its unconditional defense of Vincent in the underlying action. All parties filed motions for summary judgment. After a hearing, the district court declared Cornhusker was estopped from denying coverage to Vincent because it represented it would provide a defense, never reserved its rights, and did not advise Vincent of its decision to deny coverage until more than 16 months after entry of default. The court granted summary judgment to Cornhusker on Vincent’s various claims and denied the Skajs’ motion for attorney fees. The district court ordered Cornhusker to pay the full amount of the default judgment. Cornhusker appealed the district court’s finding of estoppel. The Skajs cross-appealed the court’s denial of their attorney fees. Vincent also appealed, seeking reversal on his bad faith and punitive damages claims.

After quickly dismissing Cornhusker’s standing argument, the Tenth Circuit evaluated the estoppel claim. Prior circuit precedent established estoppel where an insurer defended a claim without reserving its rights. Although the question had not been reached in Wyoming, the Tenth Circuit construed Wyoming law and determined the insurer must accept the consequences of its decision to assume full control of the litigation without a reservation of rights, because the insured was induced to relinquish control of the defense. In this case, Cornhusker never explicitly reserved its rights as to Vincent. Even Vincent’s counsel “found it odd” that Cornhusker would take the approach of providing a full defense to Vincent without a reservation of rights, but the Tenth Circuit found that since that was the path Cornhusker chose, it should face the consequences of its action and pay the judgment. The Tenth Circuit found no error in the district court’s order for Cornhusker to pay the default judgment.

Next, the Tenth Circuit considered Vincent’s bad faith and punitive damages claims. Vincent characterized the bad faith as Cornhusker’s retention of counsel who refused to defend him and allowed entry of default against him. However, the Tenth Circuit found neither substantive nor procedural bad faith in Cornhusker’s conduct. Because Cornhusker had a reasonable basis for its denial, there was no substantive bad faith. And, because Cornhusker did not fail to investigate the claim, there was no procedural bad faith, and certainly not enough to satisfy Wyoming’s “high bar” for conduct constituting procedural bad faith. The Tenth Circuit similarly disposed of the punitive damages claim since it was based on the same conduct as the bad faith claim. Finding that punitive damages are only to be awarded for conduct so egregious it is nearly criminal, the Tenth Circuit could discern no such conduct here.

The Tenth Circuit then turned to the Skajs’ counterclaim for attorney fees. The district court had determined that Wyoming’s “unreasonable or without cause” standard for refusal to pay losses covered by insurance was so similar to the standard for bad faith that the same analysis applied. The Tenth Circuit found no error in the district court’s finding and affirmed its denial of attorney fees. Although the Skajs sought to introduce supplemental material to the Tenth Circuit to bolster their attorney fee claim, the Tenth Circuit denied the motion, finding the Skajs could have introduced the evidence in district court but failed to do so. Likewise, Cornhusker’s motion to seal the Skajs’ supplemental index was denied as moot.

The Tenth Circuit affirmed the decision of the district court in full, denied the Skajs’ motion to file a supplemental index, and denied as moot Cornhusker’s motion to seal the supplemental index.

Tenth Circuit: Unpublished Opinions, 6/29/2015

On Monday, June 29, 2015, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Maestas v. Colvin

United States v. Bergman

United States v. Madkins

United States v. Vazquez

United States v. Beckstrom

Love v. Raemisch

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

Tenth Circuit: Totality of Circumstances Provides Reasonable Suspicion for Extended Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Pettit on Wednesday, May 13, 2015.

Michael Pettit was pulled over in Utah after crossing a highway’s fog line multiple times. During the traffic stop, Pettit seemed excessively nervous, produced a suspended Missouri driver’s license after passing over a California license, and reported unusual travel plans to the trooper. The trooper asked permission to search the trunk of the car, which Pettit granted, and conducted a cursory pat-down search of the luggage, finding nothing. The trooper checked Pettit’s licenses, discovered they were both suspended, and completed the citation paperwork, but instead of returning the citation and license to Pettit, the trooper decided to question him further. He requested consent to search the entire car, which Pettit granted, and soon a drug-sniffing dog arrived and alerted to the presence of drugs. Over 2.5 kilograms of cocaine was found hidden in a spare tire in the trunk. Pettit was indicted on one count of possession of cocaine with intent to distribute and was found guilty by a jury. He was sentenced to 10 years’ imprisonment followed by eight years’ supervised release. He appealed the district court’s denial of his motion to suppress the evidence uncovered after the trooper completed the citation.

Pettit contended the trooper unlawfully extended the traffic stop based on “hunches and unjustified generalizations.” The parties agree that the initial traffic stop was lawful since Pettit crossed the fog line multiple times, and they agree that the initial stop ended when the trooper returned with the completed citation. However, since the trooper did not return Pettit’s license and registration at that time, the encounter did not become consensual. The parties disagree about whether there was reasonable suspicion justifying the continuation of the traffic stop at that time. The Tenth Circuit evaluated each factor supporting reasonable suspicion separately and in aggregate.

Pettit first argued his nervousness could not form the basis for reasonable suspicion. However, the Tenth Circuit examined the record and found that the trooper testified with particularity about the excessive nature of Pettit’s nervousness, including that his lower body would not stop shaking, Pettit said twice within 25 seconds that the officer was making him nervous, and his hand was shaking as he gave the trooper his license. The Tenth Circuit next addressed Pettit’s unusual travel plans. Although travel plans in themselves may not necessarily form the basis for reasonable suspicion, the court found that prior to the citation’s completion, the trooper had discovered Pettit was driving cross-country in a vehicle registered to an absent third party, which is consistent with drug trafficking. Next, Pettit argued that the two suspended licenses could not have given rise to reasonable suspicion, but the Tenth Circuit again disagreed, finding the licenses alone could have contributed to the formation of an objectively reasonable suspicion of illegal activity, and could also have heightened the officer’s suspicion about Pettit’s unusual travel plans. Finally, Pettit argued that the officer’s initial fruitless search militated against a finding of reasonable suspicion, but the Tenth Circuit again disagreed, finding the search was only cursory and occurred before much of the officer’s questioning.

Based on the totality of the circumstances, the Tenth Circuit found no error in the district court’s denial of Pettit’s motion to suppress, and found the officer had reasonable suspicion to extend the traffic stop.

Tenth Circuit: Unpublished Opinions, 6/26/2015

On Friday, June 26, 2015, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

Teufel v. Department of the Army

United States v. Funez

United States v. Miller

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

Tenth Circuit: No Error in Allowing Government to Use Rule 410 Evidence Against Defendant Who Withdrew Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jim on Tuesday, May 12, 2015.

K.T. had a get-together with some friends at her home on the Navajo Nation, and one of her friends invited Derrick Jim. The group drank alcohol and socialized under K.T.’s carport. Around 1 a.m., K.T. went inside to sleep on her couch. Jim followed her inside, turned off the interior lights and locked the doors, dragged her down the hallway, and forcibly raped her vaginally and anally while K.T. tried to fight him off. As a result of these events, the United States charged Jim with one count of aggravated sexual abuse—vaginal intercourse by force, in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2)(A). Jim initially entered into a plea agreement with the government. He pleaded guilty, but before the district court could accept the plea agreement, Jim sent a pro se letter to the district court requesting new counsel because he felt pressured into accepting the plea agreement and did not realize that by entering a plea he would not be allowed to go to trial. The district court appointed new counsel, allowed Jim to withdraw his guilty plea, and allowed him to proceed to trial, where he was found guilty of two counts: the original count plus aggravated sexual abuse—anal penetration by force. He received two concurrent 360-month sentences. On appeal, Jim argued the government should not have been allowed to use FRE 410 evidence against him because his plea was not knowing and voluntary. The government cross-appealed, arguing the district court should have applied a two-level sentence enhancement for causing serious bodily injury.

The Tenth Circuit addressed the Rule 410 contention first. Jim’s argument was that because his plea was not knowing and voluntary, the Rule 410 waiver he signed (allowing the government to use evidence from the plea agreement process during trial) was not valid. Although Jim was required to prove his plea was not knowing and voluntary, he asserted he should be held to a lesser burden based on a line from a Supreme Court decision. Reading the decision as a whole, the Tenth Circuit rejected his argument, finding that Jim offered no proof that his plea was not knowing and voluntary. Jim signed the plea agreement, which adequately apprised him that by doing so he waived his Rule 410 rights, he had a high school education with some college credits, and he had previously signed two other plea agreements related to drunk driving. The Tenth Circuit found no error in the district court’s decision to allow the government to use Rule 410 evidence against Jim.

Next, the Tenth Circuit evaluated the government’s contention that the district court erred by disregarding a two-level sentence enhancement for crimes causing serious bodily injury. The district court, relying on the application note for U.S.S.G. § 2A3.1(b)(4)(B), decided it was not allowed to consider serious bodily injuries caused during sexual assaults in applying the sentence enhancement. The Tenth Circuit, however, analyzed the definition of “serious bodily injury” and determined that the application note referred only to the second definition. If the prosecution proved serious bodily injury under the first definition, the two-level enhancement could still apply. The Tenth Circuit remanded for the district court to determine if Jim’s actions caused serious bodily injury and to resentence if appropriate.

The district court’s judgment was affirmed in part, reversed in part, and remanded for consideration of whether Jim’s conduct caused serious bodily injury to the victim.

Tenth Circuit: Unpublished Opinions, 6/25/2015

On Thursday, June 25, 2015, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Argueta-Mejia

United States v. Rosemond

Billy v. Curry County Board of Commissioners

Torres-Ledesma v. Lynch

Medina v. Falk

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