May 21, 2018

Tenth Circuit: Unpublished Opinions, 4/17/2018

On Tuesday, April 17, 2018, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

United States v. Ramirez-Hernandez

Schoenfeld v. Sides

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Petitioner Ineligible for Cancellation of Removal After Theft Convictions

The Tenth Circuit Court of Appeals Issued its opinion in Lucio-Rayos v. Sessions on Tuesday, November 14, 2017.

The issue presented in this case was whether petitioner Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (CIMT). If so, it would make him ineligible for cancellation of removal. Lucio-Rayos is a citizen of Mexico who entered the United States without authorization. Although he conceded that he was subject to removal, he sought discretionary relief in the form of cancellation of removal.

Lucio-Rayos first contended that the immigration judge erred in refusing to recuse from his case because the immigration judge’s spouse works with the Denver Immigration and Customs Enforcement office that initiated this removal proceeding. The Tenth Circuit rejected this argument.

In order to prevail on this argument, Lucio-Rayos had to establish that he was deprived of due process and that the deprivation prejudiced him. Lucio-Rayos presented extrajudicial-influence and inherent-bias arguments relying on law that requires a federal judge to recuse in any proceeding in which his impartiality might reasonably be questioned. However, the Immigration and Customs Enforcement office had a plan in place to ensure that the immigration judge’s spouse had no involvement in the case. Further, there is no evidence suggesting that the immigration judge’s spouse played any role in Lucio-Rayos’ removal proceedings. The immigration judge’s spouse was not a party, officer, director, or trustee of a party in this matter.

In addition, Lucio-Rayos has not shown that he was prejudiced by the immigration judge’s refusal to recuse; that is, Lucio-Rayos has not shown that his rights were violated in a manner so as potentially to affect the outcome of the proceedings.

Next, the Tenth Circuit concluded that Lucio-Rayos is ineligible for cancellation of removal. To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. The only one at issue was whether Lucio-Rayos’s conviction for theft is a CIMT.

The Tenth Circuit applied the categorical approach by comparing the elements of Lucio-Rayos’s offense to the definition of CIMT, which refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality, and conduct that is inherently wrong, rather than conduct deemed wrong only because of a statutory proscription. The lower court found that a conviction like Lucio-Rayos’s qualifies as a CIMT only if one element of the offense is that the perpetrator intended to deprive the victim permanently of his property. The Tenth Circuit found, however, that not all convictions under the applicable theft provision require proof that the defendant intended to deprive the victim of his property permanently. The applicable code was found to be divisible.

The Tenth Circuit found that the undocumented alien bears the burden of proof to show that his conviction was not a CIMT. The Tenth Circuit held that, because it was unclear from Lucio-Rayos’s record whether he committed a CIMT, he did not prove eligibility for cancellation of removal.

Lastly, Lucio-Rayos contended that if his conviction was a CIMT, he nevertheless met an exception to ineligibility available for petty offenses. However, the Tenth Circuit held that in this situation, the petty offense exception did not prevent an immigrant’s CIMT conviction from disqualifying him from eligibility for discretionary cancellation of removal.

The Tenth Circuit Court of Appeals DENIED Lucio-Rayos’s petition for review and found he was not eligible for cancellation of removal.

Tenth Circuit: Unpublished Opinions, 4/16/2018

On Monday, April 16, 2018, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Thomas

United States v. Viarrial

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

Tenth Circuit: Defendants Found Liable for ATV Protest Ride on Recapture Canyon in Utah

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wells on Monday, October 23, 2017.

In 2007, the Bureau of Land Management (BLM) closed part of Recapture Canyon in Utah to all-terrain vehicles (ATVs) due to potential damage to the soil and archaeological sites. Although this was intended to be temporary, the order was still in place in 2014. Upset at the delay in reopening, County Commissioner Lyman organized a protest ride on ATVs into the closed portion of the Canyon. Wells, who ran a website that reported on local news, assisted and interviewed Lyman, while also encouraging others to the protest. Despite warnings from the BLM that criminal and civil penalties would be enforced against anyone riding ATVs in the closed portion of the Canyon, the ride took place in May of 2014. There is undisputed evidence that both Lyman and Wells rode ATVs in the protest.

At trial, Lyman and Wells were found guilty for riding ATVs on the closed lands and with conspiracy to do the same. On appeal, Defendants seek a new trial, arguing that a reasonable observer would have questioned the district judge’s impartiality. Although the judge did ultimately recuse before sentencing, Defendants contend he should have recused earlier. Further, they challenge the denial of their motions to dismiss the criminal information, the denial of a new trial, and their restitution order. Lyman separately argues that he was deprived of effective assistance of counsel. The Tenth Circuit addressed each claim in turn.

The first argument was that the district court judge, Judge Shelby, should have recused earlier in the trial. Judge Shelby is close friends with the legal director for the Southern Utah Wilderness Alliance (SUWA), an organization that was opposed to the protest ride. The ultimate recusal was based largely on a letter to the judge signed by SUWA and other conservative groups that expressed views adverse to Defendants, as well as evidence that showed SUWA had extensive pretrial involvement with the case in passing information to BLM officials and the United States Attorney’s Office.

Defendants argued for a new trial, contending that Judge Shelby ought to have recused from participation in the trial because a reasonable observer would have questioned his impartiality, as Judge Shelby should have been alerted to SUWA’s involvement by their legal director’s presence at trial and by a voir dire question asking potential jurors if close friends or family members were in SUWA.

The Tenth Circuit found that the argument for a new trial failed on the merits. The Circuit reviewed Judge Shelby’s decision not to recuse early in the trial for an abuse of discretion and found that the decision not to recuse could not be characterized as arbitrary or manifestly unreasonable. The Tenth Circuit concluded that recusal was not required where SUWA was not a party to the criminal prosecution, and, further, there was no evidence that Judge Shelby should have known about SUWA’s pretrial involvement. As Judge Shelby did not err in failing to recuse, Defendant were not entitled to a new trial.

The Defendants next challenged the denial of their motions to dismiss. Wells claimed that he could not be prosecuted for his activities because they consisted of protected speech under the First Amendment. To determine whether Wells’ conduct was protected, the Tenth Circuit inquired as to whether there was a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for the hostility toward the defendant because he exercised his specific legal rights.

Wells argued that the prosecution’s hostility became evident when showings were made that SUWA had pushed for prosecution of the Canyon riders and that they regularly passed Wells’ social media posting on to prosecutors. However, the Tenth Circuit found that Wells did not present any evidence of prosecutorial hostility toward Wells’ exercise of his First Amendment rights. SUWA was simply interest in protecting the Canyon, not in limiting Wells’ First Amendment rights. The Circuit held that Wells failed to establish the requisite vindictiveness from the prosecution.

Lyman argued that the district court erred in denying his motion to dismiss when the government failed to allege interdependence, a required element of conspiracy. The Circuit applied a two-part test to determine the sufficiency of an indictment: First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. The Tenth Circuit found that Lyman’s argument implicated only the first prong of this test. Further, Lyman and Wells worked together for their mutual benefit in the context of their conspiracy to ride ATVs on the Canyon in protest. The Tenth Circuit found that Lyman’s motion to dismiss argument failed.

Next, Wells argued that the government failed to introduce sufficient evidence that he was acting as a co-conspirator rather than a journalist. The Tenth Circuit inquired whether the evidence would establish each element of the crime of conspiracy, to wit: (1) an agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the conspiracy’s object, and (5) proof that the defendant willfully entered the conspiracy. The Circuit found that the evidence presented by the government was sufficient for a jury to find beyond a reasonable doubt that Wells acted not merely as a journalist reporting on issues, but as a co-conspirator who agreed with Lyman to ride on the closed lands. More specifically, Wells reposted Lyman’s advertisements of the protest ride while adding flourishes of his own that suggest active support for, and agreement with, the planned ride.

Defendants next contested the district court’s denial of their motion for a new trial based on the post-trial discovery of a map which allegedly showed a right-of-way that the government failed to disclose before trial. Defendants argued that (1) the map would have permitted them to establish the existence of a right-of-way to negate the legality of the closure order on the Canyon, and (2) they should have been able to present the map as evidence relevant to their good-faith defense, since violation of the laws at hand require that the defendant act knowingly and willfully. The government argued that no violation occurred because the map in question was not material.

The Circuit found that the materiality of the map was at issue in this appeal. Materiality requires a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. The Tenth Circuit concluded that the map could not have been material for purposes of the Defendants’ good-faith defense, and, as the district court pointed out, the map could not be relevant because the Defendants were unaware of the map at the time of the ATV ride. A mere suspicion that a right-of-way existed is not an honest belief that the road was not legally closed to ATV use. The Tenth Circuit found that the Defendants could not establish that the map would have been material to their good-faith defense. Further, the map failed to create a reasonable probability of a different outcome so as to cast doubt on Defendants’ convictions. The Circuit held that the district court properly denied Defendants’ motion for a new trial.

Wells next challenged the restitution order holding him jointly and severally responsible with Lyman for $48,000. Wells challenged that it included: (1) harms that were not recoverable as restitution because they were not caused by the conspiracy and its underlying conduct, and (2) amounts that were not legally cognizable as actual loss or supported by the evidence. Lyman made a similar argument. Under the Mandatory Victims Restitutions Act (MVRA), courts are required to order a defendant to pay restitution to a victim of the offense. No party disputed that the United States constituted a victim under the MVRA; however, the question was for which alleged harms could the United States properly recover restitution. The government was required to show both that the defendant’s conduct was the ‘but-for’ cause of the harm and that the defendant proximately caused the harm.

The government’s principal contention was that the conspiracy and its underlying conduct was the but-for cause of the motorized damage to archeological, riparian, and upland soil resources in the closed area. The Tenth Circuit concluded that the government presented ample evidence to find by a preponderance of the evidence that the government’s contention was correct. The district court did not err in ruling that Defendants were responsible for paying restitution to the United States for damages stemming directly and proximately from Defendants’ unlawful conspiracy to conduct a protest ride.

Next, Defendants challenged three aspects of the total amount of restitution ordered: (1) that the amount spent assessing the damage caused by the ATV ride was disallowed, speculative archeological expenses; (2) that the assessment costs were not incurred during participation in the investigation or prosecution of the offense; and (3) that at least some of the claimed amount was supported by estimates, not concrete figures. The Tenth Circuit first found that the government’s requested damages did not constitute speculative, archaeological damages. The archaeological value is an effort to go back in time before the violation occurred and estimate what it would have cost the United States to engage in a full-blown archaeological dig at the site, notwithstanding the fact that the United States had no plans to engage in any such effort. The Circuit held that the assessment that took place was detailed and anything but hypothetical.

Second, the MVRA provides that a victim must be reimbursed for expenses incurred during participation in the investigation or prosecution of the defense. The Tenth Circuit rejected Defendants’ assertion that the expenses were not incurred during the government’s participation in the investigation or prosecution of the offense, as the court has specifically recognized that the government’s investigatory costs can constitute actual losses subject to restitution.

Third, the Circuit concluded that the third argument was based on a mistaken view of the record. The government did not admit that its damages were not hard numbers. In context, the prosecutor was attempting to explain why restitution figures from an earlier case could not be considered as a basis for comparison in the present case. The Circuit found Defendants’ final argument misguided and spurious. The district court’s restitution award was upheld.

The last argument by Lyman was ineffective assistance of counsel. The Tenth Circuit found that ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. As Lyman made no attempt to argue that his claim should be addressed on direct appeal, the Tenth Circuit saw no reason to reach its merits.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s judgment and restitution order.

Tenth Circuit: Unpublished Opinions, 4/13/2018

On Friday, April 13, 2018, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Mohn v. Zinke

United States v. Riforgiate

United States v. Mike

United States v. Serrano

United States v. Callwood

United States v. Santistevan

United States v. Evans

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

Tenth Circuit: Unpublished Opinions, 4/12/2018

On Thursday, April 12, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Orr v. Husch Blackwell, LLP

Sanchez v. White County Medical Center

United States v. Garcia-Martinez

United States v. Ybarra

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

Tenth Circuit: Unpublished Opinions, 4/11/2018

On Wednesday, April 11, 2018, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Khan v. United States

Beals v. Jay

Tatten v. City & County of Denver

United States v. Ward

Brooks v. Colorado Department of Corrections

United States v. Brown

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

Tenth Circuit: Unpublished Opinions, 4/10/2018

On Tuesday, April 10, 2018, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.

Daniels v. Dowling

United States v. Rodarmel

United States v. Rhoads

Apodaca v. Smith

Bickham v. Allbaugh

Rudnick v. Raemisch

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

Tenth Circuit: Unpublished Opinions, 4/6/2018

On Friday, April 6, 2018, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Hopson

Shepard v. Rangel

United States v. Pacheco

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

Tenth Circuit: Unpublished Opinions, 4/5/2018

On Thursday, April 5, 2018, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Donelson v. United States

United States v. Carr

Brooks v. Archuleta

United States v. Salas

Thomas v. Bryant

Shed v. Oklahoma Department of Human Services

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

Tenth Circuit: Unpublished Opinions, 4/4/2018

On Wednesday, April 4, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Wing

United States v. Wilfong

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

Tenth Circuit: Failure to Brief on Alternative Bases for Summary Judgment Amounts to Concession of the Proof

The Tenth Circuit Court of Appeals issued its opinion in Digital Ally, Inc. v. Utility Associates, Inc. on February 16, 2018.

Utility Associates, Inc. (Utility), owns U.S. Patent No. 6,381,556 (the ’556 patent). Utility purchased the patent and other assets in January 2013 from a supplier of in-car mobile surveillance systems. Utility believed that the ’556 patent was potentially valuable and covered existing systems already in commerce. After the purchase was complete, Utility sent letters to potential customers (who were at that time customers of competitors), including Digital Ally, Inc. (Digital Ally), regarding the consequences of purchasing unlicensed and infringing systems; urging instead that customers purchase systems from Utility because it was now the rightful owner of the ’556 patent.

Upon receipt of the letter from Utility, Digital Ally filed a petition for inter partes review with the Patent Trial and Appeal Board (PTAB) in May 2103 to determine the validity of all claims on the ’556 patent. The PTAB determined that claims 1-7, 9, 10, and 12-25 were unpatentable, and that Claim 11 was not shown to be unpatentable; Claim 8 was not reviewed. In October 2013, Digital Ally sought a declaratory judgment of non-infringement in Kansas federal district court, but the suit was dismissed for lack of personal jurisdiction over Utility. The following year, Digital Ally filed this suit containing nine counts against Utility, including monopolization, false advertising, tortious interference, bad faith, assertion of patent infringement, defamation and product disparagement, and trade secret misappropriation. The district court granted Utility’s motion for summary judgment on all nine counts and denied Digital Ally’s motion of partial summary judgment.

Digital Ally appeals only from the grant of summary judgment on counts I-IV, focusing on bad faith, while Utility contends that Digital Ally’s brief fails to address the alternative bases for summary judgment as to Counts 1-IV. The failure to do so amounts to a concession of the proof.

Regarding Count I, the elements of a monopoly claim under 15 U.S.C. § 2 include “(1) monopoly power in the relevant market; (2) willful acquisition or maintenance of this power through exclusionary conduct; and (3) harm to competition.” Because Digital Ally did not address in its opening brief the district court’s decision that it did not prove a relevant market and market power, it has conceded the lack of proof on these elements and the district court’s decision must be affirmed.

With regards to Count II, bad faith assertion of patent infringement under Ga. Code Ann. § 10-1-771, Digital Ally did not adequately address the district court’s decision that Utility’s letters were not demand letters and that Digital Ally was not injured by the letters. The district court stated that the letters “merely suggest that recipients consider investigating whether products they are purchasing fall under the claims of the patent, and that if so, recipients investigate whether their supplier is licensed or needs to be,” and Digital Ally’s brief fails to adequately address this argument. The district court also concluded that the “plaintiff provided insufficient evidence that plaintiff was injured by those statements” and ruled Mr. Heckman’s testimony inadmissible to prove injury. On appeal, Digital Ally argues the testimony was admissible, but the Tenth Circuit could not determine whether the admissibility arguments concern the injury or demand letter requirement. Under Rule 28(a)(8)(A), which requires appellants to clearly state what part of the district court’s decision they are appealing, Digital Ally’s inadequate briefing has waived any argument on the injury element of its claim, in addition to whether the letters constitute demand letters. Thus, Digital Ally’s cannot prove its claim.

Finally, to state a false advertising claim under § 43(a) of the Lanham Act on Counts III and IV, Digital Ally was required to establish: (1) the defendant made material false or misleading representations of fact in connection with commercial advertising or promotion of its product; (2) in commerce; (3) that are either likely to cause confusion or mistake as to (a) the origin, association or approval of the product with or by another, or (b) the characteristics of the goods or services; and (4) injure the plaintiff. Digital Ally did not adequately address the district court’s holding that the claim failed because the statements in Utility’s were not false, but rather were made as a promotional strategy that included some puffery. Thus, Digital Ally has also waived this argument and conceded summary judgment on Counts II and IV.

The Tenth Circuit AFFIRMED the district court’s opinion.