August 29, 2016

Public Comment Period Open for Changes to 10th Circuit Local Rules

On Friday, August 26, 2016, the Tenth Circuit Court of Appeals released proposed changes to the Tenth Circuit Rules, effective January 1, 2017. These rule changes are in addition to the changes to the Federal Rules of Appellate Procedure that take effect December 1, 2016. The changes include a reduction in word count for briefs; primary brief word limits have been reduced from 14,000 to 13,000 and reply brief word limits have been reduced from 7,000 to 6,500. The word limit changes are summarized in a new Appendix to the Federal Rules of Appellate Procedure. The changes to the rules also address when filings are timely under F.R.A.P. 4, clarify service dates when filings are completed electronically, and require attorneys to explain the criminal process and right to object in a defendant’s native language.

Comments regarding any of the changes may be submitted via email to For a memo outlining the various amendments, click here. For a redline of the changes, click here.

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in Vasquez v. Lewis on Tuesday, August 23, 2016.

Peter Vasquez was driving eastbound on I-70 through Kansas at 2 a.m., traveling from Colorado to Maryland. Officer Lewis and Officer Jimerson could not read Vasquez’s temporary tag through his car’s tinted windows so they initiated a traffic stop. Jimerson observed blankets and a pillow in the front passenger seat and back seat of the car as he approached, and assumed something was obscured by the blankets in the back seat. Vasquez responded that there was no one else in the car. Jimerson took Vasquez’s license and proof of insurance and returned to the patrol car, where he told Lewis that Vasquez appeared nervous. Jimerson sent Lewis to gauge Vasquez’s nervousness and “get a feel for him.” Upon his return, Lewis responded that Vasquez looked “scared to death.” Jimerson checked the insurance and discovered that Vasquez had insurance for two newer vehicles. Suspecting that Vasquez was transporting illegal drugs, Jimerson called for a drug sniffing dog.

Lewis returned to Vasquez’s vehicle and asked where he worked, why he wasn’t driving the newer car, and why he didn’t have more belongings in his vehicle if he was moving. Eventually, Lewis issued a warning and started to walk away, then walked back and asked Vasquez if he could ask a few more questions. Lewis asked Vasquez if there were any illegal drugs in the vehicle, which Vasquez denied. Lewis then asked to search the vehicle but Vasquez refused. After he refused, Lewis detained Vasquez and searched the vehicle, aided by the drug dog. The search revealed nothing illegal.

Vasquez brought suit against the officers under 42 U.S.C. § 1983, arguing they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the officers’ motion to dismiss, but after discovery, it granted the officers’ motion for summary judgment based on qualified immunity, holding that Vasquez could not show the officers violated a clearly established right. Vasquez timely appealed.

The Tenth Circuit remarked that it has repeatedly admonished that once an officer establishes a temporary tag is valid, the officer should explain the reason for the initial stop and let the motorist continue on his or her way. The officers argue their extended seizure was justified by reasons other than the temporary tag. The Tenth Circuit considered only whether the search and dog sniff were valid based on Vasquez’s challenge.

The officers contended their suspicions were valid because Vasquez was driving alone late at night; he was driving from Colorado, a “drug source area”; he was driving on I-70, a “known drug corridor”; he did not have enough items in his car to support his assertion that he was moving; the items in the backseat were obscured from view; he had a blanket and pillow in his car; he was driving an older car despite owning a newer one; there were fresh fingerprints on his trunk; and he seemed nervous. The Tenth Circuit was troubled by the officers’ justification that because Vasquez was from Colorado it should establish reasonable suspicion. The Tenth Circuit strongly cautioned that

It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The Tenth Circuit continued that the continued use of state of residence as justification is impermissible.

The Tenth Circuit also found that nervousness could not be used as justification, and found that the officers’ reasoning was contradictory at points. The Tenth Circuit similarly disregarded the argument that because Vasquez was driving on I-70 there should be suspicion, noting it would be suspicious if he were driving from Colorado to Maryland and not using I-70. The Tenth Circuit concluded the officers violated Vasquez’s constitutional rights by searching his car.

Turning to whether the right to be free of unconstitutional searches was clearly established at the time of the incident, the Tenth Circuit found precedent to support that it was. In fact, the Tenth Circuit found that the same officer, Officer Jimerson, was the subject of a strikingly similar case in which the Tenth Circuit found no reasonable suspicion for the driver’s detention.

The Tenth Circuit reversed the district court’s summary judgment and remanded for further proceedings. Judge McHugh dissented; he would not have found a constitutional violation and would have distinguished the other case involving Officer Jimerson.

Ninth Circuit Enjoins Department of Justice from Prosecuting Individuals in Medical Marijuana States

On Tuesday, August 16, 2016, the Ninth Circuit Court of Appeals issued its opinion in United States v. McIntosh, a group of ten consolidated interlocutory appeals addressing whether an appropriations ban applies to prosecutions of individuals accused of marijuana crimes in states with medical marijuana laws. All of the appellants were indicted for various infractions of the Controlled Substances Act based on their participation in their respective states’ medical marijuana schemes. The appellants moved to dismiss their indictments or enjoin their prosecutions based on a rider in a federal appropriations bill, which stated:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015). The rider was extended and is currently effective through September 30, 2016.

The appellants in the various cases moved to dismiss or enjoin on the basis of the rider, arguing that the Department of Justice was prohibited from using funds to pursue prosecutions. The Department argued that it was merely prohibited from prosecuting states with medical marijuana schemes, but was still free to use the appropriated funds to prosecute individuals who violated the Controlled Substances Act regardless of their compliance with state medical marijuana laws.

The Ninth Circuit first noted that although the Medical Marijuana States had enacted laws permitting the use of marijuana for medicinal purposes, marijuana remains illegal under the federal Controlled Substances Act for all purposes. The Ninth Circuit concluded that the superior authority, the federal government through the Controlled Substances Act, could prevent a subordinate authority, the Medical Marijuana States, from implementing rules permitting the conduct by punishing individuals who are engaged in the conduct officially permitted by the subordinate authority. In this instance, the Department of Justice can prevent the Medical Marijuana States from implementing their rules permitting the use of marijuana in medicinal settings by prosecuting individuals for use, possession, distribution, or cultivation of marijuana. The Department of Justice need not take any official action against the states in order to prevent implementation of the states’ rules. The Ninth Circuit therefore concluded that § 542 prohibited the Department of Justice from spending any funds to prosecute individuals in Medical Marijuana States who were engaging in conduct fully permitted by their states’ laws.

Some appellants requested that the Circuit enjoin the Department of Justice from prosecuting any individuals for marijuana violations in Medical Marijuana States, arguing that the implementation of laws necessarily includes all aspects of giving effect to the laws, including prosecutions for violations of the laws. The Ninth Circuit refused to expand the meaning of § 542 to include the prosecution of any individuals in Medical Marijuana States regardless of compliance with their states’ laws. The Circuit found that the Department of Justice was free to prosecute individuals who failed to comply with their state medical marijuana regulations. Because the district courts had not made findings about whether the individuals being prosecuted were in compliance with their respective states’ regulatory schemes, the Ninth Circuit remanded for further proceedings on this issue.

The Ninth Circuit noted the temporal nature of the proceedings, in that the Department had been authorized to prosecute the various individuals initially but lost its funding through the appropriations rider. The Circuit warned that at any moment, Congress could re-authorize the prosecutions of individuals in Medical Marijuana States, or Congress could permanently deprive the Department of funding to prosecute individuals complying with their states’ medical marijuana schemes. In the words of the Circuit, “Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”

The Ninth Circuit cautioned that marijuana remains illegal under the federal Controlled Substances Act, and anyone in any state who possesses, manufactures, or distributes marijuana is committing a federal crime for which they could be prosecuted for up to five years after the date of the offense. The Circuit reminded the district courts of the need to balance the remedy for violations of § 542 with the appellants’ Speedy Trial Act rights. The Circuit also remarked that, under the Supremacy Clause, a state cannot “legalize” any conduct that is illegal under federal law.

The orders were vacated and the cases were remanded for further proceedings to determine whether the appellants were in compliance with their states’ medical marijuana laws.

Tenth Circuit: No Constitutional Violation Where Court Denied Counsel’s Request for Review of Classified Documents

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lustyik on Monday, August 15, 2016.

Robert Lustyik was an FBI agent who tried to help his friend and business partner, Michael Taylor, with Taylor’s security business, American International Security Corporation (AISC). The Department of Defense offered AISC a contract in 2007 to provide training to Afghan Special Forces, and in 2010 the United States began investigating AISC for fraud and money laundering related to the 2007 DOD contract. The United States filed a civil forfeiture action against AISC’s assets in 2011, resulting in the seizure of more than $5 million from Taylor’s bank account. Lustyik attempted to impede the government’s investigation of Taylor by using his status as an FBI agent, including trying to establish Taylor as a confidential source. Taylor assured Lustyik that he would receive financial compensation for his assistance.

In 2012, a federal grand jury indicted Lustyik, Taylor, and their middle-man on charges of conspiracy, honest services wire fraud, obstruction of justice, and obstruction of agency proceedings. The United States disclosed over one million pages of unclassified discovery, plus 10,000 pages of classified information. Despite revocation of his security clearance, Lustyik was allowed to review nearly 7,000 pages of the classified material. Through his counsel, Lustyik filed a Classified Information Procedures Act (CIPA) motion, identifying which classified information they wished to present at trial. The court denied Lustyik’s motion after an ex parte meeting with defense counsel. During the first few days of Lustyik’s trial, Lustyik pleaded guilty to all eleven counts with no plea agreement. After pleading guilty but before sentencing, Lustyik’s lead counsel withdrew and the court appointed new counsel. Lustyik filed a motion to obtain security clearance for the new attorney, which a magistrate denied.

At sentencing, the court addressed counsel’s inability to access the classified information, noting that it would not add to counsel’s ability to argue for his client. Defense counsel presented significant mitigating evidence and obtained a downward variance from the Guidelines range of 151 to 188 months, and Lustyik was sentenced to 120 years imprisonment. He appealed, arguing his constitutional rights were violated when his counsel was denied access to the confidential materials.

The Tenth Circuit evaluated Lustyik’s claim of a Sixth Amendment violation under de novo review. The Circuit noted that the right to counsel is presumptively violated only where the circumstances are so likely to prejudice the accused that the cost of litigation is unjustified. Lustyik claimed his counsel’s limited ability to review classified materials fatally undercut his effectiveness and prevented him from adequately testing the government’s position. The Tenth Circuit disagreed, finding the presumption of prejudice inapplicable. Because Lustyik failed to show that the district court’s denial created a constitutional violation, the Tenth Circuit reviewed for abuse of discretion and found none. The Tenth Circuit found ample record support for the district court’s conclusions regarding the classified information.

The government conceded on appeal that Lustyik’s sentence may have been illegal, so the Tenth Circuit remanded for sentencing clarification. The Tenth Circuit otherwise affirmed the denial of security clearance.

Tenth Circuit: Defendant Should Have Been Allowed to Allocute Before Sentencing But Error Not Plain

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bustamante-Conchas on Monday, August 8, 2016.

Miguel Bustamenta-Conchas founded a heroin trafficking company with his friend, Baltazar Granados. Bustamenta-Conchas and Granados distributed heroin throughout the Albuquerque area and cooked heroin at the home Granados shared with his wife, Olga Fabiola Rosales-Acosta. The pair had a third co-conspirator, “Edgar,” who eventually left the conspiracy. Bustamenta-Conchas gave Granados a Glock for protection against Edgar. Bustamenta-Conchas controlled several homes in the Albuquerque area, one of which was a rental that he allowed two other co-conspirators to use to store cash and heroin. When the group was finally arrested in 2013, police found over 100 grams of heroin and $90,000 cash at the rented home. Another 100 grams of heroin was found at a nearby home owned by Bustamenta-Conchas, 9 kilograms of heroin was found at Rosales-Acosta’s home, and 1.17 kilograms and a Glock pistol were found at Granados’s home.

After a jury trial, Bustamenta-Conchas was found guilty of conspiracy to distribute and intent to distribute one kilogram or more of heroin. Prior to sentencing, his counsel presented mitigation evidence regarding Bustamenta-Conchas’s unstable childhood, abuse by uncles, and the death of his first child. At sentencing, Bustamenta-Conchas’s counsel challenged several of the factual findings in the presentence report, including the drug quantity report, which included all of the drugs and cash found at all of the properties. His attorney argued for the 10-year mandatory minimum sentence. The district court neglected to allow Bustamenta-Conchas to make a statement as required by F.R.C.P. 32(i)(4)(A)(ii). The district court accepted the findings in the presentence report but declined to accept the Guidelines range of 292-365 months, instead imposing a 240 month sentence and a $100,000 fine based on the mitigating factors presented by counsel.

On appeal, Bustamenta-Conchas argued the district court erred by attributing all of the drugs to him for purposes of his Guidelines calculation, enhancing his sentence due to his co-conspirator’s possession of a firearm, and failing to allow him to allocute before sentencing. The Tenth Circuit addressed the quantity argument first. The Circuit found that the district court could take into account “relevant conduct” of the defendant, including any acts related to the conspiracy. Bustamenta-Conchas argued that the district court failed to make a particularized finding as to the scope of the criminal activity he agreed to undertake. The Tenth Circuit found that he waived this argument by failing to preserve it in district court and failing to argue plain error on appeal.

The Tenth Circuit next turned to the dangerous weapon enhancement. Bustamenta-Conchas argued the district court relied on a clearly erroneous fact when determining that Granados possessed the firearm in connection with a drug conspiracy. Ms. Rosales-Acosta revealed in her interview with an investigator that Bustamenta-Conchas had given the weapon to Granados for protection against Edgar. Although she did not testify about the firearm, the investigator testified as to these facts. The Tenth Circuit held that the district court did not err in admitting this hearsay testimony. The Tenth Circuit found sufficient indicia of reliability as to the statements.

Finally, the Tenth Circuit addressed Bustamenta-Conchas’s claim that the district court reversibly erred by failing to allow him to allocute prior to sentencing. The Tenth Circuit evaluated the claim under plain error because he failed to object at sentencing. Both parties agreed that Bustamenta-Conchas met the first three prongs of plain error review, but the government contended that the error did not fundamentally undermine the fairness of the proceedings. The majority panel determined that because Bustamenta-Conchas’s counsel argued for a lesser sentence, cross-examined sentencing witnesses, and presented mitigating evidence, and because the district court ultimately imposed a below-Guidelines sentence, there was no plain error.

The Tenth Circuit affirmed the sentence. Judge Lucero wrote a thoughtful dissent; he would have held that failure to allow allocution is an error that fundamentally undermines the fairness of the criminal proceeding and therefore the sentence should have been reversed.

Tenth Circuit: Mixed Petition May Either Be Dismissed Without Prejudice or Denied on Merits

The Tenth Circuit Court of Appeals issued its opinion in Wood v. McCollum on Tuesday, August 16, 2016.

Michael Wood is an Oklahoma prisoner who was sentenced to life imprisonment without the possibility of parole after pleading guilty to first degree murder. He sought a writ of certiorari from the OCCA after his conviction, arguing he should be allowed to withdraw his plea and go to trial. The OCCA denied certiorari and rejected all five of his arguments. Wood then filed a federal habeas petition, which was referred to a federal magistrate judge for a report and recommendation (R&R). The magistrate judge identified seven grounds for relief, six of which were largely duplicative of the claims in Wood’s cert petition to the OCCA. The R&R identified one claim that was not exhausted, though.

Wood asked the district court to either retain jurisdiction while he exhausted his claim in state court or dismiss the petition without prejudice. The R&R recommended denying Wood’s request to hold the proceedings in abeyance while he exhausted his state claim and granting Wood’s request to dismiss without prejudice. The district court entered an order dismissing the petition with prejudice except as to the claim that was unexhausted, which the district court dismissed without prejudice.

On appeal, the Tenth Circuit found that the district court did not act in accordance with Circuit precedent. The district court should have either dismissed the entire petition without prejudice in order to allow the petitioner to exhaust state court remedies, or denied the entire petition on the merits. The Tenth Circuit noted that the district court’s approach was specifically foreclosed by precedent. After briefing, the Tenth Circuit reversed and remanded with instructions for the district court to vacate its judgment and dispose of Wood’s petition in a manner consistent with precedent.

Name Change, Adoption, and Seal My Case Forms and Instructions Amended in August

The Colorado State Judicial Branch revised sixteen JDFs in August. The revised forms include change of name forms and instructions, a motion and order to seal criminal records, a motion to convert a legal separation to dissolution, and adoption forms and instructions. These revised forms are available here as PDF downloads or from the State Judicial forms page.

PLEASE NOTE: The court’s website hosting the JDF forms has been revised to eliminate the option of modifying the form itself. This decision was made to protect the integrity of forms presented to the court with a JDF designation. This will allow the court to know that forms with a JDF designation contain only the JDF version’s information. Users can continue to download the PDF version of the forms from the court’s website for completion but modification of the form itself is not available. CBA-CLE will continue to provide selected JDF forms in our books and in Bradforms in a word processable format. PLEASE REMEMBER, if you modify a JDF form, you must remove the JDF designation from the footer or the court may reject your filing.


  • JDF 495 – Instructions for Second Parent Adoption Without Civil Union (R8/16)
  • JDF 498 – Instructions for Kinship Adoption (R8/16)
  • JDF 499 – Instructions for Custodial Adoption (R8/16)
  • JDF 500 – Instructions for Stepparent Adoption (R8/16)


  • JDF 1321 – Motion to Convert Decree of Legal Separation to Decree of Dissolution of Marriage (R8/16)


  • JDF 385 – Instructions for Filing a Change of Name following Conviction/Adjudication for a Felony (R8/16)
  • JDF 387 – Final Decree for Change of Name to Obtain Identity-Related Documents (R8/16)
  • JDF 388 – Instructions for Filing a Change of Name for an Individual 70 Years of Age or Older (R8/16)
  • JDF 389 – Petition for Change of Name (70 Years of Age or Older) (R8/16)
  • JDF 420 – Instructions for Filing a Change of Name (Minor) (R8/16)
  • JDF 421 – Petition for Change of Name (Minor Child) (R8/16)
  • JDF 432 – Instructions for Filing a Change of Name (Adult) (R8/16)
  • JDF 433 – Petition for Change of Name (Adult) (R8/16)


  • JDF 477 – Motion to Seal Criminal Justice Records (R8/16)
  • JDF 478 – Order to Seal Criminal Justice Records (R8/16)

For all of State Judicial’s JDF forms, click here.

Colorado Court of Appeals: Extended Proportionality Review Needed to Determine Whether Defendant’s Sentence Appropriate

The Colorado Court of Appeals issued its opinion in People v. McRae on Thursday, August 11, 2016.

Clifton McRae was convicted of distribution of methamphetamine. Due to his habitual offender status, his sentence was calculated at 64 years. He requested a proportionality review. After conducting an abbreviated proportionality review, the trial court determined that the sentence was grossly disproportionate to the crime and reduced it to 16 years. The People appealed.

The Colorado Court of Appeals noted first that if an abbreviated proportionality review gives rise to an inference of gross disproportionality, the court should engage in an extended proportionality review, comparing the sentence to that of similarly situated defendants.

Prior to the commission of McRae’s offenses, the Colorado General Assembly passed SB 13-250, which drastically decreased the sentences for certain crimes, including McRae’s, but the effective date was after the date from which his convictions arose. The People argued that the trial court entered an illegal sentence by retroactively applying SB 13-250. The trial court had noted that a defendant who committed the same crime a few months after McRae would be subject to only a 16 year sentence, although it did not rely on the not yet effective legislation in its determination of disproportionality. The Colorado Court of Appeals found no error.

The People also argued that because McRae’s triggering offenses and five of his prior convictions are per se grave or serious, the 64-year sentence failed to raise an inference of disproportionality. The court of appeals disagreed but remanded for an extended proportionality review. Although the court had made findings about the serious nature of the offenses, the court also noted that they were for personal consumption and not for substantial monetary gain. The court of appeals found the trial court did not err in considering these factors. The court noted that although it was tempted to approve of the trial court’s sentence, it should have conducted the further extended review to justify its sentence.

The court of appeals remanded for further proceedings.

Tenth Circuit: Arrest Can Be Justified Based on Any Crime an Officer Believes Suspect Committed

The Tenth Circuit Court of Appeals issued its opinion in Culver v. Armstrong on Tuesday, August 9, 2016.

Late one night in a small town in Wyoming, Sergeant Shannon Armstrong saw a white Chevrolet pickup truck driving erratically and followed it. When the vehicle finally stopped, only the driver, Reed, and not the passenger, was found. Sergeant Armstrong ordered Reed to sit on the hood of his car while he searched for the other guy. Plaintiff Thomas Culver suddenly appeared out of the dark, and Sergeant Armstrong asked him if he had been in the vehicle. Culver repeatedly answered “Why?” when Armstrong questioned him about whether he had been in the vehicle, and became obstreperous with Armstrong. Armstrong eventually told Culver to move on if it did not concern him, but Culver refused and instead continued to harass Armstrong, drawing him further away from Reed. After several minutes of “verbal jousting,” Armstrong arrested Culver for public intoxication. The charges were later dropped.

Culver sued Armstrong in district court, alleging that Armstrong violated his Fourth Amendment rights in violation of § 1983 by unlawfully arresting him. Armstrong moved for summary judgment based on qualified immunity, which the district court granted. The district court found that the facts recorded on Armstrong’s dash cam and body cam supported the possible arrest of Culver for both public intoxication and interference with a police officer. Culver appealed.

The Tenth Circuit determined that Armstrong had reasonable probable cause to arrest Culver, noting “[p]laintiff seriously misunderstands the nature of our qualified immunity inquiry.” Culver argued that a warrantless arrest without probable cause has been unlawful from time immemorial, but the Tenth Circuit found that Culver’s argument “casts way too high a level of generality over our inquiry.” The Tenth Circuit noted that the officer need only possess reasonable probable cause for an arrest based on any crime the officer could have reasonably believed the suspect committed. After reviewing Wyoming Supreme Court precedent on the issue, the Tenth Circuit found that Armstrong could have had an objectively reasonable belief that Culver was interfering with his detention of Reed in violation of Wyoming law. The Tenth Circuit held that it was inconsequential that Culver was only arrested for public intoxication, and Armstrong was entitled to qualified immunity.

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

Tenth Circuit: Officer, School Officials Entitled to Qualified Immunity for Arresting “Class Clown” for Burping in Class

The Tenth Circuit Court of Appeals issued its opinion in A.M. v. Holmes on Monday, July 26, 2016.

In May 2011, F.M. was a student at Cleveland Middle School in Albuquerque when his teacher radioed a request for assistance over her school-issued radio because F.M. was burping loudly in class and disrupting the other students. Officer Acosta, an Albuquerque police officer who was assigned to the school, answered the teacher’s radioed call for help. When Officer Acosta approached the classroom, he saw F.M. sitting on the floor in the hallway while the teacher stood in the classroom doorway. The teacher informed Officer Acosta that F.M. had interrupted class by burping loudly, and even when she ejected him from the room, he continued to lean into the class and burp, making the other students laugh and stopping the teacher from continuing her planned lessons. Officer Acosta escorted F.M. to the office, where he arrested F.M. under N.M. Stat. Ann. § 30-20-13(D), which provides that interfering with the educational process is a petty misdemeanor offense. Officer Acosta informed the principal, Ms. LaBarge, of his intent to arrest F.M., and Ms. LaBarge attempted to contact F.M.’s mother and also prepared a slip for a one-day suspension of F.M. Officer Acosta then transported F.M. to a juvenile detention facility, where he was picked up by his mother. F.M. did not argue with Officer Acosta and was rated a -2 out of 10 on the detention center’s risk assessment. F.M. did not return to Cleveland Middle School for the rest of the year. A.M. spoke publicly about F.M.’s arrest, and there was a good deal of publicity about the incident.

The following year, A.M., F.M.’s mother, re-enrolled him at Cleveland. On November 8, 2011, a student approached a teacher to report witnessing a drug transaction. Officer Acosta retrieved the school’s surveillance videos and, with Ms. LaBarge and an assistance principal, identified the five students involved in the transaction. F.M. was identified as one of the students. All of the students were searched individually in a conference room next to Ms. LaBarge’s office with several adults presents. All of the searches except F.M.’s were audio recorded.

None of the students had drugs on them, but F.M. had $200 cash. He relayed to the adults present that the cash was a birthday present. The assistant principal asked F.M. if he had anything he was not supposed to have, and he said he had a belt buckle in his bag with a marijuana leaf imprint. A search of his backpack revealed the belt buckle and a red bandanna, among other things. F.M. was wearing several layers of clothing, which he removed at the request of the school officials. A male teacher flipped down the waistband of F.M.’s athletic shorts, which revealed a pair of boxers underneath. The teacher did not touch F.M.’s boxers. During the search, A.M. contacted the school and was informed of the events of the morning. A.M. confirmed that F.M. had left the house carrying $200 in cash that morning. F.M. received a three-day suspension for the bandanna and belt buckle because they violated the school’s policies against “gang-related” clothing and “inappropriate messages or symbols.” Later that day, A.M. met with Ms. LaBarge, but according to Ms. LaBarge, A.M. “stormed out” of the office and said her attorney would contact the school.

A.M. sued Officer Acosta, Ms. LaBarge, and the assistant principal in state court, alleging Fourth Amendment violations relating to the May 2011 and November 2011 incidents. A.M. objected to F.M.’s handcuffing in May 2011, opining that a reasonable officer should have known that burping was not a crime and no force was necessary to effectuate an arrest of the compliant child. A.M. also alleged that Ms. LaBarge’s strip search of F.M. in November 2011 was unreasonable. Defendants removed the action to federal court and moved for summary judgment, asserting qualified immunity. The district court granted summary judgment to Ms. LaBarge, agreeing that she was entitled to qualified immunity. While the claims were still pending, A.M. filed another state court lawsuit against the assistant principal, alleging Fourth and First Amendment violations related to the strip search and retaliation for A.M.’s speaking to the media. The assistant principal removed the action to district court and argued collateral estoppel. The court granted summary judgment to the assistant principal. The district court also granted summary judgment to Officer Acosta, finding qualified immunity applicable. A.M. appealed.

The Tenth Circuit addressed A.M.’s claims regarding Officer Acosta first. A.M. contended that the district court sua sponte granted qualified immunity to Officer Acosta, but the Tenth Circuit noted that A.M. devoted most of her reply brief to the issue of qualified immunity and therefore was on notice that the defense had been raised. A.M. also contended she was deprived of the opportunity to present evidence of injuries F.M. suffered by being handcuffed, but the Circuit noted that in Officer Acosta’s response brief, he noted that any injury suffered would have been de minimus, therefore affording A.M. a chance to respond.

The Tenth Circuit next addressed the district court’s grant of qualified immunity to Officer Acosta on the claim that he arrested F.M. without probable cause in violation of the Fourth Amendment. The Tenth Circuit evaluated the New Mexico statute in question and found that Officer Acosta had arguable probable cause to arrest F.M. under the statute banning interference with the educational process. A.M. argued that burping in class did not rise to the level of seriousness contemplated by the statute, and F.M. was at worst being a class clown, conduct that “would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” The Tenth Circuit rejected A.M.’s contentions and determined that the broad language of the statute seemed to encompass F.M.’s conduct. The Tenth Circuit found that A.M. could not carry her burden regarding clearly established law, since the statute appeared to condemn F.M.’s conduct. The Tenth Circuit found that Officer Acosta possessed reasonable probable cause when he arrested F.M. Likewise, the Tenth Circuit agreed with the district court’s reasoning that A.M. had not shown that Officer Acosta committed a constitutional violation when he arrested F.M. The district court determined that A.M. failed to present evidence of an actual physical or psychological injury.

The Tenth Circuit next turned to A.M.’s claims against the assistant principal. The district court found that the assistant principal was entitled to qualified immunity on A.M.’s First, Fourth, and Fourteenth Amendment claims, and the Tenth Circuit agreed. Because the November 2011 search of F.M. was arguably justified at its inception, the assistant principal did not violate the Fourth Amendment by beginning the search of F.M. Likewise, because the search continued to be reasonable in its scope, it was within the strictures of the Fourth Amendment. The Tenth Circuit also dismissed A.M.’s claim that the assistant principal executed the search in retaliation for A.M.’s protected First Amendment activity, referring to its first finding that the search was reasonable at its inception and throughout its duration. A.M. also alleged a Fourteenth Amendment Equal Protection violation because the assistant principal searched F.M. more extensively than the other four students. The Tenth Circuit found that A.M. failed to set forth a legally cognizable Fourteenth Amendment claim because F.M. was not similarly situated to the other students.

Finally, A.M. argued the district court committed reversible error by granting qualified immunity to Ms. LaBarge on A.M.’s unreasonable search claim. A.M. incorporated her arguments against the assistant principal into the brief on Ms. LaBarge’s claim, and the Tenth Circuit decided to follow its previous reasoning in rejecting A.M.’s position.

The Tenth Circuit upheld the grants of qualified immunity as to all three defendants. Judge Gorsuch wrote a compelling dissent; he would have followed a previous New Mexico opinion that limited the statute in question to behavior much more serious than burping in class.

Tenth Circuit: Speedy Trial Objections Must Be Asserted Frequently and Forcefully

The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Monday, July 26, 2016.

The government charged multiple defendants, including James Black, with conspiracy to distribute cocaine in late 2007. After withdrawing and reasserting indictments, Black was eventually charged with conspiring to distribute cocaine, using a telephone in committing the conspiracy, and possessing with intent to distribute cocaine in the government’s Fifth Superseding Indictment. A jury convicted Black on all charges and he was sentenced to 360 months’ imprisonment.

On appeal, Black argued that the trial court plainly erred in calculating his Guidelines range at 360 months to life. The government conceded the error, and the Tenth Circuit agreed. Black should have been sentenced with a total offense level of 34, not 37, reducing his Guidelines range to 262 to 327 months’ imprisonment. The Tenth Circuit remanded for resentencing.

Black also argued that his Sixth Amendment speedy trial rights were violated. The Tenth Circuit evaluated the delays, finding a total delay of 23 and a half months. The Tenth Circuit considered the Barker factors, and found that the length of the delay weighed strongly in Black’s favor. The Tenth Circuit then dissected each delay, attributing portions to Black for the periods of time in which he filed motions or requested continuances and to the government for periods in which they did not vehemently prosecute Black. After carefully considering each time period, the Tenth Circuit determined that the government was responsible for about 7 months of the delay and Black was responsible for about 12 months. The Tenth Circuit next assessed whether the delays were purposeful attempts by the government to strategically position itself and agreed with Black’s concession that they were not. Next, the Tenth Circuit considered whether Black forcefully and frequently asserted his speedy trial rights, and found that only one of his speedy trial assertions was forceful. The Tenth Circuit noted that Black’s counsel’s speedy trial objections were especially weak when he remarked that he was only asserting speedy trial to preserve his previous motion. Finally, the Tenth Circuit found that Black could not show he was prejudiced by the delay. After balancing all the factors, the Tenth Circuit found that the majority weighed in favor of the government.

The Tenth Circuit remanded for resentencing but found no violation of Black’s constitutional right to a speedy trial.

Tenth Circuit: Search of Emails by Semi-Public Entity Required Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ackerman on Friday, August 5, 2016.

Walter Ackerman used his AOL account to send an email with four attachments. AOL’s server identified the hash value of one of the attachments as child pornography and forwarded the email to the National Center for Missing and Exploited Children (NCMEC). The NCMEC opened all four attachments and discovered they were all child pornography. Ackerman was indicted on charges of possession and distribution of child pornography by a federal grand jury. He pleaded guilty, reserving the right to appeal the district court’s denial of his motion to suppress the fruits of NCMEC’s investigation.

On appeal, Ackerman argued that NCMEC’s actions amounted to an unreasonable search of his email and its attachments because no one obtained a warrant or invoked a lawful basis for failing to obtain one. The Tenth Circuit first addressed whether NCMEC qualified as a governmental entity or agent and not a private party. The Tenth Circuit next questioned whether the NCMEC simply repeated the search conducted by AOL or exceeded the scope of AOL’s investigation.

The Tenth Circuit evaluated whether NCMEC is a private party or a governmental entity, noting that when a party is endowed with law enforcement powers beyond those enjoyed by a private citizen, generally police powers are engaged. The Circuit found that NCMEC’s powers extended far beyond those enjoyed by private citizens. NCMEC was created by statute to operate as a clearinghouse for missing and exploited children and to provide forensic technical assistance to law enforcement. The Circuit found that the NCMEC’s creation and functions proved it was acting as a governmental entity when it opened Ackerman’s email and viewed the attachments. The Tenth Circuit further found that even if it had determined NCMEC was a private entity, its searches may still be subject to the Fourth Amendment if the entity is acting as a government agent. The Circuit found that NCMEC was acting as an agent in this case. The Tenth Circuit rejected the government’s contention that it could reverse only if the district court clearly erred, finding that the argument advanced on appeal was a legal one regarding the definition of agency.

After determining that the NCMEC was a governmental entity or agency, the Tenth Circuit turned to whether the NCMEC’s search exceeded the scope of the search performed by AOL. The Circuit found that it did. AOL only identified one of the attached images on Ackerman’s email as child pornography, whereas NCMEC opened all four images and the email. Because NCMEC could have learned private and protected facts when it opened the email, and because Ackerman had a reasonable expectation of privacy in his email, the Tenth Circuit found that NCMEC impermissibly exceeded the scope of AOL’s intrusion.

The Tenth Circuit reversed the district court’s denial of Ackerman’s motion to suppress and remanded for further proceedings.