August 17, 2019

Archives for June 1, 2011

Tenth Circuit: Unpublished Opinions, 5/31/11

On Tuesday, May 31, 2011, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.


United States v. Mutte

Argota v. Miller

White v. Mullin

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Tribal Court Has No Jurisdiction Over Nonmember of Tribe Who Is Not a Party to the Tribal Court Litigation

The Tenth Circuit Court of Appeals issued its opinion in Crowe & Dunlevy, P.C. v. Stidham on Friday, May 27, 2011.

The Tenth Circuit affirmed the tribal court’s decision. Respondents have long served as legal counsel to the Thlopthlocco Tribal Town; the Thlopthlocco is a federally recognized Indian tribe with its own Constitution and bylaws. The governing body of the Thlopthlocco is its Business Committee, which has the power to transact business and to act and speak on behalf of the tribe; in 2007, a member of that committee attempted a coup d’ etat, declared himself the only valid leader, and purported to appoint a new government. The Thlopthlocco sought both declaratory and injunctive relief against the coup. The tribe has previously waived its sovereign immunity and consented to jurisdiction in the Muscogee (Creek) Nation tribal courts, and that court granted them relief against the coup, pending litigation. During the time leading up to the litigation while the injunctions against the coup were in force, Petitioner Judge Stidham issued an order granting attorneys fees paid to Respondents thus far be returned to the tribal treasury, arguing that there was precedent for the payment of both sides’ attorneys fees when there is a dispute among members of a tribe.

However, in an interlocutory appeal, Judge Stidham’s order was reversed. The Court determined that in the “absence of any compelling argument establishing tribal court jurisdiction over [Respondents], a nonmember of the Creek Nation tribe who [are] not a party to the tribal court litigation, we hold that the Muscogee (Creek) Nation courts plainly did not have jurisdiction to order [Respondents] to return fees it already had earned pursuant to its legal services contract with the Thlopthlocco.” Accordingly, an injunction against the order is appropriate here because Respondents face a significant risk of financial injury; should they return the money they’ve been paid thus far for their representation and those involved in the coup ultimately win their litigation, Respondents will have no realistic way to recoup their fees.

Tenth Circuit: Speculation Regarding the Purported Prejudicial Effect of Counsel’s Misconduct Not Enough to Conclude Outcome Would Have Been Different

The Tenth Circuit Court of Appeals issued its opinion in Byrd v. Workman on Friday, May 27, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner, an Oklahoma state prisoner currently serving a fifty-five-year sentence, appeals the district court’s denial of his habeas petition. Petitioner alleges that he received ineffective assistance of counsel because his trial counsel failed to investigate whether his prior felony convictions would be admissible for purposes of enhancing his sentence, and then introduced all of his prior convictions to the jury when three of them were otherwise inadmissible.

The Court disagreed with Petitioner’s contentions. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that his counsel’s performance “fell below an objective standard of reasonableness” and that “the deficient performance prejudiced the defense.” However, his counsel’s actions, while mistaken in introducing transactional felony convictions, did not rise to this level of prejudicial misconduct. The Court failed to see how the introduction of the improper transactional felonies prejudiced Petitioner; his relatively light sentence was not in itself indicative that a further reduction was reasonably probable had they not been admitted, especially given his uncontested status as a career offender. According to the Court, Petitioner “offers little more than speculation regarding the purported prejudicial effect of the admission of these additional felonies on his sentence, and it is well-established that such speculation alone cannot give rise to a ‘reasonable probability’ that the outcome of the trial would have been different.”

Tenth Circuit: District Court Did Not Err by Failing to Define “Proceeds” as “Profits” in Connection with a Conspiracy to Commit Money Laundering

The Tenth Circuit Court of Appeals issued its opinion in United States v. Thornburgh on Friday, May 27, 2011.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner was found guilty of conspiracy to commit mail and wire fraud and conspiracy to commit money laundering; he was sentenced to 292 months’ imprisonment, three years of supervised release, and $3,684,213 in restitution. Petitioner challenges his conviction on several grounds, including that he withdrew from the conspiracy at an earlier time, as a result of which the statute of limitations had expired by the time he was indicted, and that the government neither pled nor proved that profits from illegal activities were laundered.

The Court disagreed with Petitioner’s contentions. Based on the testimony at trial, the jury did not err when it determined that, while he may have decided not to deal directly with a co-conspirator after mid-2002, Petitioner remained active in the conspiracy well into 2005. Additionally, the district court did not err when, in its instructions to the jury, it failed to define “proceeds” as “profits” in connection with the conspiracy.

Tenth Circuit: Silence Regarding Right Against Self-Incrimination Is Waiver of that Right

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fishman on Friday, May 27, 2011.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner was found guilty of conspiracy to commit mail and wire fraud and conspiracy to commit money laundering; he was sentenced to 262 months’ imprisonment, three years of supervised release, and $3,684,213 in restitution. Petitioner challenges his conviction and sentence on numerous grounds, including that the district court erred in denying his motion to dismiss the indictment as being “the fruit of effectively immunized statements” and that there was a fatal variance from the indictment because the indictment alleged one conspiracy but the evidence at trial established multiple conspiracies.

The Court disagreed with Petitioner’s contentions. Petitioner did not invoke his Fifth Amendment privilege to refuse to testify before the grand jury. No one with the authority to grant him use immunity did so and, while he claims he thought asserting his Fifth Amendment right against self-incrimination was merely a formality, “the reality is that his silence regarding that right indicates he waived it and testified without the benefit of an immunity agreement.” Additionally, the Court found that “[i]n reviewing a jury finding that a single, rather than multiple, conspiracy existed, ‘a focal point of the analysis is whether the alleged coconspirators’ conduct exhibited interdependence.'” Such interdependence was present in this case, and the record supports the jury’s determination that there was only a single conspiracy.

Jennifer Gokenbach: Colorado Supreme Court Says Continued At-Will Employment Is Sufficient Consideration for Noncompetition Agreement

On May 31, 2011, in a decision critical to non-compete law in Colorado, the Colorado Supreme Court issued its holding in Lucht’s Concrete Pumping Inc. v. Horner (PDF).  I previously blogged about the fluctuating state of Colorado’s non-compete law given the decisions below in the Lucht’s case — Colorado Non-Compete Law in Flux (October 7, 2010).  For many who have been watching and waiting, The Decision (that’s my sport’s reference for the day…go Heat) has arrived, and it’s favorable for employers.

Decisions Below

  • The trial court granted summary judgment in favor of the employee (Horner) concluding that his noncompetition agreement was unenforceable due to lack of consideration, as he was not offered any additional monetary payment, raise, benefits, etc. in exchange for the non-compete covenant that his employer (Lucht’s) wanted him to sign after he was hired.
  • The employer (Lucht’s) appealed.
  • The court of appeals agreed with the trial court and concluded that continued employment of an at-will employee cannot, by itself, constitute consideration for a non-competition covenant if the employee had already begun working.
  • The employer (Lucht’s) appealed again.

Colorado Supreme Court Reverses

In an en banc decision, the Colorado Supreme Court reversed the court of appeals:

“We hold that an employer that forbears from terminating an existing at-will employee forbears from exercising a legal right, and that therefore such forbearance constitutes adequate consideration for a noncompetition agreement.  We have recognized that continuation of at-will employment is adequate consideration in the context of an employee’s receipt of a benefit, Continental Air Lines [v. Keenan], 731 P.2d [708,] 711 [(Colo. 1987)], and now apply that reasoning to the context of consideration for a noncompetition agreement.”

The Court reasoned that because employment in Colorado is at-will, meaning that an employer may terminate an at-will employee at any time during the employment relationship as a matter of right, the forbearance from terminating an employee presented with a non-compete agreement after hire is the forbearance of such a legal right.  The Court further reiterated that there appears to be no question that sufficient consideration for a non-compete agreement exists when entered into at the commencement of at-will employment.

So, there you have it.  The Colorado Supreme Court says continued at-will employment is sufficient consideration for non-compete covenants.  Employers may rejoice – there is no need to go back and offer more money or benefits to employees who have signed noncompetition agreements after hire.

Jennifer Gokenbach is a partner at Ogletree Deakins and focuses her practice on management side trial work and counseling on a wide range of employment law issues. She blogs at Colorado Employer’s Law Blog, where this post originally appeared on May 31, 2011.