July 19, 2019

Archives for December 19, 2012

Tenth Circuit: In Tax Evasion Case, Evidence Was Properly Admitted Pursuant to Federal Rule of Evidence 404(b) Because It Was Probative of Intent

The Tenth Circuit issued its opinion in United States v. Farr on Monday, December 17, 2012.

A jury convicted Skoshi Farr of willfully failing to pay a trust fund recovery penalty that the IRS assessed against her after she failed to pay quarterly employment taxes. Farr appealed.

Farr first contended that she was denied her Sixth Amendment right to a fair trial by the district court’s rulings that admitted Rule 404(b) evidence. Federal Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is inadmissible to prove the character of the accused, but may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The Tenth Circuit imposes four requirements for evidence to be admitted under Rule 404(b), among them that the evidence must be relevant. Farr objected on relevancy grounds. The Tenth Circuit found no abuse of discretion by the district court in admitting the evidence because it was probative of Farr’s intent, knowledge of the penalties, and willful failure to pay the penalty.

Second, Farr contended the district court erred in denying her motion for judgment of acquittal. She argued the government’s evidence was insufficient to support a conviction. Reviewing the evidence presented at trial in the light most favorable to the government, it was clear to the Tenth Circuit that a rational trier of fact could have found that Farr willfully evaded the trust fund recovery penalty and took affirmative steps to do so.

Third, Farr asserted that the district court erred by denying her pretrial motion to dismiss the indictment for failure to charge the offense under the appropriate statute. The government proceeded under 26 U.S.C. § 7201, and Farr asserted the appropriate statute was § 7202. It is well established that charging decisions are primarily a matter of discretion for the prosecution. Accordingly, the Tenth Circuit held that the district court properly denied Farr’s motion to dismiss the indictment.

Finally, Farr contended her prosecution was barred by the Double Jeopardy Clause as a result of the government’s prior unsuccessful prosecution. The law of the case doctrine bars this claim. The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Because the Tenth Circuit previously considered and rejected the same double jeopardy argument, the Tenth Circuit was precluded from reconsidering the issue.


Tenth Circuit: Employees Were At-Will and Had No Legitimate Expectation in Continued Employment

The Tenth Circuit issued its opinion in Gonzales v. City of Albuquerque on Monday, December 17, 2012.

The City of Albuquerque (the City) has a 311 Citizen Contact Center (CCC) to handle calls placed to the City’s non-emergency telephone number. The City’s Merit System divided employees into classified and unclassified service. Unclassified employees were defined as employees at will who could be dismissed for any reason. All CCC positions were designated unclassified. Plaintiffs acknowledge they were unclassified.

Plaintiffs were terminated from CCC between 2005 and 2009. Plaintiffs filed suit in New Mexico state court on five claims. The City removed to federal court and moved for summary judgment. The district court granted the City’s motion on all claims. Plaintiffs appealed.

On appeal, Plaintiffs argue the City never told them that they were employed at will, and to the contrary, that management imparted the message that they could only be fired for just cause. Plaintiffs contend that they had (1) a reasonable expectation of continued employment and thus a protected property interest, and (2) an implied contract of employment that protected against arbitrary discharge.

First, under New Mexico law, a property interest in the employment context consists of a legitimate expectation in continued employment. There was ample evidence in the record that Plaintiffs knew they were unclassified, at-will employees, including signed forms to this effect from each of them. Therefore, there was no issue as to any material fact on this point.

Second, Plaintiffs argue that they had an implied employment contract, which the City breached in terminating them without cause. Since Plaintiffs failed to allege specific facts that create an implied employment contract, they failed to raise an issue of fact that the City’s policies, representations, or conduct created an implied employment contract.


Tenth Circuit: Defendant Invoked His Right to Counsel by Handing His Attorney’s Letter to FBI Agent Stating He Did Not Wish to Speak

The Tenth Circuit issued its opinion in United States v. Santistevan on Monday, December 17, 2012.

In 2007, Mr. Santistevan was in jail. Late one night, his girlfriend called FBI agent Eicher (“agent”) and told him Mr. Santistevan wanted to speak with him about recent Denver robberies. The next morning, on his way to the jail, the agent received a call from Katherine Spengler, a public defender (“attorney”).  The attorney advised him that she represented Mr. Santistevan, had spoken with him that morning, and that he did not wish to speak. The agent informed the attorney of his conversation with Mr. Santistevan’s girlfriend the previous night and indicated that he intended to visit Mr. Santistevan to ask him directly if he wanted to make any statements or answer questions. The attorney responded that she had given Mr. Santistevan a letter to give to the agent if he went to the jail.

When the agent arrived at the jail, Mr. Santistevan handed him the letter stating that he did not wish to speak with the agent without counsel. The agent then told Mr. Santistevan is was up to him whether he wanted to talk with the agent. Mr. Santistevan eventually went with the agent to the FBI offices and made incriminating statements about two robberies. He was indicted, and Mr. Santistevan filed a motion to suppress the statements made during the interview.

The district court found that Mr. Santistevan unambiguously invoked his right to counsel by handing the letter to the agent. The court also determined that Mr. Santistevan was subject to a custodial interrogation when he invoked the right to counsel. The government appealed.

Pursuant to Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), the Tenth Circuit agreed with the district court that Mr. Santistevan’s act of handing the letter drafted by his attorney to the agent was an unambiguous invocation of the right to counsel. Once a suspect unambiguously invokes the right to counsel—as Mr. Santistevan did here by giving the letter to the agent—all questioning must stop.

Pursuant to United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991), because Mr. Santisteven knew the agent intended to question him at some point in the near future, he was subject to custodial interrogation, and he could therefore properly invoke his right to counsel.


Tenth Circuit: Unpublished Opinions, 12/17/12

On Monday, December 17, 2012, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.

Apodaca v. Medina

Moore v. Godsil

Gammons v. City and County of Denver

Porter v. Farmers Insurance Company

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