August 19, 2019

Archives for November 1, 2013

Tenth Circuit: Return of Children in Hague Convention Case Affirmed

The Tenth Circuit Court of Appeals published its opinion in West v. Dobrev on Wednesday, October 30, 2013.

Petitioner Livia West and Respondent Stanislav Dobrev were married in the United States and their two children were born here. The family moved to France and after about a year, West filed for divorce. The French court ordered the children to remain in the usual home of West. Dobrev moved back to the United States. The French court gave West permission to move with the children to Belgium for employment and the divorce was finalized.

Two years later, Dobrev took the children to the United States for a vacation but then filed suit in Utah state court for “Emergency Jurisdiction and Custody.” West filed a petition in Utah federal district court for the return of the children under Article 3 of the Hague Convention.

The Utah federal district court, after holding a preliminary hearing, granted Petitioner West’s petition for return of her two minor children to their residence in Belgium, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, The International Child Abduction Remedies Act (ICARA). The district court also awarded Petitioner fees, costs, and expenses.

Respondent Dobrev appealed, claiming a denial of due process based on the district court’s refusal to provide him an evidentiary hearing to challenge its finding that Belgium was the habitual residence of the children under the convention. The Tenth Circuit found that Dobrev never contested whether Belgium was the children’s habitual residence.

The court held that Dobrev failed to meet his burden of establishing by clear and convincing evidence an exception to West’s prima facie case for return of the children under the Convention. Dobrev received a meaningful opportunity to be heard at the preliminary hearing; he was not entitled to a fishing expedition.

The court also found no abuse of discretion in the district court’s award of fees and costs and affirmed the district court in all respects.

Tenth Circuit: Search Proper Under Leon’s Good Faith Exception

The Tenth Circuit Court of Appeals published its opinion in United States v. Ponce on Wednesday, October 30, 2013.

Julio Ponce appealed the Oklahoma district court’s denial of his motion to suppress evidence obtained pursuant to a search warrant that Ponce claimed issued without probable cause. A confidential informant (CI) told Tulsa Police officer William Mackenzie that Ponce was “selling methamphetamine from his residence,” and that Ponce also had “firearms, scales and baggies used to weigh and package” the drugs and a “large amount of U.S. currency within his residence.” The CI told Mackenzie Ponce’s address and an alias he used. Mackenzie surveilled Ponce’s home and observed drug activity. He also walked a dog outside Ponce’s garage and the dog alerted to drugs. After Mackenzie submitted an affidavit containing the above information, and that an anonymous tipster had called with similar information about Ponce, a magistrate judge issued a search warrant, the execution of which led officers to discover firearms, scales, baggies, and large quantities of cash and methamphetamine at Ponce’s residence.

At trial, Ponce moved to suppress all the evidence from his home. The district court denied the motion on the basis that probable cause did exist or, alternately, that United States v. Leon’s good-faith exception applied. Ponce pleaded guilty conditionally and appealed, arguing that the dog sniff was an illegal warrantless “search” under the Fourth Amendment. The Tenth Circuit chose to decide the appeal without deciding the Fourth Amendment issue or any of Ponce’s other lack of probable cause arguments.

The court held that the officers executing the search acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate under Leon and affirmed the district court.

Tenth Circuit: Unpublished Opinions, 10/31/13

On Thursday, October 31, 2013, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Zaler

Bettis v. Hall

Johnson v. City of Murray

Bethel v. United States of America

Suttles v. Colvin

Jackson v. NM Dep’t of Corr. Prob & Parole

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

Tenth Circuit: Unpublished Opinions, 10/30/13

On Wednesday, October 30, 2013, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Portillo-Castro v. Holder

Zisumbo v. Ogden Regional Medical Center

Kowalsky v. S & J Operating Co.

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

Colorado Court of Appeals: Announcement Sheet, 10/31/13

On Thursday, October 31, 2013, the Colorado Court of Appeals issued no published opinion and 42 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.