May 20, 2019

Archives for 2013

Tenth Circuit: Unpublished Opinions, 12/26/13

On Thursday, December 26, 2013, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Bank of America v. Dakota Homestead

Case summaries are not provided for unpublished opinions.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

Surviving a Personal Apocalypse — Part 3: Alchemy and a Gift for the Holidays

rhodesRenaissance physician, alchemist, scholar, and general curmudgeon Paracelsus was no picnic to be around. He was loud, opinionated, ego-inflated, and generally lived up to his middle name “Bombastus,” vilifying his contemporaries’ reliance on traditional texts, theories, and techniques, and advocating for fresh empirical research and perspective. But despite being personality challenged, he is credited with several lasting contributions to his field, such as founding the discipline of toxicology and introducing the notion of a mind-body link.

Robert Browning immortalized him in a poem that includes these lines:

TRUTH is within ourselves; it takes no rise
From outward things, whate’er you may believe.
There is an inmost centre in us all,
Where truth abides in fullness; and around,
Wall upon wall, the gross flesh hems it in,
This perfect, clear perception—which is truth.
A baffling and perverting carnal mesh
Binds it, and makes all error: and, to KNOW,
Rather consists in opening out a way
Whence the imprisoned splendour may escape,
Than in effecting entry for a light
Supposed to be without.

‘Tis time
New hopes should animate the world, new light
Should dawn from new revealings.

What does this have to do with personal Apocalypse? A lot, actually. For starters, the word “Apocalypse” means “Revelation.” (That’s how the book got its name.) Apocalypse is about “new revealings” – it’s what happens when you unwrap a package to see what’s inside.

How appropriate for this time of year – not just as we open holiday gifts, but as we wonder what the New Year has in store for us.

Revelation at this level isn’t about your garden variety peccadillos. This is discovery and due diligence to the max. No secrets anymore, nothing hidden, nothing unknown. The seals are all broken, all safes are cracked, all containers ransacked and their contents strewn across a billion conference tables. All motives are revealed, all alliances betrayed, all missing links discovered. WikiLeaks is passé: all files are opened, classified access breeched, proprietary information violated. Everything has been hacked. All is Open Source.

This kind of unveiling turns us inward, invites us to realize that WE are the package opened, the mystery revealed. It’s not about measuring up to external standards and practices, or the expectations and achievements of others, it’s about who we are and how we’re doing in our most private moments and vulnerable selves. It’s about who we are and how we fit in this Brave New World where there are no secrets anymore.

Not nearly as much fun as PlayStation – more like having Paracelsus walk into the room – but in the end it’s the magic alchemic ingredient that turns our leadenness into gold. Its purpose is to change both the person who lives inside our skin and the person we present to the world, make them one and the same. As such, it’s the pathway to integrity, authenticity, wholeness, and freedom in the here and now.

And for that reason, Revelation is the gift I wish for you this holiday season. See you next year!

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at

Tenth Circuit: Consent Can Be a Defense to Eighth Amendment Claim Based on Sex Acts Between Prisoner and Custodian

The Tenth Circuit Court of Appeals published its opinion in Graham v. Sheriff of Logan County on Friday, December 20, 2013.

Two prison guards, Jefferies and Mendez, had sexual intercourse with Stacey Graham while she was in solitary confinement at the Logan County Jail in Oklahoma. The guards confessed and were fired immediately. Graham then sought damages in a civil-rights complaint under 42 U.S.C. § 1983 against the two guards and the county sheriff. She alleged a violation of the Eighth Amendment prohibition against cruel and unusual punishment, as applied to the states under the Fourteenth Amendment. The district court granted the defendants’ motion for summary judgment on the ground that the sexual acts were consensual.

On appeal, Graham argued that (1) her consent was a question of fact that must be decided by a jury, and (2) consent was not a valid defense to her claims. Sexual abuse of an inmate by an officer violates the Eighth Amendment and is generally analyzed as an excessive force claim. The test for excessive force has an objective and subjective prong. When a prisoner alleges rape by a prison guard, the prisoner need prove only that the guard forced sex in order to show an Eighth Amendment violation.

In this case, the Tenth Circuit found there was no genuine dispute that the guards did not force Graham to have sex. Graham did not contest that she had participated in sexual conversations with Jefferies for an extended period before the acts in question occurred. She admitted that she flashed Jefferies and wrote him notes that made clear that she wanted to have sexual intercourse with him. She admitted to talking to Mendez about her fantasies, and that she told him to “[b]ring Jefferies” so that they could have a threesome. She did not indicate lack of consent during the event. Although Graham has said that she did not want to have sex with Mendez and that Mendez pushed her head down just before the encounter ended, she has not suggested that she indicated any reluctance to Jefferies or Mendez. Additionally, she did not discuss the significance of Mendez pushing her head down in her opening brief’s argument section.

Graham argued on appeal that a prisoner cannot legally consent to sex with a custodian, so even consensual sex with a prisoner is cruel and unusual punishment. This is a matter of first impression in the Tenth Circuit. The Sixth and Eighth Circuits have held that consensual sex between guards and inmates is not an Eighth Amendment violation. The Ninth Circuit has held that there is a rebuttable presumption of nonconsent that can be rebutted by a showing that the interaction involved no coercive factors. Some district courts have held that consent is not a defense.

The Tenth Circuit held that to prove sexual abuse of a prisoner, some form of coercion by the custodian must be present. The coercion need not be physical. In this case, coercion was not present, so summary judgment was affirmed.

Tenth Circuit: Summary Judgment Affirmed in FDIC Collection Action

The Tenth Circuit Court of Appeals published its opinion in FDIC v. Arciero on Friday, December 20, 2013.

In an effort to save Quartz Mountain Aerospace, some of its investors and directors took out large loans from First State Bank of Altus (the Bank) for the benefit of the company. When the Bank failed in 2009, the Federal Deposit Insurance Corporation (FDIC) took over as receiver and filed suit to collect on the loans. This appeal concerns the challenge to those collection efforts by four of those liable on the notes (Borrowers). Borrowers raised affirmative defenses to the FDIC’s claims and brought counterclaims, alleging that the Bank’s CEO had assured them that they would not be personally liable on any of the loans. The district court granted summary judgment for the FDIC because the CEO’s alleged promises were not properly memorialized in the Bank’s records as required by 12 U.S.C. § 1823(e), a provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.

Borrowers argued on appeal that the district court erred when it denied their motion for more discovery before the court ruled on the FDIC’s motion for summary judgment. The Tenth Circuit disagreed as the Borrowers did not identify any documents that would establish a defense under § 1823(e). They already had the Bank minutes and no Borrower alleged they signed an agreement limiting their liability.

The court also rejected Borrowers’ argument that the district court should have granted their motion for reconsideration based on newly discovered evidence. The Oklahoma Department of Securities opened an investigation into the Bank, its affiliate Altus, and Doughty for selling unregistered securities, including the life-settlement contracts used to secure the loan to Borrowers. According to Borrowers, this evidence supported claims and defenses against the FDIC that would not be barred by § 1823(e) because they are based on securities violations rather than agreements with the Bank. The court held that this did not qualify as newly discovered evidence because the existence of an investigation is not admissible evidence of alleged misconduct. Learning of a new legal theory is not the discovery of new evidence.

The court affirmed.

Tenth Circuit: Unpublished Opinions, 12/23/13

On Monday, December 23, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Rooks v. Drug Enforcement Admin.

Zoutomou v. Kennecott Utah Copper

United States v. Bergman

United States v. Madrid-Apodaca

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Colorado Constitution Protects Medical Marijuana Patient’s Cultivation of Plants and Controlled Substances Act Does not Preempt

The Colorado Court of Appeals issued its opinion in People v. Crouse on Thursday, December 19, 2013.

Medical Marijuana—Colo. Const. art. XVIII, § 14(2)(e)—Controlled Substances Act—Supremacy Clause.

During a search of defendant’s home, Colorado Springs police officers seized marijuana and marijuana plants. The prosecution charged defendant with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between 5 and 100 pounds of marijuana with the intent to distribute. At trial, defendant raised an affirmative defense that Colo. Const. art. XVIII, § 14 (MM Amendment) expressly authorized his possession, because he was a medical marijuana patient and the marijuana that he possessed was medically necessary to treat his condition. The jury acquitted him of both charges.

Relying on § 14(2)(e) of the MM Amendment, defendant moved the trial court to order the police to return the seized marijuana plants and marijuana. Section 14(2)(e) requires the return of marijuana seized from a medical marijuana patient to the patient if a jury acquits the patient of state criminal drug charges arising from the seized marijuana (return provision). The trial court agreed and ordered the police to return the seized items, which they did.

On appeal, the prosecution contended that the Controlled Substances Act (CSA), 21 USC §§ 801 et seq., preempts the return provision. The Court of Appeals rejected this contention for three reasons. First, the CSA cannot be used to preempt a state law under the obstacle preemption doctrine. Second, even if obstacle preemption applies, CSA § 885(d), which prevents federal prosecution of “any duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement of any law . . . relating to controlled substances,” would preclude applying prohibitions in other CSA sections to police officers complying with a court order issued under the return provision. Third, and making the same assumption, the recipient patient’s involvement in the return process also does not create obstacle preemption because the federal government could not commandeer state officials to seize and hold marijuana, and the MM Amendment does not require patients to either demand return or accept returned marijuana. Therefore, the trial court’s order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Underinsured Motorist Judgment for Claimant Affirmed

The Colorado Court of Appeals issued its opinion in Hansen v. American Family Mutual Insurance Co. on Thursday, December 19, 2013.

Personal Injury—Insurance Policy—Underinsured Motorist Coverage—Ambiguity—CRS § 10-3-1115—Covered Benefit.

Claimant was injured while riding as a passenger in her boyfriend’s vehicle. After settling a claim with the boyfriend’s insurer for policy limits, she pursued an underinsured motorist (UIM) claim with American Family Mutual Insurance Company. American Family denied the claim because claimant did not reside with the named insureds (her parents). Claimant filed an action against American Family, asserting a breach of contract claim, common law claim, and statutory claim.The trial court entered judgment in favor of claimant on her statutory claim and awarded her attorney fees and costs. Claimant filed a motion to amend the judgment and requested that the court award a statutory penalty of two times the covered benefit, or $150,000. The trial court granted claimant’s motion.

On appeal, American Family argued that the trial court erred in concluding that the insurance policy was ambiguous and by referring its construction to the jury. The Court of Appeals disagreed. American Family prepared and delivered to claimant a lien holder statement, which created an ambiguity in the insurance policy as to the identity of the named insured, because it was inconsistent with the declaration pages maintained by the insurance company. Therefore, the trial court did not err in reaching this conclusion.

American Family also argued that because claimant’s claim for coverage under the policy was “fairly debatable,” it cannot be found to have unreasonably delayed or denied payment of a benefit under the statutory claim as a matter of law. The Court disagreed. The policy was arguably unambiguous as to the named insured, so American Family was not entitled to judgment as a matter of law on claimant’s statutory claim.

Furthermore, the court did not err in awarding claimant two times the covered benefit. According to CRS § 10-3-1115, the award to be made to the prevailing claimant is not the damages suffered by the claimant caused by the delay in the payment of the benefit; rather, it is two times the covered benefit that was unreasonably delayed or denied. There is no dispute that the covered benefit under the reformed policy was $75,000. Therefore, claimant correctly received $150,000. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Announcement Sheet, 12/23/13

On Monday, December 23, 2013, the Colorado Supreme Court issued three published opinions.

People v. Cunningham

S.W. v. Towers Boat Club, Inc.

Yellow Jacket Water Conservancy v. Livingston

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

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


Tenth Circuit: § 1983 Malicious Prosecution Claim Partially Reinstated

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Friday, December 20, 2013.

Jeremy Myers challenged the district court’s dismissal of his § 1983 malicious prosecution claim alleging violations of his Fourth and Fourteenth Amendment rights. In his complaint, he asserted that Detective Brian Koopman obtained an arrest warrant by fabricating facts to create the illusion of probable cause. As a result, Myers spent three days in custody.

The Tenth Circuit held that the district court correctly dismissed Myers’s Fourteenth Amendment claim because Colorado law provided an adequate remedy in the form of a malicious prosecution tort. If a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, as here, then an adequate post-deprivation remedy—such as a state tort claim—will satisfy due process requirements. The fact that Myers’s state tort remedy was now time-barred did not alter the court’s decision as Myers could have brought that claim in time but did not.

The court held that Myers’s Fourth Amendment claim was improperly dismissed because the court used the wrong underlying tort to provide the § 1983 statute of limitations. Myers correctly styled his claim as one for malicious prosecution, rather than false imprisonment, because he was seized after the institution of legal process. His claim accrued when the underlying criminal proceedings resolved in his favor and he filed his § 1983 claim within two years of that accrual.

The court affirmed dismissal of the Fourteenth Amendment claim and reversed and remanded the dismissal of the Fourth Amendment claim.


Tenth Circuit: Unpublished Opinions, 12/20/13

On Friday, December 20, 2013, the Tenth Circuit Court of Appeals issued five published opinions and five unpublished opinions.

Self v. I Have a Dream Foundation-Colo.

Wild Horse Observers v. Jewell

United States v. Ontiveros

United States v. Silouangkhoth

United States v. Eccleston

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Michael H. Berger to Receive Colorado Bar’s Highest Honor

6113Michael H. Berger will be honored with the Colorado Bar Association’s highest honor, the Award of Merit, at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 10.

In the numerous letters of nominations that were received by the awards committee, the overwhelming praise was to Berger’s intelligence, analytical skill, and commitment to professionalism. Many described him as the definition of a “lawyer’s lawyer,” an extraordinary lawyer and person.  His almost 40 years of service to the profession have been done quietly, without fanfare or self promotion.

“The CBA is comprised of many talented and dedicated lawyers who tirelessly work to improve our system of justice,” Berger said. “To receive this award from such an organization is a tremendous honor.”

Berger is a member of Husch Blackwell’s Financial Services team where he focuses on financial litigation while also handling commercial, appellate, employment and intellectual property litigation matters. He acts as a consultant in legal ethics matters and frequently serves as an expert witness, and is a frequent presenter of CLE programs in the areas of litigation and legal ethics and has authored a number of articles in the area of legal ethics. Berger is a past chair of the CBA Ethics Committee, current chair of the CBA Amicus Brief Committee, and a member of the Colorado Supreme Court Standing Committee on the Colorado Rules of Professional Conduct. He was recently appointed by Gov. John Hickenlooper to serve as a judge for the Colorado Court of Appeals.

“Each lawyer who has received the CBA’s Award of Merit has been astonished:  Why me? ” said Past Award of Merit winner Anthony van Westrum.  “But I am sure there is no one — with Mike as the possible exception — who doubts that Michael Berger is entirely deserving of this Award.  Everyone who knows him knows of the constant, quiet, thoroughly competent services he renders to the Association and for the good of the law and the legal system in Colorado.  Even the Governor knows that, for he has just elevated Mike to the Court of Appeals.”

The Award of Merit, the association’s highest honor, is given annually to a member for outstanding service to the association, the legal profession, the administration of justice and the community. Berger and CBA Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year Award recipient Benjamin E. Currier will be honored at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 10, at the Hyatt Regency Convention Center.

Colorado Court of Appeals: Employer Not Liable for Taxes on Employees Who Lived and Worked Out of State

The Colorado Court of Appeals issued its opinion in Foundation for Human Enrichment v. Industrial Claim Appeals Office on Thursday, December 19, 2013.

Unemployment Compensation Tax Liability—Out-of-State Workers—Colorado Employment Security Act.

In this unemployment compensation tax liability case, petitioner Foundation for Human Enrichment (Foundation) sought review of a final order of the Industrial Claim Appeals Office (Panel). The issue on appeal was whether coordinator services carried out by twenty-one individuals, who lived and worked out of state and performed various administrative and clerical duties for Foundation workshops, constituted covered “employment” for tax purposes under the Colorado Employment Security Act (CESA), CRS §§ 8-70-101 to 8-82-105. The Panel concluded that the out-of-state coordinators were covered employees under the CESA and that the Foundation was responsible for paying unemployment compensation taxes for these individuals.

The Court of Appeals disagreed with the Panel. The out-of-state coordinators’ services to the Foundation were not “employment” under the CESA. CRS § 8-70-117 applies only when the worker performs all his or her services in Colorado, performs a portion of his or services in Colorado, or resides in Colorado. None of those circumstances was present here. The coordinators lived in eleven states and provided all their services in those states. Based on the definition of “employment” enacted in each state, the coordinators’ services would have been covered under the unemployment compensation laws of the state where they worked and resided. Therefore, the Division of Unemployment Insurance lacked statutory authority to impose tax liability against the Foundation with regard to the out-of-state coordinators. The order was set aside and the case was remanded with directions.

Summary and full case available here.