April 21, 2019

Archives for March 14, 2014

Top 10 Reasons Attorneys Go In-House

Sharon_MclaughlinBy Sharon A. McLaughlin, Esq.

The majority of attorneys begin their legal careers in law firms (versus in-house corporate legal departments – i.e., “in-house”) for a variety of reasons–- e.g., there are fewer in-house opportunities for new attorneys, law school graduates often want to get “big firm” experience and training before going in-house, and the compensation can often be higher in big firms.  Nonetheless, in my experience as an attorney recruiter, many attorneys in law firms either know starting out or within their first 5 years of practice that they want to eventually transition in-house, and they usually cite one of the following 10 reasons.

 1.     Billable-hours

With in-house legal departments, companies pay their attorneys’ annual salaries/bonuses/benefits and do not have billable hour requirements or quotas that their attorneys must meet to justify their cost.  Conversely, law firms generally have a minimum billable hour requirement and quota that their attorneys must meet to justify their high salaries and to qualify for bonuses and salary increases. The billable-hour system is the way most lawyers in law firms charge their clients, and it’s a key measure of associate and partner productivity.  This system can create a culture in which everyone is pushed hard and works long hours, eventually resulting in frustration, fatigue and exhaustion.  Many attorneys despise this system, and it’s one of the most common complaints that recruiters hear from law firm attorneys.  Consequently, it’s one of the top reasons attorneys in law firms want to go in-house.

 2.     Work-life balance

Many law firm attorneys have the belief that they will have greater work-life balance going in-house, and this is often true.  However, that’s not always the case.  In their goal to become a profit center, some in-house legal departments have long, exhausting hours with a lower level of compensation.  However, this is generally not the norm.  It is incumbent on attorneys to vet this issue when interviewing with any prospective company to ensure that work-life balance exists (with appropriate questioning at the appropriate time, of course).  Many in-house interviewers will volunteer information about their organization’s work-life balance since they know this is generally something incoming attorneys want to know and a big selling point when it exists.  In addition, attorneys are often, by nature, intuitive and can sense when the in-house attorneys with whom they’re interviewing are happy and content in their roles versus overworked, exhausted and miserable.   The latter is generally a tell-tale sign that work-life balance does not exist.

3.     Predictability of schedule

Another common complaint among law firm attorneys is the fact that they are essentially on call at all times.  They must be available to deal with client emergencies or deadlines that arise at unpredictable and inopportune times – e.g., 4:00 p.m. on a Friday afternoon or over the weekend.  As a legal recruiter, I have worked with and placed many in-house attorneys who report that they keep regular hours (e.g., 8:00 am – 5:00 p.m.), do not work weekends, spend quality time with their families, plan vacations in advance and, most importantly, do not fear being penalized for taking vacation with mountains of work upon their return.

 4.    Working closely with the business team and interfacing with upper level management and executives.

Another appealing quality that attorneys have identified about going in-house is the opportunity to work closely with an organization’s business team and regularly interface with upper level management and executives.  An in-house attorney’s clients are the internal business units and the managers and executives who lead those units at the organization at which they work.  As a result, these are often the people with whom the attorneys are regularly working, communicating and assisting on a day to day basis.  For law firm attorneys, this level of interaction and exposure can be limited if not non-existent.

 5.     Career Track

In a law firm, an attorney’s career track is generally one dimensional – you begin your career as an associate and then you may or may not make partner.  If you do not make partner, you either remain an associate for many years until it becomes too embarrassing to stay; or, if it exists at your firm, you may move into a non-partner role with a special title – e.g., Counsel, Special Counsel, Of Counsel, etc.

At a company, attorneys often have various long term career opportunities available to them.  Depending on the organization and its size, you may have the opportunity to move between practice disciplines in the legal group (e.g., litigation to commercial, commercial to regulatory, etc.), be promoted to managerial positions within the legal group, move to the business side in non-legal management or executive positions, etc.  The in-house long term career opportunities are broader and may be more easily achieved than law firm partnership.

 6.     Focus on practicing law versus business development

Because law firms value attorneys that can develop and bring in new business to the firm with some level of regularity, this is generally a prerequisite to becoming a partner and remaining a partner.  However, this can be a daunting task for many attorneys because business development is generally sales-oriented, and it is not a skill that law schools or law firms teach.  And, not everyone is a natural at business development, particularly those attorneys who are more “cerebral” in the way that they approach things.

In an in-house setting, there is no business development pressure, need or requirement.  The company is the attorney’s client.  As such, in-house attorneys may simply focus on the practice of law without the worry of developing business or the pressure of “eating what you kill.”

 7.     Work on deals from start to finish

Attorneys at law firms often are called to assist their corporate clients part-way through a deal or transaction when, for example, an issue arises; or, they may only be asked to handle a specific portion of a deal.  Conversely, in-house attorneys are generally not only part of deals from start to finish, but they frequently participate in the pre-planning and business strategy.  They also have the opportunity to see how their work and legal counsel impacts the company long-term.

8.     Focus on one client

Attorneys in law firms generally have various individual and/or corporate clients with whom they work at any given time.  For in-house attorneys, the company (or business unit(s) within the company) is the client.  Only working with a single client allows you to get to know that client more intimately, better understand the client’s business strategies and perhaps assist the client in shaping future business strategies and goals.  The in-house attorney works with internal legal and business teams, all having a common goal to assist their single client.  This is contrasted with doing a little here and a little there for multiple clients and lacking the same level of cohesiveness.

9.     Sophisticated work

While many attorneys are under the impression that they may get less sophisticated work by leaving a big law firm and going in-house, this is simply not the case with many companies.  As a cost-cutting measure, more and more companies are keeping their legal work in-house versus outsourcing it to outside counsel.  So, where you have a large, global company that keeps much of their legal work in-house and engages in complex and sophisticated transactions or litigation valued at billions of dollars, the end result is that their in-house attorneys have the opportunity to work on exciting, high-profile and sophisticated legal matters to which they may not otherwise have access.  This is even more true at many big law firms where some associates get little hands-on experience or interaction with the clients.

10.  Overseas assignments

Large companies with global operations require legal counsel in the countries in which they are conducting business.  This is often accomplished with attorneys native to the country in which the company has operations, but many companies are also sending their U.S. attorneys on international expatriate assignments or temporary rotations to work in conjunction with their foreign counterparts.  This is a very appealing opportunity for some attorneys and can be a primary motivation to work for global companies.

Sharon A. McLaughlin, Esq. is a Regional Search Director with Special Counsel in Houston, Texas. As a Regional Search Director for Special Counsel, she trains and advises internal Attorney Search Directors on the permanent placement of attorneys in in-house corporate legal departments. Her role focuses on training, strategizing, coaching, developing and implementing solutions for Special Counsel’s Attorney Search Directors nationally to provide the company’s clients the best attorney search power on the market. Ms. McLaughlin has more than nine years of legal recruiting experience placing associate and partner level attorneys with law firms and in-house corporate legal departments throughout the country. Prior to transitioning into legal recruiting, Ms. McLaughlin was an attorney in private practice and specialized in business and employment-based immigration law in Texas and California. Ms. McLaughlin is admitted to the State Bar of Texas as well as the State Bar of California. She received her B.A. from Stephen F. Austin State University in Nacogdoches, Texas in 1992, and her J.D. from Southwestern University School of Law in Los Angeles, California in 1996. Special Counsel operates in 42 markets across the United States. Through its affiliation with its parent company, Adecco Group North America, the company has access to a vast network of additional locations throughout the U.S. and in over 60 other countries, enabling the company to provide permanent placement and legal staffing services and solutions nationally or internationally. Special Counsel also has a blog, where this post originally appeared on February 23, 2014.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Announcement Sheet, 3/13/2014

On Thursday, March 13, 2014, the Colorado Court of Appeals issued 12 published opinions and 40 unpublished opinions.

People v. Herrera

People v. Russell

People v. Fioco

People v. Sieck

Daimler Chrysler Financial Services Americas, LLC v. Colorado Department of Revenue

Apex Transportation, Inc. v. Industrial Claim Appeals Office

Lawson, II v. Stow, IV

Lewis v. Taylor

In re Marriage of Dadiotis

Mendoza v. Pioneer General Insurance Co.

Millenium Bank v. UPS Capital Business Credit

People in Interest of A.M.C.

Summaries of 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: Convictions for Wire Fraud and Money Laundering Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Battles on Tuesday, March 11, 2014.

To finance construction of her residence, Safiyyah Tahir Battles obtained two loans totaling $377,400 from First Security Bank. In 2007, she decided to refinance her residence. She submitted a uniform residential loan application to Saxon Mortgage, Inc. (“Saxon”), but Saxon’s automated system rejected the application because her debt-to-income ratio was too high. Consequently, Ms. Battles reapplied for credit through Saxon’s “Score Plus” program, which required her to submit twelve months’ worth of bank statements, as well as information concerning her gross monthly income and assets. Among other things, Ms. Battles claimed a gross monthly income of $28,723.16 and a First Security Bank account containing $165,907.70. Saxon approved her application for a $500,000 loan shortly thereafter.

But, as it turned out, Saxon’s decision was based on a distorted picture of Ms. Battles’s financial status. Ms. Battles’s 2007 federal income tax return revealed that her adjusted gross annual income was $14,346—a far cry from the $344,677.92 extrapolated from the figures on her loan application. Similarly, the balance in her bank account on the loan’s closing day was less than $1,000. It subsequently came to light that Ms. Battles had falsified bank statements to inflate her income and improve her chances of qualifying for a loan.

A closing company prepared a settlement statement that specified that a local builder named Emmitt Wisby would receive $102,630.01 and Ms. Battles would receive $2,000. The closing company gave Mr. Wisby’s check to Ms. Battles with the understanding that she would deliver it to Mr. Wisby. Instead, Ms. Battles deposited the funds into her bank account. Ms. Battles dissipated the proceeds of the loan; she wrote checks totaling $47,700 to family members. She made no mortgage payments on the residence after July 31, 2007. When the property fell into foreclosure, Saxon sustained a significant loss from having funded the loan.

After a grand jury indictment and jury trial, Ms. Battles was convicted of one count of wire fraud and one count of money laundering. Ms. Battles was sentenced to thirty months in prison, followed by two years of supervised release. The district court also ordered her to make restitution to the victim of her crimes. Ms. Battles appealed on several grounds.

On appeal, Ms. Battles raised seven claims: (1) the government suppressed evidence that was favorable and material to her defense; (2) the district court erred by admitting testimony of a witness who intimated that Ms. Battles had destroyed documents; (3) there was insufficient evidence produced at trial to support her convictions; (4) she received ineffective assistance of trial counsel; (5) the district court erred by failing to grant a two-level sentence reduction for acceptance of responsibility; (6) the district court imposed a legally infirm restitution order; and (7) cumulative error deprived her of a fair trial and a reliable sentence.

First, the court held it did not have jurisdiction to address Ms. Battles’s Brady claim in the context of this appeal. The sole district court order that adjudicated Ms. Battles’s Brady claim was the order denying Ms. Battles’s motion for a new trial. This order was issued after the district court’s final judgment was entered and after Ms. Battles filed her formal notice of appeal challenging that judgment. The court could find no evidence in the record that, after the district court issued its motion-for-new-trial order, Ms. Battles sought within the fourteen-day period prescribed by the federal rules to file a new notice of appeal to challenge that order. Therefore, the court dismissed this aspect of the appeal for lack of jurisdiction.

Second, Ms. Battles argued that certain “other-crimes” testimony was offered not for any of Rule 404(b)’s recognized purposes,  but, rather, to incite the jury’s passions against her. The court concluded Ms. Battles did not demonstrated that any error in admitting the evidence affected her substantial rights, i.e., that the error disturbed the outcome of the proceedings.

Third, Ms. Battles contended there was insufficient evidence produced at trial to support her convictions. However, the court held there was ample evidence to support the jury’s convictions. The court was satisfied that a substantial quantum of evidence supported Ms. Battles’s wire-fraud conviction. Accordingly, under its deferential standard of review, the court would not second-guess the jury’s decision finding Ms. Battles guilty of wire fraud.

Fourth, Ms. Battles argued she received ineffective assistance of trial counsel. The Tenth Circuit concluded that the record before the district court was not sufficiently developed to address this issue. Precedent militated in favor of dismissing this claim without prejudice so that the district court could address it in collateral proceedings in the first instance.

Fifth, Ms. Battles argued the district court erred by failing to grant a two-level sentence reduction for acceptance of responsibility. The court stated it would have great difficulty viewing Ms. Battles’s statements as not reflecting in pronounced fashion her denial of fraudulent intent in connection with the Saxon loan. And this denial continued throughout her trial and sentencing. Ms. Battles failed to demonstrate that the district court abused its discretion in denying her an acceptance-of-responsibility downward sentence adjustment.

Sixth, Defendant contended the district court imposed a legally infirm restitution order. Ms. Battles asserted her view that she was unfairly surprised at sentencing when the district court named a different victim in the restitution order than that identified at trial. The district court reviewed this document at sentencing and found it clear that Deutsche Bank was taking an assignment as a trustee and custodian for Saxon and that there was no issue with respect to the identification of the victim. The court discerned no error, and certainly no clear error, in this factual finding.

Finally, Ms. Battles claimed cumulative error deprived her of a fair trial and a reliable sentence. However, Ms. Battles failed to name more than one error. A defendant who has failed to establish the existence of multiple non-reversible errors cannot benefit from the cumulative error doctrine.

The Tenth Circuit upheld the judgment of the district court and AFFIRMED Ms. Battles’s convictions and sentence. The court DISMISSED the portion of Ms. Battles’s appeal pertaining to her Brady claim for lack of jurisdiction.

Tenth Circuit: In Sexual Harassment Case, Summary Judgment For County and Judge Affirmed in Part and Reversed in Part

The Tenth Circuit Court of Appeals published its opinion in Eisenhour v. Weber County on Wednesday, March 12, 2014.

Marcia Eisenhour worked for Weber County for 24 years, serving as the Court Administrator for the Weber County Justice Court under the direct supervision of Judge Storey. According to Ms. Eisenhour, Judge Storey began acting inappropriately toward Ms. Eisenhour in early 2008. He became “touchy” and would often stand so close to her that his groin rubbed against her. In addition to the touching, Judge Storey once told her that he had a dream about her in which she was naked. Ms. Eisenhour also found a poem by Judge Storey, which revealed his romantic feelings for her. According to Ms. Eisenhour, she was also subjected to unreasonable demands about her activities away from work.

The County launched an investigation, but ultimately decided not to discipline Judge Storey. The matter was later referred to Utah’s Judicial Conduct Commission, which the Commission dismissed.

Between August and December 2009, the County Commissioners closed the Justice Court, which meant the loss of Ms. Eisenhour’s job. Ms. Eisenhour applied to the County for three vacant positions. Unsuccessful, she lost not only her job but also the potential for retirement benefits. She eventually spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey.

Marcia Eisenhour sued Weber County, three of its county commissioners, and Judge Storey. She claimed violations of Utah’s Whistleblower Act, the First Amendment, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and Title VII. The district court granted summary judgment to the defendants on all claims. Ms. Eisenhour appealed.

Ms. Eisenhour first challenged the district court’s exclusion of her testimony on disciplinary proceedings involving the judge. The Tenth Circuit affirmed. The exclusion of Ms. Eisenhour’s testimony during the disciplinary proceedings involving Judge Storey was proper, since, under the applicable Utah statute, section 78A-11-112(1), testimony taken during the course of proceedings before the Judicial Conduct Commission cannot be introduced in a civil action.

Ms. Eisenhour asserted a claim under Title VII for retaliation. The district court held that it lacked jurisdiction over the claim because Ms. Eisenhour failed to exhaust administrative remedies. The Tenth Circuit agreed. Ms. Eisenhour filed an EEOC claim for sexual harassment, but this claim did not refer to any of the retaliatory acts underlying the eventual cause of action under Title VII. As a result, the court affirmed the award of summary judgment to the County on the Title VII retaliation claim.

Next, Ms. Eisenhour invoked the First Amendment, claiming that the County retaliated against her by closing the Justice Court when she spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey. The Tenth Circuit held that triable issues of fact existed and that the district court erred in granting summary judgment to the County. When the court is faced with a First Amendment claim by a public employee, the district court must balance the First Amendment interests of that employee, speaking as a concerned citizen, with the government’s interests in promoting the efficiency of the public services it performs through its employees. The Tenth Circuit held that her comments to the media involved protected speech and that she presented sufficient evidence for a reasonable fact-finder to infer that her comments were a motivating factor in the County’s decision to close the Court. The evidence also created a genuine issue of fact about the legitimacy of the County’s explanation for closing the Justice Court.

On the First Amendment claim for retaliation, Ms. Eisenhour also sued three county commissioners in their personal capacities. This claim was based on the Commissioners’ decision to close the Justice Court. Their motivation, according to Ms. Eisenhour, was to retaliate for her comments to the media. Like the County, the Commissioners argued that Ms. Eisenhour’s speech was not protected under the First Amendment and that the County closed the courthouse because of budgetary considerations rather than a retaliatory motive. As discussed above, these arguments involved factual issues turning on the resolution of conflicting evidence, thereby preventing summary judgment for the County.

Ms. Eisenhour further alleged that the County violated Utah’s Whistleblower Act, which prohibits government employers from retaliating against employees who report employer misconduct. According to Ms. Eisenhour, the County violated the state law by closing the Justice Court and refusing to hire her. Ms. Eisenhour waited more than 180 days from the alleged violation to assert a Whistleblower Act claim, so this claim was time-barred. However, for her claim relating to the closing of the court, the claim did relate back to the original filing, so it was not time-barred.

Ms. Eisenhour argued that the County deprived her of a property interest in her job without due process of law. The district court held that Ms. Eisenhour had failed to establish a protected property interest. The Tenth Circuit agreed. For purposes of the Fourteenth Amendment’s Due Process Clause, property interests must derive from some independent source, such as state law, contract, or other understandings that give rise to a claim of entitlement. However, her employment was at-will. And at-will employees lack a property interest in continued employment.

Ms. Eisenhour asserted that the County violated her right to equal protection, and the district court granted summary judgment to the County on the ground that Judge Storey was not an official policymaker. The Tenth Circuit agreed with the district court’s decision. A municipality can be liable under Section 1983 for the acts of a municipal official only when the official possesses final policymaking authority to establish municipal policy with respect to the acts in question.

Judge Storey lacked policymaking authority to touch Ms. Eisenhour inappropriately under the County’s sexual harassment policy. Further, his monitoring of her whereabouts (when missing work) did not violate the Equal Protection Clause. As a result, the County was entitled to summary judgment on the equal-protection claim.

Ms. Eisenhour further asserted an equal-protection claim against Judge Storey. The district court concluded that Judge Storey was entitled to qualified immunity. The Tenth Circuit reversed the district court’s grant of summary judgment to Judge Storey, concluding that he was not entitled to qualified immunity and that there was a fact-issue about whether Judge Storey inappropriately touched Ms. Eisenhour.

To overcome a defense of qualified immunity, a plaintiff must show that: (1) the defendant’s conduct violated the law, and (2) the law was clearly established when the violation occurred. The Tenth Circuit held that Ms. Eisenhour made the threshold showing and that issues of fact precluded summary judgment.

For the reasons stated above, the Tenth Circuit affirmed the award of summary judgment on Ms. Eisenhour’s claims against the County under the: (1) Whistleblower Act for a refusal to rehire her, (2) Title VII, and (3) § 1983 based on a deprivation of due process and denial of equal protection. The court also held that the district court properly excluded Ms. Eisenhour’s testimony taken during the judicial-misconduct investigation. But the court agreed with Ms. Eisenhour that genuine issues of fact precluded summary judgment on: (1) her § 1983 claim against the County and the County Commissioners based on the First Amendment, (2) the Whistleblower Act claim against the County based on the court closing, and (3) the § 1983 claim against Judge Storey based on the Fourteenth Amendment’s Equal Protection Clause.

Accordingly, the case was REMANDED to the district court with instructions to VACATE the award of summary judgment on these claims.

—–

Defendant Craig Storey requested rehearing, arguing in part: (1) The panel opinion erroneously relied in part on sworn testimony before the Judicial Conduct Commission even though the testimony was deemed inadmissible; and (2) the evidence did not support Ms. Eisenhour’s claim that Defendant Storey knowingly and intentionally committed sexual harassment by telling her about a dream. On these issues, Defendant Storey also requested en banc consideration. In addition, he sought en banc consideration on the issue of qualified immunity.

The panel granted rehearing on the first issue, which involved reliance on the Commission testimony by Ms. Eisenhour. The remainder of the petition for panel rehearing was denied. In light of the partial grant of the petition, however, the panel vacated the opinion issued on December 31, 2013. The clerk was directed to substitute the amended decision above and to file it contemporaneously with this order.

Tenth Circuit: ConocoPhillips Entitled to Neither “Basis-Increase” Nor “Going-Forward Deductions

The Tenth Circuit Court of Appeals published its opinion in United States v. ConocoPhillips Company on Wednesday, March 11, 2014.

In the 1970s and 1980s, the Internal Revenue Service was embroiled in a tax dispute with multiple companies (including Phillips Petroleum Company and Arco Transportation Alaska, Inc.) that had jointly developed a pipeline system known as the Trans-Alaska Pipeline System (“TAPS”). The parties agreed to settle the dispute through a Closing Agreement. After entering the agreement, Phillips Petroleum Company (now ConocoPhillips Company) acquired Arco Transportation. In 2000 and 2001, Conoco revisited the tax implications of its acquisition and claimed “going-forward” and “basis-increase” deductions on its amended consolidated tax returns. The IRS refunded Conoco’s 2000 going-forward deductions and did not challenge them here. But the IRS disputed the remaining deductions and the parties brought the dispute to federal district court, where the district court decided the issue on cross-motions for summary judgment. The court rejected Conoco’s position and granted summary judgment to the IRS. Conoco appealed.

Conoco claimed monthly “going-forward” deductions for the additional interests in TAPS that Arco Transportation acquired from 1977 to 2000 and the additional interest that it acquired in 2001. This contention was based on alternative theories that Arco Transportation was an “owner” or “successor in interest” under the Closing Agreement. However, the court held that Arco Transportation was considered an “owner” only with respect to its 21% ownership in TAPS as of July 1, 1977. For the subsequently-acquired interests, Arco Transportation was not considered an “owner.” Because Arco Transportation did not own the additional TAPS interests on July 1, 1977, it was not an “owner” with respect to these interests. Thus, Conoco was not entitled to “going-forward” deductions for these additional interests based on the theory that Arco Transportation was an “owner.”

The court then turned to the question whether Conoco was a “successor in interest.” Under the Closing Agreement, an entity became a “successor in interest” in two ways: (1) by succeeding the owner through statutory succession, or (2) by acquiring a TAPS interest from an affiliated entity when the transferor and transferee filed a consolidated tax return. Arco Transportation did not acquire its later-acquired interests by statutory succession or by transfer from a member of its consolidated group. Thus, Arco Transportation was not a successor in interest for the additional TAPS interests acquired from 1977 to 2001; and the parent company, Conoco, was not entitled to the tax benefit of Arco Transportation’s going-forward deductions on the 2001 consolidated tax return.

Conoco also claimed “basis-increase” deductions. But Conoco’s claim to these deductions was based on a misinterpretation of the scope of the Closing Agreement. Because the Closing Agreement did not fix a restoration cost/liability or exclude it from 26 U.S.C. § 461(h), Conoco was not permitted take the basis-increase deductions before economic performance.

In conclusion, the Tenth Circuit held that Conoco was not entitled to the asserted “going-forward” or “basis-increase” deductions. The court disallowed Conoco’s going-forward deductions because Arco Transportation was not an “owner” or a “successor in interest” with respect to the additional TAPS interests acquired from 1977 to 2001. The court also disallowed the basis-increase deductions because the Closing Agreement’s allowance of a $900 million aggregate deduction did not fix a liability or provide Conoco with a blanket exemption from § 461(h) for that amount.

Accordingly, the district court’s award of summary judgment to the government was AFFIRMED.

Tenth Circuit: Collateral Order Doctrine Did Not Apply; Appeal Dismissed for Lack of Jurisdiction

The Tenth Circuit Court of Appeals published its opinion in United States v. Tucker on Tuesday, March 11, 2014.

A grand jury indicted Michael Scott Calhoun, Tommy Wayne Davis, and William Jeffrey Tucker (“Defendants”) on 60 counts of wire fraud, mail fraud, and conspiracy to commit wire and mail fraud. The indictment was based on Mr. Calhoun’s grand jury testimony in which he incriminated himself, Mr. Davis, and Mr. Tucker. Mr. Calhoun testified upon the advice of his counsel at the time, Tom Mills, who was paid by Texas Capital Bank, the alleged victim of the fraud.

After Mr. Calhoun secured new counsel, the Defendants moved to quash the indictment and suppress Mr. Calhoun’s grand jury testimony, contending the indictment was obtained in violation of the Fifth Amendment Indictment Clause, Mr. Calhoun’s Fifth Amendment privilege against self-incrimination, and Mr. Calhoun’s Sixth Amendment right to effective assistance of counsel. The district court denied the Defendants’ motion. Defendants appealed under the “collateral order” exception to the final judgment rule.

The Tenth Circuit held the collateral order doctrine did not apply and dismissed the appeals for lack of jurisdiction.

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949) recognizes a small class of district court orders that determine claims of right separable from, and collateral to, rights asserted in an action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. To fall within this small class, a district court order must satisfy three requirements: it must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the case, and [3] be effectively unreviewable on appeal from a final judgment. The Supreme Court has instructed that courts should use the exception to the finality requirement sparingly in the criminal context. Very few motions to dismiss an indictment—even if founded on a valid constitutional right—will give rise to interlocutory appellate jurisdiction.

Applying the Cohen factors, the parties agreed that the first two requirements were satisfied. The district court’s order (1) conclusively determined that (2) the indictment was substantively valid—an important conclusion that was separate from the Defendants’ guilt or innocence. The crucial question centered on the third collateral order requirement: whether the district court’s order was “effectively unreviewable” on appeal from final judgment.

The court concluded it was not. Defendants failed to demonstrate that they could not secure a remedy after trial on appeal from a final judgment. Here, Defendants could proceed to trial and, if convicted, raise the same challenges they presently brought in hopes of having their convictions overturned.

The Tenth Circuit DISMISSED the appeal for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 3/12/2014

On Wednesday, March 12, 2014, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

QFA Royalties v. Klahn

United States v. Perryman

United States v. Duggins

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