April 20, 2019

Archives for January 21, 2015

Colorado Supreme Court: Announcement Sheet, 1/20/2015

On Tuesday, January 20, 2015, the Colorado Supreme Court issued three published opinions.

LaFond v. Sweeney

In re Malm v. Villegas

West v. People

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Veracity of Affiant, Not Informant, At Issue to Establish Probable Cause for Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Long on Monday, December 22, 2014.

A Tulsa, Oklahoma police officer obtained a warrant to search an apartment after a reliable confidential informant provided information about a black male selling cocaine. Deanta Marquis Long answered when the police arrived to execute the warrant, holding a jar containing a white substance. He attempted to shut the door, but police forced their way in. They found him on the kitchen floor, with broken glass and white powder strewn about. There was a gun on the floor and another gun on the counter, and three other men were there also. Police found three baggies of white powder, a digital scale with white powder on it, baking soda, and a CD with the word “Cokeland” showing defendant pouring something from a liquor bottle into a measuring cup with scantily clad woman in the background. The apartment did not look lived in, and police subsequently obtained a second warrant to search defendant’s house.

Defendant was convicted by a jury of being a felon in possession of firearms and ammunition, attempting to manufacture cocaine base, possessing cocaine with the intent to manufacture cocaine base, and possession of firearms in furtherance of drug-trafficking crimes. He appealed, arguing (1) the affidavit failed to establish probable cause; (2) he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), challenging the affiant’s veracity; (3) the district court erred in denying his motion to compel discovery of the informant; and (4) the CD should not have been admitted because it was unfairly prejudicial. The Tenth Circuit examined each contention in turn.

Defendant complained that the affidavit did not sufficiently identify him, since it only described a “black male.” But because the warrant was issued to search a place, rather than to connect a person to a place, there was no need to specify the people who might be found at the place. Defendant next contended that the informant’s assertions were not corroborated by police investigation. In this case, however, the informant was one who had provided reliable information to the police multiple times in the past and who had been providing information for over 15 years. Courts have consistently provided that probable cause can be established solely on information from a reliable informant.

The Tenth Circuit next addressed defendant’s request for a Franks hearing. The defendant attacked the veracity and existence of the informant, but under Franks, only the veracity of the affiant was at issue. Because this informant had provided reliable information in the past, it was reasonable for the affiant to believe that the informant was again providing reliable information. Defendant asserted several reasons why the informant’s information was unreliable, seeking discovery of the informant. The Tenth Circuit noted that the trial court had examined the informant in camera and found that he existed, had knowledge of defendant and the drug activity, and provided the information to the officers. Defendant could not establish any special reason why disclosure of the informant’s identity was necessary under these circumstances. The informant could not have offered any information regarding defendant’s guilt in the case, and disclosure was unwarranted.

Turning to the admission of the CD, the Tenth Circuit found no error. The CD cover depicted defendant pouring liquid into a measuring cup, which a police officer testified is related to the manufacture of cocaine base, and the CD was found next to a digital scale, three baggies of white powder, and baking soda. Defendant asserted admission would allow the jury to reach an unfair conclusion regarding defendant’s guilt, but the Tenth Circuit disagreed, finding that the CD had his picture on it and was found next to the cocaine, inviting an inference that the cocaine was his. The chain of inference was not that defendant was acting in conformity with his bad character, but rather that the cocaine belonged to him. The CD’s probative value was not substantially outweighed by the danger of unfair prejudice.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Employee Must Be Able to Perform Essential Job Duties to Make Claim Under ADA and Title VII

The Tenth Circuit Court of Appeals issued its opinion in Myers v. Knight Protective Service, Inc. on Monday, December 22, 2014.

Alphonso Myers suffered a workplace injury, and was granted Social Security disability benefits on the ground he was unable to work. He then applied for and was selected for a position as a security guard for Knight Protective Service. During the interview process, he was asked repeatedly if he had any physical disabilities, and answered no each time. However, at work, his supervisor noticed he seemed to be in pain, and Myers confessed to having undergone several back and neck surgeries. The supervisor sent him home and told him he could not return to work unless he passed a physical examination. Several months passed, during which Myers waited for Knight to contact him to schedule the exam, but it did not happen, so Myers considered himself effectively terminated and sued Knight for race and disability discrimination, alleging several torts. The district court dismissed some of Myers’ claims and granted summary judgment to Knight on the rest. Myers appealed.

The Tenth Circuit affirmed the district court. In order to make a claim under the ADA and Title VII, the employee must show he was qualified to perform the essential functions of the job. Myers could not show qualification; in his application with Knight, he acknowledged he would be required to “engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.” He could do none of those activities.

The Tenth Circuit also rejected Myers’ assertion of disparate treatment based on race, finding no support for his allegations. The Tenth Circuit likewise rejected Myers’ complaint that the district court failed to address his “cat’s paw” argument as to his supervisor, since he failed to establish a prima facie case of discrimination by anyone. Myers’ tortious interference claims also failed for lack of evidence.

The Tenth Circuit affirmed the district court’s dismissal and summary judgment and granted the motion to seal certain medical records.

Tenth Circuit: District Court Free to Resentence Remaining Counts De Novo When One Count Set Aside or Vacated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Catrell on Monday, December 22, 2014.

Ronald Catrell was indicted in Kansas on several fraud-related counts with an understanding that he would plead guilty. However, he fled after posting bond. When he was returned to Kansas the following year, he entered a different, binding plea agreement, agreeing to a sentence of 120 months. Before sentencing, however, the district court allowed Catrell to withdraw his guilty plea. The government then procured an indictment with over 12 new criminal counts. Catrell and the government entered into a new binding plea agreement, where Catrell would plead guilty to the same four crimes as before and receive 132 months in prison. To reach the 132 months, the parties agreed to a 24-month sentence for aggravated identity theft and a combined 108-month sentence for the other three counts to run consecutively. Defendant subsequently pled guilty and affirmed approximately 12 times that he was doing so of his own free will. The court accepted the agreement and sentenced Defendant to 132 months, but crafted the sentence differently — 54 months for aggravated identity theft and 78 months for the other three charges. Defendant appealed his aggravated identity theft charge and asserted prosecutorial vindictiveness for withdrawing his initially-agreed-upon plea for 120 months.

The Tenth Circuit first addressed Defendant’s assertion of prosecutorial vindictiveness, and found none. The Tenth Circuit noted that binding precedent foreclosed Defendant’s arguments on review, because as long as the accused is free to take or leave the government’s plea offer, there is no element of punishment or revenge.

Turning to the sentencing issue, the Tenth Circuit found that the district court had sentenced Defendant illegally by imposing a 54-month sentence for aggravated identity theft. The pertinent statute, 18 U.S.C. § 1028A, mandates a two-year sentence for each incident of aggravated identity theft. The Tenth Circuit reversed and remanded for correction of the illegal sentence. However, it rejected Defendant’s contention that the district court could not amend the rest of Defendant’s sentence. The Tenth Circuit’s “sentencing package doctrine” counsels that when one count of a sentence is set aside or vacated, a district court is free to reconsider sentencing de novo.

The Tenth Circuit remanded for resentencing with specific instructions for the district court to feel free to amend the entire sentence to retain the original 132-month agreement.

Tenth Circuit: Unpublished Opinions, 1/20/2015

On Tuesday, January 20, 2015, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Twitty

United States v. $29,410.00 in U.S. Currency

United States v. Alabi

Carver v. Colvin

United States v. Jones

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