May 19, 2019

Archives for October 19, 2015

Tenth Circuit: Enticement of a Minor Conviction Affirmed Regardless of Defendant’s Intent to Engage in Specific Acts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Faust on Tuesday, August 4, 2015.

David Faust exchanged a series of email and text messages with an FBI agent posing as a 37-year-old woman named “Joelle,” where he agreed to pay $200 for a sexual encounter with Joelle and her 12-year-old daughter. On the day of the agreed-upon encounter, he told Joelle he did not have the money, and she said that the sexual encounter would only be with her young daughter. He agreed to meet Joelle and the daughter at a motel. He drove to the motel but did not park; instead, he turned around and got on the highway, where he was arrested. He was indicted on one count of attempted online enticement of a minor, and, after a jury trial, he was convicted and sentenced to 10 years’ imprisonment followed by 10 years’ supervised release.

Faust appealed, arguing the evidence was insufficient to support his conviction and that the district court abused its discretion by refusing his proposed specific intent jury instruction. The Tenth Circuit first addressed Faust’s sufficiency argument. Faust contended that by driving away from the motel he showed that he had no intention of following through with the arrangement for a sexual encounter with Joelle’s daughter and therefore the government failed to show that he took a substantial step toward illegal sexual activity. The Tenth Circuit noted that a jury could well have disagreed with Faust’s characterizations of why he drove away from the parking lot but also found that it need not reach Faust’s argument because it was predicated on a misunderstanding of the mens rea element of the offense. The Tenth Circuit noted the government was only required to show that Faust intended to entice a minor, not that he intended to commit the underlying sexual act. The Tenth Circuit found ample evidence to support that Faust took a substantial step toward the inducement, enticement, or persuasion of a minor. The Tenth Circuit also noted that it was of no consequence that Faust’s communications were through an adult intermediary. The Tenth Circuit noted that even if Faust had never traveled to the motel the evidence was sufficient to support his conviction based on his conveyed desire to follow through with the sexual act with the daughter after the mother said she would be unavailable.

The Tenth Circuit also rejected Faust’s argument that the district court erred in refusing his specific intent instruction. Although Faust failed to properly preserve the issue for appeal, the government failed to raise that as a bar to review, so the Tenth Circuit reviewed the issue for abuse of discretion. The Tenth Circuit noted that specific intent instructions are disfavored because of their potential to confuse the issues, and the better practice is to instruct on the intent necessary for the crime of conviction. The Tenth Circuit analyzed the jury instructions and found they sufficiently advised that the requisite mens rea was that defendant “knowingly” act. Because the district court correctly defined “knowingly,” the Tenth Circuit found no abuse of discretion in its rejection of the specific intent instruction.

The district court’s judgment was affirmed.

Tenth Circuit: Exception to Open and Obvious Doctrine Applies Where Employees Must Confront Danger for Work

The Tenth Circuit Court of Appeals issued its opinion in Martinez v. Angel Exploration, LLC on Tuesday, August 4, 2015.

Jesus Martinez was employed Smith Contract Pumping (SCP) to conduct routine inspections on oil wells in Oklahoma. While inspecting a well owned by Angel Exploration, LLC, Martinez dropped a tool. As he bent to retrieve it, the sleeve of his sweatshirt was caught in Angel’s unguarded pump jack and his hand was pulled into the well, severing his thumb. Martinez received workers’ compensation benefits from SCP but also filed tort claims against Angel, alleging that the lack of guarding was an unreasonably dangerous condition and Angel was negligent in failing to inspect its wells and to warn or take other precautions to protect Martinez. During discovery, SCP admitted Angel relied on SCP to report any needed repairs or adjustments to Angel, but also said that SCP’s employees were not trained on what guards were needed on a pump jack. And although Angel’s managing member admitted that the lack of a guard would be obvious to anyone who saw the well, he also said Angel never confirmed that SCP knew what was required by safety regulations, including a relevant OSHA regulation. Martinez testified that although he was aware the well was not guarded, he did not know he was supposed to report that, and another person testified that the well had not been guarded since 2003.

Martinez brought additional claims against Angel, averring that his claims fell within the Oklahoma Workers’ Compensation Act’s intentional tort exception. He sought actual and punitive damages and his wife brought derivative claims for loss of consortium and household services. Angel moved for summary judgment. The district court found the danger imposed by the unguarded well was open and obvious and therefore Angel had no duty to warn or otherwise remedy the condition. The court also found that the Oklahoma Workers’ Compensation Act’s intentional tort exception did not apply because there was no evidence Angel intentionally caused the tort. The district court also entered summary judgment on Martinez’ wife’s claims since they were derivative.

Martinez appealed, arguing (1) Angel’s failure to comply with the OSHA regulation constituted negligence per se; (2) because Martinez’ attention was distracted, fact issues exist as to whether the danger was open and obvious; (3) there were competing inferences as to whether Martinez fully appreciated the danger of the unguarded belt and whether it had a deceptively innocent appearance; and (4) even if the danger was open and obvious, Angel should have anticipated harm. The Tenth Circuit summarily dismissed the first two arguments as forfeited because they were not raised in district court. The Tenth Circuit also rejected the third argument, finding reasonable minds could not differ as to the open and obvious nature of the unguarded belt. As to the fourth argument, however, the Tenth Circuit reluctantly reversed due to an intervening Oklahoma Supreme Court decision that greatly changed application of the open and obvious doctrine.

The Tenth Circuit analyzed Wood v. Mercedes-Benz, 336 P.3d 457 (Okla. 2014), and found that it dramatically changed Oklahoma’s law regarding open and obvious dangers to invitees. Wood recognized an exception to the open and obvious doctrine where the invitee was required to confront the open and obvious danger as a condition of employment. The Tenth Circuit found Martinez’ case indistinguishable from Wood, and remanded for the parties to brief and argue the scope of Wood and how Oklahoma courts might resolve the question of whether Angel had notice that its well was unguarded.

The Tenth Circuit next turned to Martinez’ claim that Angel’s failure to guard the well constituted an intentional tort. The Tenth Circuit rejected this argument, finding that the district court correctly rejected this alternative theory of liability. Martinez resisted Angel’s argument that at the time of the accident he was a statutory employee of Angel and therefore the Workers’ Compensation Act’s exclusive remedy provision applied. The Tenth Circuit rejected Martinez’ argument.

The district court’s grant of summary judgment to Angel on the intentional tort claim was affirmed. The district court’s grant of summary judgment to Angel on the open and obvious claim was reversed and remanded for reconsideration in light of Wood.

Tenth Circuit: Combination of Factors Sufficient to Provide Reasonable Suspicion for Vehicle Search

The Tenth Circuit Court of Appeals issued its opinion in United States v. Moore on Thursday, July 30, 2015.

Tracey Moore was driving through Oklahoma when he was pulled over for going three miles per hour over the speed limit. The trooper ordered him to get out of the car give the officer his license and registration. Moore complied, meeting the trooper in front of his patrol car. The trooper later testified that Moore seemed excessively nervous, even after he advised that he was only going to issue a warning. The trooper completed the warning, returned Moore’s documents to him, and told him to have a good day. Before Moore could go, though, Trooper Villines asked if he could speak to Moore a bit longer. The trooper asked Moore if he had ever been in trouble before. Moore said he had but did not want to discuss the details, adding he “could probably look it up easy enough.” The trooper then asked Moore if he had anything illegal in the car and Moore said no. Trooper Villines asked for consent to search the vehicle and Moore refused. At that point, the trooper advised Moore that he was being detained so a dog could sniff his vehicle.

Approximately two and a half minutes later, Trooper Fike and his dog, Jester, arrived. As they were walking around the rear of Moore’s vehicle, Jester snapped his head around and jumped through the open driver’s side window. Jester had his nose on the center console and was wagging his tail. Villines and Fike then searched Moore’s vehicle. Although they found no drugs, there was a sawed-off shotgun and ammunition in the trunk. Because Moore had a prior felony conviction, he was arrested and indicted on three counts: (1) being a felon in possession of ammunition, (2) knowingly transporting in interstate commerce a sawed-off shotgun, and (3) being a felon in possession of a firearm. He moved to suppress all evidence obtained during the traffic stop, arguing Trooper Villines lacked reasonable suspicion to detain him after the traffic stop was completed and Jester’s entry into his vehicle constituted an illegal search in violation of the Fourth Amendment. The district court denied his motion. Moore pleaded guilty to Count 1, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 24 months’ imprisonment followed by three years’ supervised release.

On appeal, Moore argued the district court erred in denying his motion to suppress because the trooper’s decision to detain him unreasonably exceeded the initial scope of the traffic stop and the trooper lacked reasonable suspicion of illegal activity. The government contended that Moore’s excessive nervousness, his acknowledgment of a prior criminal history, and his admission that he had recently been added to the car’s registration were sufficient to provide reasonable suspicion to Trooper Villines. The Tenth Circuit agreed. Although none of the factors in isolation was enough to support reasonable suspicion, taken as a whole they provided sufficient basis for the dog sniff.

Moore also argued that when the dog jumped into his vehicle the search became unlawful because the dog did not properly alert before jumping into the vehicle and because Jester “was acting like a police officer when he was allowed to go inside [the] vehicle.” The Tenth Circuit disagreed. Following prior precedent, the Tenth Circuit found no error in allowing the dog to sniff the exterior of the vehicle, and because the window was open the officers did not manipulate the evidence to get their desired result.

The Tenth Circuit affirmed the district court’s denial of Moore’s suppression motion.

Tenth Circuit: Unpublished Opinions, 10/16/2015

On Friday, October 16, 2015, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

United States v. Hines

United States v. Fry

Palacios-Yanez v. Lynch

Nelder v. Worley

Rathbun v. Montoya

Singh v. Lynch

Chapman v. Lampert

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