May 22, 2019

Archives for October 20, 2015

Tenth Circuit: Sixth Amendment Right to Counsel Attaches Only to Criminal Proceedings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Calhoun on Monday, August 10, 2015.

Michael Calhoun, along with two co-defendants, appeared before the Tenth Circuit seeking to appeal the district court’s denial of his motion to quash a 60-count indictment. At that time, the Tenth Circuit deemed the appeal premature and dismissed it for lack of subject matter jurisdiction. United States v. Tucker, 745 F.3d 1054 (10th Cir. 2014). Defendant then pleaded guilty to one count of conspiracy to commit wire or mail fraud, reserving the right to appeal the denial of his motion to quash. He was sentenced to five years’ probation and again appealed.

On appeal, Defendant argued that he suffered ineffective assistance of counsel at the grand jury, specifically arguing his criminal counsel encouraged him to incriminate himself in order to help the bank overturn a $65 million civil judgment related to Defendant’s scheme, thereby violating his Sixth Amendment right to counsel and requiring suppression of the grand jury testimony and quashing of the indictment. The Tenth Circuit found a fatal flaw in Defendant’s argument—the Sixth Amendment right to counsel does not attach until criminal proceedings have begun, so he had no right to counsel at the grand jury proceeding.

The district court’s denial of the motion to quash was affirmed.

Tenth Circuit: Vehicle Unlawfully Impounded when Legally Parked on Private Property

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sanders on Friday, August 7, 2015.

Beverly Sanders was arrested as she was leaving a store in Aurora, Colorado, based on an outstanding warrant for failure to comply with probation conditions. Her friend with whom she had been shopping was not detained at first, but was later arrested when police found a baggie of heroin near where he had been. Although the friend offered to find someone to remove Sanders’ car, the police impounded the vehicle, claiming it was at risk for theft or vandalism. A subsequent inventory search revealed methamphetamine, Ecstasy, and paraphernalia. Sanders was indicted for possessing controlled substances with intent to distribute. She moved to suppress the contents of the inventory search, and the district court granted her motion. The government filed a timely interlocutory appeal.

The government argued that seizure of the car was necessary pursuant to the community caretaking exception to the Fourth Amendment’s warrant requirement. The Tenth Circuit explored the strictures of the community caretaking exception in depth, explaining that it generally applies to protect the public safety or promote efficient movement of traffic, and that warrantless impoundments exercised as a pretext for investigation or not exercised according to standardized criteria are unconstitutional. Applying prior case law from its circuit and other circuits, the Tenth Circuit held that “impoundment of a vehicle on private property that is neither obstructing traffic nor creating an imminent threat to public safety is constitutional only if justified by both a standardized policy and a reasonable, nonpretextual community-caretaking rationale.” In this case, the vehicle was parked legally on private property, neither obstructing traffic nor threatening public safety. The Aurora Police Department’s standardized policy regarding vehicles legally parked on private property was to either have Sanders release them from potential liability if the car was left in the lot or have it towed by a private company. They neither offered Sanders these options nor explained their failure to do so, and thus the impoundment was unlawful. Additionally, the Tenth Circuit found the Aurora policies unlawful because they do not offer an officer discretion as to which option to choose. The Tenth Circuit held the impoundment was unlawful for an independent reason: it was not justified by a reasonable, non-pretextual community caretaking rationale.

The Tenth Circuit affirmed the district court’s suppression order.

Tenth Circuit: Unpublished Opinions, 10/20/2015

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

United States v. Scott

Parrino v. Archuleta

Pham v. James

Rivera v. Colvin

Dutton v. The City of Midwest City

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

Jeena Cho: What to Do When Everything Sucks

Editor’s Note: This post originally appeared on Above the Law on September 28, 2015. Reprinted with permission.

Jeena_ChoBy Jeena Cho

Most of us have experienced moments where everything just sucks. This can range from minor irritations such as standing behind the a**hole with 32 items in the express checkout line at the grocery store when the sign clearly says 12 item maximum, to major heartbreaks such as a loved one dying.

There’s a whole body of research that shows happiness or satisfaction with life has very little to do with external events and everything to do with how we interpret or perceive an event.

Shawn Achor, one of my favorite Harvard researchers and authors, said in his TED talk:

[I]f I know everything about your external world, I can only predict 10% of your long-term happiness. 90 percent of your long-term happiness is predicted not by the external world, but by the way your brain processes the world.And if we change it, if we change our formula for happiness and success, we can change the way that we can then affect reality. What we found is that only 25% of job successes are predicted by IQ, 75 percent of job successes are predicted by your optimism levels, your social support and your ability to see stress as a challenge instead of as a threat.

Which brings me to what to do when life just feels sucky. I often work with lawyers who are really unhappy with their jobs. Many of them are Biglaw lawyers trying to find some semblance of balance or find meaning in their work. One attorney I worked with had a crazy managing partner who had a tendency to scream, throw things, and slam the door to his office so hard that frames fell off the wall. Understandably, working for a mentally unstable person like this can make every moment of the workday feel like hell.

Yet, the research shows that much of her misery isn’t caused by the horrible managing partner but rather her reaction to his behavior. When we really examined the situation, it turns out, she had minimal contact with this managing partner — a couple of hours or less per week. Yet, she spent an inordinate amount of time fearing and thinking about this person and what he might do next. Obviously, she can’t control his behavior, but shecan limit how much airtime he got in her own head.

Additionally, when we carefully examined each interaction she had with this partner, not all interactions were negative. He didn’t always throw things, he didn’t always yell. However, because humans are hardwired toward a negativity bias and use cognitive shortcuts, she simply labeled him as the-most-horrible-human-being.

The way we interpret and frame a situation makes a huge difference in the way we experience it. For example, last week, I had an early morning networking meeting with another attorney. I got up extra early and spent well over an hour driving 20 miles in rush hour traffic. As I parked the car, I dropped him an email to let him know I was running few minutes late. He responded and said, “Sorry, I thought my secretary contacted you. I had a work emergency. I can’t make it this morning.” Needless to say, I was not very happy. I could notice my body and mind fill with irritation, frustration, and anger. My mind also started making up stories about the situation — he clearly doesn’t respect me or my time, he’s totally irresponsible, and so forth.

In mindfulness practice, we are taught to accept each moment, as is, without preference and judgment. In that moment, as I noticed all these negative emotions, narratives, and reactions bubble up to the surface, I was able to remind myself that I have absolute control over how I am going to feel about this situation. I can either allow the anger and frustration to take over or I can change my perception.

As I walked into Yerba Buena Gardens, a beautiful park in the heart of San Francisco, I practiced being in the moment. I looked up at the clear blue sky and took in the view of the park. I also noticed groups of tourists stopping to take pictures and realized how fortunate I was to call this place home. I also saw the many homeless people sleeping on the grass and thought but for the grace of God, I could be in their shoes.

I noticed my mind’s preference that I’d rather be at home, enjoying the extra hour of sleep, but also realized that’s like crying over spilled milk. I was awake; I was already here. I also noticed my mind’s judgment around this person’s behavior but also recognized how I, too, have been guilty of mismanaging my calendar or having unavoidable scheduling conflicts.

I found a park bench and sat in the sun (which is rare in San Francisco) and simply took in the beauty of this city. I was grateful for having this unexpected hour of free time. Then I noticed a hummingbird flying above my head, going from one flower to another. I sat there in the park enjoying the sounds of the birds chirping, listening to the sounds of the water fountain, and noticing the energy change as the city started waking up. The hummingbird, as if noticing my mood, stopped right in front of my face, just a few feet away, hovering. It felt as though I was being embraced by life.

So, my invitation to you, my dear reader is this: remember that the ability to find happiness in each moment lies within you. Instead of looking at all the ways in which the moment isn’t perfect, ask yourself — what am I grateful for?

Finally, I’ll leave you with words of wisdom from Rumi:

Be empty of worrying.
Think of who created thought!

Why do you stay in prison
When the door is so wide open?

Jeena Cho is co-founder of JC Law Group PC, a bankruptcy law firm in San Francisco, CA. She is also the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation (affiliate link), as well as How to Manage Your Law Office with LexisNexis. She offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity. She’s the co-host of the Resilient Lawyer podcast. You can reach her at smile@theanxiouslawyer.com or on Twitter at @jeena_cho.

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.

Tenth Circuit: Plain Language of Insurance Contract Bars Coverage for Actions Brought by Receivers Against Directors

The Tenth Circuit Court of Appeals issued its opinion in BancInsure, Inc. v. Federal Deposit Insurance Corporation on Thursday, August 6, 2015.

Columbian Bank & Trust obtained an insurance policy from BancInsure where BancInsure agreed to pay losses the insured would be legally obligated to pay. The policy contained an “insured v. insured” exclusion which barred recovery for claims “by, on behalf of, or at the behest of . . . any . . . receiver of the company” and a regulatory exclusion, barring coverage for any action brought by or on behalf of any state or regulatory agency, including actions brought by those agencies as receiver. However, Columbian purchased a regulatory exclusion endorsement that amended the policy by the deletion of the regulatory exclusion.

In August 2008, the Kansas State Bank Commissioner declared Columbian insolvent and appointed the FDIC as receiver. In September 2008, BancInsure received notice of claims the FDIC intended to file against Columbian’s officers and directors. In anticipation of such suit, Columbian’s parent company and director-defendant Carl McCaffree brought suit against BancInsure, seeking a declaratory judgment that the policy covered claims brought after the company was declared insolvent but before the policy’s expiration date. The district court ultimately held that the policy remained in effect until May 2010. On appeal, the Tenth Circuit held that no case or controversy existed at the time of the judgment and remanded with instructions to vacate the judgment.

BancInsure filed suit in Kansas state court in August 2011, seeking a declaratory judgment that it owed no duty of coverage to the director-defendants for claims brought against them by the FDIC-R. The FDIC-R joined the action and removed it to federal court, simultaneously bringing claims against several of Columbian’s directors and officers for negligence, gross negligence, and breach of fiduciary duty. BancInsure, the FDIC-R, and the director-defendants reached a settlement in February 2013 in which BancInsure agreed to make payments in partial satisfaction of the judgment, reserving the right to seek reimbursement if it succeeds in this litigation.

The parties filed cross-motions for summary judgment on the issue of coverage. The district court granted BancInsure’s motion, finding the insured v. insured exclusion unambiguously barred coverage for claims by the FDIC-R against director-defendants. The FDIC-R and director-defendants timely appealed. Meanwhile, BancInsure was placed into receivership and the Kansas Insurance Guaranty Association intervened to defend BancInsure’s rights.

On appeal, the Tenth Circuit examined BancInsure’s contract with Columbian and found no ambiguity in the insured v. insured exclusion. The Tenth Circuit found the plain meaning of the exclusion barred coverage for claims brought by receivers against director-defendants. Appellants argued the policy as a whole should be construed as ambiguous because the shareholder derivative action exclusion renders the insured v. insured exclusion ambiguous and because the regulatory exclusion renders the insured v. insured exclusion ambiguous as to claims brought by the FDIC. The Tenth Circuit first examined the shareholder derivative action exclusion and found no ambiguity because the insured v. insured exclusion specifically referenced receivership actions. Next, the Tenth Circuit found that the regulatory exclusion did not render the insured v. insured exclusion ambiguous because claims could still be brought by other regulatory agencies that were not appointed receivers.

The Tenth Circuit affirmed the district court’s grant of summary judgment to BancInsure.

Tenth Circuit: Image on License Plate Conveys Message of Oklahoma’s Native American History

The Tenth Circuit Court of Appeals issued its opinion in Cressman v. Thompson on Tuesday, August 4, 2015.

In 2008, a task force created by the Oklahoma legislature chose a new design for the standard Oklahoma state license plate featuring an image of a Native American shooting an arrow into the sky along with the words “Native America.” The design is based on a sculpture by an acclaimed Oklahoma artist depicting a story in which an Apache warrior fired an arrow blessed by a medicine man into the heavens in order to carry prayers for rain into the spirit world. The license plate design was chosen as a “mobile billboard” to promote tourism in Oklahoma.

Keith Cressman, an Oklahoma resident with conservative Christian beliefs, objected to the standard license plate because he believed it promoted a message of pantheism with which he disagrees. Cressman tried to avoid displaying the message by covering it but was told that covering any part of the license plate is illegal. Cressman objected to having to purchase a specialty plate and asserted that the state should give him a specialty plate at no extra charge. He filed a 42 U.S.C. § 1983 lawsuit in November 2011, alleging that the license plate constituted forced speech in violation of his First Amendment rights and requesting an injunction prohibiting state officials from prosecuting him for covering the image or, alternatively, requiring the Oklahoma Tax Commission to provide him a specialty plate at the same cost as the standard plate.

Defendants filed motions to dismiss based on lack of standing and failure to state a claim. The district court determined that Cressman had standing but dismissed the claim because Cressman had failed to state a plausible claim of compelled speech. Cressman appealed, and the Tenth Circuit determined that he had Article III standing and reversed for further proceedings based on the panel’s conclusion that Cressman’s complaint stated a plausible compelled-speech claim. On remand, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to certain defendants and held a bench trial regarding the remaining claims. The district court ultimately concluded the Native American image did not provide a basis for Cressman’s First Amendment claim. Cressman again appealed.

The Tenth Circuit, engaging in de novo review, first discussed how the law of the case doctrine applied based on its previous ruling, thus precluding the defendants’ preliminary arguments that Cressman lacked standing. The Tenth Circuit also rejected defendants’ argument that because Cressman does not utilize the standard license plate at issue he does not have standing, finding instead that Cressman suffered an injury in fact by being forced to use the license plate, cover it illegally, or purchase a specialty plate at an extra cost. The Tenth Circuit also rejected defendants’ claim that the license plate was government speech, finding that private First Amendment rights could still be implicated because the license plates are “readily associated” with vehicle owners and the cars act as “mobile billboards” for the state.

Turning to the substance of the appeal, the Tenth Circuit characterized Cressman’s sole argument as whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either use the standard license plate with no modifications or purchase a specialty plate at extra cost. The Tenth Circuit found Cressman’s argument failed because he could not demonstrate that the Native American image was in fact the speech to which he objected. The Tenth Circuit found that although a reasonable observer might know the history of the image of the warrior shooting an arrow into the sky, that same reasonable observer would know that the image was chosen to further tourism in Oklahoma based on its history with Native Americans. Although Cressman argued it was “eminently reasonable” for an observer to associate the image with the pantheistic ideals of Native Americans, the Tenth Circuit disagreed. The Tenth Circuit concluded that the image conveyed the precise message intended by the Oklahoma task force — that Oklahoma’s history and culture has been strongly influenced by Native Americans — and found that it qualified as symbolic speech. Because Cressman expressly did not object to any message other than the pantheistic message, and because the message conveyed by the license plate was not that pantheistic message, the Tenth Circuit found he was not compelled to express a view to which he would otherwise object.

The Tenth Circuit affirmed the district court’s judgment in favor of the defendants. Judge McHugh concurred; she would have simplified the analysis pursuant to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).

Tenth Circuit: Unpublished Opinions, 10/19/2015

On Monday, October 19, 2015, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

In re Expert South Tulsa, LLC: LTF Real Estate Co., Inc. v. Expert South Tulsa, LLC

United States v. Melot

United States v. Corchado-Aguirre

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