April 25, 2019

Tenth Circuit: When Defendant Enters Guilty Plea to Drug Charge with Attendant Quantity, Defendant Subject to Enhanced Penalties Associated Therewith

The Tenth Circuit Court of Appeals issued its opinion in United States v. Roe on Tuesday, January 29, 2019.

Mr. Roe plead guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine. Pursuant to the terms of Mr. Roe’s plea agreement, the government requested a sentence below the twenty-year mandatory minimum. The district court sentenced Mr. Roe to a fifteen-year imprisonment.

Mr. Roe filed a § 2255 motion to vacate, set aside, or correct his sentence. He asserted trial counsel was ineffective for failing to challenge the drug quantity at the sentencing hearing, and for failing to file a notice of appeal as requested. The district court denied the drug-quantity claim, concluding Mr. Roe’s guilty plea established the relevant quantity. After trial counsel testified Mr. Roe never requested a notice of appeal be filed, Mr. Roe sought to amend his failure-to-file claim to focus on trial counsel’s failure to consult with him as to whether an appeal should be filed. The district court concluded that the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set forth in the original § 2255 motion, or in the alternative, the failure-to-consult claim failed on the merits.

The Court of Appeals affirmed the district court’s rulings. The Court held that when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with the quantity. The Court also held Mr. Roe’s failure-to-consult claim did not relate back to his failure-to-file claim, and was therefore untimely.

In his original § 2255 motion, Mr. Roe asserted trial counsel should have objected at the sentencing to the applicability of the quantity-based, statutory mandatory minimum sentence. Specifically, Mr. Roe took issue with the quantity of drugs calculated in the  Presentence Investigation Report. The district court rejected Mr. Roe’s argument, finding that Mr. Roe knowingly and voluntarily admitted in the plea agreement that he conspired to distribute and possess with intent to distribute five kilograms or more of cocaine.

The district court concluded that the precise amount of drugs calculated in the Presentence Investigation Report was immaterial, because Mr. Roe’s plea to a conspiracy involving five kilograms or more of cocaine established the statutory minimum for his sentence. The district court noted that Mr. Roe never lodged a substantive, stand-alone challenge to the factual basis of his guilty plea. In other words, Mr. Roe did not seek to invalidate his plea on the basis that it is not supported by an adequate factual basis; instead, he attempted to escape the burden of his guilty plea while maintaining the benefits flowing from the plea agreement. The district court ruled that because Mr. Roe entered the guilty plea, the trial counsel’s failure to object to the sentence was neither deficient nor prejudicial.

On appeal, Mr. Roe argued that the district court erred in determining that the admission in his guilty plea established the applicability of the mandatory minimum. The Court of Appeals disagreed, finding that a knowing and voluntary guilty plea to a charge with an attendant quality element subjects the defendant to any enhanced penalties associated with that quantity. Therefore, the district court was correct in its ruling that Mr. Roe’s guilty plea established the applicability of the mandatory minimum, and thus Mr. Roe’s claim that his trial counsel was ineffective for failing to object to the applicability of the twenty-year mandatory minimum sentence must fail. 

Mr. Roe also asserted in his original § 2255 motion that he specifically instructed his trial counsel to file a notice of appeal. Following an evidentiary hearing, trial counsel testified that an appeal had never been discussed, and Mr. Roe had never instructed him to file a notice of appeal. Mr. Roe then sought to amend his § 2255 motion to include a failure-to-consult claim, and argued that his conduct during representation should have led trial counsel to believe Mr. Roe was interested in filing an appeal. In support of this position, Mr. Roe asserted that the question of whether the PSR attributed too much cocaine to Mr. Roe and whether there was a sufficient factual basis for a guilty plea to the conspiracy count. The district court concluded that the failure-to-consult claim was a new theory, and therefore time-barred. In the alternative, the district court further rejected the failure-to-consult claim on the merits.

The Court of Appeals agreed with the district court, concluding that the failure-to-consult claim set out in the amended § 2255 motion was based on an entirely new theory that would have had to be pleaded discreetly and supported by separate, specific factual averments. Therefore, the failure-to-consult claim did not assert a claim that arose out of the conduct in the original pleading and thus did not relate back to the original pleading. The Court of Appeals therefore held that because the failure-to-consult claim did not relate back to the original pleading, and was filed well past the one-year statute of limitation period, the failure-to-consult claim was time-barred.

Tenth Circuit: No Error in Failing to Grant Mistrial After Prosecution Elicited Previously-Barred Testimony

The Tenth Circuit Court of Appeals issued its opinion in United States of America v. Hargrove on Wednesday, January 2, 2019.

Defendant Mr. Hargrove was convicted and sentenced to sixty months imprisonment for conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846, and of possession with intent to distribute 100 kilograms or more of a substance containing a detectable amount of marijuana, and aiding and abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

Mr. Hargrove raised two challenges on appeal. First, the district court erred in failing to grant him a mistrial after the prosecutor elicited testimony that the district court had previously barred. Second, the district court erred in failing to grant him safety-valve relief under § 5C1.2 of the United States Sentencing Guidelines (U.S.S.G.). The Court of Appeals found no error in the district court’s rulings, and affirmed the district court.

Mr. Hargrove and two others were all found in Mr. Hargrove’s truck in the desert near the border between Arizona and New Mexico. Mr. Hargrove’s truck contained nearly 300 pounds of marijuana and two firearms. Prior to trial, Mr. Hargrove filed a motion in limine, in part to request that the district court exclude evidence that one of the firearms was stolen. The district court ruled that this evidence was inadmissible, as the risk of prejudice substantially outweighed any conceivable relevance, but allowed testimony about the presence of loaded firearms in the truck.

During trial, the prosecutor elicited testimony about the stolen gun, to which Mr. Hargrove’s counsel promptly objected and moved for mistrial. The court instructed the jury that they were to disregard anything regarding the firearm or its ownership. The prosecutor also took remedial measures during the remainder of the trial. Specifically, the prosecutor withdrew an exhibit displaying weapons retrieved from the truck, did not seek testimony from its expert witness regarding the use of firearms in the narcotics trade, and did not discuss either firearm during its closing arguments.

Following Mr. Hargrove’s conviction, Mr. Hargrove argued that he qualified for the safety-valve adjustment during sentencing under U.S.S.G. § 5C1.2. The district court denied Mr. Hargrove safety-valve relief.

With respect to the district court’s denial of Mr. Hargrove’s motion for mistrial, the Court weighed the three factors of the Meridyth test. First, the Court considered whether the prosecutor acted in bad faith. The Court noted that the prosecutor had specifically instructed the witness not to testify about the stolen nature of the gun. Further, the prosecutor’s conduct in immediately accepting responsibility for the improper testimony and taking steps to mitigate its prejudicial effects throughout the remainder of the trial was a strong indication that the prosecutor did not act in bad faith. The Court found this factor to weigh in favor of the government.

Next, the Court considered whether the district court limited the effect of the improper statement through its instructions to the jury. The Court noted that the district court gave two limiting instructions to the jury, one directly following the improper testimony, and one following the close of evidence. Because the district court had expressly and specifically emphasized that the jury was not to consider the improper statement for any purpose, the Court presumed the jury understood it was obliged not to consider any inferences based on such testimony and found this factor to weigh in favor of the government.

Finally, the Court considered whether the improper remark was inconsequential in light of the other evidence of the defendant’s guilt. The Court found that there was undisputed testimony which unequivocally indicated Mr. Hargrove was aware of and actively participated in the drug exchange, and any improper effect the improper statement may have had on the jury paled in comparison to the total weight of the government’s evidence, and therefore found this factor to weigh in favor of the government. Because the Court found all three factors weighed in favor of the government, the Court concluded that the district court did not err in denying Mr. Hargrove’s motion for a mistrial.

Mr. Hargrove also asserted the district court erred in denying him a U.S.S.G. § 5C1.2 safety-valve adjustment during sentencing. The district court had concluded that Mr. Hargrove was ineligible for the safety-valve reduction because the loaded firearms were located in the truck in close proximity to the drug trafficking, and had the potential to facilitate the drug trafficking. Mr. Hargrove argued on appeal that his possession of the firearms was unrelated to the drug-trafficking activity.

The Court disagreed. The Court explained that in evaluating the firearms provision of the safety-valve provision, there is a focus on the defendant’s own conduct and the nature of possession. The Court stated that active possession, by which there is a close connection linking the individual defendant, the weapon, and the offense, is sufficient to bar the application of the safety-valve. The Court noted that Mr. Hargrove had made no argument that the firearms were not his nor that the firearms were merely constructively possessed, instead Mr. Hargrove had conceded actual possession of the firearms by admitting that the firearms belonged to him and that he had brought them in the vehicle to the scene of the arrest. The Court held that for purposes of satisfying the safety-valve criteria, a firearm is possessed in connection with the offense if the firearm facilitates are has the potential to facilitate the offense. The Court therefore concluded that the district court did not err in denying safety-valve relief.


Tenth Circuit: District Court Erred in Treating Defendant’s Prior Convictions as “Violent Felonies” Under ACCA


The Tenth Circuit Court of Appeals issued its opinion in United States v. Bong on Monday, January 28, 2019.

Defendant Troy Bong was convicted of being a felon in possession of a firearm and sentenced to 293 months of imprisonment. Because Mr. Bong had prior Kansas state convictions for robbery and aggravated robbery, the district court found Mr. Bong was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). Mr. Bong filed a motion to vacate, set aside, or correct his sentence pursuant to § 2255.

The district court granted a Certificate of Appealability (“COA”) on two of Mr. Bong’s grounds for relief, and denied Mr. Bong’s § 2255 motion. On appeal, the Court of Appeals granted a COA on two additional issues.

Mr. Bong first asserted that under Johnson v. United States, his prior convictions did not qualify as violent felonies, and he was therefore improperly sentenced under the ACCA. The district court rejected this argument, and concluded that the elements of robbery under Kansas law incorporated the physical force necessary to constitute a violent offense for purposes of the ACCA.

On appeal, the Court evaluated whether the Kansas robbery statute and the Kansas aggravated robbery statute have as an element the use, attempted use, or threated use of physical force against the person of another, and would thus be violent felonies for purposes of the ACCA. Citing to federal law, the Court of Appeals outlined the meaning of the ACCA’s elements clause as referring to the active, attempted, or threatened employment of violent force—force capable of causing physical pain or injury—against the person of another.

With respect to the Kansas robbery statute, the Court of Appeals first identified the minimum force required by Kansas law to constitute the crime of robbery. The Court found the Kansas state robbery statute may be violated with minimum actual force (i.e., a defendant may be convicted of robbery under Kansas law without using violence or the actual application of force to the person of another). The Court therefore held that the Kansas robbery statute does not qualify as a violent felony under the ACCA, and thus a conviction under the statute cannot serve as a predicate offense for purposes of the ACCA’s sentence enhancement provisions.

In evaluating the Kansas aggravated robbery statute, the Court found that the simple possession of a weapon, rather than the use of a weapon, is a sufficient means of being “armed” for purposes of a conviction under the statute. The Court noted that had the Kansas aggravated robbery statute required the use of a dangerous or deadly weapon, then a conviction under the statute would constitute a predicate offense under the ACCA. However, the Court found that merely being armed with a weapon during the course of a robbery is not sufficient to render the crime a violent crime for purposes of the ACCA.

The Court therefore held that Mr. Bong’s Kansas convictions for robbery and aggravated robbery did not constitute violent felonies for purposes of the ACCA. The Court therefore reversed the district court’s denial of Mr. Bong’s § 2255 motion, and remanded for further proceedings.

Mr. Bong next asserted that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. The district court denied the claim. The Court of Appeals did not address the claim, having already concluded the district court erred in basing Mr. Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery convictions.

Mr. Bong also asserted his trial counsel was ineffective for failing to investigate the facts of the alleged crime. The district court rejected this claim, finding that Mr. Bong’s § 2255 motion failed to identify any material matters that trial counsel failed to investigate.

The Court of Appeals affirmed in part, finding that the district court properly rejected Mr. Bong’s allegation with one exception. While incarcerated, Mr. Bong allegedly discovered the existence of evidence in support of his argument that the firearm evidence was obtained in violation of his Fourth Amendment rights. The district court did not expressly address the claim in denying Mr. Bong’s § 2255 motion, concluding that it was a new claim and barred by the statute of limitations. The Court of Appeals reversed and remanded for further proceedings with respect to this issue, finding that in rejecting the claim as time-barred, the district court failed to consider the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

Finally, Mr. Bong contended that the district court erred in dismissing his claim that the prosecution suppressed the evidence Mr. Bong discovered while incarcerated. The district court rejected this claim as time-barred. Citing again to the district court’s failure to consider that Mr. Bong’s § 2255 motion was filed within one year of Mr. Bong’s discovery of the existence of the evidence at issue, the Court of Appeals reversed and remanded for further consideration.


Tenth Circuit: SEC Asserted Sufficient Evidence that Defendants Were Operating Ponzi Scheme

The Tenth Circuit Court of Appeals issued its opinion in Securities and Exchange Commission v. Traffic Monsoon, LLC on Thursday, January 24, 2019.

The district court ordered the appointment of a receiver and granted a preliminary injunction enjoining Defendants from continuing business. On interlocutory appeal, the Tenth Circuit Court of Appeals affirmed the district court’s preliminary rulings.

Traffic Monsoon is a Utah-based company that allegedly makes most of its money selling internet advertising packages to its members. Members who purchase the “Adpack” package also qualify to share in Traffic Monsoon’s revenue. Approximately 90% of Traffic Monsoon’s members reside outside the United States, and presumably bought the Adpacks while in their home countries.

The SEC alleged that the sale of the Adpacks constituted an illegal Ponzi scheme in violation of § 10(b) of the Exchange Act and § 17 of the Securities Act. The SEC asserted that, regardless of where the transactions had occurred, the Dodd-Frank amendments allowed the SEC to pursue its claims based on significant, allegedly wrongful conduct in the United States.

The SEC obtained from the district court an order for the appointment of a receiver over Defendants’ business and assets, and a preliminary injunction enjoining Defendants from continuing business. On interlocutory appeal, Defendants challenged the district court’s preliminary rulings on three theories.

First, Defendants argued that the antifraud provisions of the federal securities acts do not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living outside the U.S., which amounted to 90% of Traffic Monsoon’s Adpack sales.

The Court noted that while the originally enacted federal securities acts did not address the extraterritorial reach of the acts’ antifraud provisions, courts had historically applied the acts’ antifraud provisions extraterritorially when the “conduct-and-effects” test was satisfied, and treated the issue as a matter of subject-matter jurisdiction. However, Morrison v. National Australia Bank limited the substantive scope of the federal securities laws to U.S. based transactions, and held that the extraterritorial extent of U.S. law is not a jurisdictional issue, instead the issue goes to the substance of the securities laws.

The Court noted that the initial versions of the Dodd-Frank amendments had been drafted before the Morrison decision, and while Congress is deemed to be familiar with Supreme Court precedent when it enacts legislation, in the instant case it was more reasonable to assume that Morrison was issued too late in the legislative process to reasonably permit Congress to react to it.

The Court concluded that Congress had intended the Dodd-Frank amendments to allow the SEC and the United States to sue based on conduct or effects within the United States, regardless of where the securities transactions occurred. In other words, the SEC may bring an enforcement action based on allegedly foreign securities transactions involving non-U.S. residents if sufficient conduct occurred in the United States. The Court therefore applied the “conduct-and-effects” test, and concluded that the SEC’s allegations satisfied the test. Defendants had operated in the United States while allegedly defrauding foreign investors.

Second, Defendants argued that Adpacks are not “securities” and are therefore not subject to federal securities laws. The Court first found that the Adpack is an investment because it offered its purchasers an opportunity to share in Traffic Monsoon’s revenue in addition to the purchased advertising service, and the revenue sharing was in fact the primary drive for purchasing the Adpack. Next, the Court found that the Adpack is a common enterprise, because the shared revenue was generated from the sale of Traffic Monsoon’s advertising services. Finally, the Court found that the revenue Adpack purchasers share is derived almost exclusively from Defendants’ efforts to sell advertising services. The Court therefore concluded that the Adpacks qualified as securities because they met the three-part test for investment contracts.

Finally, Defendants argued that the SEC could not show that Defendants engaged in a fraudulent securities scheme with the requisite scienter. The Court rejected this argument, and found that the SEC had presented sufficient evidence that Defendants were operating an illegal Ponzi scheme with the required scienter, as Defendant’s were operating a Ponzi scheme, which is inherently deceptive because it gives the false appearance of profitability by using money from new investors to generate returns for earlier investors.

In a concurring opinion, Justice Briscoe rejected the premise that the Adpacks were foreign sales outside of the U.S., abating the need to address whether the antifraud provisions of the securities act apply extraterritorially. Instead, the SEC’s allegations satisfied Morrison’s transactional test, because Defendants had sold their products over the internet and had incurred irrevocable liability in the United States to deliver the products to the buyers, wherever located. Therefore, the SEC had sufficiently established that the Defendants sold securities in the United States in violation of the antifraud provisions of the securities acts.

Tenth Circuit: Prejudicial Nature of Prosecutor’s Improper Conduct Did Not Significantly Affect Outcome of Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Simpson v. Carpenter on Thursday, December 27, 2018.

Oklahoma prisoner Kendrick Simpson sought federal habeas relief from his death sentence for two counts of first-degree murder. The district court denied Simpson’s petition and on appeal, the Court of Appeals found no reversible error and affirmed.

Following an altercation in a night club, Mr. Simpson had fired multiple shots at a moving vehicle containing three passengers. Two of the three passenger victims died at the scene from their gunshot wounds. The State of Oklahoma charged Mr. Simpson with the first-degree murders of the two passenger victims, and with discharging a firearm with intent to kill the third passenger. The prosecution sought a penalty of death for each murder.

The jury convicted Mr. Simpson of two counts of first-degree murder, and sentenced him to death. Mr. Simpson appealed his convictions and sentences, and sought federal post-conviction relief. The district court granted a Certificate of Appealability (“COA”) on two of Mr. Simpson’s eighteen grounds for relief, and the Tenth Circuit subsequently granted a COA on five additional issues.

Mr. Simpson first asserted he was entitled to federal habeas relief because the trial court erroneously excluded expert testimony regarding his PTSD diagnosis and dissociative episodes. Mr. Simpson claimed the testimony was necessary to support the defense that he was incapable of forming the specific intent necessary to commit first-degree murder, and that the Oklahoma Criminal Court of Appeals’ (“OCCA”) determination that the PTSD evidence was irrelevant was both contrary to and an unreasonable application of clearly established federal law. The State countered that the claims were unexhausted, and therefore Mr. Simpson was barred from presenting the arguments on appeal.

The Court rejected the State’s argument that Mr. Simpson’s PTSD claim was unexhausted, concluding instead that although his claim was now more refined, the core of his argument was the same. However, his argument with respect to the dissociative episodes resulting from his PTSD were new. The Court therefore found that Mr. Simpson had properly exhausted his PTSD argument, but that he had failed to properly preserve his argument concerning his dissociative episodes. Turning to the merits, the Court found that the expert testimony regarding Mr. Simpson’s PTSD diagnosis was devoid of any detail on the impact Mr. Simpson’s PTSD had on his ability to form the intent to kill as well as the interactive effects of PTSD and intoxicants. The Court therefore found that the OCCA was reasonable in its determination that the expert testimony regarding Mr. Simpson’s PTSD was irrelevant.

Mr. Simpson next asserted an alleged Brady violation by the prosecutor’s withholding of impeachment evidence as to a jailhouse informant, which he argued was critical to support the Continuing Threat Aggravator. The OCCA had ruled Mr. Simpson’s Brady claim had been waived because Mr. Simpson did not present his Brady claim until his second application for post-conviction relief, in violation of state procedural rules.

Focusing on whether Mr. Simpson was prejudiced by the suppressed evidence, the Court found that the State’s other evidence presented at trial was strong enough to support the Continuing Aggravating Threat factor, even without their reliance on the testimony of the jailhouse informant. The Court concluded that there was no reasonable probability that the jury would have returned a different verdict had the testimony been impeached, therefore the evidence was not material under Brady, and Mr. Simpson could not demonstrate prejudice. Accordingly, the Court held Mr. Simpson’s Brady claim was precluded from federal habeas review, as he could not establish both cause and prejudice as necessary to overcome the state procedural bar.    

Mr. Simpson also claimed that the trial court’s jury instructions and the prosecutor’s improper arguments unconstitutionally limited the jury’s consideration of mitigating evidence. The Court rejected Mr. Simpson’s argument as to the jury instructions, citing its decision in Hanson v. Sherrod,which addressed the constitutionality of the same instructions. The Court went on to explain that because the jury instructions permitted the jury to consider mitigating circumstances other than those enumerated for them, there was no reasonable likelihood the jury would have felt precluded from considering other mitigating evidence, and the OCCA was therefore reasonable in its finding of the same.

With respect to the prosecutor’s improper arguments, Mr. Simpson contended that the prosecutor not only argued that the evidence did not sufficiently mitigate the conduct, the prosecutor suggested that the evidence should not be considered by the jury at all, thus unfairly limiting the jury’s consideration of the mitigating evidence offered. While the Court noted that there were significant and troubling prosecutorial comments (and went so far as to chastise the conduct in a related footnote), the Court found the OCCA was reasonable in its decision that the jury was not precluded from considering the evidence offered by Mr. Simpson because of the language of the jury instructions.

Mr. Simpson next claimed that prosecutorial misconduct denied him a fundamentally fair sentencing proceeding. While the Court acknowledged that the prosecutorial statements at issue were improper, the Court relied on the State having presented significant aggravating evidence to conclude that the OCCA acted reasonably in deciding that the prejudicial impact of these comments did not render the sentencing trial fundamentally unfair.

Mr. Simpson also argued that there was insufficient evidence to support the heinous, atrocious, or cruel aggravating factor determination, and the finding was therefore unconstitutional and unreasonable. Although no evidence was presented with respect to how long the victim remained conscious after having been shot or as to whether the victim appeared to be in pain, the Court found that the jury could have reasonably inferred that the victim experienced conscious physical suffering based on the evidence about the victim’s wounds, therefore OCCA was reasonable in deciding there was sufficient evidence to support the jury’s finding with respect to the HAC Aggravating factor.

Mr. Simpson also alleged his trial counsel was constitutionally ineffective during both the guilt and sentencing stages of the trial. The Court disagreed, and discussed each instance of alleged ineffective counsel individually. First, with respect to the trial counsel’s alleged failure to investigate and present mitigating evidence, the Court concluded that the State had presented strong evidence in support of the death sentence, and the additional mitigating evidence would have done little if anything to undermine the jury’s findings. Second, the Court found that Mr. Simpson’s trial counsel was not required to request an instruction for second-degree murder, as the offense was not reasonably supported by the evidence. Third, with respect to the trial counsel’s failure to object to improper prosecutorial argument, the Court noted it had already been determined that the prosecutor’s misconduct did not deprive Mr. Simpson of a fundamentally fair sentencing trial, therefore Mr. Simpson could not show that he was actually prejudiced by counsel’s deficient performance. Finally, the Court concluded that the trial counsel did not perform deficiently in failing to object to the jury instruction on mitigation evidence because the mitigation instruction was a correct statement of law. The Court therefore concluded that the OCCA’s adjudication of Mr. Simpson’s ineffective assistance of counsel claim was reasonable.

Mr. Simpson’s final claim was that the cumulative errors in his trial denied him a fundamentally fair trail and sentencing proceeding. Despite the identified errors, the jury was presented with copious amounts of aggravating evidence, overwhelming evidence of guilt, and proper instructions from the trial court. The Court therefore found the OCCA was reasonable in its finding that the cumulative effect of the prosecutorial misconduct and instances of his counsel’s deficient performance was harmless.

Tenth Circuit: Hobbs Act Robbery is “Crime of Violence” Because Force Element Can Only be Satisfied with Violent Force

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jefferson on Friday, December 28, 2018.

Defendant Jefferson was convicted of five counts of Hobbs Act robbery under 18 U.S.C. § 1951, as well as two counts for brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(3)(A).

On appeal, Jefferson argued that the district court erred when it determined that robbery under § 1951 qualifies as a crime of violence under § 924(c)(3)(A) and that even if it did, the judge erred in directing a verdict on that element and the issue should have been submitted to a jury. Further, the district court erred when it refused to instruct the jury that “force” in § 1951 means “violent force,” and the prosecutor’s closing rebuttal arguments amounted to prosecutorial misconduct and violated his due process rights.

The Tenth Circuit affirmed the district court, and held that Hobbs Act robbery categorically qualifies as a “crime of violence,” and that both the district court’s error in failing to instruct the jury that “force” in § 1951 means “violent force” and that the prosecutor’s alleged error during closing rebuttal arguments were harmless beyond a reasonable doubt. 

On the issue of whether a crime fits the § 924(c) definition of a “crime of violence,” the Tenth Circuit reiterated its holding in United States v. Morgan, citing that such issue requires an examination of the legal elements of a crime, not an exploration of the underlying facts, and is therefore not a question of fact for a jury, but a question of law for the judge. Therefore, the judge did not err and in fact was obligated not to submit the issue to the jury.

The Tenth Circuit next considered whether Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(A). Section 924(c) calls for increased penalties if a firearm is used or carried “during and in relation to any crime of violence” and defines “crime of violence” as a felony offense having “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). In a Hobbs Act robbery, one element the government must prove is the use of actual or threatened force, violence, or fear of injury.

Jefferson argued Hobbs Act robbery is not a “crime of violence” because force is a means of committing the crime, not an element of the crime. The Tenth Circuit agreed that force is a means of committing the crime, but disagreed that this determination ended the inquiry as to whether a statute “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Instead, the determination of whether statutory alternatives are elements or means is only important in deciding whether to apply the pure categorical approach or the modified categorical approach. Because the Hobbs Act statute alternatives are means, the pure categorical approach applies. Therefore, the distinction between means and elements only matters if one of the ways to commit Hobbs Act robbery did not involve force, so that a juror could find a defendant guilty irrespective of whether he used force to commit the crime. The Tenth Circuit agreed with the proposition that placing one in fear of injury requires the threatened use of physical force. The Circuit further reasoned that because violence is defined as “the use of physical force so as to injury, abuse, damage, or destroy,” each of the alternatives requires the threatened use of force, Hobbs Act robbery is categorically a “crime of violence” under § 924(c)(3)(A).

On the issue of whether the district court erred in its jury instructions, Jefferson argued that the jury should have been instructed that “force” in Hobbs Act robbery means “violent force.” The Tenth Circuit agreed. However, the error was found to be harmless because the evidence provided uncontroverted proof of “violent force” being used in each robbery. In the first robbery, Jefferson caused actual injury to a person. In the second and third robbery, Jefferson had engaged in a “tug-of-war” with the convenience store clerk and the store’s front door, which had the capacity to cause physical injury or pain to the store clerk. In the fourth and fifth robbery, surveillance videos showed Jefferson pointing a gun to the clerk’s head from a short distance away. Therefore, the district court’s error in failing to instruct the jury that “force” in Hobbs Act robbery means “violent force” was harmless beyond a reasonable doubt.

On the final issue, Jefferson argued that the prosecutor’s rebuttal closing argument that the “possibility that the gun is fake is not something that [the government has] to overcome” improperly shifted the burden of proof to Jefferson. The Tenth Circuit disagreed, finding that the challenged statements may have misstated the law as to the government’s burden of proof, but the alleged error was harmless because the jury had been correctly instructed and reminded of the government’s burden after closing arguments. Further, the extent and role of the misconduct was minimal—the challenged statements constituted only two sentences of the governments lengthy closing argument and a 4-day trial, and while the prosecutor may have arguably misstated the law, she corrected herself by stating “we do not have to disprove theoretical possibilities that a gun is fake and not real.” Finally, the evidence of guilt was substantial. In light of this, the Tenth Circuit concluded that the alleged error was harmless beyond a reasonable doubt.

Tenth Circuit: Despite Probability of Ongoing Harm, Business Failed to Show Former Employee’s Solicitation Violated Business Agreement

The Tenth Circuit Court of Appeals issued its opinion in DTC Energy Group, Inc. v. Hirschfeld on Friday, December 28, 2018.

The district court denied plaintiff DTC Energy Group’s motion for preliminary injunctive relief. On appeal, the Tenth Circuit Court of Appeals affirmed.

DTC is a staffing and consulting firm, and has sued two of its former employees—Adam Hirschfeld and Joseph Galban—as well as a competing firm, Ally Consulting, LLC, for using DTC’s trade secrets to divert business from DTC to Ally.

Hirschfeld worked for DTC as a business development manager, and had signed an employment agreement that included confidentiality, non-solicitation, and non-interference provisions.  The confidentiality provision prohibited Hirschfeld from using DTC’s confidential information for his own benefit or the benefit of another company. The non-solicitation and non-interference provisions prohibited Hirschfeld from encouraging DTC’s current customers to take their business to a competitor and from recruiting DTC’s employees to work for a competitor, for the duration of his employment with DTC and for a period of 1-year thereafter, unless he resigned due to a change in ownership.

While employed by DTC, Hirschfeld used DTC’s resources to win business for Ally, allegedly in violation of his duty of loyalty to DTC and his employment agreement. Hirschfeld resigned from DTC in May 2017, citing a change in ownership. Upon his resignation, Hirschfeld took a flash drive containing DTC’s confidential information, and also kept his laptop logged into DTC’s Dropbox account so he could continue accessing DTC’s confidential information after his departure. The day after leaving DTC, Hirschfeld began working at Ally as its director of business development.

In September 2017, DTC filed its amended complaint and moved for preliminary injunction based on its claims for breach of contract, breach of duty of loyalty, misappropriation of trade secrets in violation of the federal Defend Trade Secrets Act and Colorado’s Uniform Trade Secrets Act, and unfair competition. The district court denied the motion, finding the duty of loyalty owed by defendants to DTC and the non-solicitation clause of Hirschfeld’s employment agreement had expired, and that DTC was unable to show a significant risk of future misappropriation of trade secrets and unfair competition. The district court reasoned that because a majority of the conduct at issue had occurred before DTC moved for a preliminary injunction, the resulting harm to DTC was therefore identifiable and could be remedied by an award of damages.

On appeal, DTC argued that the district court’s finding that DTC had established a significant risk of irreparable harm based on defendants’ past misconduct was erroneous because it failed to take into consideration the harm DTC continues to suffer as a result of defendants’ past misconduct—specifically the harm to DTC’s goodwill and competitive market position.

In its review of the district court’s decision, the Tenth Circuit focused on the showing of irreparable injury in the absence of the issuance of a preliminary injunction. The district court had found that DTC had shown a probability of irreparable harm from Hirschfeld’s ongoing breach of his employment agreement, but not with respect to DTC’s other claims.

DTC’s trade secret claims did not establish a probability of irreparable harm because there was no evidence in the record that defendants retained access to DTC’s confidential information or trade secrets. While the federal Defend Trade Secrets Act and Colorado’s Uniform Trade Secrets Act authorize preliminary injunctive relief to prevent actual or threated misappropriation of a trade secret, the Tenth Circuit concluded that DTC had not offered sufficient evidence that defendants currently possessed DTC’s trade secrets or would be likely to regain access to DTC’s trade secrets.

DTC’s unfair competition claim did not establish a probability of future irreparable harm because DTC had offered no evidence that Ally continues to appropriate DTC’s name or resources to solicit business, nor was there any evidence demonstrating ongoing confusion within the industry as to the relation between the two companies.

DTC’s breach of duty of loyalty claim also did not give rise to a future of irreparable harm. Because DTC identified the 12 contracts that Hirschfeld diverted from DTC to Ally and had previously hired experts to value the company during the change of ownership, the Court of Appeals reasoned that both the prior loss of DTC’s customers and consultants and the general decline of DTC’s value of a business could be quantified in money damages.

While DTC had shown a probability of future irreparable harm from Hirschfeld’s ongoing solicitation of DTC’s customers and consultants, the district court still denied injunctive relief as DTC had not shown a likelihood of success on the merits of the claim. The district court found that Hirschfeld was not bound by his employment’s non-solicitation provision as the change in ownership clause provision had been triggered.

On appeal, DTC argued that the prior breach doctrine prevented Hirschfeld from relying on the change in ownership clause, stating that Hirschfeld could not claim the benefit of the contract’s change in ownership clause after he had already violated the contract by improperly diverting business to Ally prior to his resignation. The Tenth Circuit agreed with the district court’s finding that the prior breach doctrine was inapplicable, as this was not an instance where DTC was defending against a demand specific performance, and the text of the employment agreement itself did not prevent Hirschfeld from relying on the provision in instances of prior breach. The Circuit went on to say that Hirschfeld’s present solicitation of DTC’s customers and consultants would not support issuing a preliminary injunction because the injunction would exceed the 1-year durational scope of the non-solicitation (the agreement’s provisions had expired prior to the time of the appeal).

In his concurrence, Judge McHugh wrote that in some circumstances an injunction can supported by the irreparable harm caused by defendants’ legal actions that would not have been possible but for their past breaches, as courts will sometimes enjoin future legal conduct because it was made possible by prior illegal conduct and will cause irreparable harm to the plaintiff. However, DTC had not pointed to any evidence of future irreparable harm stemming from defendants’ past misconduct (e.g., evidentiary support that DTC’s goodwill and competitive market position continues to be harmed) in the record that should have been considered by the district court, therefore the district court’s denial should be affirmed.

Tenth Circuit: Age of Rental Car Driver Inconclusive to Support Tort Claims Against Rental Company

The Tenth Circuit Court of Appeals issued its opinion in Amparan v. Lake Powell Car Rental Companies on February 13, 2018.

Edmundo and Kimberly L. Amparan appeal from the district court’s grant of summary judgment in favor of Lake Powell Car Rental Companies on the Amparans’ claims for negligent entrustment and loss of consortium. The claims arose from a vehicle accident involving a motorcycle operated by Mr. Amparan and a Ford Mustang rented by Lake Powell to Denizcan Karadeniz and operated by Mevlut Berkay Demir. Because the Amparans failed to come forward with evidence from which the jury could find an essential element of their claim for negligent entrustment, the appeals court affirmed.

On July 14, 2014, a group of Turkish nationals, including Mr. Karadeniz, visited Lake Powell to rent two vehicles. Mr. Karadeniz produced a valid Turkish driver’s license and a valid credit card. Mert Tacir, another member of the group, produced a valid Turkish driver’s license. The owner and operator of Lake Powell, Paul Williams, asked the remaining individuals in the group if they possessed valid driver’s licenses. Mr. Demir responded that he possessed a valid driver’s license. At the time of the rental, all three individuals were 21 years old. Although Mr. Williams recognized that Mr. Karadeniz and Mr. Tacir were under the age of 25, he nonetheless agreed to rent to rent a Dodge Caravan and a Ford Mustang to Mr. Karadeniz and to permit Mr. Tacir as an additional authorized driver for the Ford Mustang. None of the other members of the group, including Mr. Demir, completed an “Additional Driver Application/Agreement.” However, Mr. Demir testified that he understood Mr. Williams’ inquiry into whether he possessed a driver’s license as a signaling that he had Lake Powell’s implicit permission to operate the vehicles. Because a reasonable jury could adopt Mr. Demir’s understanding, the Tenth Circuit proceeded under the assumption that Lake Powell implicitly entrusted the rental vehicles to Mr. Demir. Evidence in the record supports the conclusion that Mr. Williams’ decision to rent two vehicles to an individual under the age of 25 and to permit an additional driver under the age of 25 violates internal policies propagated by Lake Powell’s licensor, Avis Rent A Car Systems, LLC.

During the course of the rental, Mr. Demir operated the Ford Mustang. Mr. Demir, unfamiliar with the traffic rules governing left turns at intersections, turned left on a solid green light without yielding to oncoming traffic. Mr. Amparan, traveling in the oncoming direction, unsuccessfully attempted to swerve to avoid hitting the turning vehicle operated by Mr. Demir and the two vehicles collided. As a result of the collision, Mr. Amparan alleges he suffered multiple broken bones, a punctured lung, and various other injuries.

The Amparans filed complaint in New Mexico state court, naming Mr. Demir, Mr. Karadeniz, and Avis as defendants. Avis removed the action to federal court, where, after an initial round of discovery, the district court granted the Amparans leave to amend their complaint to add Lake Powell as a defendant. The amended complaint raised claims against Lake Powell for negligent entrustment, loss of consortium, and negligent supervision and training. Lake Powell moved for summary judgment, arguing, in part, that even if it implicitly entrusted the Mustang to Mr. Demir, it neither knew nor should have known that Mr. Demir was likely to operate the vehicle in such a manner as to create an unreasonable risk of harm to others. In response to Lake Powell’s motion for summary judgment, the Amparans filed a notice of testifying expert on both the risk posed by young drivers and standards of care in the car rental industry. The Amparans also contested Lake Powell’s motion for summary judgment, arguing in part that Lake Powell’s violation of internal policies regarding renting to, or approving as additional drivers, individuals under age 25 constituted sufficient evidence to permit the finding that Lake Powell knew or should have known that Mr. Demir was likely to operate the Ford Mustang in such a manner as to create an unreasonable risk of harm to others.

The district court indicated it would not consider factual assertions in the Amparans’ response to summary judgment that did not comply with District of New Mexico Local Rule of Civil Procedure 56.1(b) and Federal Rule of Civil Procedure 56(c)(1)(A). The district court denied Lake Powell’s motion to strike as moot. The district court deemed the motions to strike moot based on its conclusion that the Amparans’ evidence regarding Lake Powell’s alleged violation of internal policies was insufficient, on its own, to permit a reasonable jury to conclude that Lake Powell knew or should have known that Mr. Demir was likely to operate the Mustang in such a manner as to create an unreasonable risk of harm to others. The district court concluded that the disputes of fact with respect to whether Lake Powell entrusted the Mustang to Mr. Demir and whether Lake Powell violated any internal policies were not material because resolution of the disputes in favor of the Amparans did not alter the summary judgment decision.

On appeal, the Amparans argued that the district court failed to perform a proper analysis, in that a New Mexico court would view evidence of a violation of internal policies, which are also allegedly industry standards, sufficient to advance a claim for negligent entrustment. Alternatively, the Amparans urged the Tenth Circuit to address the merits of Lake Powell’s motions to strike. The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

In an effort to overcome the extensive body of case law supporting the conclusion that the New Mexico Supreme Court would reject the proposition that evidence of a car rental company’s violation of internal policies is sufficient to establish the third element of a claim for negligent entrustment even where the entrustee possesses a valid driver’s license, the Amparans argued that their expert witness would testify on car rental industry standards regarding rentals to individuals under age 25. But the fact that evidence of a violation of an internal policy is probative on the question of negligence does not establish that the evidence is sufficient to make out a prima facie case of negligence. It cannot be said that the driver’s young age, on its own, makes it likely that the driver will cause an accident, will operate the vehicle in an incompetent manner, or will operate the vehicle in such a manner as to create an unreasonable risk of harm to others. For, if such were true, no individual in New Mexico could grant a person under the age of 25 permission to drive a vehicle without facing liability for negligent entrustment based solely on the entrustee’s youthful age.

Accordingly, the Tenth Circuit held that the New Mexico Supreme Court would conclude that evidence of a car rental company’s violation of internal policies on the minimum age of renters and drivers is, on its own, insufficient to establish the third element of a claim for negligent entrustment of a motor vehicle. Thus, the Amparans failed to advance sufficient evidence to make out a prima facie case of negligent entrustment.

The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of Lake Powell on the Amparans’ claims for negligent entrustment and loss of consortium.

Tenth Circuit: Under New Mexico State Law, Defendants Were Responsible for Timeliness of Arraignments

The Tenth Circuit Court of Appeals issued its opinion in Moya v. Garcia on Tuesday, April 24, 2018.

On August 27, 2014, a bench warrant was issued for Mr. Moya after he failed to appear for his scheduled arraignment. He was subsequently arrested on the outstanding bench warrant and booked into the Santa Fe County Adult Correctional Facility (SFCACF) on September 15, 2014. Mr. Moya was not brought before the district court for an arraignment until November 17, 2014—63 days after he was detained.

On July 21, 2015, a bench warrant was issued for Mr. Petry after he failed to appear for his scheduled arraignment. He was arrested the following day on unrelated charges and booked into the SFCACF. On July 27, 2015, shortly before he was to be released on the unrelated charges, Mr. Petry was served with the July 21 bench warrant and further detained by SFCACF. Mr. Petry was not brought before the district court for an arraignment until August 21, 2015—30 days after he was first detained.

These arraignments were in violation of New Mexico’s Rules of Criminal Procedure, which entitles defendants to arraignment within 15 days following arrest. Under the belief that Santa Fe County and Santa Fe County officials had a systematic policy and practice of failing to take action that would ensure detainees receive timely bail hearings as required by law, Mr. Moya and Mr. Petry filed a class action complaint under 42 U.S.C. § 1983, alleging their unlawful detainment was a deprivation of due process.

The district court granted the defendants’ motion to dismiss for failure to state a claim, finding that the complaint did not plausibly allege facts showing the sheriff or wardens had been personally involved in the untimely arraignments, either through their own participation or supervisory control. The district court also denied plaintiffs’ request to amend, reasoning that as the individual defendants’ were entitled to qualified immunity, any amendment would be futile.

On appeal, the plaintiffs argued that the sheriff and wardens were responsible for the delays in the arraignments under the theory of supervisory liability. The Tenth Circuit disagreed, finding that the sheriff and wardens were not the cause of the arraignment delays. After their arrests, jail officials notified the court that Mr. Moya and Mr. Petry were in custody. Once the court had been notified, it became the exclusive responsibility of the court to comply with the fifteen-day arraignment requirement—only the state trial court has the power to schedule arraignments. In further support of its conclusion that jail officials had not caused the arraignment delays, the Tenth Circuit brought attention to the fact that the plaintiffs had not alleged a failure by the defendants to tell the court of the arrests in a sufficient time to conduct the arraignment within the requisite fifteen days. There simply was no alleged conduct of the defendants that had prevented the court from scheduling the arraignments.

The Tenth Circuit next examined whether the defendants had any duty to ensure arraignments are timely scheduled. In the Tenth Circuit, the determination of the scope of defendant’s responsibility to ensure prompt hearings correctly focuses on state law. New Mexico law imposes no duty on the sheriff or warden to bring an arrestee to court in the absence of a scheduled arraignment. Further, the plaintiffs presented no authority that would provide guidance on what the sheriffs and wardens could have done to ensure timely court proceedings and avoid the due process violations, short of reminding the court of the court’s own failure to schedule an arraignment. But the Tenth Circuit reasoned that even with such a reminder, the arraignments could still only be scheduled by the court. Because the sheriff and wardens had no power to schedule the arraignments, the sheriff and wardens had no power to prevent or cure the alleged constitutional violations.

The dissent argued that the majority wrongly focused only on the arraignment and overlooked the detention. The dissent agreed that the sheriff and wardens were powerless to cause timely arraignments as the arraignments could only be schedule by the court, but theorized that the jail officials could have simply released Mr. Moya and Mr. Petry. The majority countered, stating that the plaintiffs had expressly disavowed this theory and had therefore waived any reliance on such theory as a basis for reversal. The majority noted than even if the issue was raised, under New Mexico law jailers commit a misdemeanor and must be removed from office if they deliberately release a prisoner absent a court order. Even in this scenario, the Tenth Circuit opined that the dismissal of the § 1983 action should be affirmed because the state law required detention absent a court order and the plaintiffs had not challenged the constitutionality of the law.

In addressing the plaintiffs’ claims against the county for failing to adopt a policy that would ensure timely arraignments, the Tenth Circuit found that as the sheriff and wardens did not cause the arraignment delays, the county could not incur liability under §1983 on the basis of the alleged inaction of the sheriff and wardens.

The issue of whether Mr. Moya and Mr. Petry had adequately alleged a deprivation of due process was not reached.

The Tenth Circuit also found the district court did not abuse its discretion in denying leave to amend, as the plaintiffs had failed to explain how they could have cured the deficiencies in the complaint identified by the district court.

The Tenth Circuit Court of Appeals affirmed the district court’s dismissal of Plaintiffs’ claims for failure to state a valid claim.

Tenth Circuit: On Interlocutory Review, Class Certifications Were Not Abuse of Discretion by District Court

The Tenth Circuit Court of Appeals issued its opinion in Menocal, et al. v. The GEO Group, Inc. on February 9, 2018.

The appeal addresses whether or not immigration detainees housed in a private contract detention facility in Aurora, Colorado may bring claims as a class under 18 U.S.C. § 1589, a provision of the Trafficking Victims Protection Act (TVPA) that prohibits forced labor, and Colorado unjust enrichment law.

The GEO Group, Inc. (GEO) owns and operates the Aurora Facility under government contract. While there, the plaintiff detainees (Appellees) rendered mandatory and voluntary services to GEO. Under GEO’s mandatory policies, they cleaned their housing units’ common areas. They also performed various jobs through a voluntary work program, which paid them $1 a day.

The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (TVPA class), and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (unjust enrichment class). On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contended that the Appellees’ TVPA and Colorado unjust enrichment claims both require predominantly individualized determinations, making class treatment inappropriate.

At all times relevant to this appeal, GEO owned and operated the Aurora Facility under contract with the U.S. Immigration and Customs Enforcement (ICE). In operating this facility, GEO implemented two programs that form the basis for this case: (1) the Housing Unit Sanitation Policy, which required all detainees to clean their common living areas; and (2) the Voluntary Work Program, which compensated detainees $1 a day for performing various jobs.

The Aurora Facility’s Sanitation Policy had two components: (1) a mandatory housing unit sanitation program, and (2) a general disciplinary system for detainees who engaged in “prohibited acts,” including refusal to participate in the housing unit sanitation program. Under the mandatory housing unit sanitation program, GEO staff generated daily lists of detainees from each housing unit who were assigned to clean common areas after meal service. Upon arriving at the Aurora Facility, each detainee received a handbook notifying them of their obligation to participate in the program.

Under the disciplinary system, detainees who refused to perform their cleaning assignments faced a range of possible sanctions, including the initiation of criminal proceedings, disciplinary segregation—solitary confinement—for up to 72 hours, loss of commissary, loss of job, restriction to housing unit, reprimand, or warning. The Aurora Facility handbook included an explanation of the disciplinary system and the possible sanctions for refusing to clean. The Appellees alleged that the TVPA class members were all “forced to clean the housing units for no pay and under threat of solitary confinement as punishment for any refusal to work.”

Under the Aurora Facility’s Voluntary Work Program (VWP), participating detainees received $1 a day in compensation for voluntarily performing jobs such as painting, food services, laundry services, barbershop, and sanitation. Detainees who wished to participate in the VWP had to sign the “Detainee Voluntary Work Program Agreement,” which specified that “compensation shall be $1 per day.” Detainees had the additional option of working without pay if no paid positions were available. The complaint alleged that the VWP class members were all “paid one dollar $1 per day for their VWP labor.”

The Appellees filed a class action complaint against GEO in the U.S. District Court for the District of Colorado on behalf of current and former ICE detainees housed at the Aurora Facility. The complaint alleged a TVPA forced labor claim based on the Sanitation Policy, and an unjust enrichment claim under Colorado law based on the VWP. GEO moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Regarding the TVPA claim, GEO argued that the Thirteenth Amendment’s civic duty exception to the prohibition on involuntary servitude should also apply to the TVPA’s ban on forced labor. Regarding the unjust enrichment claim, GEO asserted sovereign immunity as a government contractor because ICE “specifically directed it to establish a voluntary detainee work program and pay the detainees who volunteer for that program $1 per day.” The district court rejected these arguments and denied GEO’s motion to dismiss the TVPA and unjust enrichment claims. GEO moved for reconsideration of the court’s rulings. The court denied the motion, finding that GEO “d[id] not identify any intervening change in controlling law or new evidence previously unavailable” to warrant reconsideration. After prevailing on the motion to dismiss, Appellees moved for certification of a separate class for each claim under Fed. R. Civ. P. 23(a) and (b)(3). GEO petitioned the Tenth Circuit for interlocutory review of the class certifications. Accordingly, only the district court’s order granting class certification—and not its rulings on whether the complaint stated TVPA and unjust enrichment claims—is before us.

The Tenth Circuit reviewed the district court’s decision to certify a class for an abuse of discretion. The Tenth Circuit affirmed the district court’s certification of the TVPA class. GEO contended that the district court abused its discretion in determining that the TVPA class satisfied commonality, typicality, predominance, and superiority. The court did not abuse its discretion as to any of these requirements in certifying the TVPA class.

The Tenth Circuit also affirmed the district court’s certification of unjust enrichment class. GEO argued the district court abused its discretion in determining that the unjust enrichment class satisfies commonality, typicality, predominance, and superiority. The district court reasonably determined that the class members shared the circumstances relevant to the unjustness question and that individual damage assessments would not predominate over the class’s common issues. Its findings on commonality, typicality, and superiority were likewise reasonable and fell within its discretion.

The Tenth Circuit Court of Appeals affirmed the district court’s certification of both classes.

Tenth Circuit: Retroactive Sentence Reduction Inappropriate for Successive Motion on Identical Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Green on April 6, 2018.

Green appealed the district court’s decision to deny his second motion for reducing his sentence. Green’s appeal was based on his view that the district court abused its discretion in not considering all of the facts and circumstances of his case for reducing his sentence.

In 2011, Green was sentenced to 130 months’ imprisonment after pleading guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). Green was initially indicted on seven counts of possession of cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. He pleaded guilty for the three communication-facility counts, and the district court imposed 130 months’ imprisonment. One of the reasons for the higher sentence was the Defendant’s extensive criminal history spanning over 30 years and including a manslaughter conviction, convictions for distribution of cocaine base, violation of protective order, and distribution of crack cocaine.

Three years later, the base offense level for many drug offenses was reduced by two levels when the U.S. Sentencing Commission promulgated Amendment 782, which was retroactive.

Citing Amendment 782, Green then filed another motion to reduce his sentence under 18 U.S.C § 3582(c)(2), arguing he was eligible for a reduction based on the amendment and the progress he had made while in prison as shown by his transcript listing the courses he had completed. The district court denied the motion, and the Tenth Circuit affirmed the district court’s denial.

Fifteen months after the first appeal, Green filed another motion to reduce his sentence under § 3582(c)(2), again citing Amendment 782 and based on the courses he completed while in prison. With the exception of additional courses, the second appeal was the same as the first appeal. The district court denied this second motion, explaining that Amendment 782 did not mandate relief and that completion of courses did not make a reduction appropriate. Defendant appealed the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case, including his clean disciplinary record while incarcerated.

When assessing whether the district court had jurisdiction to consider Defendant’s second motion to modify his sentence under Amendment 782, the Tenth Circuit determined whether 18 U.S.C. § 3582(c)(2) contained a jurisdictional bar to second motions based on the same guidelines amendment, and stated it was a question “of considerable practical importance for judges and litigants.” It noted that courts have an ongoing obligation to determine whether adjudicating a particular case is within their subject-matter jurisdiction, even if neither party argues the court lacks jurisdiction.

In consideration of the Supreme Court’s caution against reckless use of the term “jurisdictional,” the Tenth Circuit Court of Appeals relied on 18 U.S.C. § 3582 for guidance. The government contended § 3582(c)(2) only confers jurisdiction on district courts to consider one motion to modify a sentence under each amendment. Since Defendant had previously filed a motion to modify his sentence under Amendment 782, the government argued that the district court lacked jurisdiction to consider his second motion to modify his sentence under this same amendment.

Absent a clear statement from Congress that any potential bar on the number of motions a defendant may file per amendment is jurisdictional, the Court held § 3582(c)(2) did not divest a district court of jurisdiction to consider a second motion to modify a sentence under the same amendment. The government, however, did not advance any argument that § 3582(c)(2) imposes a non-jurisdictional bar, therefore, this issue was do not addressed.

The Tenth Circuit used a two-step inquiry to determine whether the defendant was eligible for a sentence reduction, and whether a sentence reduction was warranted in accordance with the 18 U.S.C. § 3553(a) factors. The parties did not dispute that Defendant was eligible for a reduced sentence under § 3582(c)(2). Defendant only argued the district court erred in the second step of the § 3582(c)(2) inquiry by holding that a reduced sentence was not warranted upon consideration of the § 3553(a) factors, more specifically that the district court did not consider the courses he completed while he was in prison.

The Tenth Circuit found the district court’s considerations of these factors as “unquestionably appropriate.” The district court then determined that Defendant’s coursework while in prison and certificates of completed coursework did not overcome these considerations. The Tenth Circuit concluded that this determination was well within the district court’s discretion.

Additionally, Defendant argued in his initial pro se brief that the district court did not consider his clean disciplinary record while in prison. The disciplinary record was not presented to the district court, so the Tenth Circuit did not consider Defendant’s clean disciplinary record.

Defendant argued that the Circuit should have remanded to the district court so that the district court may consider the Defendant’s disciplinary record while in prison. In general, a remand for a party to produce additional evidence is inappropriate where the party had full opportunity to present the evidence in the first instance.

The Tenth Circuit affirmed the district court’s order.

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.