April 20, 2019

Honorable Carolyn B. McHugh Appointed to Tenth Circuit Court of Appeals

The Honorable Carolyn B. McHugh has been appointed to the United States Court of Appeals for the Tenth Circuit. President Obama nominated Judge McHugh on May 16, 2013, and renominated her on January 16, 2014. Judge McHugh’s nomination was confirmed by the Senate on March 12, 2014. Tenth Circuit Court of Appeals Judge Scott M. Matheson, Jr. administered the oath of office March 17th in Salt Lake City, Utah.

Judge McHugh practiced law in civil litigation at Kimball Parr Waddoups Brown & Gee (currently Parr Brown Gee & Loveless), where she eventually became a shareholder. She was appointed to the Utah Court of Appeals in August 2005, where she most recently served as the presiding judge. Judge McHugh will have her primary chambers in Salt Lake City.

Click here for the announcement from the Tenth Circuit Court of Appeals.

Tenth Circuit: Rule of Lenity Does not Apply in Plain Error Review

The Tenth Circuit Court of Appeals published its opinion in United States v. Williamson on Monday, March 17, 2014.

Defendant John S. Williamson has been protesting taxes for 30 years. In May 2008 the Internal Revenue Service (IRS) levied his wife’s wages to collect his back taxes. The IRS sent a notice of the levy, which Defendant returned, writing across the document: “Refused for cause. Return to sender, unverified bill.” In June 2008, Defendant sent an invoice for $909,067,650.00 to two IRS agents who had worked on the matter. The invoice listed the value of real and personal property allegedly seized by the IRS, added damages for various alleged torts, and then trebled the total “for racketeering.”

In December 2008, Defendant and Mrs. Williamson filed with the clerk of Bernalillo County, New Mexico, a claim of lien against the agents’ real and personal property for the same amount as the invoice. A grand jury indicted Defendant and Mrs. Williamson on two counts: (1) “corruptly endeavor[ing] to impede the due administration of the Internal Revenue Code by filing a false and fraudulent Claim of Lien,” in violation of 26 U.S.C. § 7212(a); and (2) “fil[ing] . . . a false lien and encumbrance against the real and personal property [of the IRS agents] on account of the performance of [their] official duties,” in violation of 18 U.S.C. § 1521.

Defendant’s defense at trial was essentially that he genuinely believed his lien was proper. A forensic psychologist testified that Defendant suffered from a delusional disorder that prevented him from abandoning his beliefs even when confronted with overwhelming evidence that he was wrong. Defendant requested instructions that would support his “genuine belief” defense to both charges, but the court rejected them and the jury returned verdicts of guilty on the two charges.

Defendant argued on appeal that the jury instruction concerning § 7212 should have informed the jury that he could be guilty only if he intentionally violated a known legal duty. The Tenth Circuit reviewed for plain error because at trial, defense counsel only argued the instruction should also contain a definition of “unlawful.” The court held that there was no plain error and that the rule of lenity did not apply because the “doubt required for the rule of lenity must be doubt raised by an adequately preserved argument.”

The court also rejected Defendant’s challenge to the § 1521 jury instruction for not including his requested good-faith defense. The § 1521 statute prohibits filing a false lien “having reason to know” it was false as well as knowingly filing a false lien. “Having reason to know” includes an objective component. A reasonable person knowing what Defendant knew would know the lien Defendant filed was false. Therefore, Defendant was not entitled to a good-faith defense instruction. The court affirmed his convictions.

Tenth Circuit: Unpublished Opinions, 3/17/2014

On Monday, March 17, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Asebedo v. Kansas State University

Ajaj v. Federal Bureau of Prisons

Miskovsky v. Jones

Canales-Enrique v. Holder

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

Tenth Circuit: Petition for Review of Black Lung Benefits Act Award Denied

The Tenth Circuit Court of Appeals published its opinion in Antelope Coal Co./Rio Tinto Energy America v. Goodin on Monday, March 3, 2014.

Rolland E. Goodin worked at surface coal mines for 25 years and smoked cigarettes for more than 40 years. He developed a respiratory condition and filed for benefits under the Black Lung Benefits Act (“BLBA”). An Administrative Law Judge (“ALJ”) awarded Goodin benefits. His employer, Antelope Coal Company/Rio Tinto Energy America (“Antelope”), appealed, and the Department of Labor Benefits Review Board (“Review Board”) affirmed the grant of benefits. Antelope filed this petition for review of the Review Board’s order.

Antelope’s primary argument was that the ALJ wrongly limited its options to rebut a regulatory presumption that Goodin’s work as a coal miner caused his respiratory condition. It argued 20 C.F.R. § 718.305(d), a rule limiting the type of evidence that may be used for rebuttal, should not apply to coal mine operators like Antelope.

The Tenth Circuit first held that to rebut the presumption that a coal miner is disabled under the BLBA due to a respiratory or pulmonary condition when he has worked for 15 years in underground coal mines or substantially similar conditions, the employer must rule out any relationship between the disability and the coal mine employment. This is known as the “rule-out standard.” The second method to rebut the presumption is to prove the claimant does not have the lung condition pneumoconiosis.

The court held there was substantial evidence to support the ALJ’s conclusion that Antelope failed to rebut the presumption under either method and that the ALJ had not limited Antelope’s rebuttal evidence. It found Antelope’s remaining arguments lacked merit. The court denied Antelope’s petition for review.

Tenth Circuit: Wire and Mail Fraud and Identity Theft Convictions Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Porter on Thursday, March 6, 2014.

Following a jury trial, Defendant-Appellant Gloria Porter was convicted of 105 counts of wire fraud, one count of mail fraud, and one count of identity theft. The National Federation of Federal Employees (“NFFE”) is an independent federal union that represents federal workers. The NFFE is comprised of five councils, which in turn are made up of approximately two hundred “locals.” Porter joined the NFFE in 1992. She was a member of Local 2049 at White Sands and served as its president. She also served as secretary/treasurer of the Armed Material Command (“AMC”) Council (one of the NFFE’s five councils) and as national vice president of the NFFE. She was secretary/treasurer of the AMC Council from 2002 to 2008, and was the only active signatory on the AMC Council’s bank account.

Starting in August 2004 and throughout her time as an NFFE officer, Porter created fraudulent bank statements on her computer and sent them to NFFE officers, while having the authentic bank statements sent to her home address. The NFFE took away Porter’s authority over the union’s bank account, and, after both the NFFE and IAM conducted their own audits of their accounts, the matter was turned over to the United States Department of Labor (“DOL”) for further investigation.

Porter appealed her convictions, claiming that the district court erred by instructing the jury that a signature is a “means of identification” for purposes of the aggravated identity theft offense. Porter argued that the word “signature” is not expressly mentioned in the statutory definition of “means of identification” found in § 1028(d)(7) and a signature should not be viewed as a form of a “name”—a term that does appear in that definition. The Tenth Circuit found the reasoning of a Ninth Circuit case, Blixt, persuasive in holding that a signature is a form of “name” for purposes of § 1028(d)(7)’s definition of “means of identification.”

Porter also argued that the evidence was insufficient to support her convictions for wire fraud and mail fraud. The court found her arguments to be without merit and affirmed her convictions.

Tenth Circuit: Fourth Amendment Seizure Requires Submission to Authority

The Tenth Circuit Court of Appeals published its opinion in United States v. Mosley on Monday, March 3, 2014.

Defendant Jermaine Mosley entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appealed the district court’s denial of his motion to suppress the gun that was the basis of this offense. Mosley was arrested after police received an anonymous tip at 3 a.m. that two men were handling a gun in a car in a parking lot that had been the scene of shootings and other crimes in the past. He was the passenger in the car and refused to comply with police commands. After removing him from the vehicle, police found a gun under his seat.

Because Mosley did not have a possessory or property interest in the vehicle in which the gun was found, he lacked standing to challenge the search of the vehicle directly but did have standing to contest the lawfulness of his own seizure and seek to suppress the gun as the fruit of that seizure.

The Tenth Circuit held that Mosley did not submit to the officers’ show of authority, and therefore was not “seized” within the meaning of the Fourth Amendment, until he manifested compliance with the officers’ orders—when he finally put his hands up. Therefore, by the time Mosley put his hands up and was actually seized, the totality of the circumstances gave rise to reasonable suspicion justifying a Terry stop. Mosley had made furtive movements consistent with hiding or retrieving a gun, in addition to the other factors related above. The fact that the officers approached the car with guns drawn did not rise to the level of a de facto arrest and Mosley was not seized in violation of his Fourth Amendment rights. The court affirmed the district court’s denial of Mosley’s motion to suppress the gun.

Tenth Circuit: Unpublished Opinions, 3/4/2014

On Tuesday, March 4, 2014, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Simms v. State Farm Employees

Jiron v. Davidson

Jiron v. Thorson

Valdovinos-Blanco v. Holder

Coats v. State of Utah 

Lester v. United States

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

Tenth Circuit: Unpublished Opinions, 3/3/2014

On Monday, March 3, 2014, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Pettit

United States v. Dang

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

Tenth Circuit: Unpublished Opinions, 2/6/14

On Thursday, February 6, 2014, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Garcia v. Escalante

United States v. Estrada-Barrios

Barnum v. City of Tulsa

Chapman v. Lampert

United States v. Rojas-Alvarado

Mabie v. Daniels

Winfield v. State of Utah

United States v. Chadwick

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

Tenth Circuit: Unpublished Opinions, 2/5/14

On Wednesday, February 5, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Kuhn

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

Tenth Circuit: Unpublished Opinions, 2/4/14

On Tuesday, February 4, 2014, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

United States v. Escobar

Fite v. Bayer Corp.

McWilliams v. King

United States v. Mendez-Montoya

Pinson v. Berkebile

Ali v. Franklin

Stine v. Berkebile

Ballad v. Holder

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

Tenth Circuit: Unpublished Opinions, 2/3/14

On Monday, February 3, 2014, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Jiron v. Valdez

United States v. Miles

United States v. Pereira

United States v. Sanchez

United States v. Johnson

DeFazio v. Starwood Hotels & Resorts

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