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Plaintiff Taunya Perry was arrested and booked into the Ottawa County Jail on December 28, 2012. According to Perry, detention officer Daniel Clements raped her approximately two months later, on February 25, 2013. As a result of the alleged rape, Perry brought suit against the Ottawa County Sheriff, defendant Terry Durborow, under 42 U.S.C. 1983, asserting that Durborow was responsible for the alleged rape under a theory of supervisory liability. In response, Durborow moved for summary judgment, arguing that he was entitled to qualified immunity. Durborow appealed the district court’s order denying his motion, arguing only that - even assuming he violated the Constitution - the district court erred in finding that the contours of the constitutional right at issue were clearly established. The Tenth Circuit agreed: “the clearly established law must be ‘particularized’ to the facts of the case. ... In reaching this conclusion, we do not mean to suggest that “[a] prior case” must have “identical facts” before it will put reasonable officials on notice that their specific conduct is unconstitutional." Accordingly, the Court reversed the district court’s order and remanded with directions to enter summary judgment in Durborow’s favor. View "Perry v. Durborow" on Justia Law

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This case arose from two restaurant robberies in 2009, during one of which, defendant-appellant Francisco Melgar-Cabrera’s cohorts shot and killed a waitress. Defendant was charged with numerous crimes but was not immediately tried because he fled to El Salvador. He was extradited in 2013 and subsequently convicted and sentenced to life imprisonment for causing the death of a person while using a gun to commit an 18 U.S.C. section 924(c) crime of violence. He appealed, contending that the underlying crime for which he was charged, was not categorically a crime of violence. An additional issue this case raised for the Tenth Circuit's consideration was the fact that in the Tenth Circuit, section 924(j) has been held to constitute a sentencing enhancement, not a separate crime. The Court raised this issue because the El Salvador Supreme Court granted defendant's extradition only after holding that he could not be charged with or convicted of a section 924(c) crime. The government subsequently re-indicted defendant, charging him with violating 924(j), and he was convicted of that “crime” rather than a 924(c) offense. Defendant challenged his conviction on appeal to the Tenth Circuit Court of Appeals, but finding no reversible error in the proceedings, the Court affirmed defendant's conviction. View "United States v. Melgar-Cabrera" on Justia Law

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A former small-town doctor, defendant Joel Miller, was charged with multiple counts of health-care fraud, money laundering, and distributing a controlled substance outside the usual course of professional treatment, as well as one count of making a false statement on an application submitted to the Drug Enforcement Administration. A jury acquitted him on all of the financial charges as well as several of the drug distribution charges, but found him guilty on seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The district court granted Defendant’s post-judgment motion for acquittal on one of the controlled-substances counts based on an error in the indictment. The court then sentenced him to forty-one months of imprisonment on the six remaining distribution counts, plus a consecutive sentence of nineteen months on the false-statement count, for a total sentence of sixty months of imprisonment. Defendant appealed his convictions and sentence. The Tenth Circuit found no error in the imposition of defendant’s sentence on the six distribution counts; however the Court reversed and remanded on the false statement count. The Court was persuaded that trial court proceedings “broadened the possible bases for conviction beyond those found in the operative charging document. …we are persuaded that the trial proceedings in this case effected a constructive amendment.” View "United States v. Miller" on Justia Law

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Kenneth Francis was convicted by jury on three federal firearms charges, namely, two counts of making false statements to a firearms dealer and one count of unlawful disposition of a firearm to a felon. The charges stemmed from Francis’ straw purchase of two firearms for a felon working as a confidential informant with ATF agents. On appeal, Francis argued: (1) whether the government sufficiently proved he disposed of the firearms to a felon (informant); (2) whether the trial court erred in imposing a four-level sentencing enhancement for trafficking firearms; and (3) whether the district court erred by ordering sex-offender treatment as a special condition of his supervised release. The Tenth Circuit determined the facts found by the district court didn’t suffice to support applying the firearms-trafficking enhancement in calculating Francis’s sentence. The Court found Francis was convicted of a sex offense in 2011, and during the investigation of that crime someone accused him of having intimate sexual contact with a twelve-year-old girl. He failed to complete his previous court-ordered sex- offender-treatment program. Because the record revealed a basis for the sex-offender-treatment condition, Francis could not show prejudice and harm to his substantial rights. So Francis failed to meet his burden under plain error review. Accordingly, the Court affirmed the conviction and sex-offender-treatment special condition, but vacated his sentence and remanded for resentencing. View "United States v. Francis" on Justia Law

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Cornelia Tapaha was convicted of assault for hitting her boyfriend, Myron Yazzie, with her car. She appealed, arguing the district court: (1) denied her the ability to mount a defense to the charges by excluding three witnesses’ testimony; (2) violated the Confrontation Clause by excluding certain testimony by Yazzie; and (3) erred in refusing to admit redacted portions of an interview with a law-enforcement officer. Finding no reversible error, the Tenth Circuit affirmed Tapaha’s conviction. View "United States v. Tapaha" on Justia Law

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Early in the morning of November 12, 2009, police officers from the Albuquerque, New Mexico, Police Department were dispatched to an apartment complex to investigate a 911 domestic violence call. Upon their arrival, they saw Walter Deiter and his wife, D’Leah Harris, in the middle of the street. When Deiter and Harris saw the officers, they separated, each walking in the opposite direction. Deiter proceeded toward the apartment complex; Officer Patricia Whelan followed him. Deiter went behind a staircase; Whelan temporarily lost sight of him. Deiter emerged a few minutes later on the second-story open breezeway. Whelan told Deiter to come down and talk to her. But before doing so, he made a “squatting, bending motion” which led Whelan to believe he had “dropped” something illegal. She could not see what was dropped because a three- to four-foot tall wall obstructed her view, but once Deiter came down the stairs, Whelan asked Officer Sammy Marquez to determine what had been dropped. As Marquez proceeded up the steps to the second-story breezeway, Deiter took off running. Deiter was eventually brought down with a taser; once he was secured, officers found a holster containing a loaded .22 caliber revolver. Forensic testing revealed Deiter’s DNA on both the holster and firearm. The firearm also contained a small amount of DNA from an unidentified source. A jury convicted Deiter of being a felon in possession of a firearm and ammunition. Deiter filed a 28 U.S.C. 2255 motion, claiming a prior bank robbery conviction could not be deemed a “violent felony” supporting the Armed Career Criminal Act (ACCA) enhancement to the sentence he ultimately received. He also argued trial counsel was ineffective for (1) failing to challenge his ACCA sentence and (2) reading a transcript of Whelan’s belt tape recorder to the jury which contained an incriminating statement from a witness. After review of the briefs submitted for review, the Tenth Circuit found no reversible error to Deiter's sentence, nor ineffective assistance of counsel. View "United States v. Deiter" on Justia Law

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This appeal involved the extent of a duty to defend under a “professional services” policy of liability insurance issued to a law firm. The issue arose when the law firm was confronted with allegations of overbilling. The insurer, Evanston Insurance Company, defended the law firm, The Law Office of Michael P. Medved, P.C., under a reservation of rights but ultimately concluded that the allegations of overbilling fell outside the law firm’s coverage for professional services. The law firm disagreed with this conclusion; the district court agreed with the insurer. The Tenth Circuit concurred with the district court and affirmed summary justment in favor of Evanston on all claims and counterclaims. View "Evanston Insurance v. Law Office Michael P. Medved" on Justia Law

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In January 2017 a grand jury in the United States District Court for the District of Wyoming returned a 21-count indictment against Defendant Shakeel Kahn (who was a physician) and others charging distribution of controlled substances and money laundering. The indictment included a criminal forfeiture count under 21 U.S.C. 853, which listed a number of his assets that the grand jury identified as fruits of the alleged crimes. Most of those assets had been seized by the government before filing the indictment. Two weeks after the indictment, Kahn moved for a hearing to challenge the seizure of $1,140,699.95 in currency and bank accounts, asserting he needed this money to retain private counsel of his choice, noting that his only unseized assets were a $175,000 home encumbered by an $80,000 lien and a business that brought in less than $3,000 a month after taxes. He estimated that he would need at least $200,000 to pay counsel and that his total defense costs would be at least $450,000. In April the district court denied the motion. Defendant petitioned the Tenth Circuit for a district-court hearing to challenge the seizure of those assets. The district court denied a hearing because he has some unseized assets with which to pay an attorney. The Tenth Circuit reversed and remanded because the proper test was whether he had sufficient unseized assets to pay for the reasonable cost of obtaining counsel of his choice. View "United States v. Kahn" on Justia Law

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This is the second appeal arising from crimes committed by two corrections officers, Raymond Barnes and Christopher Brown, while employed at the Muskogee County Jail. Barnes and Brown both held administrative roles at the jail: Barnes served as the Jail Superintendent and Brown worked alongside him as the Assistant Jail Superintendent. Both defendants physically abused prisoners in a variety of ways, engaged in excessive force against inmates, and intimidated other jail employees to conceal their illicit activities. Authorities charged Barnes and Brown with three counts of assaulting or conspiring to assault prisoners at the jail. In 2014, a jury convicted both of various charges. The jury convicted Barnes of one count of conspiracy to violate constitutional rights and two counts of deprivation of rights under color of law. The jury found Brown, on the other hand, guilty of one count of conspiracy to violate constitutional rights, one count of deprivation of rights under color of law, and one count of making a false statement to a federal agent. The district court sentenced Barnes to twelve months’ imprisonment followed by twenty-four months of supervised release. Brown received a sentence of six months’ imprisonment followed by thirty-six months of supervised release. Both appealed their sentences. The government argued the sentences the district court imposed after the Tenth Circuit remanded for resentencing were substantively unreasonable. Because the Tenth Circuit found the district court did not abuse its discretion in granting a downward variance from the United States Sentencing Guidelines, it affirmed. View "United States v. Barnes" on Justia Law

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The district court dismissed Marc Schenkel's claims against Xyngular Corporation and various third parties as a sanction for abuse of what he claims was pre-litigation discovery. The Tenth Circuit had not previously decided whether pre-litigation conduct that did not give rise to the substantive claims in a case was sanctionable by dismissal of a party’s claims. After review of Schenkel's arguments on appeal, the Tenth Circuit concluded termination sanctions were permissible when pre-litigation conduct was aimed at manipulating the judicial process and was unrelated to the conduct that gave rise to the substantive claims in a case. Because the district court did not abuse its discretion in concluding that these conditions were met in the present case, its judgment was affirmed. View "Xyngular v. Schenkel" on Justia Law