Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Defendant-appellant Gabriel Saiz was convicted on two counts of unlawful firearm possession. He was given an enhanced sentence because at the time of his offenses he was on probation for several state crimes in New Mexico. After he had pleaded guilty to the state charges, they were conditionally discharged under state law, which meant that if he completed a term of probation they would be dismissed. He argued on appeal to the Tenth Circuit that he was not eligible for an enhanced sentence for purposes of the federal Sentencing Guidelines because being subject to a conditional discharge did not count as being “under indictment.” The Court disagreed and concluded that an offender subject to conditional discharge was still under indictment until the condition is met (completion of the term of probation). View "United States v. Saiz" on Justia Law

Plaintiffs appealed the district court’s dismissal of a securities class action against ZAGG, Inc. and its former CEO and Chairman, Robert Pedersen, alleging violations of the antifraud provisions of the securities laws. The plaintiffs alleged Pedersen failed to disclose in several of ZAGG’s SEC filings the fact that he had pledged nearly half of his ZAGG shares (or approximately 9 percent of the company), as collateral in a margin account. The district court dismissed the complaint for a failure to plead particularized facts giving rise to a strong inference that Pedersen acted with an intent to defraud as required by the Private Securities Litigation Reform Act of 1995 (PSLRA). The Tenth Circuit found that the PSLRA subjected plaintiffs to a heightened pleading requirement of alleging intent to defraud with particularized facts that give rise to an inference that is at least as cogent as any competing, nonculpable explanations for a defendant’s conduct. After review, the Tenth Circuit agreed with the district court that the plaintiffs did not meet that standard here. View "Swabb v. ZAGG, Inc." on Justia Law

United States Customs and Border Protection issued a "Be on the Lookout" ("BOLO") alert for Daniel Padilla-Esparza and his truck for suspected bulk cash or drug smuggling. Padilla-Esparza was a Mexican citizen and United States lawful permanent resident. Based on the BOLO, United States Border Patrol agents ("BPAs") stopped Padilla-Esparza after he crossed the Las Cruces, New Mexico border patrol checkpoint. The BPAs released him because they believed they had stopped the wrong truck. When they discovered a few minutes later they had actually stopped the right truck, they initiated a second stop. After a drug-detection dog alerted to the presence of narcotics, they discovered 16 kilograms of cocaine in a non-factory compartment. Based on the evidence seized, a federal grand jury charged Padilla-Esparza with one count of possession with intent to distribute 5 kilograms or more of cocaine. He moved to suppress, arguing the BPAs seized evidence in violation of the Fourth Amendment. The district court denied his motion. He then entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. Padilla-Esparza challenged the district court's denial of his motion to suppress on two grounds: (1) the first stop (on September 13, 2013) was unlawful because Customs and Border Protection lacked reasonable suspicion to issue the (September 10, 2013) BOLO, which was the basis for the stop; and (2) the BPAs lacked reasonable suspicion for their second stop. The Tenth Circuit concluded reasonable suspicion supported both the BOLO and the second stop. Accordingly, the Court affirmed. View "United States v. Padilla-Esparza" on Justia Law

This appeal arose out of the murders of Jerald Thurman and Mary Bowles in Tulsa, Oklahoma. At trial, a jury convicted defendant John Hanson for the murder of Mary Bowles with malice aforethought and for the felony murder of Thurman. At the penalty phase, the jury found three aggravating circumstances. The trial court sentenced Hanson to death. On direct appeal, the Oklahoma Court of Criminal Appeals ("OCCA") reversed Hanson's death sentence and remanded for a new sentencing hearing. At the resentencing hearing, the jury again sentenced Hanson to death for Bowles's murder. Hanson appealed his sentence to the OCCA, which struck the jury's finding of the great-risk-of-death aggravator, but still affirmed his sentence. After the OCCA denied Hanson's application for collateral relief, Hanson filed a petition for a writ of habeas corpus The district court denied the petition, but it granted him a certificate of appealability ("COA"). The Tenth Circuit also granted a COA on all of his remaining issues. On appeal to the Tenth Circuit, Hanson raised five issues: (1) six instances of ineffective assistance of both trial and appellate counsel; (2) two instances of prosecutorial misconduct; (3) his death sentence should have been invalidated because the OCCA invalidated the great-risk-of-death aggravator; (4) the trial court erred in its jury instruction on mitigating evidence that impermissibly limited the jurors' consideration of mitigation evidence; and (5) cumulative error. After review, the Tenth Circuit concluded none of these issues had merit to warrant reversal of Hanson's sentence. Accordingly, the Court affirmed the district court's denial of the habeas petition. View "Hanson v. Sherrod" on Justia Law

In April 2013, plaintiffs filed a complaint in Utah state court seeking declaratory and injunctive relief. The complaint sought a declaration as to the authority of the Ute Indian Tribe of the Uintah and Ouray Reservation (the "Tribe") over non-Indian businesses operating on certain categories of land. It also alleged that Dino Cesspooch, Jackie LaRose, and Sheila Wopsock (individuals affiliated with the Ute Tribal Employment Rights Office ("UTERO")), had harassed and extorted plaintiffs in violation of state law. Defendants filed a motion to dismiss in state court by way of a special appearance, arguing that service of process had been insufficient, that the state court lacked subject matter jurisdiction in the absence of a valid waiver of tribal sovereign immunity, that the Tribe and its officers were immune from suit but were necessary and indispensable parties, and that plaintiffs failed to exhaust administrative remedies in tribal court. Cesspooch and LaRose were properly served. Two attorneys for the defendants moved for pro hac vice admissions. The motions were granted. Following a hearing on the motion to dismiss, the state court ordered further briefing on whether defendants' motion constituted a general appearance and authorized substituted service on the Tribe and Wopsock. The court then granted plaintiffs' motion to file an amended complaint adding additional defendants. The Tribe, Cesspooch, LaRose, and Wopsock were served the amended complaint. The Tribe filed a notice of removal in the U.S. District Court for the District of Utah. In its notice, the Tribe stated that Cesspooch, LaRose, and Wopsock consented to removal, and that the remaining defendants would consent. The remaining defendants (save one) filed consent and joinders to removal. Plaintiffs moved to remand, arguing that the initial defendants waived their right to removal (or to consent to removal) by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and that the federal court lacked subject matter jurisdiction. The district court granted the motion to remand. The Tribe appealed the remand order. The Tenth Circuit dismissed this appeal, finding that under 28 U.S.C. 1447(d), a district court order remanding a case to state court was "not reviewable on appeal or otherwise." Further, the Court held that a district court order remanding because the defendants did not unanimously join or consent to removal was patently "not reviewable." In addition, the Court concluded that the remand order in this case was colorably characterized as being based on lack of unanimity. View "Harvey v. Ute Indian Tribe" on Justia Law

Petitioner-appellant Jemaine Cannon was convicted in 1996 of murdering his then-girlfriend, Sharonda Clarke, and was sentenced to death. He filed a federal habeas petition in the Northern District of Oklahoma, which denied relief. In an appeal to the Tenth Circuit in 2004, Cannon raised substantial questions about the performance of his trial and appellate counsel and remanded to the district court for further proceedings. The Court directed the court to consider whether Cannon’s counsel unconstitutionally: (1) failed to investigate alleged contacts between jurors and prosecution witnesses; and (2) denied him the right to testify at trial in his defense. The district court concluded that Cannon had not diligently pursued his claims relating to juror contacts in state court, denied his request for an evidentiary hearing on those claims, and denied relief. The court did, however, hold an evidentiary hearing on Cannon’s right-to-testify claim but ultimately denied relief after finding trial counsel had provided adequate assistance concerning the right to testify. Cannon appealed again, arguing: (1) the district court erred in resolving his juror-contact ineffectiveness claims without an evidentiary hearing and in refusing to grant relief on those claims; and (2) he district court erred in finding that counsel informed him of his right to testify, did not prevent him from exercising that right, and properly advised him as to the consequences of testifying. The Tenth Circuit agreed with the district court that Cannon was not diligent in developing the factual basis for these claims in state court and thus was not entitled to an evidentiary hearing. With regard to his second contention, the Tenth Circuit found no reversible error and affirmed the district court. View "Cannon v. Trammell" on Justia Law

C.W. Mining Company was forced into bankruptcy after creditors filed a petition for involuntary bankruptcy on January 8, 2008. Several months before the petition was filed, C.W. Mining had entered into its first contract with SMC Electrical Products, Inc., an agreement to purchase equipment with a view toward greatly increasing coal production. One payment for the equipment was a $200,000 wire transfer from C.W. Mining on October 16, 2007. Because this transfer was less than 90 days before the petition was filed, the bankruptcy trustee sought to recoup the $200,000 for the bankruptcy estate by initiating an adversary proceeding to avoid the transfer under 11 U.S.C. 547(b). Granting SMC summary judgment, the bankruptcy court rejected the Trustee’s claim on the ground that the debt was incurred and the payment made in the ordinary course of business. The bankruptcy appellate panel affirmed. Finding no reversible error, the Tenth Circuit affirmed too. View "Rushton v. SMC Electrical Products" on Justia Law

Defendant Michael Calhoun (and two co-conspirators) prematurely sought to appeal a district court order denying his motion to quash the indictment against them. The 60-count indictment arose out of Defendant’s grand jury testimony. In it, Defendant was charged with 50 counts of mail and wire fraud and conspiracy to commit the same. Absent a “final decision,” the Tenth Circuit Court of Appeals dismissed the appeal for want of subject matter jurisdiction. On remand, Defendant entered into a plea agreement with the Government, whereby Defendant pled guilty to one count of conspiracy to commit wire or mail fraud and reserved his right to appeal the denial of his motion to quash. The district court sentenced Defendant to five years probation. The court did not impose a fine or order restitution. Defendant again appealed, arguing that a “division of loyalties,” i.e., conflict of interest, on the part of his retained counsel prompted his incriminating grand jury testimony, thus tainting the indictment. Specifically, Defendant asserted that his criminal counsel, Tom Mills (hired and paid by Texas Capital Bank on the recommendation of his civil counsel Larry Friedman) encouraged Defendant to incriminate himself before the grand jury for the purpose of assisting the Bank in its efforts to overturn a $65 million civil judgment related to the scheme. Defendant says the conflict rendered his criminal counsel ineffective in violation of his Sixth Amendment right to counsel, thereby requiring suppression of his grand jury testimony and quashing of the indictment. The Tenth Circuit affirmed the district court's judgment. "Precedent, both our own and that of the Supreme Court, provides us no alternative but to recognize that Defendant’s Sixth Amendment right to counsel did not attach until August 15, 2012, the date he was formally charged by way of indictment. Unfortunately for Defendant, his right to counsel claim centers on his counsel’s conduct prior to that date. Defendant has no remedy without a right. [. . .] Sure, Defendant did not want to be indicted . . . But the Government made no such promise." Defendant acknowledged at the hearing on his motion to quash that "'after I had given substantial help, then I would be granted probation.' Defendant understood this to mean 'a deal had been made and I would get probation at worst.' Then, after the prosecutor advised him that he would receive a downward departure for his assistance, Defendant testified before the grand jury. Defendant may not have received the deal he had hoped for, but he undoubtedly received the deal he expected." View "United States v. Calhoun" on Justia Law

Police officers in Aurora, Colorado were looking for Beverly Sanders on an outstanding warrant for failure to comply with probation conditions related to a prior controlled substance conviction. They found a Mitsubishi Eclipse that they believed belonged to Sanders parked in the lot of a Goodwill store. Sanders and a companion, Ian Hussey, exited the store, walked to the car, and were ordered to the ground by police. Sanders was immediately arrested for the outstanding warrant. Although Sanders gave permission for a third party to come pick up the vehicle, the police did not ask Sanders whether she knew anyone who could remove the car. Hussey was released after police cleared him of outstanding warrants, but he remained on the scene, inquiring about what would happen to the car and offering to contact someone to pick up the car, although he did not identify anyone specifically. Police were unwilling to release the car to Hussey because he did not have a valid driver’s license. Approximately thirty seconds after Hussey was released, he was arrested when police found a baggie containing what appeared to be heroin near the location where he had been ordered to the ground during Sanders’ arrest. Aurora police use an impoundment form that contains a liability release, under which an arrestee may agree to release police from liability for any damage to or theft of their car, and also to leave their car in place for no more than 24 hours. Sanders was not asked by any officer to sign that waiver. The police nevertheless decided to impound the Eclipse out of fear that its contents, attractive exterior, and after-market accessories would lead to a break-in, particularly because it was located in a high-crime area after dark. One of the officers testified that she believed that the car would be broken into within two hours if left in the parking lot. Aurora has an ordinance listing 21 separate grounds for impounding a vehicle, but the vehicle being located in a high-crime area or being a likely target for a crime are not among them. At issue before the Tenth Circuit Court of Appeals was the constitutionality of a decision to impound a vehicle based on a community-caretaking justification. Police impounded the vehicle despite having none of the 21 grounds to justify the action. Police later found contraband inside that was used against Sanders in proceedings related to the parole violation. She moved to suppress the contraband found inside her vehicle, arguing the impoundment was unconstitutional. The Tenth Circuit concluded the impoundment at issue here was unconstitutional for two reasons: (1) it was not guided by the 21 standardized criteria; and (2) it was not justified by a legitimate community-caretaking rationale. The Court agreed with the trial court to grant Sanders' motion to suppress. View "United States v. Sanders" on Justia Law

Defendant-Appellants Carl McCaffree, Jimmy Helvey, and Sam McCaffree (director-defendants) and the Federal Deposit Insurance Corporation (FDIC) appealed the district court's grant of summary judgment to BancInsure, Inc. BancInsure issued a Directors and Officers Liability Insurance Policy to Columbian and its parent Columbian Financial Corporation (CFC). the Kansas State Bank Commissioner declared Columbian insolvent and appointed the FDIC as receiver. By operation of law, the FDIC-R succeeded to "all rights, titles, powers, and privileges of [Columbian], and of any stockholder, member, accountholder, depositor, officer, or director" of Columbian. BancInsure received notice of potential claims the FDIC-R intended to file against the bank's officers and directors. In anticipation of such a suit, CFC and director-defendant Carl McCaffree brought suit against BancInsure seeking a declaratory judgment that the policy covered claims made after the date Columbian was declared insolvent, but before the expiration of the policy. The district court ultimately held that the policy remained in effect until May 11, 2010, relying in part on its finding that a regulatory endorsement in the policy "provide[d] coverage for actions brought by deposit insurance organizations as receivers during the policy year," which would have been meaningless if the policy terminated upon appointment of a receiver. On appeal, the Tenth Circuit sua sponte determined that no case or controversy existed at the time of the district court's judgment and remanded with instructions to vacate the judgment for lack of jurisdiction. BancInsure filed the instant action against the director-defendants in Kansas state court seeking a declaratory judgment that it owed no duty of coverage to the director-defendants for claims brought against them by the FDIC-R. The FDIC-R joined and removed the action to the federal district court in Kansas. At approximately the same time, the FDIC-R brought claims against several of Columbian's former directors and officers alleging negligence, gross negligence, and breach of fiduciary duty. The district court held that claims by the FDIC-R were unambiguously excluded by the policy's "insured v. insured" exclusion and that BancInsure was not judicially estopped from denying coverage. Finding no reversible error in that judgment, the Tenth Circuit affirmed. View "BancInsure v. FDIC" on Justia Law