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TCL > January 2013 Issue > Summaries of Selected Opinions

January 2013       Vol. 42, No. 1       Page  115
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: (click on "Opinions/Rules/Statutes").

No. 11-1369. Cohen v. Borgman (In re Borgman). 10/23/2012. Bankruptcy Appellate Panel. Judge Ebel. Tax—Bankruptcy—Colorado Statute—Nonrefundable Portion of Child Tax Credit—Exemption From Bankruptcy Estate.

The Chapter 7 bankruptcy debtors sought to withhold from the fund for payment of their creditors the nonrefundable portion of the federal child tax credit of $1,000 per child. "Nonrefundable" means that the credit can reduce tax liability only to the extent that tax liability exists. For example, a taxpayer whose total tax liability is $750 and who has one child can use $750 of the $1,000 child tax credit to reduce the tax liability to zero, but cannot have the remaining $250 paid to the taxpayer. The bankruptcy court disallowed the exemption. The Bankruptcy Appellate Panel (BAP) reversed, holding that the disputed refunds were exempt. The bankruptcy trustee appealed.

The Tenth Circuit addressed whether, under CRS § 13-54-102, the amount of a federal income tax refund attributed to a child tax credit includes an amount equal to the nonrefundable child tax credit. The Circuit concluded that it does not, because the statute unambiguously applies only to "refunds," and a prerequisite for a refund is a payment. Only to the extent that the tax payments exceed the total tax does the taxpayer qualify for a refund. Thus, the nonrefundable portion of the child tax credit does not give rise to a refund. The BAP’s order was reversed and the bankruptcy court’s order was reinstated.

No. 11-1390. Kaufman v. Higgs. 10/23/2012. D.Colo. Judge Holloway. Consensual Interview—False Arrest—Obstruction of Justice—Qualified Immunity—Silence as Obstacle.

Plaintiff sued three police officers for arresting him without probable cause. He was the passenger in his own car when the driver struck another vehicle in a parking lot and left the lot without leaving a note on the other car. Plaintiff later agreed to talk to defendants, but he refused to name the driver. Defendants arrested him for violating Colorado’s obstruction of justice statute, CRS § 18-8-104(1)(a). The statute prohibits the use or threat of force, violence, or an "obstacle" to obstruct or hinder the officer. Defendants argued that they had probable cause to believe that plaintiff had threatened to use an obstacle (in the form of refusing to answer questions) that impeded them from carrying out their duties. The district court granted summary judgment in favor of defendants, and plaintiff appealed.

The Tenth Circuit evaluated whether defendants were entitled to qualified immunity. Qualified immunity protects government officials from liability for civil damages if their conduct does not violate clearly established law of which a reasonable person would have known. In the false-arrest context, an arrestee’s constitutional rights were violated if the arresting officer acted in the absence of probable cause that the person had committed a crime. If probable cause was lacking, the inquiry as to whether the right was clearly established asks whether the officer arguably had probable cause. Here, the question was whether defendants could reasonably have believed that plaintiff’s refusal to answer their questions during a consensual encounter constituted probable cause for his arrest for obstruction of justice.

The Circuit held that silence, accompanied by an explanation of the basis for that silence, is not an obstacle and does not obstruct anything. It is nothing like force or violence. Moreover, the Colorado Supreme Court has held that in this context, an obstacle may not be merely verbal opposition. Because plaintiff simply refused to speak during a consensual encounter, defendants did not have probable cause to arrest him for obstruction.

Turning to the question of whether this rule was clearly established, the Circuit held that an unambiguous statute and case from the state’s highest court were sufficient to clearly establish the contours of the right. Accordingly, defendants were not entitled to qualified immunity. The district court’s judgment was reversed and the case was remanded.

No. 12-4002. Anderson v. Cranmer (In re Cranmer). 10/24/2012. D.Utah. Judge Murphy. Bankruptcy—Social Security Income—Disposable Income Calculation—Proposed Plan—Good Faith.

On the schedule for his monthly expenses, the Chapter 13 bankruptcy debtor deducted a portion of his Social Security Income (SSI) as exempt, thus allowing him to retain those funds rather than commit them to the repayment of his creditors. The bankruptcy trustee objected, arguing that SSI was not excluded from the calculation of projected disposable income. The bankruptcy court held that SSI must be included, and the debtor’s failure to do so showed he did not propose his plan in good faith. On appeal to the district court, that court reversed, concluding that SSI need not be included in projected disposable income. The trustee appealed.

The Tenth Circuit noted that the Bankruptcy Code excludes SSI from the definition of current monthly income. Although the trustee contended that the debtor should not be permitted to shield his SSI from creditors, the Circuit noted that the plain language of the Bankruptcy Code excludes SSI from the disposable income calculation. Moreover, the Social Security Act shields SSI payments from the operation of any bankruptcy law. Therefore, because the debtor calculated his repayment plan as allowed by the Bankruptcy Code and the Social Security Act, his exclusion of SSI did not demonstrate a lack of good faith. The district court’s judgment was affirmed.

No. 10-4165. United States v. Mendoza. 11/07/2012. D.Utah. Judge Lucero. Timeliness of Notice of Appeal—Entry of Judgment—Failure to Enter Judgment on Public Criminal Docket.

Defendant pleaded guilty to conspiracy to distribute methamphetamine. At the request of a co-defendant, the district court sealed defendant’s multi-defendant sentencing proceeding. On September 3, 2009, it then filed a sealed judgment on a document labeled "Criminal Docket . . . Internal Use Only." The criminal docket available to the public contained no indication that judgment was ever entered. In March 2010, defendant filed a pro se request for his docket sheet. The district court responded in June. On September 13, 2010, more than a year after the district court entered its sealed judgment, defendant filed his pro se notice of appeal. The district court dismissed the appeal as untimely.

On appeal, the Tenth Circuit noted that under Fed. R. App. P. 4(b), the deadline to appeal begins to run not at sentencing but on entry of judgment. A judgment is entered when it is entered on the criminal docket. The federal rules do not define when a judgment is entered on the criminal docket; accordingly, the Circuit looked to the ordinary meaning of those words, including dictionary definitions.

Although contemporary dictionary definitions do not expressly require that a docket be publicly accessible, numerous sources indicate that "docket," as ordinarily used, refers to a public document. Moreover, the history of "dockets," both in American jurisprudence and at English common law, indicates that they have long been open for public inspection, viewing, and copying. Requiring that docket entries be publically accessible permits an attentive defendant to determine when his or her appeal deadline begins by checking the docket sheet. Accordingly, the Circuit concluded that defendant’s notice of appeal was filed after the court announced its sentence but before the "entry of judgment," and thus his appeal was timely.

Turning to the merits, the Circuit addressed defendant’s argument that the prosecution had breached his plea agreement by failing to recommend a sentence at the low end of his Sentencing Guidelines range. The Circuit reviewed this argument for plain error, because defendant’s counsel had failed to object in district court. Although the government breached the plea agreement by failing to argue for a sentence at the low end of the Guidelines range—instead emphasizing the severity of defendant’s offense—the district court sentenced him at the low end of the Guidelines range. Accordingly, he failed to show an error that affected his substantial rights, and that satisfied the "plain error" test. The Circuit therefore denied the government’s motion to dismiss the appeal and affirmed defendant’s sentence.

No. 11-2244. United States v. Woodard. 11/09/2012. D.N.M. Judge McKay. Confrontation Clause—Right to Cross-Examine Witness Concerning Adverse Credibility Finding in Judicial Proceeding.

A jury found defendant guilty of possessing more than 100 kilograms of marijuana with intent to distribute. He was arrested after a police officer and a New Mexico Motor Transportation Division (MTD) inspector discovered six duffle bags containing marijuana in the trailer of the tractor-trailer he had been driving. It had been arranged that defendant would drive a load of cartons from the FedEx facility in Phoenix to Indianapolis. While he filled out paperwork at the Phoenix facility, FedEx employees loaded the cartons onto his trailer. Defendant then drove to a truck stop south of Phoenix. After having a light on the trailer fixed, he left his trailer at the truck stop and spent the weekend with his girlfriend. On the road again, he stopped at the port of entry in Gallup, New Mexico, where the duffle bags were discovered. When asked whether the bags were part of the load, defendant replied, "As far as I know" and "I guess they are." When the officer found marijuana inside the bags, defendant denied any knowledge of it.

Before defendant’s trial began, the government filed a motion in limine, seeking to prevent him from offering evidence that a federal judge in a different, previous action had made a finding that the MTD inspector was not credible. In the previous action, the court had stated that it did not believe the inspector’s testimony that he had detected the odor of raw marijuana emanating from the back of a semitrailer while it was stopped at the Gallup port of entry. The district court had reasoned that the officer had not communicated this observation to other officers and the observation had not been given as a basis for any subsequent stop. The district court granted the government’s motion in limine, concluding that questioning concerning the previous court’s credibility determination was likely to confuse the jury, create a trial-within-a-trial, and unfairly prejudice the government.

The MTD inspector then testified at defendant’s trial that he had smelled a strong odor of raw marijuana when defendant opened the doors to his trailer. Defendant attempted to impeach his testimony on various grounds other than the previous credibility determination. The government referred to the strong odor on numerous occasions during its closing argument.

On appeal, defendant argued that the district court had violated his Sixth Amendment right to confront witnesses by prohibiting him from cross-examining the inspector concerning the previous credibility determination. The Tenth Circuit adopted the Second Circuit’s test for determining the relevancy and probative value of a previous court’s finding that a witness had lied. These factors include: (1) whether the previous judicial finding addressed the witness’s veracity in that specific case or generally; (2) whether the two sets of testimony involved similar subject matter; (3) whether the lie was made under oath in a judicial proceeding, whether the lie was about a significant matter, and how much time elapsed since the lie was told; (4) whether there had been any intervening credibility determinations concerning the witness; (5) the apparent motive for the lie and whether a similar motive existed in the current proceeding; and (6) whether the witness offered an explanation for the lie and, if so, whether that explanation was plausible. Applying these factors to the present case, the Circuit determined that the federal court’s credibility determination concerning the MTD inspector was both relevant and highly probative.

The Circuit further rejected the government’s argument that the danger of confusion substantially outweighed the very strong probative value of the cross-examination. The error violated the Confrontation Clause because, had defendant been able to cross-examine the inspector concerning the previous judicial determination, the jury reasonably could have had a significantly different impression of the inspector’s credibility. Moreover, the error was not harmless because the government had relied on the strong odor to prove the element of the offense that defendant knowingly possessed the marijuana. Accordingly, the Circuit reversed defendant’s conviction and remanded for further proceedings.

No. 12-1063, United States v. Conner. 11/15/2012. D.Colo. Judge Kelly. Fourth Amendment—Reliability of Tip—Reasonable Suspicion of Criminal Activity.

Defendant entered a conditional plea to being a felon in possession of a firearm, reserving the right to appeal the denial of his motion to suppress. Police arrested him after receiving a tip from a man who called 911 to report that he had heard someone yelling "No, no!" and had seen a "light-skinned Black male wearing a fuzzy hunter hat" exit a black SUV and place a pistol in his waistband. The caller stated that the SUV was parked in the alley between Larimer and Lawrence Streets in Denver, on the north side of 22nd Avenue. This location was known to be within a neighborhood where there were frequent stabbings and shootings.

Police dispatch relayed this information to officers. When they arrived at the scene, the officers discovered the black SUV at the location provided by the caller. They then spotted defendant, a Black male wearing a "fuzzy hunting hat," who was walking away from the location of the SUV. One of the officers positioned his patrol car to block defendant’s path. The other officer exited the patrol car, approached defendant, drew his gun, and told defendant to put up his hands. The officer then conducted a pat-down search and discovered a pistol concealed in defendant’s waistband. In denying defendant’s motion to suppress, the district court reasoned that the tip the officers received was sufficiently reliable and that it provided them a reasonable suspicion of criminal activity.

On appeal, defendant argued that the 911 call did not possess the requisite indicia of reliability to permit the officers to rely on it. The Tenth Circuit disagreed for a number of reasons. First, although the caller did not provide his name, he did provide information such as his phone number and address that would make him readily identifiable. Thus, this was not a situation where the caller hid behind a shield of anonymity to make a false accusation without fear of accountability. Second, the caller provided information about what he had just heard and seen that illustrated his immediate, first-hand knowledge of the situation. Third, the caller provided specific details about what he had heard and seen, including a description of the suspect and the specific location of the SUV. Fourth, the fact that he had provided his address to the 911 operator suggests that he was acting as a concerned citizen. Finally, the officers corroborated several details of the 911 call.

Defendant also argued that the police lacked a reasonable, articulable suspicion that criminal activity was afoot. Although the 911 call did not allege criminal activity and the officers did not observe any illegal conduct, these elements are not essential to determining the existence of reasonable suspicion. Here, the stop occurred in a high-crime area, late at night. When defendant observed the police, he walked into a parking lot, for no other apparent reason than to evade them. The officers also had reason to investigate, given the temporal and geographic association between someone yelling and the observation of a man putting a handgun in his waistband. Moreover, given the report suggesting that defendant was armed with a concealed handgun, the officers were not obligated to begin their interaction with him by attempting a voluntary, consensual encounter. In view of all the circumstances, the officers had a sufficiently reliable tip and a reasonable suspicion of criminal activity, and their actions did not violate the Fourth Amendment. The Circuit therefore affirmed defendant’s conviction.

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