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TCL > July 2013 Issue > Summaries of Selected Opinions

July 2013       Vol. 42, No. 7       Page  157
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. 11-3271. United States v. Toombs. 04/26/2013. D.Kan. Judge Lucero. Fifth Amendment—Self-Incrimination—Use of Defendant’s Testimony on Retrial—Dismissal of Indictment Without Prejudice.

In 2008, a jury found defendant guilty on seven counts of drug and firearm felony offenses. The Tenth Circuit reversed and remanded his case for violations of the Speedy Trial Act. The district court dismissed his indictment without prejudice, the government filed a new indictment, and after a second trial, the jury convicted him of six charges. At the second trial, the government presented evidence indicating that defendant had participated in a drug conspiracy run out of several homes in the Kansas City region. Over defendant’s objection, the district court permitted the government to read into evidence the entire transcript of defendant’s testimony at his 2008 trial.

On appeal, defendant challenged the admission of his entire testimony from his first trial. He contended that certain portions of his testimony describing his previous drug conviction, past drug use, and sexual relationships were irrelevant, prejudicial, or constituted improper prior conviction evidence. The Circuit noted that use of prior testimony does not violate a defendant’s Fifth Amendment right against self-incrimination; however, such testimony is subject to the Federal Rules of Evidence. Nevertheless, any error in this case was harmless, because the record contained ample evidence of defendant’s guilt, and the district court gave adequate limiting instructions, advising the jury that it should consider defendant’s acts and prior convictions mentioned in his testimony solely for purposes of intent, knowledge, identity, impeachment, and absence of mistake or accident.

Defendant also asserted that the district court erred in dismissing the previous indictment without prejudice. The Circuit determined that the district court had properly considered the statutory factors applicable to a dismissal without prejudice. [See 18 USC § 3162(a)(2).] Notwithstanding the considerable pretrial delay, the district court did not abuse its discretion in determining that the factors favored a dismissal without prejudice. The Circuit therefore affirmed defendant’s conviction.

No. 12-4001. United States v. Mackay III. 04/30/2013. D.Utah. Judge Baldock. Sufficiency of Evidence—Prescription of Controlled Substances.

Defendant, a medical doctor who specialized in pain management, was convicted of three counts of using a telephone in furtherance of drug distribution and thirty-seven counts of unlawfully distributing controlled substances. Two of the unlawful distribution counts related to a patient who died. On appeal, defendant challenged the sufficiency of the evidence on all counts. He also raised evidentiary and sentencing issues.

With regard to the non-death counts, the Tenth Circuit noted that the jury had to conclude beyond a reasonable doubt that defendant knowingly and intentionally prescribed the controlled substances to his patients outside the usual course of medical practice or without a legitimate medical purpose. The government’s theory was that defendant prescribed narcotic medications without taking adequate medical histories, failed to conduct physical examinations, provided excessive quantities of drugs, and provided prescriptions to patients he never saw. The Circuit analyzed the evidence as to each patient, and determined that the evidence sufficiently supported the convictions. It rejected defendant’s argument that he had been convicted based on a simple failure to correctly complete his medical charting; rather, the conviction came from the information gleaned from the charts and explained to the jury by the government’s expert witness. The expert testified to such factors as defendant’s prescriptions of excessive doses of medications, his providing early refills without adequate indication that the medications were helping the patient, and the insufficient information or diagnosis to initiate his prescription of controlled substances. There also was evidence that on days when defendant was sick, office staff would come to his home, obtain prescriptions, and give them to patients without defendant actually seeing the patients. Finally, the mere fact that defendant’s patients did suffer from pain did not mean that he did not prescribe the medications without a legitimate medical purpose.

The Circuit also rejected defendant’s alternative arguments that the Controlled Substances Act (CSA) failed to provide him fair notice that his conduct was illegal, and that the statute is vague. The statute gave defendant adequate notice concerning the illegality of his conduct, and a previous case precisely on point was not required to put him on notice.

Defendant also challenged his death-related convictions. He was convicted of prescribing oxycodone and hydrocodone, in violation of the CSA, resulting in the death of a patient. The government was required to prove that the patient died as the result of taking the prescribed medications and, given that it had requested an instruction on this element, that his death was reasonably foreseeable. The evidence showed that defendant prescribed the patient oxycodone and hydrocodone, and the patient died three days later. The autopsy report indicated that the patient died as a result of the combination of drug toxicities, as well as pneumonia.

The Circuit held that the evidence was sufficient to show that defendant stepped outside his role as physician and did not prescribe the medication for a legitimate medical purpose. Also, although there was conflicting medical evidence, the Circuit held that there was sufficient evidence that either the oxycodone or the hydrocodone could have resulted in the patient’s death. The Circuit further held that the district court did not commit plain error in admitting an autopsy report, that there was sufficient evidence to establish that the death was a reasonably foreseeable consequence of defendant’s prescribing the controlled substances, that the district court did not plainly err in determining that the prosecution’s expert was qualified to testify concerning the relationship between the drugs and the patient’s death, and that the district court did not commit prejudicial error in permitting the admission of charts showing annual rankings of Utah’s top ten issuers of hydrocodone and oxycodone prescriptions, in which defendant ranked in the top ten for several consecutive years.

The Circuit also rejected defendant’s argument that discrepancies between the statutory minimum sentences for oxycodone and hydrocodone mixtures violated the Fifth and Eighth Amendments. The Circuit expressed concern, however, about defendant’s argument that the district court plainly erred in sentencing him to an overall 240 months’ imprisonment, rather than specifying individual sentences for each offense. As to nine counts of conviction, this sentence exceeded the statutory maximum. The Circuit therefore remanded the case for resentencing, but affirmed the remainder of defendant’s sentence.

No. 12-2089. United States v. Acosta. 05/03/2013. D.N.M. Judge Briscoe. Pronouncement of Sentence—Timeliness of Rule 35(a) Motion—Continuance of Sentencing Proceedings.

Defendant was charged with illegally re-entering the United States. He entered a guilty plea under the "fast track" program, which allows a defendant to receive a downward departure from the Sentencing Guidelines offense level in exchange for his plea. As part of his plea agreement, the government agreed to a downward departure in his final offense level, and defendant agreed not to seek any other reduction, departure, deviation, or variance in his offense level of criminal history category. He also agreed not to appeal any sentence within the Guidelines range. Defendant’s presentence report (PSR) calculated an offense level of 18, with a resulting Guidelines range of thirty-three to forty-one months’ imprisonment. Claiming the government had told him it anticipated an adjusted offense level of 8 or 11, resulting in a Guidelines range of at most twelve to eighteen months’ imprisonment, defendant objected to the PSR calculation at sentencing. The district court then announced its intention to sentence defendant to thirty-three months’ imprisonment, to be followed by two years’ supervised release. Counsel requested and received a continuance until after the new Sentencing Guidelines became effective. The new Guidelines eliminated the term of supervised release in illegal re-entry cases.

At the second sentencing hearing, defendant’s counsel objected to both the Guidelines range and the term of supervised release. This time, the district court reduced the sentencing range to twelve to eighteen months’ imprisonment. It then sentenced defendant to twelve months’ imprisonment, with no supervised release. Five months later, however, when it entered a written judgment, it imposed a sentence of thirty-three months’ imprisonment, without supervised release. In an accompanying sentencing memorandum, the district court indicated that it had lacked jurisdiction to impose the twelve-month sentence. Defendant appealed.

On appeal, the government argued that the district court lacked jurisdiction to modify defendant’s sentence after the first sentencing hearing, absent corrections that fell within the limited circumstances permitted by Fed. R. Crim. P. 35(a). Rule 35(a) provides the district court jurisdiction to make corrections of arithmetical, technical, or other clear errors within fourteen days after the oral announcement of the sentence. As a threshold matter, the Tenth Circuit determined that defendant’s appeal did not fall within the scope of his appeal waiver, because he did not waive his right to appeal a judgment entered without jurisdiction.

The Circuit then turned to the question of when the "oral announcement of the sentence" occurred. It determined that the sentence was not final until the end of the second hearing. The parties had not had the time to raise other objections, and defendant had not had an opportunity to allocate. Although the district court later stated that it intended to continue the sentencing only as to the term of supervised release, it did not express this intention at the time it continued the sentencing proceedings. Thus, the district court had jurisdiction to impose the twelve-month sentence at the second hearing, because sentencing had not yet occurred, but it lacked jurisdiction under Rule 35(a) when it altered the twelve-month sentence in its written judgment entered five months after its oral pronouncement of sentence. The Circuit therefore reversed the judgment and remanded the case with instructions to the district court to vacate its written judgment and enter a new judgment consistent with the second sentencing.

No. 12-2104. United States v. Copar Pumice Co. 05/06/2013. D.N.M. Chief Judge Briscoe. Pumice Mining—Interlocutory Appeal—Discovery—Appellate Jurisdiction—Attorney–Client Privilege—Perlman Doctrine—Pragmatic Finality Doctrine.

Defendant engaged in pumice mining on federal government land. Not all pumice may be mined. Specifically, "common variety" pumice may not be mined, whereas stonewash pumice that is 3/4² or larger may be mined. The government asserted that defendant was mining common-variety pumice. In 2002, the dispute was settled, allowing defendant to mine 3/4² pumice.

In 2009, the government filed the underlying lawsuit, claiming that defendant had violated the settlement agreement. Defendant proffered the defense of advice of counsel. In response, the government sought to discover from defendant’s current and former attorneys pertinent information and documents. Defendant asserted the attorney–client privilege and moved to withdraw the advice-of-counsel defense. The district court ordered production of discovery. Defendant filed this interlocutory appeal to prevent discovery.

The Tenth Circuit noted that the court of appeals generally has jurisdiction only over final orders. However, under the collateral order doctrine, the appellate court has jurisdiction over a small class of rulings that (1) finally decide (2) an important question collateral to, or separate from, the merits, and (3) are effectively unreviewable after final judgment. The Supreme Court has held that this doctrine does not apply to disclosure orders adverse to the attorney–client privilege. The Circuit rejected defendant’s arguments that the collateral order doctrine does not apply where the documents were sought from a nonparty and that a post-judgment appeal would be inadequate. The Circuit also rejected defendant’s argument on the merits of their asserted privilege because, even if the district court had erred, that fact would not affect jurisdiction.

Defendant also invoked the Perlman doctrine. [Perlman v. United States, 247 U.S. 7 (1918).] Under the Perlman doctrine, when a motion to quash is denied, the subpoenaed person may refuse to comply and be held in contempt, at which point the person’s situation becomes so severed from the main proceeding as to permit an appeal. Even where the subpoenaed person is not the privilege holder, the Perlman doctrine may apply. This doctrine permits an interlocutory appeal by a non-custodian in a grand jury proceeding. The Circuit rejected defendant’s attempt to apply the Perlman doctrine in this non-grand jury proceeding.

The Circuit also rejected defendant’s claim of appellate jurisdiction under the pragmatic finality doctrine. Under this doctrine, a court may assume jurisdiction where the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review. The Circuit noted that even if this doctrine is still recognized, it applies only in truly unique instances, which this case did not present.

Finally, the Circuit denied defendant’s request for a writ of mandamus, stating that mandamus is not a substitute for appeal. The Circuit held that defendant did not establish the two prerequisites: (1) disclosure of the allegedly privileged information renders impossible any meaningful appellate review, and (2) the disclosure involves questions of substantial importance to the administration of justice. The interlocutory appeal was dismissed for lack of jurisdiction.

No. 11-3319. Federal Trade Commission v. Chapman. 05/07/2013. D.Kan. Judge McKay. Telemarketing Sales Rule—Misrepresentation—Knows or Consciously Avoids Knowing—Post-Judgment Motion.

The district court ruled that defendant had violated the "assisting and facilitation" provision of the Telemarketing Sales Rule, 16 CFR § 310.3(b), by providing substantial assistance to telemarketers who marketed and sold to consumers grant-related goods and services based on false representations. Defendant had prepared lists of potential funding sources and other programs for which the consumers were not eligible. In addition to other misrepresentations, she also misrepresented about the telemarketers’ expertise and the consumers’ likelihood of receiving grant funding. The district court ordered a permanent injunction and $1,682,950 in monetary damages against defendant. She filed a motion to alter or amend the judgment or for remittitur, which the district court denied. She appealed.

The Tenth Circuit observed that a person violates the Telemarketing Sales Rule by providing substantial assistance to a telemarketer when the person knows or consciously avoids knowing that the telemarketer is misrepresenting material aspects of the goods or services sold. The Circuit rejected defendant’s claim that her actions did not constitute substantial assistance, because the evidence established that she played an integral part in the telemarketing scheme. The Circuit also rejected her challenges to the district court’s finding that she knew or consciously avoided knowing what the telemarketers were doing.

The Circuit also addressed defendant’s post-judgment motion alleging that the damages award should not have included the entire amount she billed to the telemarketers. She asserted that her knowledge of their misrepresentations did not occur until after the start of their relationship. Applying the highly deferential standard for reviewing the denial of a post-judgment motion, the Circuit found no manifest abuse of discretion and declined to reverse. The district court’s judgment was affirmed.

No. 12-1199. Squires v. Breckenridge Outdoor Education Center. 05/07/2013. D.Colo. Judge McKay. Skiing Accident—Negligence—Release of Liability—Consent for Minor Child—Clear and Unambiguous Language—Fraudulent Inducement.

Plaintiff, a minor and a handicapped skier, sued a Colorado ski center for negligence following a skiing accident in which she was injured. The district court granted summary judgment in defendant’s favor based on a release of liability (Release) signed by plaintiff’s mother. Plaintiff appealed, claiming that the Release was unenforceable.

Applying Colorado law, the Tenth Circuit addressed whether the Release expressed the intention of the parties in clear and unambiguous language. Plaintiff argued that the Release did not detail the risks involved; however, Colorado law does not require that exculpatory agreements refer to the specific activity in which a plaintiff was injured or describe in detail each specific risk that the signor might encounter. To be enforceable, an exculpatory agreement must clearly reflect the parties’ intent to extinguish liability for that type of claim. The Release did so here, and was not ambiguous.

Plaintiff also challenged the Release on the ground that her mother’s consent was not voluntary and informed, as required by CRS § 13-22-107 (providing a parent may release or waive a child’s prospective claim for negligence). She contended that her mother did not understand the risks involved with the use of bi-skis. Predicting that the Colorado Supreme Court would consider the parent’s actual knowledge and the information provided to her, in addition to the Release language, the Circuit determined that plaintiff’s mother’s decision to sign the Release was informed.

Finally, the Circuit addressed plaintiff’s argument that the Release was procured through fraud. She claimed that the information her mother was provided falsely implied that the activities would be conducted consistent with the standards of the Association for Experiential Education. However, even if that representation was false, plaintiff presented no evidence that she relied on it. Accordingly, her claim that she relied on a material misrepresentation was properly rejected. The district court’s summary judgment in defendant’s favor was affirmed.

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