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TCL > January 2014 Issue > Summaries of Selected Opinions

January 2014       Vol. 43, No. 1       Page  113
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").

Nos. 10-2121 & 11-2195. United States v. Melot. 10/21/2013. D.N.M. Judge Murphy. Willful Failure to File Tax Returns—Good-Faith Belief—Acceptance of Responsibility.

Defendant was convicted of various tax-related offenses after he and some entities he established or controlled failed to file tax returns—in some cases, for many years. Evidence showed he used false Social Security or employer identification numbers to establish bank accounts in the name of nominee entities. His businesses deposited millions of dollars into these accounts. The deposits were structured so that each was less than $10,000, which is the threshold amount at which a bank must report the transaction to the Internal Revenue Service (IRS). Defendant also conducted many transactions in cash, purportedly to avoid creating a paper trail.

During some of the years in question, defendant received subsidies from the U.S. Department of Agriculture (USDA). To receive the subsidies, he certified that the information he provided was consistent with his tax returns (which were nonexistent). He also provided a false Social Security number to the USDA. After the IRS audited him, defendant claimed to be a "non-resident alien, American" who was "outside of the venue and jurisdiction" governed by the Federal Tax Code.

On appeal, defendant argued that he should not have been convicted of willful failure to file tax returns because he had a good-faith belief that he was not a U.S. citizen and that he owed no tax. The Tenth Circuit rejected this argument. The jury could infer willfulness from defendant’s conduct. The government prevented overwhelming evidence that he had behaved like an individual who had actual knowledge of his obligation to file returns and pay tax, but sought to evade doing so. The Circuit also concluded that the district court properly included federal and state excise taxes in calculating the tax loss for sentencing purposes, and that defendant was ineligible for the agricultural subsidies he received because he provided false information to get them.

The government cross-appealed to challenge the district court’s grant of a two-level decrease in defendant’s offense level for acceptance of responsibility. The Circuit agreed that defendant’s conduct did not fall within the rare situation that occurs when a defendant both accepts responsibility for his criminal conduct and goes to trial. It therefore affirmed his conviction, vacated his sentence, and remanded for resentencing.

No. 12-9549. Batubara v. Holder, Jr., U.S. Attorney General. 10/28/2013. Board of Immigration Appeals. Chief Judge Briscoe. Immigration—Final Order of Removal—Remand to Clarify Voluntary Departure—Notice of Appeal too Late—No Appellate Jurisdiction.

Petitioners filed an appeal from a final order of removal denying their petition for withholding of removal and relief under the Convention Against Torture. In May 2011, the Board of Immigration Appeals (BIA) upheld the removal order, but remanded for the immigration judge to ensure that petitioners had been properly advised about the grant of voluntary departure. On remand, petitioners withdrew their requests for voluntary departure and, accordingly, the immigration judge issued an order in March 2012 denying voluntary departure and that they be removed to Indonesia. Petitioners filed a notice of appeal in April 2012, seeking review of the BIA’s May 2011 ruling.

The Tenth Circuit noted that a notice of appeal must be filed within thirty days of a final order of removal. The remand for clarification of the voluntary departure issue did not affect petitioners’ removability, only the manner of their exit. The notice of appeal was filed more than thirty days after the May 2011 final order of removal. Consequently, the Circuit did not have jurisdiction over the appeal and it was dismissed.

No. 12-2128. Lobato v. State of New Mexico Environment Dep’t. 11/05/2013. D.N.M. Judge Tymkovich. Employment Discrimination—Title VII—Probationary Employee—Pretext—Temporal Proximity—First Amendment.

Lobato’s employment was terminated during his probationary period. As a probationary employee, he could be fired at will. He sued his former employer, claiming that he was discharged because of his Mexican ancestry and that he was retaliated against for opposing discrimination. He also claimed that his termination violated his First Amendment right of freedom of speech. The district court granted summary judgment in favor of the employer.

Title VII forbids employers from discharging employees because of race or national origin, and from retaliating against an employee who reports or opposes violations of Title VII. The Tenth Circuit observed that the operative issue was whether the employer’s reasons for discharging Lobato were a pretext for discrimination or retaliation.

Lobato first alleged pretext, because the employer failed to follow its informal policy of progressive discipline. However, Lobato was a probationary employee subject to immediate dismissal, and he produced no examples of other probationary employees who were given progressive discipline. The Circuit also rejected Lobato’s assertion that the employer’s reasons for firing him—he lied when he requested reimbursement for a hotel stay, he failed to cooperate with a subsequent investigation, he lied in the course of his failure to cooperate, and he was rude to other employees—were pretextual. The Circuit then addressed Lobato’s argument that the temporal proximity between his opposition to discrimination and his termination showed pretext. Temporal proximity may establish a prima facie case, but it does not alone establish pretext.

The Circuit next considered Lobato’s "cat’s paw" theory of Title VII liability, by which he claimed that his biased supervisor, who did not make the firing decision, influenced the decision maker. There was no indication that the decision maker relied on the biased supervisor; rather, she made an independent decision.

Finally, the Circuit determined that Lobato’s termination did not violate his First Amendment free-speech rights. Lobato did not make the required showing that any constitutionally protected speech motivated the decision to fire him. The district court’s judgment was affirmed.

No. 12-2126. United States v. Chavez. 11/13/2013. D.N.M. Judge Seymour. Competency to Stand Trial—Involuntary Medication of Defendant—Need for Individualized Treatment Plan.

Defendant was charged with various firearm and immigration offenses. Shortly after he was indicted, the parties agreed he should be evaluated for competency to stand trial. The evaluator concluded that he suffered from paranoid schizophrenia and was not competent to stand trial, but that his competency could likely be restored with antipsychotic medication.

After an evidentiary hearing, the district court granted the government’s motion to involuntarily medicate defendant. He appealed.

The Tenth Circuit noted that under the applicable Supreme Court test, the government may involuntarily medicate a mentally ill, non-dangerous defendant to render him competent to stand trial only on a four-part showing. The government must establish that (1) important governmental interests are at stake; (2) the involuntary medication will significantly further those interests; (3) the involuntary medication is necessary to further those interests; and (4) the administration of the medication is medically appropriate and in the defendant’s best medical interests.

Here, the district court had not required the government to prepare a treatment plan describing specifically which antipsychotic medications might be involuntarily administered to defendant, and at what range of doses. The psychologist who testified at the evidentiary hearing testified concerning the typical treatment plan, but he did not have decision-making authority over the actual administration of medications to defendant, and could not say which medications would be administered and in what doses. Thus, it was not possible to determine whether the government had satisfied the second or fourth factors of the test for involuntary medication. The Circuit therefore vacated the district court’s order permitting involuntary medication of defendant and remanded for further proceedings concerning the type and dosage of the medications to be used.

No. 12-6188. Hernandez v. Ridley. 11/13/2013. W.D.Okla. Judge O’Brien. Danger-Creation Theory—State Liability—Substantive Due Process—Private Violence—Affirmative Conduct—Shocks the Judicial Conscience.

Plaintiff and two of his relatives were working on an Oklahoma highway construction project when the relatives were killed by a negligent driver. The Oklahoma Department of Transportation (ODOT) had contracted the work to Duit Construction Co. (Duit), which in turn employed plaintiff and decedents. On the day of the accident, Duit required the decedents to work on the roadway before the traffic lane where they would be working was closed. A distracted motorist drove off the roadway, killing them.

Plaintiff sued the State of Oklahoma on behalf of the decedents under a danger-creation theory, alleging that the acts and omissions of ODOT Director Ridley and engineer Henderson, who had authority over the project, violated substantive due process. The district court held that Ridley and Henderson were not entitled to qualified immunity.

The Tenth Circuit reversed, holding that no constitutional violation had occurred. The danger-creation theory requires a threshold showing of (1) a private act of violence that caused the victim’s harm, and (2) affirmative conduct by the state placing the plaintiff in danger. The conduct has to shock the judicial conscience.

The element of private violence requires some degree of deliberateness; negligence is insufficient. Plaintiff’s allegation that the decedents were killed by the car driver’s negligence thus did not satisfy the private-violence requirement. The affirmative-conduct requirement usually involves conduct imposing an immediate threat of harm that has a limited range and duration and is directed at a discrete plaintiff rather than the public at large. Inaction by the state is insufficient.

Plaintiff alleged that as ODOT Director, Ridley was responsible for establishing safety procedures to protect road-construction workers; however, Ridley’s alleged failures were inaction, not affirmative conduct, which is insufficient. Plaintiff also alleged that Henderson’s repeated refusals to close lanes and reduce speeds created the danger to the decedents. Plaintiff failed to allege facts demonstrating that Henderson, as opposed to Duit, created the danger. Duit required the decedents to work on the roadway before the lane was closed because Duit was behind on the project. The Circuit also concluded that Riley and Henderson’s conduct was not conscience-shocking; they merely held Duit to its contract with ODOT. The district court’s judgment was reversed.

No. 12-4169. United States v. Rentz. 11/18/2013. D.Utah. Judge Matheson. Double Jeopardy—Multiple Punishment for Single Gunshot Injuring Multiple Victims.

Defendant fired a single gunshot from a carbine. The bullet passed through the body of one victim, seriously injuring him, and then struck and killed a second victim. The government charged defendant with two counts of using a firearm during a crime of violence, in violation of 18 USC § 924(c). One count related to assault, and the other related to murder. Defendant filed a motion to dismiss the second count. He argued that § 924(c) could not support multiple charges arising from a single use of a firearm, and that punishment for two § 924(c) offenses would violate the Double Jeopardy Clause. The district court granted the motion to dismiss, and the government appealed.

The Tenth Circuit reversed the district court’s dismissal. The language of § 924(c) suggests that Congress intended to punish an armed offender with a separate count for each underlying violent crime. Thus, more than one § 924(c) conviction arising from the same course of conduct is proper, if that conduct results in more than one underlying offense. This is true even if a single gunshot produced both underlying offenses.

The Circuit also addressed whether the underlying murder and assault charges violated double jeopardy, and concluded they did not. The elements of "second-degree murder while within Indian country" differ from those of "assault resulting in serious bodily injury within Indian country." Because each underlying offense required proof of an element that the other did not, the two underlying charges did not implicate double jeopardy. The considerations of deterrence or the rule of lenity do not require a different construction of § 924(c). The Circuit therefore reversed the district court’s decision dismissing the § 924(c) count.

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