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TCL > July 2014 Issue > Summaries of Selected Opinions

July 2014       Vol. 43, No. 7       Page  145
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. 12-5154. United States v. Hill. 04/28/2014. N.D.Okla. Judge Lucero. Plain Error—Expert Testimony Concerning Defendant’s Credibility.

A jury convicted defendant of several charges related to a bank robbery. At his first trial, the government proceeded on the theory that defendant was one of two men who entered the bank during the robbery. This trial ended in a mistrial. At the second trial, the government charged instead that defendant had not entered the bank but had been the getaway driver. At this trial, the government played a videotape of defendant’s interrogation by police officers. It called an FBI agent, who testified that in his experience and training, the responses defendant provided indicated untruthfulness.

On appeal, defendant argued that the trial court erred in permitting the FBI agent to provide expert testimony concerning his credibility. Because he did not object at trial, the Tenth Circuit reviewed this issue using the plain error standard and found the agent’s testimony plainly erroneous. Under FRE 702, the credibility of another person may not be addressed through expert testimony. Expert testimony may not be used to vouch for or against a witness’s credibility. This rule applies equally to in-court statements and statements made out of court. Although psychiatric testimony concerning delusional disorders may be admissible, the testimony here merely usurped the jury’s function in determining defendant’s credibility.

The Circuit further determined that the testimony had affected defendant’s substantial rights. There was a reasonable probability that, but for the agent’s improper testimony, the result of the trial would have been different. Finally, the error was likely to seriously affect the fairness, integrity, or public reputation of judicial proceedings. Accordingly, the Circuit reversed and remanded with instructions to vacate defendant’s sentence.

No. 13-2084. United States v. Lucero. 05/02/2014. D.N.M. Judge Matheson. Pattern of Sexual Abuse—Temporal Remoteness of Prior Conduct.

Defendant pleaded guilty to several child pornography offenses after child pornography was found on his office computer at the Veterans Administration. In an interview with agents of the Office of the Inspector General, he admitted to viewing child pornography for twenty years, and to having sexually molested two of his nieces in the late 1960s and the early 1970s. At sentencing, the district court increased his offense level for having engaged in a pattern of activity involving the sexual abuse or exploitation of minors, including molesting his nieces, and sentenced him to seventy-eight months in prison, followed by fifteen years’ supervised release.

On appeal, defendant challenged his sentence, contending that (1) the district court should not have applied a five-level enhancement for a pattern of activity involving the sexual abuse or exploitation of minors, based on conduct that occurred more than thirty-five years earlier; and (2) the district court should have granted him a downward variance based on the age of his pattern-of-activity conduct and his personal characteristics. The Tenth Circuit rejected both challenges.

Under the plain language of USSG § 2G2.2(b)(5), a pattern of activity includes any combination of two or more separate instances of sexual abuse, regardless of whether the abuse occurred during the course of the offense. The commentary in the Sentencing Guidelines also indicates that an upward departure may be appropriate if defendant engaged in the sexual abuse or exploitation of a minor at any time. The Guidelines include no temporal limitation, and the Circuit would not read one into it.

The Circuit also found that defendant’s sentence was not made substantively unreasonable by the district court’s refusal to grant him a downward variance. Although temporal remoteness of a prior pattern of activity can be a relevant factor in determining the length of a sentence, defendant failed to meet his burden to overcome the presumption of substantive reasonableness that attached to his Guidelines-range sentence. Moreover, the district court had taken into account factors such as defendant’s age, education, and circumstances in reaching its sentence. Accordingly, the Circuit affirmed his sentence.

Nos. 13-6108 & 13-6122. BP America Production Co. v. Chesapeake Exploration, LLC. 05/02/2014. W.D.Okla. Judge Kelly. Arbitration—Court Enforcement of Award—Waiver of Right to Arbitrate—Matters Not Included in Arbitration Decided by Court—Attorney Fees—Prevailing Party.

This dispute arose from a purchase and sale agreement whereby Chesapeake Exploration, LLC (Chesapeake) agreed to sell BP America Production (BP) certain oil and gas properties. The agreement provided for arbitration and for the purchase price to be adjusted based on property defects or benefits discovered before closing. At closing, the parties agreed on an adjustment in BP’s favor; disputed defects and benefits were submitted to arbitration. Chesapeake had claimed a $22 million offset, arguing that it might recover it in arbitration. Arbitration resulted in an order for Chesapeake to pay BP a monetary award. Federal litigation ensued to affirm the award and resolve the remaining disputes, including BP’s counterclaim for the $22 million Chesapeake had claimed as an offset. The district court upheld the arbitration award and granted BP’s motion for attorney fees and costs.

The Tenth Circuit rejected Chesapeake’s claim that the district court improperly addressed the $22 million counterclaim, because the court’s jurisdiction ended when it confirmed the arbitration award. The Circuit also ruled that Chesapeake had waived its right to arbitrate the counterclaim by consistently repudiating arbitration of it throughout the proceedings. The Tenth Circuit further held that by not including the counterclaim in the original arbitration, the claim was not later barred by claim preclusion or res judicata. Finally, the Circuit noted that there is no rule prohibiting counterclaims in arbitration-confirmation proceedings.

Turning to Chesapeake’s challenge to the district court’s award to BP of approximately $1.4 million for attorney fees and costs, the Circuit noted that the fee issue was not settled in arbitration, so it was properly determined by the district court. The Circuit also affirmed the district court’s fee award as reasonable and ruled that no evidentiary hearing was required. The Circuit further affirmed the district court’s holding that BP was the prevailing party in the arbitration, notwithstanding the arbitrators’ finding that Chesapeake had prevailed on some claims. The net result was an award in BP’s favor, so BP was the prevailing party entitled to an award of attorney fees. The district court’s judgment was affirmed.

No. 13-4048. Miller v. Basic Research, LLC. 05/06/2014. D.Utah. Judge Tymkovich. Motion to Enforce Settlement Agreement—Class Action—Final Judgment—Interlocutory Appeal—Jurisdiction.

Plaintiffs filed a class action against the manufacturer of a weight-loss supplement, claiming false advertising. The parties entered into mediation and signed a document outlining the terms of a settlement. Later, defendant decided not to settle.

The plaintiff class then filed a motion to enforce the settlement, which the district court granted. However, the court did not execute the procedures for a class action settlement as required by Fed.R.Civ.P. 23. The manufacturer appealed, challenging the conclusion that the parties had reached a binding settlement.

The Tenth Circuit held that this was an impermissible interlocutory appeal; it must wait for a final judgment in the underlying case before exercising appellate jurisdiction. The Circuit discussed and rejected two exceptions to the final-judgment rule. First, the appellate court may review the issuance or denial of injunctive relief. However, this order was not an injunction, nor did it have the practical effect of one. Second, the appellate court may review certain collateral orders when their effect on the litigation is significant and where the issue to be appealed is completely separate from the merits of the action and effectively unreviewable upon an appeal from a final judgment. Here, despite the inconvenience and expense to the plaintiff class, waiting for a final judgment would not impose serious consequences or evade appellate review. The appeal was dismissed.

No. 13-4112. Rockwood Select Asset Fund XI (6)-1, LLC v. Devine, Millimet & Branch. 05/06/2014. D.Utah. Judge Bacharach. Personal Jurisdiction—Defendant’s Contacts With Forum State—Insufficient.

Plaintiff, a Utah limited liability company, was asked to loan money. It asked the prospective borrower to obtain an opinion letter from defendant, a New Hampshire law firm. After plaintiff determined that the opinion letter contained falsehoods, it sued the law firm in Utah federal court. The district court dismissed the suit based on lack of personal jurisdiction. Plaintiff appealed.

The Tenth Circuit concluded that the law firm’s contacts with Utah were insufficient to invoke personal jurisdiction. In evaluating whether service of process would have deprived the law firm of due process, the Circuit considered whether plaintiff had carried its burden of showing that the law firm had purposefully availed itself of the privilege of conducting business in the forum state. Concluding that plaintiff had not, the Circuit emphasized that it is the defendant’s connections that count, not the plaintiff’s. Here, the law firm sent plaintiff an opinion letter and made a telephone call to plaintiff. These acts were insufficient for personal jurisdiction. The dismissal based on lack of personal jurisdiction was affirmed.

No. 13-2155. United States v. Garcia. 05/12/2014. D.N.M. Judge Matheson. Pat-Down Search—Reasonable Suspicion That Suspect is Armed and Dangerous.

Defendant entered a conditional guilty plea to being a felon in possession of ammunition. He reserved the right to appeal the denial of his motion to suppress evidence of the ammunition discovered during a pat-down search. The search occurred after a traffic stop. The officer who conducted the traffic stop ordered defendant, who was a passenger in the car, to exit the vehicle.

Defendant appeared nervous. He did not make eye contact with the officer and kept playing with his hands. The officer recognized defendant from a recent encounter, during which the officer had apprehended him. During this encounter, defendant assumed a fighting stance when cornered, and the officer ended up deploying his Taser to subdue him. The officer also knew that defendant had a criminal history, including a felony for armed robbery, and was a known drug user. For these reasons, he decided to conduct a pat-down search of defendant for weapons before completing the inventory search of the vehicle. During the search, he discovered a gun clip in defendant’s pocket.

On appeal, defendant argued that the officer lacked reasonable suspicion that he was armed and dangerous sufficient to justify a pat-down search, and that the ammunition should therefore be suppressed. The Tenth Circuit disagreed. Under the totality of the circumstances, the officer had the necessary reasonable suspicion to warrant the pat-down search. The officer’s previous encounter with defendant, though it did not involve a firearm, demonstrated that defendant was able and willing to act combatively toward police officers in confrontational situations. Defendant’s prior use of a weapon during a crime of violence also helped establish reasonable suspicion. Further, the officer had stopped the vehicle on a sparsely traveled street at night, and needed to turn his back on defendant to conduct the inventory search. The Circuit therefore affirmed the denial of the suppression motion.

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