Rocky Mountain Appellate Blog

Tenth Circuit Affirms Trial Court's Refusal to Consider Race and Gender in Calculating Lost Income for Purposes of Restitution

Redd Rock Serawop was convicted of involuntary manslaughter in the death of his three-month-old daughter, Beyonce Serawop.  The federal district court sentenced him to 96 months in prison and, pursuant to the Mandatory Victims' Restitution Act, imposed a restitution order requiring him to pay to Beyonce's estate (meaning, essentially, Beyonce's mother) $325,000 -- the amount calculated to be Beyonce's lost income. 

The court's appointed expert calculated that given that Beyonce was a Ute Indian and female, her earnings were likely to be far lower -- approximately $170,000 -- than if she were male or Caucasian.  The court, however, rejected the lower calculation, and ordered payment of the calculated amount that did not  account for Beyonce's race and gender.

Serawop appealed and argued, among other things, that an award of future lost income to a three-month old infant is too speculative and that the district court erred in declining to consider Beyonce's race and gender in setting the restitution amount.  The Tenth Circuit affirmed the restitution order in United States v. Serawop, No. 06-4022. 

In my view, Serawop's arguments were quite persuasive, and parts of the the court's opinion are fraught with ambivalence.  For example, as to the speculativeness argument, the court appears to express agreement with Serawop for nearly two full pages -- whereupon the court abruptly concludes that the district court did not abuse its discretion.  This case reminds me of a boxer who appears to win on points but still somehow ends up losing the fight.

Tenth Circuit Rats Out An Anonymous Informant

In United States v. Copening, No. 06-5232, the defendant challenged a Terry stop in which he was arrested and charged with being a felon in possession.  The sole probable cause supporting the Terry stop was a series of 911 telephone calls from an anonymous informant who reported that he had seen one of the occupants of a truck drop a gun when entering a convenience store. The informant followed the truck carrying defendant (and the gun) when it left the convenience store and made several further 911 calls reporting the truck’s location until the police pulled it over.

The Tenth Circuit held that although the caller was anonymous, there were sufficient indicia of reliability to support the stop.  I think this decision was probably a close call. For example, the Court finds that the fact that the officers verified that the caller was accurately reporting the truck’s movements supported a determination that he was reliable. They do not however, explain how this same fact is inconsistent with a fabricated tip.  They also note that “the 911 transcripts provide no indication that the caller had iniquitous intentions” which is surely a low bar to meet.

The constitutionality of the Terry stop is not, however, the part of the opinion that I found most interesting. Bizarrely, the Court felt compelled to repeatedly publish the phone number and name on the voice mail of the cell phone used by the anonymous tipster. The informant did not apparently take significant steps to remain anonymous beyond declining to provide his name (the Court notes that he called “from an unblocked telephone number” and “should have expected that 911 dispatch tracks incoming calls”). Nevertheless, publishing his name and phone number struck me as unnecessary and a potential deterrent to future informers.

Teetering on the Edge

The plaintiff in Bruner v. Baker, No., 04-6396 appealed the dismissal on summary judgment of his § 1983 claim arising out of a voluntarily dismissed prosecution for tax fraud.  Plaintiff probably brought the prosecution on himself by failing to properly explain to investigators that he was compensated by his employer both personally and as the employee of a consulting firm of which he was president and that as a result his personal income tax returns showed a salary lower than the checks he was receiving from his employer.

In his appeal, Brunner apparently spent the first fifteen pages of his brief “implying the district court dismissed []his case simply to lighten its case load.”  Bruner, of course, did not have any evidence that this had in fact taken place.  Rather he simply cited statistics regarding the number of cases dismissed on motions for summary judgment by the trial court and argued that the statistics “are offered merely as an indication that the pressures . . .  [for efficiency] may be impacting upon a relatively new district court judge.”  Bruner suggested that these statistics should raise a “red flag” the Tenth Circuit and urged the Court to use his case to “send a clear message to the lower courts. Brunner also noted (impossibly in my opinion) that “[i]n urging that [the trial court] has fallen victim to the effects of a desire to address a sizable caseload, the undersigned means no disrespect to the jurist.”

The Tenth Circuit pithily declined Bruner’s invitation to use his case to send a message to the trial courts.  It also seems to have declined to send a message to the bar, simply warning Bruner that his brief “teeters on the edge of permissible advocacy.”

As an interesting side note, in the course of poking holes in Bruner’s argument, the Court also stated that it was “difficult to imagine how” the number of meritorious civil rights claims filed in federal court outnumber the unmeritorious ones.

The Discretion to Issue Curative Instructions

The defendants in United States v. Sanchez, No. 06-2099 were arrested in a hotel room full of methamphetamines, scales, and bags.  At trial, the attorney for one of the defendants asked one of the arresting agents whether he had taken fingernail scrapings from the defendants to determine the presence of methamphetamines on the defendants’ persons.  The agent replied that he had not done so because the defendants “had requested to speak to an attorney during the interview process.”  Woops!  The district court issued a curative instruction and denied a motion for a mistrial.  The Tenth Circuit affirmed, noting that the agent’s answer came in response to a question from a defendant’s attorney, not the government, that the agent did not appear to have intentionally acted improperly in attempting to explain why no scrapings were taken, and that the prosecution made no subsequent effort to exploit the comment. 

Interestingly, the Court also stated that the district court had “the advantage (unlike us) of being able to observe and discern the impact of Agent Current’s comment and the curative instructions given to the jury.”  Frankly, I’m not sure that, at least in these circumstances, the trial court’s ability to observe the jury should entitle it to increased deference on the issue of deciding whether a curative instruction is sufficient.  Trial courts are entitled to deference on credibility determinations because they can read the body language and tone of the witness.  But I have difficulty imagining that (except in extraordinary situations) even a very observant trial judge could guess with any reliability what jurors were thinking simply from watching them as a witness testifies.  Lawyers at trial try to do this all of the time, but without any regular success as far as I am aware. 

Better Late Than Never? Maybe.

Better Late Than Never? Maybe.

In Governor of the State of Kansas v. Kempthorne, No. 063213, the Tenth Circuit held, after eleven years of litigation, that the defendant Secretary of the Interior was immune from suit by virtue of sovereign immunity. 

In 1996 the Secretary of the Interior decided to take a tract of land in downtown Kansas City in trust for the Wyandotte Tribe, which intended to operate a casino on the tract.   The Governor of Kansas and several other tribes filed suit to block the trust acquisition.  While that litigation (Sac & Fox Nation v. Babbitt) was pending, the Tenth Circuit dissolved a TRO barring the Secretary from taking the tract into trust, and the Secretary did so. Notably, in dissolving the TRO the Tenth Circuit stated that “the respective rights of the parties to obtain judicial review of all issues which have been raised in the complaint below shall be preserved.” Ultimately, the Tenth Circuit remanded the case to the Secretary for reconsideration, thus terminating the Sac case.

On reconsideration the Secretary reaffirmed her decision.  The plaintiffs then attempted to reopen the Sac case, but were told by the District Court that they must file a new case, which they did.  They then litigated this case to a final judgment, lost, and appealed to the Tenth Circuit. For the first time on appeal the Secretary argued that because the tract was in trust at the time the second suit was filed, it was protected from suit by the Quiet Title Act (28 U.S.C. § 2409a).  The Tenth Circuit held that the Secretary could raise the defense of sovereign immunity for the first time on appeal, that the suit was a quiet title action under the Act, that the present case was separate from the Sac case, and that neither the Court nor the Secretary could preserve the plaintiff’s right of review of the trust acquisition. It thus dismissed the case.

In a concurring opinion Judges Briscoe and Hartz argued that the Court should utilize F.R.C.P. 60(b)(6) to vacate the final judgment in Sac and authorize further proceedings in that case. (I’m not sure why a concurrence written by two out of the three judges on a panel is not the majority opinion, but that is a question for another blog). In essence they argued that the plaintiffs reasonably relied on the Court’s order dissolving the TRO in Sac and should not be entirely deprived of their right of review in consequence.

I agree with the concurrence that it is “grossly inequitable” to deprive litigants of their right of appeal as a result of their reliance on orders of the Court. I also find interesting the relative lack of hand-wringing over the Secretary’s late invocation of sovereign immunity.  At least in cases involving Native American tribes, the Tenth Circuit appears to take these issues very seriously.

Tenth Circuit Applies § 1983 “Danger-Creation” Test

In Rhoten v. Pase, No. 06-3346, the Tenth Circuit affirmed the denial of the plaintiff’s § 1983 claim.  Defendant Dickerson was speeding on streets that were “slick, icy, and slushy.”  Defendant Pase, a police lieutenant driving an unmarked car, observed Dickerson speeding and pursued him in his unmarked car.  For reasons that are not clear, Pase did not activate his lights or siren or contact the police dispatcher. Before Pace could pull Dickerson over, Dickerson crashed into Plaintiff’s car, severely injuring her and killing her unborn child.

The Tenth Circuit determined that the plaintiff had failed to allege that Pase had violated a constitutional right. In so doing, the Court applied the six part “danger-creation” test set out in Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003). The Court noted that the danger-creation theory applies only in “exceptionable circumstances” and must be “conscience shocking.”  The Court concluded, among other things, that Pase’s conduct in failing to utilize his lights or siren when pursuing Dickerson did not shock the conscience. 

Interestingly, Dickerson admitted that he was at no time aware that Pase was pursuing him.

News Flash: "Good Advocacy Really Matters"

Tony Mauro at Legal Times reported yesterday on a new law review article by Georgetown Law Professor Richard Lazarus, who argues that the increasing influence of the "Supreme Court Bar" -- those rare high-powered lawyers whose specialty is Supreme Court advocacy, like Ted Olsen, Walter Dellinger, and Maureen Mahoney -- is beginning to have an impact in terms of shaping the Court's precedent.  In particular, Professor Lazarus argues that what he describes as the Court's "pro-business tilt" is the result of the Supreme Court Bar's influence.

But Professor Lazarus isn't really blaming merely the "star power" effect of Supreme Court advocates (or the "high priests of the high court bar," as Mauro calls them); he appears to be giving these advocates their due by arguing that the quality of their advocacy is driving this trend.  "Good advocacy really matters," Professor Lazarus concludes.  If that's true, doesn't Professor Lazarus's study merely illustrate that the adversary system works?

Tenth Circuit Rejects Zoning Appeal

In Nichols v. Board of County Commissioners of the County of La Plata, No. 06-1427, the plaintiffs alleged that the County had violated their due process rights by refusing to approve a requested modification to their Special Use Permit to allow them to construct a pond and sell the soil removed in construction.  The plaintiffs argued that the County’s prior settlement of a similar issue with another landowner precluded the denial of their request. The District Court granted summary judgment for the County and the Tenth Circuit affirmed. The Tenth Circuit held that collateral estoppel was inapplicable because the settlement agreement and consent decree at issue were not “actually litigated” for purposed of collateral estoppel.  The Tenth Circuit held that, while the Colorado Supreme Court has not directly addressed this issue, its approach conformed to the Restatement (Second) of Judgments, which has been relied on by the Colorado Supreme Court in formulating other collateral estoppel principles. The Tenth Circuit further held that the plaintiffs did not have a protectable property interest in the approval of their request for a modification to their Special Use Permit because approval of such modifications was discretionary. The Court found plaintiffs’ argument that such discretion had dissolved following the entry of the prior settlement to be unsupported.

Colorado Supreme Court Holds That Physicians Must Exhaust Administrative Remedies

In Crow v. Penrose-St. Francis Healthcare System, No. 06SA323, the Colorado Supreme Court held that, under the Colorado Professional Review Act (§§ 12-36.5-101 to 203), “[a] physician must exhaust all peer review committee administrative remedies before seeking relief in court” even if the plaintiff is seeking “money damages for common law claims arising out of the process, rather than challenging the board’s final decision.” Based on this decision, the Court dismissed the plaintiff’s breach of contract and tort claims arising out of the peer review process.  The Court also dismissed the plaintiff’s request for an injunction barring the defendant hospital from limiting his medical staff privileges because of his treatment of any of the patients who were the subject of the peer review process.  In so doing, the Court observed in a footnote that such relief was “extraordinary” and that the plaintiff’s attorney had stated in oral argument that it was “‘boilerplate language’ that was erroneously included in the complaint and would be dismissed.”

Defining "A Crime of Violence"

In United States v. Romero-Hernandez, No. 2154, the defendant, a citizen of Mexico, pled guilty to illegal reentry.  The defendant had previously been convicted in 2004 of misdemeanor unlawful sexual contact.  The sentencing court concluded that the previous conviction constituted a "crime of violence" under the Sentencing Guidelines and, accordingly, applied a sixteen-level upward adjustment to the defendant's sentence.

In a matter of first impression for the Tenth Circuit, the defendant argued on appeal that his previous conviction was not a "crime of violence" because the offense did not involve the use of physical force apart from the force inherent in the sexual contact itself.  The government, on the other hand, contended that a sexual offense is inherently "forcible," and therefore a "crime of violence," even if no physical force is involved.

In Chief Judge Tacha's crisp analysis -- much of which relies on definitions in Black's Law Dictionary -- the Tenth Circuit held that nonconsensual sexual contact, as defined by Colorado criminal law, is categorically a crime of violence.  Among the Black's passages quoted by the court was this one:  "To lay one's finger on another person without lawful justification is as much a forcible injury in the eye of the law . . . as to beat him with a stick."  The passage was not in the context of defining unlawful sexual contact, but it seems particularly pertinent.

In so holding, the Tenth Circuit joins the Third Circuit, while the Fifth and Ninth Circuits have held to the contrary.