Rocky Mountain Appellate Blog

Tenth Circuit Addresses Scope of Federal Jurisdiction in Cases Brought By Native American Tribes

In Osage Nation v. State of Oklahoma, No. 03-5162, the Osage tribe challenged the right of Oklahoma to tax tribal members living on land that was part of the tribe’s 1871 reservation. Oklahoma recognizes only trust land or allotments as “Indian country” for tax purposes, but the tribe contends that all of the original 1871 reservation is “Indian country” for tax purposes because its status has never been altered by Congress (which created and allocated the reservation prior to the time that Oklahoma became a state).

 

The Tenth Circuit limited its opinion to the question of whether federal jurisdiction for the suit existed. The court noted that at its heart this case was not a tax case but a case about sovereignty over land. The court concluded that jurisdiction did not exist for the suits against the State and the Oklahoma Tax Commission, but reluctantly concluded that the tribe could proceed against the individual tax commissioners in federal court under the Young doctrine. 

This case highlights what may be a loophole in the Eleventh Amendment.  When states have disputes over sovereignty (i.e. border disputes) they litigate in the United States Supreme Court. But when a Native American tribe (which the Supreme Court has analogized to a foreign sovereign) has a sovereignty dispute, it is relegated by the Eleventh Amendment to the courts of the state whose sovereignty is being challenged. However, Native American tribes are much more likely than foreign sovereigns to seek to resolve disputes over sovereignty in the United States courts.  In this context, perhaps they should be treated more like states.

A Pyrrhic Victory?

In Weyerhaeuser v. Brantley, No. 06-7097, the Tenth Circuit resolved a property dispute with facts straight out of a law school exam.  Weyerhaeuser sued Carl Brantley to eject him from property in Oklahoma known as Sherrill Farm.  Brantley claimed ownership of the property through adverse possession and a prescriptive easement for grazing.  While Brantley was able to point to a number of facts supporting his claim of adverse possession, the district court (which did not find him to be a credible witness) held that Weyerhaeuser and various third-parties had conducted activities on the farm incompatible with exclusive possession by Brantley.  The Tenth Circuit affirmed this determination. Although skeptical about whether Oklahoma would recognize a perspective easement for grazing, the Tenth Circuit also affirmed the district court’s rejection of this defense, concluding that Brantley’s use was not sufficiently distinct from authorized uses to give Weyerhaeuser notice of a potential claim.

Weyerhaeuser sought $200,000 in damages for lost profits in delays to a proposed gravel mine, but the district court rejected these as overly speculative, in part because of Weyerhaeuser’s witness’ lack of experience and personal knowledge in this area (he was a forest manager). It awarded Weyerhaeuser only $10,000 for lost profits on tree farming.  The district court did award Weyerhaeuser its attorneys’ fees, but the Tenth Circuit held that the fees were improperly awarded under Oklahoma law.

At least they got to keep the farm.*

In Matter of First Impression, 10th Circuit Shoots Down Defense Theory in Drug Case

Yesterday the Tenth Circuit joined four other circuits in rejecting the argument that the substances listed in the Controlled Substances Act are "controlled substances" only if possessed or distributed in amounts sufficient to have a stimulant effect on the central nervous system.  United States v. Shurtz, No. 07-3072.

The argument is not as frivolous as it might sound:  the language of the applicable regulation specifically uses the phrase "having a stimulant effect on the central nervous system."  The court found, however, that the language is merely descriptive and not limiting, and its discussion of the applicable precedent indicates that every federal court to have addressed the issue -- including even the Ninth Circuit -- agrees.

Mr. Justice Clinton?

If you haven't seen it, this intriguing column appeared in the Wall Street Journal recently.  Seems to me like an exceedingly unlikely scenario, but still an interesting one to consider.

10th Circuit Upholds Sentence Above Guideline Range

Just days before the U.S. Supreme Court issued two key sentencing decisions, the Tenth Circuit on Friday issued an opinion upholding a sentence that was 300% and 36 months higher than the top of the applicable Sentencing Guidelines range.  United States v. Mumma, No. 06-3163.  I could be wrong about this, but I believe this marks the first time the Tenth Circuit has upheld such a sentence.

The defendant was convicted of making false statements to a bank in connection with a loan application.  She was released on bond while awaiting sentencing, and during her release she bilked her neighbors out of several thousand dollars.  (She also had a long history of fraudulent activity stretching back 10 years.)  The Guideline range was 6 to 12 months, but the district court sentenced her to 48 months.

The Tenth Circuit (per Chief Judge Tacha) upheld the sentence, harshly concluding:  "It was clear to the District Court, as it is to us, that [the defendant] is a habitual prevaricator who has not been deterred by her run-ins with state and municipal law or by her appearance in federal court in this case. . . . [W]e cannot say that a 48-month sentence is unreasonable."

Judge Murphy concurred only in the result, undoubtedly reflecting his continued disagreement with the Tenth Circuit's analytical framework for such cases.  (In this vein, Judge Tacha's opinion fudged on the question of whether the defendant's sentence was an "extreme" variance or merely a "substantial" one, holding that in either case the sentence was reasonable.)

Tenth Circuit Overturns Summary Judgment for Police Officers in Excessive Force Claim

The plaintiff in Casey v. City of Federal Heights, No. 06-1426, was allegedly “grabbed, tackled, Tasered, and beaten” by police officers in a courthouse parking lot.  Casey had contested a traffic ticket and, when he told the judge he wanted to appeal, was handed the case file and told to take it, and payment for his ticket, to the cashier’s window.  Instead, Casey, still carrying the file, went out to his truck to get money to pay the fine. A clerk, who had told Casey not to remove the file from the building, called the police, who intercepted Casey as he attempted to return to the courthouse.

The Tenth Circuit reversed summary judgment in favor of the officers on Casey’s subsequent excessive force claim.   The court noted that, at best, the officers were faced with “somebody who had committed a misdemeanor in a particularly harmless manner” and that there was no evidence that Casey was dangerous (three eyewitnesses testified that Casey was never violent during his encounter with the police and others testified that his behavior during his court hearing was not out of the ordinary).  The Tenth Circuit further noted that Casey had allegedly never been told he was under arrest and did not attempt to flee. The Court held that, under these facts, the force used by the officers to detain Casey was excessive, and further, that the officers were not entitled to qualified immunity.  

The Tenth Circuit contrasted Casey to the facts in Mecham v. Frazier, No. 05-4297, in which the court held that officers had properly used pepper spray to arrest a woman during a traffic stop.  The court noted that in Mecham, the plaintiff repeatedly ignored warnings that she would be arrested if she refused to leave her car, which was parked on the shoulder of a busy interstate.

Better Late Than Never

The United States Supreme Court held this morning in Kimbrough v. United States that courts have the discretion under Booker to depart from the crack/powder cocaine ratio (100 to 1 at the time the defendant was sentenced) set forth in the Sentencing Guidelines. Some highlights of the opinion by Justice Ginsburg include a relatively detailed description of how to make crack cocaine and a history of the attempts by the Sentencing Commission to change the 100 to 1 ratio.  The opinion should probably be read in conjunction with today’s other major sentencing opinion, Gall v. United States (upholding a below-the-guidelines sentence for a reformed college drug dealer).

Kimbrough was an 8-1 decision, with Justice Scalia concurring and Justice Thomas dissenting.  Justice Scalia writes to clarify that, in his view, nothing in the opinion should be read as a retreat from the wholly discretionary nature of the guidelines.  Justice Thomas’ dissent announces, in essence, that he his done tinkering with the machinery of sentencing, and thinks that the Supreme Court should repudiate its opinion in Booker.

10th Circuit Rejects "Innocent Possession" Defense in Felon-in-Possession Cases

In United States v. Baker, No. 07-3002, the defendant was charged with being a felon in possession of live ammunition. The defendant, who claimed that he had found the ammunition on the ground and picked it up solely with the intention of giving it to a policeman, proffered an "innocent possession" jury instruction. The court rejected the instruction, which the defendant challenged on appeal.

The Tenth Circuit affirmed, holding that a felon's motivation for possessing a firearm or ammunition is irrelevant -- all that is required is that the felon knowingly possessed it. In so holding, the court rejected a decision of the D.C. Circuit, which held that absent an "innocent possession" defense, "a felon-in-possession always will be guilty once he knowingly possesses a weapon, without regard to how or why he came into possession or for how long possession was retained."

According to the Tenth Circuit, however, that is precisely what Congress intended by prohibiting knowing -- as opposed to willful -- possession of ammunition. "In criminal law, 'knowing' possession simply requires proof of knowledge of the facts that constitute the possession, whereas a requirement of willfulness generally requires that the defendant act with a 'bad purpose.'"

Tenth Circuit Reversed Directed Verdict In Products Liability Case

McCoy v. Whirlpool Corp., No. 05-3337, is a case arising out of a fire allegedly started by a Whirlpool dishwasher in the McCoy home.  Following a jury verdict in the plaintiffs’ favor, the district court entered a directed verdict in favor of the defendant.  The district court based its decision on a determination that the testimony of one of plaintiff’s experts regarding causation was inadmissible and a finding that even with the expert’s testimony, plaintiffs had failed to present sufficient evidence to carry their burden of proving that a specific defect in the dishwasher caused the fire.

The Tenth Circuit reversed.  With respect to the testimony of the expert, it found that the district court had abused its discretion by evaluating the credibility of his testimony rather than limiting itself to determining whether the expert met the requirements of admissibility under Rule 702. With respect to the plaintiffs’ burden of poof, the Tenth Circuit noted that the plaintiffs had presented the expert testimony of four fire science experts (each of whom had performed a separate investigation of the fire), that the fire that destroyed the plaintiffs’ home began in the dishwasher.  Three of these experts testified that the fire began in the area of the door latch switch of the dishwasher, and was caused by the electrical system of the dishwasher.  The plaintiffs also presented an electrical engineer who testified that he had ruled out all electrical causes of the fire other than the dishwasher. Finally, the plaintiffs presented extensive evidence regarding the precise mechanism by which the fire could have occurred (and had occurred in similar dishwashers).  The Tenth Circuit held that the district court erred in determining that the plaintiffs’ theory of causation was not “scientifically plausible” in light of the testimony of Whirlpool’s expert. The weighing of conflicting evidence, the court noted, is the role of the jury.

Grading Oral Agument

This morning I came across this story on the "grade" Rudy Giuliani received from Justice Blackmun in 1983 during Giuliani's only appearance before the U.S. Supreme Court.  (Giuliani was associate attorney general at the time, and apparently it's tradition that attorneys general and their deputies and associates are offered the chance to argue before the high court at least once during their tenure.) 

It seems Giuliani received a 5 on an 8-point scale (the news story incorrectly says it's a 10-point scale) in a case involving an obscure bankruptcy statute.  Not bad, and at any rate he won the case by an 8-1 vote.

I had no idea Justice Blackmun faithfully graded the quality of each attorney's oral argument presentation during his years on the court.  I suspect it was merely a way to keep himself entertained, but here's an interesting article that used his grading system to try to determine whether the quality of oral argument affects the outcome.  The article concludes that it does (although the authors are also laughably self-promoting -- the conclusion imperiously announces, "This analysis makes a notable contribution to the literature on U.S. Supreme Court decision-making . . . ."  Well.  I guess that settles that, then.)

Among the interesting observations in the article is that Justice Powell once wrote of an oral argument:  "[A]rgument was helpful, especially as a summary of previous law -- read transcript."  This made me wonder how often judges and clerks refer back to oral argument transcripts or tapes as they work on decisions.  As a clerk, I remember doing so only once, and I distinctly remember that it was only marginally helpful.