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TCL > April 2014 Issue > Summaries of Selected Opinions

April 2014       Vol. 43, No. 4       Page  99
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: www.cobar.org (click on "Opinions/Rules/Statutes").


Nos. 12-4091, 12-4102, 12-4106, 12-4112, 12-4132, 12-4144. Rushton v. ANR Company, Inc. (In re C.W. Mining Co.). 01/22/2014. D.Utah. Judge Tymkovich. Bankruptcy—Sale of Assets to Good-Faith Purchaser—Claims Affecting Sale Moot—Statutory Claim Not Moot.

The four appellants did business with C.W. Mining Co., a former coal mining operation in Utah, before C.W. Mining’s involuntary Chapter 7 bankruptcy. They claimed entitlement to C.W. Mining’s assets that the bankruptcy trustee sold to an unrelated entity, Rhino Energy, LLC (Rhino), a good-faith purchaser. The district court dismissed the appeals as moot under the bankruptcy code.

The Tenth Circuit noted the bankruptcy code’s mooting provision that prohibits the grant of relief that would invalidate the sale to Rhino. The mooting provision protects the public’s interest in finalizing bankruptcy sales. Because no appellant sought relief against Rhino, the court dismissed all appeals involving Rhino. The Circuit also deemed the claims for relief against the bankruptcy trustee as moot because they raised only claims (under various theories) that affected the sale to Rhino.

One appellant, Charles Reynolds, raised a state statutory claim for relief that did not affect the validity of the sale to Rhino, and his claim was reversed. Reynolds lived in a house at the mine and ran the mine for C.W. Mining. He sought reimbursement from the sale proceeds of the value of improvements he made to the home. This claim, brought under a Utah statute, was not covered by the bankruptcy code’s mootness provision. Therefore, except as to Reynolds, the district court’s judgment was affirmed.

No. 12-2099. United States v. Harmon. 01/27/2014. D.N.M. Judge Jackson. Driving While Impaired—Reasonable Suspicion.

Defendant entered a conditional plea to possession with intent to distribute cocaine and marijuana. A police officer discovered the drugs in the spare tire of a car defendant was driving. The police officer had initiated a traffic stop on suspicion of defendant violating New Mexico’s lane statute, which requires a driver to stay in his or her lane whenever practical, or alternatively, on suspicion that the driver might have been intoxicated or fatigued. Following the traffic stop, defendant consented to a search of the vehicle, during which the drugs were found.

On appeal, defendant argued that the officer lacked reasonable suspicion to stop his vehicle. The New Mexico lane statute provides that a vehicle must be driven as nearly as practicable entirely within a single lane. Previous cases were inconclusive concerning whether weaving coupled with a single crossing over the line constituted a violation of the statute, but defendant’s conduct of weaving and crossing over the line on a clear and calm day justified a stop based on the officer’s concerns about impaired driving.

Defendant also challenged the district court’s denial of his motion to reopen and reconsider the previous denial of his motion to suppress. He argued that the prosecution’s failure to inform him that the officer who stopped him was allegedly found to have placed false information in a police report in a different case denied him due process. However, there had been no judicial determination in the prior case that the officer violated the Fourth Amendment or, indeed, that he had done anything improper. Accordingly, his conduct in the prior case did not reflect on his "character for truthfulness," under FRE 608(b), and the district court did not abuse its discretion in determining that the evidence did not possess impeachment value and was unlikely to change the outcome of the suppression hearing. The Tenth Circuit therefore affirmed the district court’s denial of the motions to suppress and to reopen.

No. 12-4170. United States v. Gordon. 01/27/2014. D.Utah. Judge O’Brien. De Minimus IntrustionSeizure of Shotgun—Suppression of Evidence.

Defendant pleaded guilty to one count of being a felon in possession of a firearm, reserving the right to appeal the district court’s denial of his motion to suppress a shotgun and other evidence found at his home. The home was shared with defendant’s girlfriend and another man. The girlfriend placed a 911 call to report an incident of domestic violence involving defendant, which allegedly had occurred two days earlier and involved a samurai sword. She stated that the sword was in the basement with several others, and that there were weapons located all over the house. She told the dispatcher she could answer the door when police arrived, "if he doesn’t kill me first." She stated that if defendant and the roommate discovered she had called the police, they would hurt her.

Police entered the home without defendant’s consent. On the way to the girlfriend’s bedroom to retrieve her glasses, which had allegedly been broken during the prior altercation, they discovered a loaded shotgun. One of the officers took possession of the shotgun, and defendant was arrested for aggravated assault.

On appeal, the Tenth Circuit determined that the officers’ initial entry was reasonable due to exigent circumstances, even though the actual violence had occurred two days earlier. The officer also acted reasonably in accompanying the girlfriend to retrieve her glasses, and by temporarily seizing the shotgun for safety reasons. Without knowledge that defendant was a convicted felon—a fact the officer discovered when transporting defendant to jail—the officer had no right to retain the shotgun as contraband and should have returned it to its place in the home before leaving the premises, which he failed to do.

The Circuit held that, although the officer’s actions intruded on defendant’s interest in the shotgun, the intrusion was not unreasonable. The intrusion was de minimus, because it deprived defendant of his property only for a few minutes. As such, it could not justify suppression of the shotgun as evidence. The Circuit therefore affirmed the denial of defendant’s motion to suppress the shotgun.

No. 13-2012. THI of New Mexico at Hobbs Center, LLC v. Patton. 01/28/2014. D.N.M. Judge Hartz. Federal Arbitration Act—Preempts State Law—Arbitration Not Inferior to Litigation.

THI of New Mexico at Hobbs Center and THI of New Mexico, LLC (collectively, THI) operated a nursing home. When Lillie Mae Patton’s husband was admitted into the home, he signed an arbitration agreement requiring the parties to arbitrate any dispute arising from his care except claims relating to guardianship proceedings, collection, or eviction actions, or disputes of less than $2,500. After her husband died, Patton sued THI for negligence and misrepresentation. THI filed the underlying lawsuit to compel arbitration. The district court ruled that the arbitration agreement was unenforceable under a New Mexico court opinion. THI appealed.

The Tenth Circuit evaluated the New Mexico court opinion that held an identical arbitration agreement to be unconscionable because it permitted THI to litigate its most likely claims against the resident—guardianship, collection, and eviction claims—while requiring arbitration of the resident’s most likely claims against the nursing home—personal injury and similar other claims. The state court’s ruling assumed that arbitration was inferior to litigation, a view consistently rejected by the Supreme Court. The Circuit held that the state law was preempted by the Federal Arbitration Act. Therefore, the district court’s judgment was reversed and the case was remanded with instructions to compel arbitration.

No. 12-1343. City Center West, LP v. American Modern Home Ins. Co. 02/06/2014. D.Colo. Judge Hartz. Colorado Insurance Policy—Non-Assignment Clause—Assignment of Post-Loss Claim Not Assignment of Policy.

Defendant insurance company issued a policy to the holder of a mortgage on a commercial property. The policy prohibited assignment "of this Policy." After the property was damaged, the mortgage holder assigned the claim to the property owner. The insurance company refused to pay because of the non-assignment provision, so the property owner sued the insurance company. The district court dismissed the complaint and entered judgment for the insurance company.

The Tenth Circuit rejected the parties’ view that the issue was whether a provision prohibiting assignment of post-loss claims is enforceable. Rather, the Circuit held that the relevant provision applied to assignment of the policy, not post-loss assignment. It was undisputed that only the post-loss claim was assigned, not the entire policy. Under Colorado law, there is a difference between an assignment of a contract and an assignment of a claim under a contract. Consequently, the policy did not prohibit assignment of the claim. The district court’s judgment was reversed.

No. 13-1198. United States v. Baldwin. 02/18/2014. D.Colo. Judge Gorsuch. Convictions Under the Federal Regulatory Provisions.

Defendant was convicted of two federal regulatory offenses: failing to comply with a lawful directive of a federal police officer, and impeding or disrupting the performance of official duties by a government employee. After observing defendant speeding and swerving to avoid a bicyclist, a Federal Protective Service officer stopped defendant’s truck on the grounds of the Denver Federal Center. While the officer was giving him a warning, defendant drove off, ignoring shouted commands to stop. The officer followed him in his police car, and stopped him again. According to the officer, defendant refused to comply with his instructions and had to be forced from his truck and handcuffed. He was later convicted of the regulatory offenses.

On appeal, defendant first argued that the regulations did not actually articulate crimes. Their section headings posed questions about official policy, which the regulations purported to answer. Defendant therefore argued that these responses articulated administrative policies or rules, not crimes. The Circuit disagreed, noting that the regulations provided that failure to comply could be enforced through criminal sanctions. Moreover, Congress expressly authorized the General Services Administration and the Department of Homeland Security to establish regulations for the protection and administration of property owned or occupied by the Federal Government, and to prescribe reasonable penalties for violations. Defendant did not argue that the regulations represented an excessive delegation of legislative authority or that the penalties were unreasonable.

The Circuit further held that the regulations were not excessively vague as applied to defendant, nor did they lack a mens rea component. The district court properly required the government to prove that defendant had acted knowingly, and there was sufficient evidence to support the district court’s finding that he did so. The Circuit rejected defendant’s other challenges: that the offense did not take place on federal property, that the officer was not a "police officer" attempting to perform his "official duties," and that the government did not give him adequate notice of the regulations. Finally, the evidence was sufficient to support defendant’s related conviction, under Colorado law and the Assimilative Crimes Act. Accordingly, the Circuit affirmed the district court’s judgment.

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