Securities and Exchange Commission v Kokesh

On remand from the United States Supreme court, Kokesh challenged the disgorgement order in this civil enforcement proceeding arguing the claims were time barred. The panel affirmed. It held that the limitation period in 28 USC 2462 was stated anew for each act of misappropriation as each act was a separate violation instead of part of a continuing violation and thus the disgorgement order here was valid for all finds misappropriated within the five-year limitation and further held ruling in Kosesh’s favor would convert 2462 into an immunity statute instead of limitations statute.

Roberts v Jackson Hole Mountain Resort Corporation

Roberts appealed summary judgment to Resort on his claims arising from a skiing accident. He panel affirmed. Applying Wyoming law, the panel held that encountering boulders and crevices between them in changing snow conditions in a natural area of a ski resort is an inherent risk of skiing because Resort did nothing to exacerbate the risks and the natural area are attractive to experienced skiers because of the presence of boulders and other natural obstacles and the conclusory testimony by Roberts’ expert did not change the outcome. It rejected Roberts claims that a government contract provided a basis for relief as the contract did not provide third party enforcement and declared it be impossible to mark every hazard on a ski resort.

United States v Trent

Trent appealed the denial of his habeas motion seeking to set aside his enhanced sentence. The panel affirmed. It held the claim was timely as reference to the new United States Supreme Court Mathis decision arose from the same facts and involved the same legal issue of how to construe the Armed Career Criminal Act and thus related back to the original filing date. It held that law of the case barred relief here as the original appeal was decided on two grounds, Mathis fatally undermined one ground but left the other intact and thus the prior decision remains good law.

United States v Pacheco

Pacheco appealed his drug and firearms convictions, the denial of his motion to suppress and his sentence. The panel affirmed. It held that the cell phone here was not seized pursuant to the arrest exception or special needs parolee exception as Pacheco had been removed from the house and the cell phone was left on the floor of the attic and seized by narcotics officers during execution of a search warrant. However, it held under the totality of the circumstances parolee exception, the seizure was proper, as a magistrate had found probable cause that Pacheco was engaged in criminal conduct and this outweighed Pacheco’s reduced privacy interests. It held that the search of the digital content of the cell phone by a forensic examiner in Missouri may be justified under the totality of the circumstances parolee exception, the Kansas magistrate had jurisdiction over the phone and Pacheco when the warrant to examine the contents was issued and this may also justify the search but in any event the Leon good faith excretion applies as there is little deterrence value in suppression here when  the magistrate had jurisdiction and knew the phone would go from Kansas to Missouri and evidence is routinely sent out of jurisdiction for analysis by officers across the country. It held there was no abuse of discretion in not giving a lesser-included simple possession instruction, as there was no evidence the methamphetamine sized was intended for Pacheco’s personal use and thus no basis to give the instruction. It affirmed the sentence holding there was no clear error in the district court’s credibility determination as to a drug dealer witness and relying on that testimony to set the amount of methamphetamine for sentencing purposes.

Knopf v Williams

Williams appealed the denial of his qualified immunity motion for summary judgment. The panel reversed with two judges voting to reverse in separate opinions and one dissenting. Matheson argued that reversal was necessary as Knopf failed to identify any case law on point to the First Amendment retaliation claim as the cases he cited either predated the controlling United Sates Supreme Court Garcetti case, were unpublished or postdated the events here and the case relied upon by the district court predated Garcetti, did not analyze the issue of official speech and was significantly different factually. Briscoe argued immunity must be granted here because the speech was protected as Knopf communicated concerns about a  project outside the chain of command but Williams legitimately concluded that Knopf, by taking his concerns to another department head and impugning a third department head instead of Mayor Williams had undermined Williams’ trust and created the potential for disruption among department heads which justified the nonrenewal of Knopf city planner contract and there was no clearly established law applicable to these facts. Ebel dissented arguing the emails were protected speech and the balance of interests favors Knopf who was acting a whistleblower about potential misuse of government funds and sent those concerns to the city attorney just as regular citizen could, argued fatally similar cases are not required for the official speech factor and applying general Garcetti and related case principles is sufficient to put government employers on notice that speech outside the scope of an employee’s job duties is protected and that retaliating was prohibited under the case relied upon by the district court and other analogous circuit precedent.

United States v Banks

Banks appealed his drug and other convictions and his sentence. The panel, with one judge dissenting in part, affirmed. It held the arrest warrant issued for Banks was supported by probable cause given the consistent information provided by three confidential informants, the results of independent police investigation including surveillance, the omission of certain details about an earlier arrest was irrelevant as including the information would not have caused the warrant not to be issued. It held the use of cell tower ping data was reasonable under the exigent circumstances as Banks had threated to kill state witnesses, was known to be armed, was known to associate with a street gang and had a history of violence. The panel declined to decide if the ping order here for real time information is a search under the 4th amendment. The majority held the motion to suppress evidence seen and seized during a protective sweep was properly denied as Banks was seen with a second gang member who had been heard threatening a witness, that person was believed to be in the house due to noise in the attic area and the person had a history of violence. The panel held the evidence was sufficient to sustain Bank’s 16 convictions as he admitted to his mother the drugs seized at the house were his, his girlfriend testified seeing banks with drugs and guns, the protective sweep found scales , baggies cutting supplies and items testing positive for crack as well as cash and crack, Banks had been arrested with fellow conspirators with distribution level amounts of crack and had traveled with coconspirators and provided one conspirator with money, Banks had his girlfriends use money orders and make deposits to hide his connection with drug proceeds, the fact a witness testified a crime didn’t happen does not mean acquittal is required. It held the district court did not abuse its discretion by allowing overview testimony about the case and the gang involved and other evidence supported the overview testimony and allowing prior drug convictions to prove the contested element of knowledge as they were not too remote. It held hi sentencing issue was waived as he inadequately briefed it. Phillips dissented as tot eh protective sweep arguing the police did not have sufficient evidence to believe the other gang member was in the house as they saw two women ion the house and only heard one male voice and there was no evidence someone in the attic could threaten the police.