United States v Lilly

Lilly appealed the district court’s ruling that she had no immunity for prosecution agreement with the federal government. The panel affirmed. It held Wyoming state drug agents had no authority to bind the United States as they are state agents not federal agents. It held the DEA agents involved in Lilly’s case lacked authority to grant immunity from prosecution because only federal prosecutors have that authority and no prosecutor was either involved in the supposed immunity or authorized it. The panel also held that even if a fundamental fairness exception exists to these rules, Lilly does not qualify as she is a typical defendant who entered into a cooperation agreement and was in a better situation as she had counsel during the negotiation of the cooperation agreement.

United States v Beierle

Beierle appealed his felon in possession conviction and enhanced sentence. The panel, with one judge concurring, affirmed his conviction and vacated his sentence. The panel held that there is no constitutional right for a defendant to be at a jury instruction conference and thus there was no due process violation when Beierle was excluded from the jury instruction conference. It held there was no plain error in the admission of a law enforcement offer’s testimony about Beierle’s truthfulness given Beirele’s oral and written statements that he shot the firearm in question and phone call from the victim stating Beierle pointed a gun at his head. The sentence was vacated as it was based on the residual clause of the career criminal statute which has been declared unconstitutional. The concurrence argued that the officer’s testimony was improperly admitted as it was based on the officer’s training and experience and was thus expert testimony on truthfulness which is barred by 10th Circuit precedent.

American Fidelity Assurance Company v The Bank of New York Mellon

Bank appealed the denial of its motion to dismiss for lack of personal jurisdiction. The panel affirmed. It first noted jurisdiction to hear the interlocutory appeal as both the district court and a panel of the 10th Circuit both approved the appeal. It held that Bank waived its defense by not raising it in its first two motions to dismiss or its answer because the general jurisdiction defense was settled at the time suit was filed under both Supreme Court and 10th Circuit precedent.

Christy v Travelers Indemnity Company of America

Christy sued Travelers alleging failure to pay benefits and bad faith. The district court granted summary judgment to travelers on both claims. The panel affirmed in part, reversed in part and remanded. It held judgment was improperly granted in the failure to pay claim as there is a genuine dispute about whether Christy’s failure to inform travelers that he incorporated his business was a misrepresentation. It held there was no duty to inform Travelers under the language of the policy and that the district court erred in imposing a duty as a matter of public policy both because it used tort and not contract analysis and new Mexico disfavors imposing terms not agreed to in the contract. It held the nondisclosure of the change in business organization is not a misrepresentation as a matter of law, but, could be a misrepresentation as a matter of fact if the insurance company makes a specific inquiry about a risk it considers material.. It remanded the case to analyze whether Christy knew or should have known that Travelers considered the change in organizational form to be material. It finally affirmed judgment on the bad faith claim as Christy presented no evidence of bad faith.

National Labor Relations Board v Community Health Services, Inc.

Community challenged the inclusion of pay earned at other jobs by its employees whose hours had been found illegally reduced. The panel, 2-1, affirmed. The majority held that while Board’s precedent on the issue was inconsistent, Board’s explanation in the enforcement order here as to  why it adopted the no deduct policy was adequate and its explanations as a whole of the Board’s past decisions was correct and thus Board was allowed to follow the no deduction rule. It held that the policy rationales of prompting employment, rewarding effort beyond that required by federal labor law, accounting for the additional hardships employees with multiple jobs face, discouraging dilatory conduct by employers and directing any windfalls to employees instead of employers were all reasonably related to federal labor law policies and thus supported the no deduction policy. The dissent argued that Board’s policy is a new rule that goes beyond the statutory charge to make wronged employees whole, irrationally favors employees who lose hours over employees who are fired and deviates for the 80 year path of preventing windfalls to ether employees or employers.

United States v Fager

Fager appealed the denial of his motion to suppress. The panel affirmed. It held that under the totality of the circumstances, namely a traffic stop (with its inherent risk of violence towards police officers) in a high crime area during the night, a passenger who had multiple warrants for his arrest outstanding, efforts by the passenger to shield Fager, the officers’ need to turn his back on Fager and the passenger while doing a search and the fear of a joint attack by Fager and the passenger, created reasonable suspicion that Fager was dangerous and needed to be pat down. It rejected Fager’s argument that 10thCircuit precedent creates an automatic right to apt down someone when a consent search is to be performed noting the precedent stood for the proposition that consent searches can create reasonable suspicion depending on the circumstances.

Gutierrez-Orozco v Lynch

Gutierrez-Orozco appealed the denial of cancelation of removal. The panel affirmed. It held the finding that Gutierrez-Orozco did not establish 10 years continuous presence was supported by the record including testimony of entry less than 10 years before notice of removal and various employment records in the evidence and the lack of any such evidence for the period before entry and the affidavits submitted were deficient having no statements about Gutierrez-Orozco’s whereabouts during the relevant period.

United States v Koerber

The government appealed the dismissal with prejudice of the indictment against Koerber on speedy trial grounds. The panel, with one judge concurring, reversed and remanded. The majority held the district court erred in analyzing the seriousness of the fraud charges against Koerber by including its evaluation of the allegations in the indictment, the presumption of innocence and the conduct of the government none of which have any relevance to whether a charge is serious or not. It held the district court did not clearly error in finding a pattern of neglect on the part of the government given the government twice failed to submit orders to postpone trial, failed to get permission to appeal a suppression order and field motions without support plus interviewed Koerber after he had an attorney without the attorney present and failed to comply with discovery orders. However, the majority held that the district court failed to consider Koerber’s actions in the facts and circumstances analysis and that this was error. It finally held that the district court did not error in concluding reprosecution was inappropriate given the government’s misconduct and prejudice to Koerber including fading memories of key government witnesses and the loss of 27 discs of information. The case was remanded for further consideration of the motion to dismiss. The concurrence argued that the district court also erred in considering the missed orders and wrongful use of privileged information as these did not cause any delay in trial and failing to require proof of prejudice.