Jones v Needham and Needham Truckling, LLC.

Jones appealed the dismissal of his Title VII and state wrongful interference with contract claims. The panel, 2-1, affirmed in part, reversed in part and remanded. It held the Title VII claim was incorrectly dismissed as the EEOC charge which was delivered to trucking set out the essential facts that Jones alleged he was subjected to sexual comments, was terminated by Needham and there was a connection between the two and in the 10th Circuit this is sufficient whether the underlying theory is quid pro quo or hostile work environment. The majority affirmed dismissal of the rot claim holding Oklahoma has provided an exclusive remedy under its discrimination statute for claims of sex discrimination. Judge Bacharach dissented arguing Jones failed to raise the issue of the charge as proof of administrative exhaustion in his response to the motion to dismiss, did not argue plain error and did not develop the issue in his opening brief and thus he waived the argument and the majority erred in reversing based on that argument. He also argued that the questionnaire sent to the EEOC by Jones was irrelevant to the exhaustion issue and thus not a basis to reverse.United States v Los Dahda

Los appealed his drug conspiracy and other convictions, prison sentence and fine. The panel, with judge also adding a concurrence, affirmed the convictions and prison sentence, but reversed the fine. It held that the government proved the existence of one large conspiracy to buy marijuana form California and transport it to Kansa for sale, the fact that members dropped in and out of the conspiracy over time did not change the existence of one conspiracy, Los’ participation was proven by his transportation of money to California and marijuana to Kansas and selling marijuana in Kansas and supplying it to other members of the conspiracy. It rejected his counterarguments holding the cocaine sales mentioned in the indictment were not submitted to the jury and thus were irrelevant to Los’ participation, the evidence showed that Los only objected to personally driving marijuana not selling large quantifies of it and there was evidence Los mingled is marijuana with other conspirators’ marijuana and that Los was a supplier within the conspiracy. Turning to the wiretap orders used in this case, the panel adopted the circuit’s rule on where interception occurs under Oklahoma’s wiretapping statue and held that for federal orders interception occurs where the phone is located and where law enforcement first hears the information and noted this definition is similar to all federal circuit decision, which have addressed the issue. The panel held the orders here authorized interception outside the boundaries of Kansas as both the phones and the listening posts were outside the state. It held that the federal statute’s exception to the geographical limitation to court power to authorize a tap for “mobile interception device” only applies to listening device not the cell phone as this is the only reading consistent with the plain text of the statute as cell phones are devices being intercepted not interception devices. It thus rejected the contrary result in a 7th Circuit decision. The panel affirmed the denial of suppression because the territorial limit does not implicate congressional concern about privacy, limitations on who can conduct wiretaps or on the evidentiary burden to obtain a warrant or order nor does it implicate congressional concern about uniformity of operation as it supports the centralization of wiretap decisions in the state’s chief law enforcement officer. It also noted that as written, the statute allow forum shopping by either using mobile intercept device or setting up the listening post in a given jurisdiction. It affirmed his sentence as the jury was required to find a drug quantity in excess of 1,000 kilograms to convict under the jury instructions given as to the conspiracy charge. It held that Los failed to preserve his jury instruction argument as to maintaining a drug house as his counsel specifically stated he did not want the instruction changed. It finally reversed the fine and remanded for reconsideration of amount as it exceeded the statutory maximum. Judge Lucero added a concurrence noting that technology has changed over the past 49 years and the federal wiretap statute should be changed to allow warrants for cell phones that leave a jurisdiction.

United States v Roosevelt Dahda

Roosevelt appealed his drug conspiracy and other drug convictions and his sentence. The panel affirmed the convictions but vacated the sentence and remanded for a new sentencing. It held that, consistent with the holdings in Los Dahda above, the government proved there was one drug conspiracy and that suppression of the wiretap evidence from facially deficient orders was not required here. It held that the government proved Roosevelt was part of the one conspiracy with evidence he drove a truck with a hidden drug compartment relayed requests that Los Dhada go to California on drug business, sent boxes and money to a drug supplier, picked up marijuana form a warehouse and sold drugs. It held Roosevelt waived his argument about which sentencing statute he was subject to as his attend invited any error, that shipments of drugs by conspirators were reasonably foreseeable given Roosevelt’s participation in the conspiracy, but, the finding of 1,600 pounds of marijuana attributable to Roosevelt was error as there simply no basis in the record to support that finding and an upward variance here was appropriate as Roosevelt induced a witness to not cooperate fully with the government which resulted in a longer sentence for her. It finally held there was no plain error in the district court’s failure to given required preliminary notice of forfeiture as Roosevelt had actual notice of the forfeiture request by the government as actively argued against it and further held that the forfeiture judgment was not subject to vacation as the district court announced the amount of forfeiture at sentencing and alter corrected the clerical error of omitting that order from the judgment.

United States v Simpson-El

Simpson-El appealed the district court order applying some of his tort settlement to his restitution amount. The panel affirmed. It held that the fact that Simpson-El got a $200,000 lumps u settlement was a material change in economic circumstances as he did not have to wait 5 to 12 years to get the same amount through working and pointing out this settlement made new money available for restitution was an adequate explanation.