Farrell v Montoya

Montoya appealed the denial of his qualified immunity motion. The panel reversed holding Farrell’s 4th Amendment claim failed as a matter of law as she was not seized when Montoya shot at her minivan because Farrell was fleeing from the scene of the traffic stop.

United States v Arnold

Arnold appealed the forfeiture order entered in his fraud case. The panel affirmed holding Rule of Criminal Procedure 32.2 allows a preliminary order entered at sentencing and an amount of forfeiture entered later, as occurred here, the delay here was largely attributable to Arnold’s objections and circuit precedent prohibits using forfeited goods or money to offset restitution awards.

United States v McKibbon

McKibbon appealed his sentence arguing his Colorado drug conviction was not a controlled substance conviction for enhanced sentencing purposes. The panel vacated and remanded for resentencing. Applying plain error review, it held that the Colorado statute criminalized offers to sell drugs and thus encompassed more conduct than the sentencing guideline, this was the same conclusion that another panel drew about a very similar Kansas statue and there was no basis to conclude the Colorado Supreme Court would decide differently. It held the Colorado statute is indivisible and thus the modified categorical approach did not apply as the Colorado Supreme Court declared the statute set out one crime with various means of violating it. The panel held the error was plain as it affected McKibbon’s substantial rights as it improperly elevated his offense level and guideline range, the law was clear as of the time of appeal and it is probable that McKibbon’s sentence will be substantially lower sentence on remand.

Equal Employment Opportunity Commission and Ali et al. v Jetstream Ground Services, Inc.

Commission and Ali appealed the denial of their spoliation remedy motions. The panel affirmed. It held that the sanction of excluding certain testimony was never definitively ruled upon by the district court and further was waived in opening statement by discussing the documentation sought to be excluded. It held the adverse inference instruction as properly denied because there was no evidence of bad faith and because Jetstream produced evidence the destroyed notes and earlier version of an Excel sheet did not favor Commission and Ali.

United States v Saulsberry

Saulsberry appealed the denial of his motion to suppress. He panel reversed. It held the initial investigation was supported by reasonable suspicion as a restaurant employee called to say someone was smoking marijuana in a car in a certain part of the lot and the location, make and model and license plates all checked out within two minutes of the call. However, the panel held there was no probable cause to extend the investigation into a search for fraudulent credit cards because mere possession of 15 cards does create probable cause that criminal activity is afoot and the subsequent examination of the cards was unlawful.

United States v Turley

Turley appealed summary judgment to the government in its claim for specific performance of a purchase option. The panel affirmed. It held that as a matter of federal common law, state law should govern purchase option agreements and that under applicable Oklahoma law the option here was valid because the postal service did everything required to send the notice of renewal, Turley failed to receive the notice by not picking it up and Turley received lease payments before and after the notice was sent to the same address. It also held the fact that the postal service negotiated after exercising its option did not change the outcome and there was no basis for a finding of waiver of rights or estoppel.

United States ex rel Barrick v Parker-Miglorini International, LLC et al.

Barrick appealed the denial of his motion to amend his qui tam complaint. The panel affirmed. It held that the proposed amendment was futile as Barrick did not plead any facts which established a non-contingent duty to pay the government for meat inspection fees as exports to China were barred during the time of the misconduct and no fee would have been imposed under normal protocols and the exports to Japan would not have triggered fees because ineligible meat suppliers would have to enter a conspiracy with Parker and list Japan as the destination which makes the payment of fees contingent and thus outside the scope of the False Claim Act.

United States v Rios-Morales

Rios-Morales appealed his drug trafficking and conspiracy convictions. The panel affirmed. It held admitting evidence about an earlier drug conspiracy was appropriate under Rule of Evidence 404(b) to prove Rios-Morales’s motive, knowledge and intent as to the charged conspiracy and any prejudice did not substantially outweigh the probative value. It rejected claims of prosecutorial misconduct as some of  the statements identified were supported by facts in evidence, none of the alleged instances of vouching were obviously erroneous and there was no likelihood of a different outcome if the remaining statements had never been made. It held there was no reliance on false testimony by a coconspirator as Rios-Morales’ attorney was allowed to ask about nondrug reasons for trips to California by Rios-Morales and the witness did not intentionally lie about whether he stayed with family on those trips. It held that the district court did not abuse its discretion in its questioning of jurors about a man seen driving in the juror parking lot and looking at a juror and thus there was no error in denying a new trial. It finally held there was no cumulative erro.

Van Steen v Life Insurance Company of North America

Company appealed the reinstatement of disability benefits and Van Steen cross appealed the denial of his attorney fee request. The panel affirmed on both. As to the reinstating, the panel held there was no evidence in the record that Van Steen could perform his duties for the full eight-hour workday and thus the decision to terminate benefits was arbitrary and capricious. As to attorney fees, the panel held the denial was within the bounds of discretion afforded the district court.

McDonnell v City and County of Denver

Denver appealed the grant of a preliminary injunction prohibiting enforcement of certain regulations of First Amendment activities at Denver international Airport. The panel reversed. It held the injunction against the seven-day advance notice requirement as the district court relied on case law for public forums which was not applicable to a nonpublic forum like Airport and also erred in using a 24 hour notice period for street demonstrations which is not analogous to a protest at an airport. And further erred in ignoring testimony form Airport security about how much time would be needed to prepare for a protest and similarly erred as to the location change by McDonnell, and its conclusion picketing is similar to approved leafleting activity was unsupported by the record.