Caddo Nation of Oklahoma v Wichita and Affiliated Tribes

Caddo appealed the denial of its request for temporary restraining order. The panel dismissed as moot as the building Caddo sought to prevent being built has been built and Caddo sought no other relief.

United States v Bagley

Bagley appealed the denial of his motion to suppress. The panel reversed. It held that the protective sweep after Bagley’s arrest was illegal as there was no evidence that Bagley was arrested in or adjacent to the bedroom where the disputed evidence was found, under circuit precedent lack of knowledge as to whether anyone else is in the house cannot justify a sweep of the house and the warrant here was procured based on information developed through the illegal sweep and the good faith exception thus did not apply.

Wilson v Falk, Phillip, Frank and Fox

Wilson appealed summary judgment on qualified immunity grounds to the defendants in his 1983 claims arising from alleged assaults by other inmates. The panel affirmed in part and reversed and remanded in part. It affirmed as to Falk as Wilson only spoke with her once and she gave him good advice about handling his concerns about enemy gang members. It reversed as to the other defendants as the record viewed in the light most favorable to Wilson indicates he told Fox and Frank about past assault by the enemy gang while in jail and that Phillip was told twice about the threats and past incidents and Wilson filed multiple written notices of threats and attacks and thus genuine disputes material fact exist as to the subjective awareness of Fox, Frank and Phillip of the threats of harm to Wilson.

United States v Abeyta

Abeyta appealed his sentence arguing it was wrongly enhanced by improperly counting a local ordinance conviction as a prior offense. The panel agreed, vacated and remanded for resentencing. It held the district court erred in applyng a common sense approach to the question of whether violating the local ordinance also violated stat law as that approach only applies to offenses which are not listed in the guideline and local ordinances are listed. Applying the categorical approach because Denver ordinance 38-71 is not divisible under textual analysis, Colorado state court decision or approved charging documents, the panel held 38-71 is broader than state law because it reaches defacement with oral consent of an owner which is not criminal under Colorado state law and thus the conviction should not have been included I the sentencing range calculation.

United States v Garcia

Garcia appealed his enhanced sentence arguing hi New Mexico robbery conviction was not a crime of violence. The panel affirmed. It held that as construed by the New Mexico Supreme Court, a New Mexico robbery conviction requires violence, the only New Mexico case related to the quantum of violence suggests force capable of causing injury and this suggestion is consistent with how the new Mexico Court of Appeals has analyzed the force issue by requiring more than incidental touching or jostling to sustain a conviction and holding that the force used in struggle for property is force capable of causing pain or injury and these case are consistent with Justice Scalia’s concurrence in the United States Supreme Court Castleman case.

Western Energy Alliance v Zinke (The Wilderness Society et al. Movants to Intervene)

Society appealed the denial of its motion to intervene. The panel, 2-1, reversed and remanded. The majority  held the motion for intervention as of right should have been granted as it was field two months after the complaint and thus early in the litigation process; Society et l alleged two interests to be protected namely protecting the environment from harms associated with oil and gas extraction and their interest in protecting certain policy limits on leasing which they negotiated and litigated with the federal government; those interests could be impaired if Alliance prevails as the limits on leasing would be subject to further decision making and may be abandoned; and the interest of Society et al. and the government may diverge given the need for the government to consider a wide range of interests in setting oil and gas lease policy and directives to lessen the regulatory burdens on oil and gas leases on public lands. Hartz dissented arguing that the district court eliminated the lease policy limits from the case and thus properly denied the motion intervene given Society et al. had won on their issues.

Acosta v Raemisch

Acosta appealed the denial of his habeas petition. The panel affirmed. It held the district court erred in ruling the Colorado Court of Appels made unreasonable determinations about whether or not the state made reasonable efforts to locate a witness because the Court cited the correct United States Supreme Court case and reasonably concluded that checking witness’s last known address, checking to see if mail was being forwarded, contacting sources in the area the witness was known to frequent, speaking with family members, enlisting help forma  special street crime unit and having investigators personally search for the witness demonstrated good faith efforts to locate the witness and thus there was no confrontation clause violation in reading the witness’ deposition testimony even though witness had been arrested during trial and the sheriff’s office was notified of that fact. It held any assumed error in Acosta waiving his speedy trial right and the state trial court allowing the witness to leave jail while he was unrepresented was harmless as he had counsel throughout trial and sentencing and the deposition transcripts were properly admitted.

Old Republic Insurance Company v Continental Motors, Inc.

Company appealed the dismissal of its subrogation claim arguing the Colorado federal district court had specific personal jurisdiction over Continental. The panel affirmed. It held the contract between Continental and company’ insured did not create sufficient contacts to trigger jurisdiction because there were no prior negotiations between them before the insured enrolled in a program on Continental’s website, there was a possibility of future interactions through customer services, no indication Continental reached into Colorado and created ongoing relationships and no course of conduct that suggests a purposeful direction of activity into Colorado and no evidence of any interaction between the insured and Continental beside yearly renewal by insured through the website; Continental had low sales and revenues in Colorado and used nothing beyond the website to solicit business in Colorado; and there is no evidence Continental did anything to deliberately direct its efforts at Colorado as its website was aimed at all qualified airplane repair business in the United States.

Medina v Catholic Health Initiatives

Medina appealed dismissal of her claim that Initiatives is covered by ERISA and if it is not the exemption for church plans is unconstitutional. The panel affirmed. It held Initiatives is shares common religious bonds and convictions with the Catholic Church as it is organized under canon law and is listed as an official catholic institution. It held the retirement plan challenged here is maintained by Initiatives as the ordinary meaning of “maintain” is to keep in a state of repair, this is consistent with other uses of “maintain” in the United States Code, and actual group which administers the plan has delegated authority to maintain and the group is a subcommittee which is an organization and the subcommittee is part of Initiatives and thus affiliated with the Catholic Church thus the plan satisfies the church plan exemption. It rejected Medina’s argument there is a genuine issue of material fact here base on more than one church being involved as there is no requirement that a qualifying plan be associated with only one church. It rejected an establishment clause challenge to the plan because the exemption does not endorse religion but avoids possible entanglement problems which is a plausible valid secular purpose, exempting religious organizations from regulatory burdens does not have the effect of favoring religion under United sates Supreme ort precedent and not having the exemption would entangle the government with religious bodies while allowing the exemption does not.

Newmiller v Raemisch

Newmiller appealed the denial of his habeas petition. The panel affirmed on alternate grounds holding the Colorado Court of Appeals acted reasonably in concluding the defense investigation which included interviewing doctors involved in the case, consulting forensic pathologists about the length of time a person with a large puncture wound to the heart could live and preparing DNA expert testimony was adequate and the decision to not challenge the state’s evidence on the amount of time was within the range of permissible choices given Newmiller’s confession and the victim’s blood being fond on his knife. It rejected Newmiller’s counterarguments holding the consultations with the pathologists over the phone without giving reports to them was adequate given the nature of the issue involved, there is no requirement to call witnesses just to call witnesses, counsel could conclude presenting rebuttal medical evidence could harm Newmiller’s case, and that a late discovered report did not require the calling of a particular doctor as the report was not exculpatory.