10th Circuit affirms denial of motion to suppress; holds Kansas aggravated assault using a dangerous weapon convictions, certain assaults on federal officers and certain assaults n police officers are crimes of...
Brigham Young University J. Reuben Clark Law School
Roberson appealed the denial of his motion to suppress. The panel, with two judges voting to affirm on different reasoning and one dissenting, affirmed. Matheson voted to affirm arguing that assuming shining lights on Roberson’s car and walking towards it was show of authority, Roberson did not submit to the show of authority as he made stuffing motions under the driver’s seat and this is a sufficient basis under circuit precedent to affirm. Hartz concurred arguing that there was no show of authority as the officers did not block Roberson’s car, threaten or command him to stay in his car, activate their emergency lights or draw their weapons and thus there was no seizure until after Roberson admits reasonable suspicion existed to detain him. Moritz dissented arguing that the offers involved made a show of authority by arriving en mass at the parking lot, picking Roberson’s car and illuminating with searchlights then approaching in a manner which communicated the message to stay put and Roberson acquiesced by staying the car and at that moment no basis to seize existed and the motion should have been granted.
Benton appealed his entice arguing his sentence was improperly enhanced as his prior aggravated assault conviction was not a crime of violence. The panel affirmed holding the Kansas aggravated assault with a deadly weapon statue requires threatening bodily harm which is a threat of using physical violence under United States Supreme Court and circuit precedent and the definition of dangerous weapon in Kansas law necessarily requires using violent physical force under circuit precedent.
Stegman appealed her tax evasion convictions and her sentence. The panel affirmed. It held there was no error in allowing an amendment to the indictment during trial as modifying the name of the corporate entity at issue here was one of form and Stegman was on notice which entity was involved. It held there was no error in admitting certain ledgers in to evidence as no witness was asked if Stegman was the person who was ordered to turn the legers over. It held there was no error in the district court’s rejection of Stedman’s motion to dismiss for destruction of evidence as the civil audit file destroyed here was not facially exculpatory given the government did not rely on a net worth method, the information was available from other sources and the audit involved Stegman being a victim of a Ponzi scheme and had no relevance to the evasion charges here and there was no bad faith a the agents returning the file to the storage facility expected it to be refiled not destroyed. It held there was no confrontation clause violation admitting documents faxed by Stedman’s tax preparer as the documents were non-testimonial financial records of Stedman and the notation on the cover sheet were not reasonably expected to be used by prosecutors. It affirmed the sentence holding the corporate and individual tax losses were intertwined and thus both were properly used to calculate intended loss, evidence of Stegman creating several limited liability companies and diverting income into accounts in the LLC’s names, use of employees to buy money orders, straw purchases, and money laundering by structuring was sufficient to trigger sophisticated means enhancements and evidence of record destruction dn alternation and witness tampering were sufficient to trigger the obstruction of justice enhancement.
Kendall appealed his enhanced sentence arguing neither his current assault on a federal officer nor a prior assault on a police offer were crimes of violence. The panel affirmed. It held the federal officer assault conviction qualified 18 USC 111(b) is assumed to be indivisible, four circuits have held 111(b) to be a crime of violence and the panel agreed as any condition under it requires an assault, assault causing bodily injury qualify as the force necessary to cause injury meets the violent physical force requirement and an assault by means of a dangerous weapon qualifies as the use of weapon intending to inflict bodily harm also satisfies the requirement. It held the conviction under District of Columbia Code 22-405(c) qualifies as the offense must involve either actual significant bodily injury or risk of injury by a violent act either of which meet the standard.
One settling defendant and two groups of objectors appealed certain settlement agreements in this multidistrict class action suit. The panel affirmed. As to the settling defendant, the panel held that under Washington state law, the use of “including, but not limited to” both illustrates the kinds of changes to terms the defendant was entitled to and limited the changes to those concerning the speed of conversion of gas pumps form normal to temperature controlled, that the defendant’s alternative interpretations were either not preserved or call for a strained reading instead of the natural meaning of the terms and the parties subjective intent is irrelevant. It held the two groups of objectors only had standing to challenge 10 of 29 settlements as Speedway did not settle and failed to follow the district court’s notice requirements and thus cannot object to any and the other group of individual objectors only assert they are members of the class as to 10 settlements do not assert standing as the other 19. It held the First Amendment arguments fail for lack of state action; held the jurisdictional, advisory opinion and future facts arguments were unpreserved and inadequately briefed; the district court did not usurp state legislative power by approving the settlements, made required findings the settlements benefit class members; held the rule enabling Act do not apply, the district court correctly analyzed the costs and benefits of the settlements to class members, their attorneys and the general public including the slim chances of victory by class members and the informational benefit under the agreements; noted the district court considered all the objections and provided clear analysis for why it rejected them; held the attorney fee award here should not be measured against the small economic benefit for an individual class member but should take into account the social benefits of class action suits; and finally held there was no abuse of discretion in certifying the class.
Sylvia appealed the dismissal of his tort based legal malpractice claims and summary judgment in favor of Wisler and Trevino on his contract base malpractice claims. The panel affirmed in part, reversed in part and remanded. It held that under Kansas law malpractice claims are contract based if the allegations are that a the lawyer did not do what the contract said he would do and sound in tort if the allegations are the lawyer performed below the ordinary standard of learning or shill in the legal community. It held the allegations of malpractice against Wisler and Trevino based on failure to amend the complaint and add retaliation claim which became time barred as result sounds in tort as it alleges breach of the duty of competence not a breach of a contractual provision. It remanded the issue of whether dismissing the complaint which resulted in a disabilities claim becoming time barred was tort or contract as the district court did not analyze the claim. It affirmed on the contract summary judgment as the contract only required one or more claims to be filed, did not require inclusion of the retaliation claim and there was no subsequent oral modification as there was no consideration by Sylvia and the dismissal of the disabilities claim was not part of an implied contract.