Utah Law Developments Appellate Highlights
| Publication year | 2015 |
| Pages | 36 |
May, 2015
Rodney R. Parker, J
EDITOR'S NOTE: We apologize for the length of our column this issue. The Supreme Court cleaned out its closets in anticipation of Justice Nehring's retirement, issuing thirty-nine opinions in the first two months of the year. For comparison, the Court's 39th opinion of 2014 was issued September 19, 2014.
United States v. Cassius, 777 F.3d 1093 (10th Cir. Jan. 27, 2015)
Defendant was convicted of various drug-trafficking offenses. For the purposes of sentencing, the trial court found defendant's offenses included a higher quantity than the jury convicted him for and increased his sentence within the statutory range for the offenses the jury convicted him of. The Tenth Circuit affirmed the sentence based on the trial court's finding, holding that as long as it does not alter the statutory sentencing range, die finding is not subject to the jury's standard of beyond a reasonable doubt, and therefore, there is no error.
Monfore v. Phillips, 778 F.3d 849 (10th Cir. Feb. 10, 2015)
This medical malpractice appeal serves as a cautionary tale to co-defendants who plan a joint defense. A widow pursued negligence claims against the doctors and hospital that allegedly failed to diagnose her husband's throat cancer. The defendants maintained a unified front all the way up to pre-trial, denying negligence by anyone. Then, on the eve of trial, some of the defendants settled, leaving one doctor to stand trial by himself. The Tenth Circuit held that the district court did not abuse its discretion in refusing to allow die doctor to amend his pre-trial order to revamp his trial strategy with new witnesses and exhibits to pin the blame on die absent settling defendants.
United States v. Dunn, 777 F.3d 1171 (10th Cir. Feb. 10, 2015)
Defendant used peer-to-peer file-sharing software Limewire to download child pornography. The software's default settings make the user's files available for search and download by other Limewire users. Defendant argued that making files available as a result of the software's default settings does not support a conviction for distribution of child pornography. The Tenth Circuit rejected that assertion and affirmed his conviction, reasoning that passively making files available on the Internet satisfies intent requirement of the crime of distribution of child pornography.
Seifert v. Unified Gov't of Wyandotte Cnty/Kansas City, 2015 U.S. App. Lexis 3223, 779 F.3d 1141 (10th Cir. 2015)
A former reserve deputy sued the county sheriffs department under 42 U.S.C. §§ 1983 and 1985 for violation of his First Amendment rights to free speech. The deputy alleged that the department retaliated against him for testifying in support of a criminal defendant in a civil rights trial about mistreatment by federal law enforcement officers. The district court granted summary judgment to the City, supported in part by the conclusion that the deputy's testimony was part of his official duty as a public employee and therefore was not legally protected speech. The Tenth Circuit reversed, holding that the deputy's courtroom testimony was protected by the First Amendment because it involved the "very kind of speech necessary to prosecute corruption by public officials." Id. [21] (emphasis added).
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