New York Times Access

Earlier this year the Law Library entered into an agreement with the New York Times to provide its faculty, staff, and students with access to the New York Times website and smartphone app.  That means the BYU Law community can avoid the 10 article monthly limit that applies to most users and get access to all the articles it wants.  If you haven’t signed up for this NY Times access, please email me at neverss@law.byu.edu and I can help get you set up.

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10th Circuit holds defendant’s failure to file reply brief allows government to meet speedy trial deadline.

United States v Margheim

Margheim appealed his convictions arguing his statutory and constitutional speedy trial rights had been violated. The panel affirmed. It held that the statutory period started on the date the last defendant charged in the indictment made his appearance as the ten month period was reasonable given the interest in having one trial when one set of facts through one set of witnesses will be presented and Margheim’s contributed to in the delay by seeking a 120 continuance and failing to vigorously protecting his rights by seeking a severance. The panel held that based on its reading of the record, enough days were excluded from the statutory period to deem the statute satisfied. It particularly noted that because Margheim withdrew a suppression motion instead of filing a reply brief, the whole six month period from filing to withdrawal is excluded for the case was never under advisement for statutory purposes. The panel held that even assuming the shortest periods possible on motions to withdraw motions and other filings, only 68 countable days occurred and this is less than the allowed 70 days. The panel held there was no constitutional violation because Margheim’s conduct was at least as responsible for the pretrial delay as government action, Margheim did not assert his speedy trial rights until very late in the pretrial process and by his conduct (firing three attorneys and filing numerous motions) did not indicate he was interested in a swift resolution of the matter and there was no evidence of prejudice given there was no loss of evidence or loss of witness testimony.

 

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10th Circuit holds government ignorance of proper procedure to move to reduce sentence cannot overcome lack of jurisdiction and revives suit for wrongful maligning of fired municipal employee.

United States v Baker

The government filed a Rule of Criminal Procedure 35(b) motion more than a year after Baker’s original sentencing seeking a six month reduction to Baker’s sentence. The district court ruled that because the information provided by Baker was provided to the government less than a year after sentencing and was useful to the government both less than a year after sentencing and after the year window, the motion was untimely and thus the district court lacked jurisdiction to hear the motion. The panel affirmed holding that under the plain language of 35(b), there is a one year window to file a reduction of sentence motion with the exception of motions based on information which is not useful to the government until more than a year after sentencing. Here, the information was useful in part before the one year deadline and thus the exception did not apply. The panel noted that a procedure exists to accommodate situations like this, but, the government failed to discover it in time. Read More »

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Utah Supreme Court upholds changes to initiative process; adopts pleading rule for breach of contract cases; issues two other decisions.

Cook v Bell

Cook and other unsuccessful sponsors of an intuitive proposal sued Bell arguing the 2011 changes to the initiative process (changing the number of signatures required and reducing the amount of time allowed) violate the state and federal constitution. The district court granted summary judgment to Bell. The Court, with one justice concurring in the judgment, affirmed. It held that because Cook provided no evidence that the change in signatures provision actually increased the number of signatures required and no evidence as to the effect of the new shorter time provision, the provisions on their face were reasonable. It also held the desire to counteract the artificially low number of signatures required due to a special gubernatorial election was legitimate. The majority held that because the new provisions apply to all proponents of initiative proposals, the law acted in a uniform manner and thus did not violate the state constitution. Finally, the majority held that that because the changes did not prevent political speech, there was no First Amendment violation. The concurrence argued the majority was not deferential enough to the legislature and argued the proper rule would be to uphold all regulations of the initiative process except those that effective eliminate the initiative power. Read More »

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Utah Court of Appeals adopts standard for affidavits in actual innocence cases and issues eight other decisions

Wamsley v State

Wamsley filed a petition for post-conviction relief arguing factual innocence based on an affidavit from one of his two victims. The district court, pursuant to Utah Code 78B-9-401 to 405, ordered the State to respond and later dismissed finding the affidavit to be equivocal. The panel affirmed. It held that under the common definition of “equivocal”, an affidavit is equivocal and the case must be dismissed if the affidavit is capable of two interpretations or is ambiguous. Here, the affidavit of the victim did not unambiguously deny the acts which formed the basis of Wamsley’s conviction happen and in any event the affidavit was inconsistent with multiple prior statements by victim and this inconsistency was never explained. The panel further held that there was no compelling showing of factual innocence as the materials submitted were at most impeachment of the other victim and the other victim’s mother which does not set out evidence which would demonstrate that Wamsley did not do the acts alleged in the criminal case. Read More »

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10th Circuit upholds approval of Utah’s cap and trade sulfur dioxide plan; holds Utah company has no liability coverage due to unambiguous pollution exclusion; and issues three other published opinions.

Wildearth Guardians v Environmental Protection Agency

Agency approved a cap and trade program for sulfur dioxide involving Utah, New Mexico and Wyoming plus a city and county in New Mexico. Wildearth and other groups challenged the approval. The panel rejected the challenge and affirmed. The panel held Wildearth’s challenge to the presumptive emission benchmark was untimely as it was adopted in 2006 and not challenged within 60 days and the substantive challenge was based on an unreasonable demand that nonexistent information be evaluated in the plan. The panel held challenges based on arguments involving the use of milestones were waived as they were neither raised before Agency nor in the opening brief filed with the panel. The panel approved the use of qualitative factors in analysis as the applicable rule allowed it and the rule called for using all available information and was properly followed in his case as it is reasonable that including more polluters would lead to lower levels of pollution, new sources will be subject to the cap, there was no requirement that any minimum number of states join the plan and states outside the plan were still regulated under the normal Clean Air Act regulations. The panel finally rejected a challenge involving a New Mexico power plant as New Mexico was allowed to utilize the evaluations of a multistate partnership and thus did not need to follow the rule for source specific analysis because the plant was covered by the cap and trade proposal. Read More »

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Utah Supreme Court issues opinions on evidentiary privileges and ineffective assistance of counsel

Allred v Saunders

Allred sought the credentialing file of Saunders and an incident report from a hospital during discovery in their medical malpractice suit. Saunders objected and eh district court overruled the objection ruling the rules of civil procedure cannot create privileges and thus only the incident report was protected under statute and the report was ordered delivered to the court for in camera review. The Court reversed and remanded. It held that the legislatively enacted amendments to Rule of Civil Procedure 26 were passed by the required two-thirds majority, plainly establish privileges for care review and peer review processes, the rules of evidence themselves identify other rules adopted by the Utah Supreme Court as sources of privileges and the district court erred in failing to apply the language of the rule. The Court set out the procedure for anyone claiming a care review or peer review privilege namely that the claimant must provide a privilege log sufficiently detailed to allow the trial court and opposing party to evaluate the claim. District court can review the documents in camera, but, are not required to do so. Read More »

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Utah Court of Appeals holds exclusionary rule does not apply in child welfare cases, that claim preclusion applies in civil stalking cases and issues six other decisions

D.T.O. v State

At the child welfare hearing in his case, D.T.O. moved to exclude evidence seized pursuant to a warrant, objected to an expert testifying without proper notice being given and challenged the chain of custody of a thumb drive. The juvenile court ruled the exclusionary rule did not apply, granted a continuance to allow proper notice and admitted the thumb drive after additional testimony as to how the thumb drive was recovered and stored. The court ruled D.T.O. neglected his children and exploited one child and placed all six children in state custody. The panel affirmed. It held the Utah constitutional exclusionary rule did not apply in child welfare cases as parents are not punished at such proceedings and any limited deterrence value was substantially outweighed by the need to protect children. It affirmed as to the expert holding the juvenile court properly ordered a modification under Juvenile Procedure Rule 20A and thus the testimony was properly allowed. It finally held that the additional testimony satisfied the chain of custody requirement as the actual location of recovery in this case did not matter. Read More »

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10th Circuit panel finds no ineffective assistance when a futile argument is not made

United States v Rodriguez

Rodriguez brought a 28 USC 2255 motion seeking to vacate his sentence. The district court ruled Rodriguez’s challenge to his career criminal status had been rejected on direct appeal and thus could not be raised in the 2255 motion and that trial counsel was not ineffective in her handling of the career criminal issue. The panel denied a certificate of appealablity and dismissed. It held the prior panel’s rejection of Rodriguez’s argument that his Texas assault conviction could not be used to declare him a career criminal was law of the case and could not be challenged in a 2255 motion. It also held that there was no ineffective assistance as trial counsel argued that state court records could not be used, her argument was foreclosed by 10th Circuit precedent and nothing in the later United Sates Supreme Court decisions Rodriguez relied upon in his 2255 motion changed anything about when state court documents can be used in career criminal analysis. It also held that there was no prejudice as even if counsel did everything Rodriguez wanted, his argument would have been rejected under 10th Circuit precedent.

 

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Utah Supreme Court holds premature notices of appeal do not divest district courts of jurisdiction

Garver v Rosenberg

Garver filed a premature notice of appeal challenging an order compelling arbitration. Several months later, the district court entered a judgment affirming the arbitration award in favor of Rosenberg. After the thirty day period to appeal had expired, Garver filed a Rule of Civil Procedure 60(b) motion arguing the premature notice of appeal divested the district court of jurisdiction and seeking a reissuance of the judgment. The district court agreed that it lacked jurisdiction to issue the judgment, ruled in now had jurisdiction because the appeal had been dismissed as premature and reissued its judgment without making any substantive changes. Garver filed a timely appeal of the second judgment. The Court dismissed. It clarified that under Appellate Rule 4 and Utah precedent, only timely filed notices of appeal transfer jurisdiction from the district court to the appellate court. It held that because the first notice of appeal was field before final judgment and was thus premature, the district court retained jurisdiction over the case. Thus, the district court erred in granting the 60(b) motion. The Court reminded litigants and district courts that they cannot circumvent Appellate Rule 4 through reissued judgments. As there was no issue before the Court to review, it dismissed the appeal.

 

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