Tenth Circuit affirms tax evasion conviction arising out of New Mexico SOS scandal

by Emil J. Kiehne Posted on July 8, 2015

In 2010 a scandal involving the New Mexico Secretary of State’s office broke into the news. Several consultants for the office — Armando Gutierrez, Joseph Kupfer, and Elizabeth Kupfer — were indicted in federal court for misusing voter education funds provided under the Help America Vote Act, with tax evasion, or both.

Gutierrez and Mr. Kupfer were each sentenced to ten years in prison. Mrs. Kupfer was convicted and sentenced to three years for tax evasion for failing to report $790,000 in income.

(The New Mexico Attorney General’s office also brought charges against former Secretary of State Rebecca Vigil-Giron, but these were dismissed on speedy trial grounds.)

In any event, yesterday the Tenth Circuit affirmed Mrs. Kupfer’s conviction for tax evasion, but has remanded the case due to an error in her sentence. See United States v. Kupfer.

Mrs. Kupfer’s primary argument was that the jury was not properly instructed on how to determine whether she “willfully” evaded income taxes. To be sure, the trial court instructed the jury that she could only be convicted if she acted “willfully,” and it correctly defined what “willfully” meant.

But Mrs. Kupfer complained that the trial court should also have told the jury what “willfully” does not mean. She contended that the jury should have been told that it should acquit her if she acted negligently, inadvertently, or by accident or mistake. Judge Bacharach’s opinion correctly rejected this argument; the trial court’s instruction was sufficient, because by defining the term “willfully,” it “implicitly told the jury that any mental state short of willfulness would not have sufficed for a finding of guilt.”

The Tenth Circuit also reversed Mrs. Kupfer’s sentence. The trial court increased her offense level for willfully obstructing the investigation, but Mrs. Kupfer did no such thing. She simply failed to tell the government’s investigators about her unreported income, and under the law that’s not obstruction.

The case will now go back to the trial court, and Mrs. Kupfer will be resentenced, and presumably her sentence will be reduced. (But if any readers think they know the most likely outcome, please e-mail me or leave a comment!)

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NM Court of Appeals reaffirms that medical marijuana is covered by workers’ compensation

by Emil J. Kiehne Posted on June 29, 2015

Last year, in Vialpando v. Ben’s Automotive Services, the Court of Appeals upheld the validity of a workers’ compensation award directing an employer and insurer to reimburse a worker for the cost of medical marijuana used to relieve pain. (You can see my coverage of that case here).

On Friday, in Lewis v. American General Media, the Court of Appeals reaffirmed that employers and insurers must reimburse the cost of medical marijuana, again rejecting an argument that the admitted conflict between the federal Controlled Substances Act (which prohibits possession or use of marijuana) and New Mexico law makes the order unlawful.

The Court, in an opinion by Judge Wechsler, relied on recent policy statements from the Department of Justice, which indicate some willingness to allow the States to set their own marijuana policies, and a congressional prohibition on using federal funds to prevent states like New Mexico “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana,” as showing that federal policy is “ambiguous,” whereas New Mexico’s policy favoring the availability of medical marijuana is clear.

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Employers don’t have to pay workers for traveling to and from work, says NM Court of Appeals

by Emil J. Kiehne Posted on June 29, 2015

In Segura v. J.W. Drilling, Inc., the Court of Appeals has held that the state Minimum Wage Act does not require employers to pay workers overtime wages for the time they spend traveling to and from work.

The plaintiffs relied on workers’ compensation cases applying the “traveling employee” rule in some circumstances, but Judge Bustamante’s opinion rejected their claim, because workers’ compensation law is “sui generis.”

The lesson here is to be cautious when using concepts from workers compensation law in other contexts, because they will rarely apply. (But kudos to the workers’ lawyers here for coming up with a creative legal theory.)

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It’s too late to ask for arbitration after class certification, says 10th Circuit

by Emil J. Kiehne Posted on June 26, 2015

In Healy v. Cox Communications, Inc., an antitrust class action, the Tenth Circuit affirmed an order finding that Cox Communications waived any right it may have had to compel arbitration because it didn’t ask for arbitration until “after extensive discovery, class certification, potentially dispositive motions, and a petition to this circuit.”

Cox argued that it couldn’t move to compel arbitration with respect to absent class members until after class certification. Judge Lucero’s opinion rejected this argument because the arbitration clauses were material to the class certification decision, and could have (and should have) been asserted as a defense to class certification.

The lesson here is that it’s better to ask for arbitration, and be told your request is premature, than to wait too long, and be told you’re too late.

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NM Supreme Court: Retroactive treble damages don’t violate ex post facto clause

by Emil J. Kiehne Posted on June 26, 2015

Yesterday, in State ex rel. Foy v. Austin Capital Management, Ltd., the New Mexico Supreme Court (opinion by Justice Maes) held that retroactive application of the treble damages provision of the Fraud Against Taxpayers Act does not violate the federal or state ex post facto clauses.

The Supreme Court declined to rule on whether the civil penalties provision (which imposes a $5,000 to $10,000 fine per violation) violates ex post facto principles. The Court may reconsider that issue if and when the penalties are imposed.

I won’t be offering my own opinion, since my firm has been involved related lawsuits.

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10th Circuit revives Jemez Pueblo’s claim to Valles Caldera

by Emil J. Kiehne Posted on June 26, 2015

While many people today are focused on decisions issuing from some court in Washington, D.C., the Tenth Circuit issued an opinion reviving Jemez Pueblo’s efforts to regain ownership of Valles Caldera (i.e. the most beautiful place in New Mexico, in my humble opinion).

The opinion in Pueblo of Jemez v. United States is by Judge Stephanie Seymour, and reverses the trial court’s decision dismissing the Pueblo’s claims. I haven’t had time to digest the 60-page opinion, but to say it will be important to New Mexico is an understatement.

You can read my previous coverage of this litigation here, here, and here.

UPDATE (June 29, 2015): For other coverage of this opinion, read this story by Uriel J. Garcia in the Santa Fe New Mexican. You can also read the briefs here at the Turtle Talk blog.

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Exclusion of farm & ranch employees from workers’ comp is unconstitutional, says NM Court of Appeals

by Emil J. Kiehne Posted on June 26, 2015

Section 52-1-6(A) of the New Mexico’s Workers’ Compensation Act excludes farm and ranch laborers from the benefits (and burdens) of workers’ compensation. This week, the Court of Appeals held that this exclusion violates the equal protection clause of the New Mexico Constitution in Rodriguez v. Brand West Dairy.

In an opinion by Judge Monica Zamora, the Court held that the exclusion is subject to rational basis scrutiny, the most deferential equal protection standard. The Court nevertheless held that the exclusion is unconstitutional.

First, the exclusion applies to some agricultural laborers but not others. In 1980, the Court of Appeals held that the exclusion does not apply to workers who process harvested crops for shipping. Another statute, 52-1-6.1, says that the exclusion does not apply to veterinarians. According to the Court, these differences mean the exclusion is without a rational basis.

Second, the Court rejected the State’s argument that it’s hard to administer the Act because agricultural workers are highly mobile, because the Act does “not exclude all transient or mobile workers from coverage.”

Third, the Court rejected the State’s argument that the agricultural industry operates on lower profit margins, thus justifying the exclusion, because the Act “is under-inclusive because it does not exclude all agricultural workers.”

Personally, I think the Act should be amended to include farm and ranch workers. During my high school and college summers, I spent a lot of time working on farms and cattle ranches, and it is hard, back-breaking, low-paid labor. Although I’m not familiar with the statistics, I suspect that farm and ranch workers probably have a high rate of workplace injury.

Nevertheless, and reluctantly, I have to say that Rodriguez isn’t very convincing. Continue reading →

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10th Circuit approves “a little judicial jiu-jitsu” in Rocky Flats nuclear class action

by Emil J. Kiehne Posted on June 24, 2015

Litigation over radioactive pollution at Colorado’s Rocky Flats nuclear power plant has been ongoing since the early 1990s, but the Tenth Circuit is trying to bring it to an end, as evidenced by yesterday’s decision in Cook v. Rockwell International Corp. Although the decision is obviously important because it signals an end to one of the more important environmental lawsuits of the last 25 years, it will be of ongoing interest to appellate lawyers because of its holdings on the law-of-the-case doctrine and the scope of appellate mandates.

A little background on the saga. In 1989, it was discovered that Rocky Flats had been mishandling radioactive waste, causing air and groundwater pollution. A class of neighbors brought suit in 1990 under the federal Price-Anderson Act, which exists to provide a remedy for any “nuclear incident,” and under Colorado nuisance law.

In 2006 (yes, over 15 years after the lawsuit started), a jury awarded the class $177 million in compensatory damages and $200 million in punitive damages against the defendants, Rockwell International Corporation and Dow Chemcial Company, to which the district court added $549 million in pre-judgment interest. On appeal, however, the Tenth Circuit reversed, holding that the jury was improperly instructed on what constitutes a “nuclear incident” under the Price-Anderson Act, and remanded for “further proceedings not inconsistent with this opinion.” See Cook v. Rockwell International Corp. (Sept. 3, 2010).

On remand, the plaintiffs tried “a little judicial jiu-jitsu,” as Judge Neil Gorsuch’s opinion calls it. Fine, the plaintiffs said. We give up on the Price-Anderson Act claim, but the Tenth Circuit didn’t disturb the verdict or judgment to the extent that they were based on  Colorado nuisance law. So enter judgment in our favor on that claim and we can all go home. Continue reading →

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Roberta Cooper Ramo to receive ABA’s highest honor

by Emil J. Kiehne Posted on June 24, 2015

One of my law partners, Roberta Cooper Ramo, will receive the American Bar Association Medal, the highest honor that the organization bestows, according to this report by Charlie Moore in the Albuquerque Journal. In 1995, she was the first woman to be elected president of the American Bar Association, and now serves as president of the American Law Institute.

It is an honor to practice law with her!

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Senator Udall to speak at Albuquerque Bar Association on June 30

by Emil J. Kiehne Posted on June 24, 2015

U.S. Senator Tom Udall will deliver a speech entitled “EDD of Bases and National Labs” to the Albuquerque Bar Association at a luncheon on June 30 at the Embassy Suites Hotel, 1000 Woodward Place, NE. (I’ve no idea what “EDD” means, but doubtless Senator Udall will explain).

The luncheon begins at noon, and will be followed at 1:45 p.m. by a review of the Supreme Court of the United States’ decisions this term (which is eligible for CLE credit). The presenters will be Andy Schultz of the Rodey Law Firm, and UNM Law School Professors Cliff Villa, Jeanette Wolfley, and Serge Martinez.

Apparently, online registration for the luncheon and the CLE program is closed (see here) but the Association’s website says that you can obtain more information by sending an e-mail to [email protected] or by calling (505) 842-1151.

As always, if you’d like to bring to my attention any events that could be of interest to the New Mexico legal community, please send me an e-mail.

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