United States v. Gonzales ( 2000 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 7 2000
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 99-1165
    (D.C. No. 89-K-1740)
    ASSEMBLY OF YHWHHOSHUA;                                (D. Colo.)
    MAXINE P. GONZALES, also known
    as Petra Maxine Gonzales; LAYCHER
    GONZALES, Pastor, also known as
    Eliseo Gonzales,
    Defendants.
    RANDY KALISH,
    Real Party In Interest-
    Appellant.
    ORDER AND JUDGMENT          *
    Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Appellant pro se Randy Kalish appeals from the district court’s minute
    order dated February 3, 1999, denying and striking his motion entitled “Demand
    for Due Process of Law” and the district court’s minute order dated February 11,
    1999, denying his motion for reconsideration of that denial. We have jurisdiction
    pursuant to 
    28 U.S.C. § 1291
     and affirm both orders.
    Mr. Kalish seeks possession of property located in Boone, Colorado
    (the property) which was sold in 1994 to help satisfy a 1991 federal tax judgment
    against Laycher Gonzales, pastor of the Assembly of Yhwhhoshua (the
    Assembly), and Maxine Gonzales, his wife. Mr. Kalish is a member of the
    Assembly.
    This case was initiated in 1989 by the government which sought to reduce
    to judgment Mr. Gonzales’s unpaid federal income taxes, set aside as fraudulent
    his conveyance of the property to the Assembly, and foreclose on its tax lien.
    After a bench trial, the district court held in the government’s favor in all
    respects. See R., Vol. I, Doc. 48 (Memorandum Opinion and Order dated
    February 6, 1991). In addition, the district court ordered foreclosure and sale
    of the property. The Gonzaleses appealed to this court and we affirmed.         See
    United States v. Gonzales , No. 91-1074, 
    1991 WL 270002
     (10th Cir. Dec. 17,
    -2-
    1991) (unpublished disposition). Thereafter, we affirmed the district court’s
    order denying the Gonzaleses’ motion for relief from judgment and motion for
    reconsideration.   See United States v. Assembly of Yhwhhoshua      , No. 97-1115,
    
    1997 WL 606874
     (10th Cir. Oct. 2, 1997) (unpublished disposition).
    Mr. Kalish filed a notice of appearance attempting to intervene in which he
    states he has “exculpatory evidence new to this case,” seeks the “opportunity to
    have a hearing and to obtain the testimony of witnesses,” and has “only recently
    discovered that the problem in the case derives from the errors of this court and
    its failure to serve due process of law upon the rightful owners of the property
    taken by the IRS without due process of law.” R., File 2, Doc. 111 at 1. He
    argues that: (1) the district court lacked jurisdiction to order the sale of the
    property in order to satisfy Mr. Gonzales’s federal tax judgment; and (2) the trial
    court lacked jurisdiction to render judgment against the Assembly because the
    Assembly trustees were never served process and did not receive notice of the
    action.
    The property’s ownership has been litigated and relitigated in both federal
    and state court. Essentially, Mr. Kalish is attempting to: (1) challenge the
    district court’s original holding that the property was fraudulently conveyed by
    Mr. Gonzales to the Assembly in 1983; and (2) undermine the subsequent state
    court determination that the property’s rightful owner is Casa de Oro, LLC, the
    -3-
    entity that purchased the property when the government foreclosed on its tax lien.
    As discussed below, Mr. Kalish’s claims are barred by the doctrines of law of the
    case and collateral estoppel.
    Our holding--affirming the district court’s 1991 decision finding a
    fraudulent conveyance--is the law of the case and this panel will not reconsider
    nor overturn that determination short of certain narrow circumstantial exceptions
    not present here.   See United States v. Alvarez , 
    142 F.3d 1243
    , 1247 (10th Cir.)
    (explaining that law of the case doctrine “posits that when a court decides upon a
    rule of law, that decision should continue to govern the same issues in subsequent
    stages in the same case” and enumerating the “three exceptionally narrow
    circumstances” which enable departure from the doctrine) (quotation omitted),
    cert. denied , 
    119 S. Ct. 242
     (1998).
    In addition, Mr. Kalish had what amounts to a second opportunity to argue
    his interest in the property when Casa de Oro filed a claim of unlawful detention
    in the District Court, County of Pueblo, seeking an order of possession of the
    property, naming as defendants the Assembly, the Gonzaleses and all unknown
    occupants of the property. By order dated May 29, 1997, the state court adjudged
    Casa de Oro the rightful owner of the property.   1
    See Appellee’s Supp. App. at 2a.
    1
    Mr. Kalish and other Assembly members sought to intervene in the state
    court action as third-party plaintiffs. They named as third-party defendants
    (continued...)
    -4-
    In addition, the state court specifically found that Mr. Kalish lacked standing to
    invoke its jurisdiction as he failed to show any record interest in the property
    predating the federal district court’s 1991 order.    See 
    id.
     at 3a.
    Under the “full faith and credit” statute, 
    28 U.S.C. § 1738
    --which
    implements the Full Faith and Credit Clause of the Constitution--the state court’s
    ruling precludes relitigation of the property’s ownership in this forum.     See Migra
    v. Warren City Sch. Dist. Bd. of Educ.     , 
    465 U.S. 75
    , 81 (1984) (explaining that
    federal court must accord state court judgment “the same preclusive effect as
    would be given that judgment under the law of the State in which the judgment
    was rendered”); see also Strickland v. City of Albuquerque       , 
    130 F.3d 1408
    , 1411
    (10th Cir. 1997). Under Colorado law, the doctrine of collateral estoppel bars
    relitigation of an issue when:
    (1) the issue is identical to that actually adjudicated in a prior
    proceeding; (2) the party against whom estoppel is asserted is a party
    1
    (...continued)
    various federal and state entities and actors. The state court held a trial at which
    Mr. Kalish was present and during which he made a statement in open court. The
    state court entered an order of possession in favor of Casa de Oro but did not
    address Mr. Kalish’s claims against the third-party defendants. The government
    removed the case to federal court on the same day the state court’s order issued.
    Subsequently, the district court dismissed Mr. Kalish’s claims against the federal
    and state government entities and actors on various immunity grounds and
    remanded to state court all outstanding issues of possession. We affirmed.      See
    Casa De Oro, LLC v. Assembly of Yhwhhoshua , No. 98-1102, 
    1998 WL 833687
    (10th Cir. Dec. 3, 1998) (unpublished disposition). On remand, the state court
    confirmed its earlier order of possession.    See Appellee’s Supp. App. at 5a.
    -5-
    or in privity with a party in the prior proceeding; (3) there was a final
    judgment on the merits; and (4) the party against whom estoppel is
    asserted had a full and fair opportunity to litigate the issues in the
    prior proceeding.
    S.O.V. v. People in Interest of M.C.   , 
    914 P.2d 355
    , 359 (Colo. 1996). Here, these
    elements are met and Mr. Kalish is estopped from relitigating the property’s
    ownership--an issue already adjudicated in state court.       See Allen v. McCurry ,
    
    449 U.S. 90
    , 94 (1980) (“Under collateral estoppel, once a court has decided an
    issue of fact or law necessary to its judgment, that decision may preclude
    relitigation of the issue in a suit on a different cause of action involving a party to
    the first case.”).
    For the foregoing reasons, we DENY Mr. Kalish’s motion for leave to
    proceed on appeal without prepayment of fees under 
    28 U.S.C. § 1915
    , GRANT
    the government’s motion to file a supplemental appendix, and AFFIRM the
    district court’s orders. The mandate shall issue forthwith.
    Entered for the Court
    Wade Brorby
    Circuit Judge
    -6-
    

Document Info

Docket Number: 99-1165

Filed Date: 2/7/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021