July 26, 2014

Colorado Court of Appeals: Week of July 25, 2010 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and 41 unpublished opinions for the week of July 25, 2010.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Tenth Circuit: Opinions, 7/30/10

The Tenth Circuit on Friday issued one published opinion and four unpublished opinions.

Published

In United States v. Martin, the Court affirmed the district court’s denial of a motion to suppress evidence. Officers suspected Petitioner was involved in a shooting, and had probable cause to arrest him. Exigent circumstances justified the warrantless arrest within Petitioner’s apartment building entryway and was therefore not a search and seizure in violation of the Fourth Amendment.

Unpublished

United States v. Cooper

Anderson v. Kitchen

Brown v. State of Wyoming

Mountain States Media v. Adams County, Colorado

Tenth Circuit: Opinions, 7/29/10

The Tenth Circuit on Thursday issued two published opinions and seven unpublished opinions.

Published

In United States v. Mullins, the Court affirmed the district court’s decision, finding no reversible error in the court’s convictions of Petitioners for scheming to defraud the U.S. Department of Housing and Urban Development. The charges were not time-barred, the interstate wires underlying the wire fraud charges were reasonably foreseeable, and the government’s investigatory methods did not violate the Sixth Amendment.

In BP America, Inc. v. Edmondson, the Court granted BP’s petition for leave to appeal. In a narrow exception within the Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109-2, 119 Stat. 4., “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action [including a mass action] to the State court from which it was removed.” The Court defined the scope of the exception for mass action suits, providing insight as to when a court should accept the permissive appeal.

Unpublished

Energy West Mining Company v. Hunsinger

Fay v. United States

Torres-Pacheco v. Holder, Jr.

United States v. Sprous

Montoya v. Hartley

Atkinson v. Astrue

Carter v. United States

Tenth Circuit: Opinions, 7/28/10

The Tenth Circuit on Wednesday issued one published opinion and four unpublished opinions.

Published

United States v. Mullins

Unpublished

United States v. Rivera-Carrera

Banks v. Hodak

Dedrick v. Daniels

United States v. Pedraza-Bucio

Tenth Circuit: Opinions, 7/27/10

17th Judicial District’s John Bryant Will Not Seek Retention, Field Open for Applicants

Seventeenth Judicial District Judge John T. Bryan will not run for retention in this fall’s general election, prompting the District’s Judicial Nominating Commission to set a date to review candidates interested in succeeding the judge. Judge Bryan is the fifteenth Colorado judge since June 1 to announce plans to vacate the bench. The court vacancy is effective January 11, 2011.

The five-member Commission will convene at the Adams County Justice Center in Brighton on Monday, August 30 to review and interview candidates for the district court judgeship. Following the interviews, the Commission will recommend finalists for Gov. Bill Ritter to consider for appointment, and the governor will announce his appointee within 15 days.

Judges in the district court preside over domestic relations, felony criminal, juvenile, and civil matters for the 500,000+ residents of Adams and Broomfield counties. They receive a provisional, two-year appointment by the governor, after which they are retained by voter approval every six years. The annual salary is $128,598.

All attorneys licensed to practice in Colorado and who are registered electors in the Seventeenth Judicial District are eligible to apply for the judgeship. Detailed information about the District and the application are available online. Application packages (consisting of one original application plus seven copies) must be received by the office of Commission ex officiochair, Justice Allison H. Eid, 101 W. Colfax Ave., Eighth Floor, no later than Friday, August 13 at 5:00 p.m.

Judge Bryan was appointed to the district court bench in 2007 following  a legal career that has included serving as a magistrate for the Seventeenth Judicial District, clerking for the Colorado Court of Appeals, and working as an assistant attorney general in the Colorado Office of the Attorney General. He holds a B.S. and an M.S. in computer science, and received his J.D. from the University of Colorado School of Law.

(image source: State Judicial)

Tenth Circuit: Opinions, 7/26/10

The Tenth Circuit on Monday issued no published opinions and two unpublished opinions.

Unpublished

Mecca v. United States

Poche v. Joubran

No Colorado Supreme Court Opinions: Week of July 25, 2010

There are no new cases to report.

Tenth Circuit: Opinions, 7/23/10

The Tenth Circuit on Friday issued two published opinions and four unpublished opinions.

Published

In United States v. Pope, the Court affirmed the district court’s decision denying Petitioner’s pre-trial motion to dismiss. Petitioner contends that 18 U.S.C. § 922(g)(9) is unconstitutional as applied to him; the statute makes it felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun. While Petitioner admits to falling within the realm of the statute, he believes that because the gun was only on his property for self defense, the statute violates his Second Amendment rights. The Court disagreed, however, finding that facts to support his assertions are “outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.”

In Sala v. United States, the Court reversed the district court’s decision. The United States, Petitioner, was not required to refund $24 million of prior paid taxes to Respondent. The taxes paid represent losses of a business scheme intended to shield Respondent from IRS taxation; Respondent’s participation in the venture lacked economic substance and was solely designed to offset his income with little economic risk.

Unpublished

Alvillar v. Utah State Board of Pardons

Amphibious Partners, LLC v. Redman

Pruitt v. Parker

United States v. Redmond

Colorado Court of Appeals: No Suppression of Evidence for Knock-and-Announce Violations

The Colorado Court of Appeals issued its opinion in People v. Butler on July 22, 2010.

Search Warrant—Fourth Amendment—Motion to Suppress—Knock-and-Announce Search—Remedy—Jury Instructions—Invited Error Doctrine.

Defendant Robert Butler appealed the trial court’s judgment of conviction entered on a jury verdict finding him guilty of two counts of attempting to disarm a police officer. The judgment was affirmed.

When officers attempted to execute a search warrant at his residence in connection with an allegation that defendant assaulted someone with a large knife, Butler also was charged with two counts of attempting to disarm a police officer. These charges were heard separately from all other charges regarding the knife incident, and defendant was found guilty of both counts.

Butler’s principal contention on appeal was that the trial court erred in denying his motion to suppress evidence from the police’s “knock-and-announce” search, because the search violated his Fourth Amendment rights; however, suppression of evidence is no longer a remedy in a criminal case for violations of the knock-and-announce rule. The Court of Appeals therefore declined to address whether Butler’s Fourth Amendment rights were violated, because he would have no remedy regardless of the result.

Butler also contended that the trial court erred in adding the phrase “or search warrant executed” to the jury instruction, defining when a police officer acts under color of authority. The Court disagreed. The record shows that when the trial court proposed amending the jury instruction defining when a police officer acts under color of official authority by adding the phrase “or search warrant executed,” defense counsel responded, “That’s fine with me.” The invited error doctrine precludes Butler from appealing this issue because he expressly acquiesced in the instruction at trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Restitution Paid to DHS During Dependency and Neglect Action Inappropriate

The Colorado Court of Appeals issued its opinion in People v. Padilla-Lopez on July 22, 2010.

Restitution—Drug Possession—Child Abuse—Dependency and Neglect—Department of Human Services—Victim—CRS §§ 18-1.3-602 and -205.

Defendant appealed the district court’s order imposing restitution. The order was reversed and the case was remanded.

Undercover detectives purchased methamphetamine and cocaine from a third party in defendant’s residence while her children were present. Detectives thereafter executed a search warrant and recovered additional illegal drugs and drug paraphernalia, which were within the children’s reach. Defendant was charged with drug possession and child abuse. To resolve the charges, she pled guilty to two counts of possession, misdemeanor theft, and misdemeanor child abuse. In the plea agreement, defendant stipulated that she would pay restitution. The court ordered defendant to pay $19,295.14 in restitution to the El Paso County Department of Human Services (DHS) for the money it expended to place and keep her two children in foster care through the dependency and neglect action.

Defendant contended that the court erred in ordering her to pay restitution to DHS. Because an essential element of the underlying crime in this case requires wrongful conduct against a child, it follows that DHS is not a “victim” under CRS § 18-1.3-602, and any expenses it incurred were incidental to its duties. Therefore, the court erred in imposing restitution to DHS under CRS § 18-1.3-205. The court’s restitution order was reversed and the case was remanded for further proceedings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.

Colorado Court of Appeals: Reserve Asset Not Unreasonable at Time of Transfer to Warrant Broker’s Garnishment

The Colorado Court of Appeals issued its opinion in CB Richard Ellis, Inc. v. CLGP, LLC on July 22, 2010.

Garnishment—Distribution—Constructively Fraudulent Transfer.

In this garnishment action, judgment creditor and garnishor, CB Richard Ellis, Inc., a real estate brokerage company (broker), appealed the trial court’s order denying its traverse of answers to garnishment filed by the garnishees, who are the only owners of the judgment debtor, CLGP, LLC (LLC). The order was affirmed.

The LLC is a limited liability company that was formed in Colorado for the sole purpose of purchasing and selling land in Douglas County (property). The LLC has two members: (1) Gesco Corporation, which is owned by Gerald Student, a real estate manager; and (2) Richard Hatch, a real estate attorney who specializes in real estate lending. The LLC bought the property in 2004 for approximately $1 million. The LLC entered into a listing agreement with the broker to sell the property. Before the time period for the listing agreement expired, Student told the broker that he was taking over responsibility for negotiations with Grand Peaks, a potential buyer. Grand Peaks subsequently purchased the property, and the broker did not receive any commission from the purchase. The garnishees set aside a $200,000 reserve asset to insure the disputed broker fee before distributing the remaining net proceeds to the garnishees. The parties later submitted their dispute to arbitration concerning the broker’s commission. The LLC hired outside counsel to litigate the arbitration and paid counsel’s fees out of the $200,000 reserve asset. The arbitrator awarded the broker $395,000. The LLC paid broker the remaining $44,500 from the reserve asset, and the broker proceeded to garnish the garnishees. However, the trial court ruled that the distribution from the LLC to the garnishees was not a constructively fraudulent transfer.

As a threshold matter, the LLC claimed that the broker failed to preserve its claim under CRS § 38-8-106(1). Because the parties tried this issue by consent, the broker’s claim was preserved.

The broker argued that the trial court erred when it concluded that the distribution from the LLC to the garnishees was not a constructively fraudulent transfer. However, the $200,000 reserve asset was not unreasonable at the time of the transfer, especially in light of the fact that the maximum commission owed to the broker, which was a contingent liability, was $177,000. The trial court applied the proper legal standard when considering this form of constructive fraud, and its finding supported its ruling that the broker did not show that the garnishees should have reasonably foreseen that the distribution would create an unreasonable risk of insolvency. Accordingly, the trial court did not err in denying the broker’s garnishment of the garnishees.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 22, 2010, can be found here.