November 23, 2017

Archives for September 1, 2011

Upcoming Solo/Small Firm Monthly Networking Meetings: September 2011

The Solo/Small Firm Section networking meetings are a great opportunity to connect with your peers, as well as a practice management and technology discussion forum. The meetings are open to all CBA members, not just members of the Solo/Small Firm Section, the sponsoring entity. Colorado Springs routinely offers CLE credits, although sometimes there is no formal agenda, and no RSVP is required to attend any of the meetings.  You are encouraged to think about and prepare questions or ideas to present to the group.  Don’t hesitate to e-mail a meeting coordinator to suggest a CLE topic and/or speaker!

  • Colorado Springs
    • September 7 (First Wednesday of every month)
      • Luncheon at 11:30 am
    • Ritz Grill, 15 S. Tejon, Colorado Springs, CO, (719) 635-8484
    • Contact Jim Duve, (719) 578-5800, JCD@DuveLaw.com, or John Holcomb, (719) 548-8968, jHolco@msn.com
  • Downtown Denver
    • September 13 (Second Tuesday of every month) – NEW GROUP!
      • Happy Hour at 5:30 pm
    • Stoney’s Bar and Grill, 1111 Lincoln St., Denver, CO (303) 830-6839
    • Contact Jennifer D. McGinn, (720) 362-3000, Jennifer@mcginnlawoffice.com.
    • There is no parking at the bar but there is free 2-hour parking up one block on Sherman St. and there is a garage directly across the street from the bar on Lincoln St.  There is also plenty of metered parking on Lincoln.
  • Downtown Denver
    • September 1 (First Thursday of every month)
      • Breakfast at 7:30 am
    • Tavern Restaurant inside the Denver Athletic Club, 1325 Glenarm Place, Denver, CO (303) 534-1211 – Reservation under D.A. Bertram
    • Contact Frank P. Slaninger, (303) 617-4446, slaninger@comcast.net.
  • West Denver Metro Area (Jeffco)
    • September 14 (Second Wednesday in odd months)
      • Breakfast at 7:30 am
    • Mimi’s Café, 14265 West Colfax Ave., Golden, CO (303) 384-9350
    • Contact Dayle Anderson, (303) 980-7990, d.l.anderson@comcast.net.
  • Denver Tech Center Area
    • September 9 (Second Friday of every month)
      • Brown Bag Lunch at noon
    • Law Offices of Julian Izbiky, 7400 E. Caley Ave., Suite 300, Centennial, CO (303) 850-7080
    • Contact Phil Shuey, (303) 680-2595, shuey_p@comcast.net
    • Exit I-25 and go west on Orchard and turn south on Quebec (or exit I-25 and go west on Arapahoe and turn north on Quebec).  From Quebec, turn east on E. Caley Ave.  The building is on the right, not far from Quebec.

Dates are subject to change; however, they will occur as scheduled unless prior notice has been sent to the Section membership via e-mail.  Please check this website on a regular basis.

Tenth Circuit: Pension Plan Records Properly Withheld under FOIA; Consent of Company Required for IRS to Release

The Tenth Circuit Court of Appeals issued its opinion in Hull v. IRS on Wednesday, August 31, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioners are retired employees of US West, Inc. and participants in the US West Pension Plan. According to Plaintiffs’ 2008 Freedom of Information Act (FOIA) request, US West made a submission to the IRS under the Voluntary Compliance Review Program (VCRP) for access to records in which “the company fully described [a problem with some of its payments to US West Pension Plan participants] and requested IRS grant approval to make adjusted pension payments,” which the IRS did. The IRS informed Petitioners that their FOIA request for the pension plan records was a request for “tax records,” which “are confidential and may not be disclosed unless specifically authorized by law.” The IRS would require US West Pension Plan’s written consent before they could consider releasing the information. Petitioners appeal the district court’s decision that upheld the IRS’s determination.

The Court held that the IRS properly withheld the requested information. The IRS “succeeded in carrying its burden of proving that [Petitioners’] FOIA request . . .  only sought US West’s return information to which [Petitioners] are not entitled without US West’s consent. Because [Petitioners] have not provided that consent, the IRS properly withheld the requested information.”

Tenth Circuit: Conspirator Not Aware of Other’s Conditions of Release; Could Not Have Foreseen that Its Violation Was Necessary to Advance Conspiracy

The Tenth Circuit Court of Appeals issued its opinion in United States v. Irvin on Wednesday, August 31, 2011.

The Tenth Circuit reversed in part and affirmed in part the district court’s convictions. Petitioners were charged in an eleven-count indictment with a variety of crimes stemming from an alleged conspiracy to defraud mortgage lenders in connection with the subprime housing market. After a month-long jury trial, they were each convicted on several of the charges and sentenced. Petitioners challenge their convictions, alleging insufficient evidence to sustain a conviction and that the there were errors committed by the trial court.

The Court found that an exhibit summary of several boxes of “loan files” pertaining to the allegedly fraudulent home sales was not admitted in error; the information contained therein was independently supported by properly admitted evidence and witness testimony. Additionally, “if it can be established that a given document was relied on by a business and incorporated into that business’s records in the ordinary course, it is irrelevant that the record was generated by a third party so long as Rule 803(6) is otherwise satisfied.” However, part of their convictions were reversed “because there is no basis to conclude [one petitioner] was even aware of [the other’s] conditions of release.” As such, “she could not reasonably have foreseen that [he] would violate them, or that their violation was necessary to advance the conspiracy to which she had agreed.” So, insufficient evidence supported that conviction.

Tenth Circuit: Claims of Excessive Force by Police and Unlawful Entry May Proceed; No Qualified Immunity for Pursuit of Minor for Traffic Misdemeanor

The Tenth Circuit Court of Appeals issued its opinion in Mascorro v. Billings on Wednesday, August 31, 2011.

The Tenth Circuit affirmed the district court’s decision. Respondents’ seventeen-year-old son was noticed by Petitioner police officer to be driving without taillights; he turned around to pull him over, but the young driver did not stop and instead drove two blocks to his parents’ house, ran inside, and hid in the bathroom. Respondents claim they woke to Petitioner kicking the door in a rage, swearing, threatening, and ordering someone to open it and come outside. According to Respondents, when one of them opened the front door, Petitioner “drew his gun, pointed it at [Respondent’s] head and yelled, “On your knees, motherf****r!” Respondents finally figured out that the officer was looking for their son; when one of them ask the officer if he had a warrant and when the other began walking away from the door, Petitioner pepper sprayed them and their other 14-year-old son. One respondent managed to call 911 before being led from the house and the driver was retrieved from a locked bathroom. According to Respondents, Petitioner officer “was visibly angry during the entire encounter, screaming at the top of his lungs and spitting with rage as he tried to speak and they did nothing to threaten or physically resist [him] in any way.” Petitioner claimed they did not need emergency care, but when an ambulance arrived, he arrested Respondents.

Respondents were “charged with with obstructing a police officer in the performance of his duties and [one respondent] was charged with aggravated assault and battery on a police officer because [Petitioner] alleged and subsequently testified that she poked him in the chest when he was standing at the front door before he sprayed her. They were released on bond later the same day. The state court eventually quashed the arrest and dismissed the charges, concluding [Petitioner] had entered the house illegally because no exigent circumstances justified his warrantless entry. When they returned home, they found their belongings strewn about, trash cans upended, and a hole kicked in one wall.”

Respondents brought this action against Petitioner officers asserting claims of unlawful entry, excessive use of force, false arrest, false imprisonment, and malicious prosecution. Respondents moved for partial summary judgment and Petitioners moved for summary judgment based on qualified immunity and other grounds. The district court denied Respondents’ summary judgment motion; it granted Petitioners’ motions as to claims against them in their official capacities, but denied summary judgment on all other issues, including their qualified immunity defense. The officers brought this interlocutory appeal on the single issue of whether they are entitled to qualified immunity.

The Court determined that relevant case law “makes clear the sort of exigent circumstances permitting officers to enter a suspect’s home without a warrant in pursuit of the suspect – they must involve a serious offense coupled with the existence of an immediate and pressing concern such as destruction of evidence, officer or public safety, or the possibility of imminent escape. These officers do not even argue such concerns were present or that the traffic violation for which [Petitioner] had probable cause to arrest [the young driver] constituted a serious offense. No reasonable officer would have thought pursuit of a minor for a mere misdemeanor traffic offense constituted the sort of exigency [or hot pursuit] permitting entry into a home without a warrant.” As such, the officers may not receive qualified immunity.

Tenth Circuit: Unpublished Opinions, 8/31/11

On Wednesday, August 31, 2011, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

Unpublished

Litteral v. Marshall

James v. Indep. School Dist. No. I-050 of Osage County

Burnett v. Jones

Felix v. City and County of Denver

Norouzian v. Univ. of Kansas Hosp. Auth.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.