April 22, 2018

Archives for March 22, 2013

Governor Hickenlooper Signs Historic Civil Unions Bill

On Thursday, March 21, 2013, Governor Hickenlooper signed SB 13-011 – Concerning Authorization of Civil Unions and, in  Connection Therewith, Making an Appropriation. The bill was sponsored by Reps. Pat Steadman and Lucia Guzman from the House, and Sens. Mark Ferrandino and Sue Schafer from the Senate.

Governor Hickenlooper issued a statement through One Colorado, remarking, “I had the incredible honor of signing civil unions into law. It was a historic moment for Colorado, which now joins a tide of hope sweeping the nation that affirms all couples should have the protections they need to care for each other and their families.” The bill grants rights to same-sex couples that are similar to those protections married couples enjoy under the law.

The bill takes effect on May 1, 2013, and will impact many areas of the law. The practice areas that will be most directly affected are family law and trust and estate law. On May 1,2013, the effective date of the legislation, CBA-CLE will host two half-day programs discussing the impact of civil unions on family law and trust and estate practice. Topics to be discussed include

  • Predicting the legal consequences of civil unions on  Title 14 and Title 19 actions;
  • A survey of same-sex marriage and civil unions in other jurisdictions and reciprocity issues;
  • Implications of the civil unions law in Colorado and nationwide;
  • Highlights and key provisions of the law that are important to a trust and estate practice; and
  • Civil unions and elder law.

The programs will be presented by Elizabeth Bryant, Erica Johnson, Richard Mishkin, Marie Avery Moses, and Richard Rotole. Click the link below to register or call (303) 850-0608.

CLE Program:  Civil Unions – Legal Consequences for Family and Trust & Estate Practices

This CLE presentation will take place on May 1, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Tenth Circuit: Securities Fraud Conviction and Sentence Affirmed; Forfeiture Orders Upheld

The Tenth Circuit published its opinion in United States v. Gordon on Friday, March 15, 2013.

Defendant-Appellant George David Gordon is a former securities attorney convicted of multiple criminal charges relating to his alleged participation in a “pump-and-dump” scheme where he, along with others, violated the federal securities laws by artificially inflating the value of various stocks, and then turning around and selling them for a substantial profit. He was sentenced to 188 months in prison and was ordered to pay $6,150,136 in restitution. The government also restrained some of his property before the indictment was handed down and ultimately obtained criminal forfeiture of that property.

Gordon raised numerous arguments on appeal. He argued that the he was deprived of the Sixth Amendment right to counsel because the government placed restraints on various property, including two of his law firm accounts, so he lacked the funds to pay for counsel of his choice. In deciding against Gordon on this issue, the Tenth Circuit refused to consider trial brief arguments he attempted to incorporate into his appellate brief by reference as that is disapproved. After reviewing his appellate arguments, the court agreed with the trial court that Gordon failed to show he was denied access to funds to pay for his defense in any substantial sense. He paid his defense counsel over $900,000 and “counsel remained fully and actively engaged in the case throughout the entire trial court proceedings.”

Next, Gordon challenged the sufficiency of the evidence. In connection with misleading promotional material sent or paid for by the conspirators, Gordon contended that under Rule 10b-5 he had no liability because he had no duty to disclose. Once a party elects to disclose material facts, however, the party has a duty to speak truthfully and correct misstatements. The Tenth Circuit found “substantial evidence that many aspects of the information disseminated in the promotional campaigns were false and misleading, and that misleading statements went uncorrected by numerous material omissions.” The court also found sufficient evidence that Gordon prepared or endorsed false opinion letters and that he violated 18 U.S.C. § 1512(c)(2) when he had a friend sign backdated documents to present to the government in an attempt to prevent the forfeiture of his home.

Gordon complained that the district court erred in permitting the government to insinuate guilt by introducing evidence that infringed upon his Fifth Amendment right to remain silent. At trial, the government offered the testimony of Lindberg to establish that he and Gordon had discussed who should be permitted to testify in the proceedings before the SEC. Two additional witnesses testified that Gordon advised them to take the Fifth Amendment. The testimony was offered to corroborate Lindberg’s testimony that he and Gordon had essentially calculated a cover-up strategy. The Tenth Circuit rejected Gordon’s claim that this tactic tainted the invocation of his own Fifth Amendment right not to testify at trial because it did not refer to his right.

The court rejected Gordon’s argument that the district court erred by excusing a juror without adequate cause. The juror had informed court staff that her continued presence on the jury could affect the outcome of the case. The district court determined the juror had not contaminated the rest of the jury and dismissed her for potential bias. The court did not address whether the trial court abused its discretion because even if it had, the juror’s dismissal did not cause any prejudice to Gordon.

The court also rejected Gordon’s claim that the trial court violated the Speedy Trial Act. The trial court properly identified the complex nature of the case and the voluminous records that would take additional time for the parties to organize and analyze when it granted an ends-of-justice continuance. Gordon’s interlocutory appeal and pending trial court motions created additional periods of delay that were excludable from the Act.

Gordon’s challenges to his sentencing also failed. In fraud cases where loss cannot be accurately calculated, a sentence may be based on gain. The court found no error in the trial court’s calculations, but even if it had, the error would be harmless because of the court’s downward variance from the sentencing guidelines. The court also properly included Gordon’s co-conspirators gains in making sentencing calculations.

Finally, the district court did not err in making its forfeiture orders. The defendant’s conviction and sentence were affirmed.

Tenth Circuit: Unpublished Opinions, 3/21/13

On Thursday, March 21, 2013, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

United States v. Barrera-Munoz

Okyere v. Rudek

United States v. Bruner

Arce-Jimenez v. Holder

Jimison v. Colvin

Holbrook v. Astrue

Barnes v. Davis

Gay v. Rojas

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

Tenth Circuit: Unpublished Opinions, 3/20/13

On Wednesday, March 20, 2013, the Tenth Circuit Court of Appeals issued no published opinion and twelve unpublished opinions.

Morris, Jr. v. Ulibarri

Beene v. Ford Motor Co.

Ankeney v. Jones

Gebhardt v. Exide Technologies

United States v. Ryan

 Shirley v. Davis

Carani v. Meisner

Luke v. Hospital Shared Services

United States v. Vasquez

Green v. Lexis-Nexis

United States v. Gutierrez-Sierra

United States v. Tooley

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

Colorado Court of Appeals: Announcement Sheet, 3/21/13

The Colorado Court of Appeals issued no published opinions and 36 unpublished opinions on Thursday, March 21, 2013.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

SB 13-198: Allowing Closure of Court to Public when Sexually Exploitative Materials or Forensic Interviews Related to a Child are Being Presented

On Wednesday, February 27, 2013, Sen. Cheri Jahn introduced SB 13-198 – Concerning Closing a Court to the Public When Sexually Exploitative Material Related to a Specific Child is Being Presented as Evidence. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill provides a court with the option to close the court to the public, when it is in the best interest of a child, when images of sexually exploitative materials or forensic interviews directly related to that child are being presented as evidence in court and the child or forensic interviewer is on the witness stand. On March 13, the Judiciary Committee amended the bill and sent it to the 2nd Reading Consent calendar for consideration by the full Senate.

SB 13-197: Preventing Persons Who Were Subjects of Protection Orders to Prevent Domestic Violence from Possessing Firearms

On Wednesday, February 27, 2013, Sen.Evie Hudak introduced SB 13-197 – Concerning Preventing Persons Who Have Committed Domestic Violence from Possessing Firearms, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

When a court subjects a person to a protection order to prevent domestic violence or a protection order that prohibits the person from possessing or controlling firearms or other weapons, or the court convicts a person of a misdemeanor or felony domestic violence offense, the court:

  • Shall require the person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control; and
  • May require that before the person is released from custody on bond, the person shall relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control.

In the case of a person who is served in court with a protection order to prevent domestic violence, and in the case of a person who is served with a mandatory protection order prohibiting the person from possessing or controlling firearms or other weapons, the person must relinquish any firearm or ammunition within 24 hours. In the case of a person who is served outside of the court with a protection order to prevent domestic violence, the person must relinquish any firearm or ammunition within 48 hours. However, a court may allow a person up to 72 hours to comply if the person demonstrates to the satisfaction of the court that he or she is unable to comply within 24 or 48 hours, as applicable.

To satisfy the requirement, the person may:

  • Sell or transfer possession of the firearm or ammunition to a federally licensed firearms dealer;
  • Arrange for the storage of the firearm or ammunition by a law enforcement agency; or
  • Sell or transfer the firearm or ammunition to a private party; except that the person shall not transfer a firearm or ammunition to a private party unless the private party has been approved to possess or purchase a firearm pursuant to a background check of the national instant criminal background check system.

If a person is unable to satisfy the requirement because he or she is incarcerated or otherwise held in the custody of a law enforcement agency, the court shall require the person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control not more than 24 hours after the person’s release from such incarceration or custody or be held in contempt of court. The court, in its discretion, may require the person to relinquish any firearm or ammunition in the person’s immediate possession or control or subject to the person’s immediate possession or control before the end of the person’s incarceration.

If a person sells or otherwise transfers a firearm or ammunition to a private party, the person shall acquire:

  • From the transferee, a written receipt acknowledging the transfer, which receipt shall be dated and signed by the person and the transferee; and
  • From the licensed gun dealer who requests from the Colorado bureau of investigation a background check of the transferee, a written statement of the results of the background check.

If a local law enforcement agency elects to store firearms or ammunition for a person:

  • The agency may charge a fee for such storage, the amount of which shall not exceed the direct and indirect costs incurred by the agency in providing such storage; and
  • The agency may establish policies for disposal of abandoned or stolen firearms or ammunition.

A federally licensed firearms dealer who takes possession of a firearm or ammunition, and a law enforcement agency that stores a firearm or ammunition, shall issue a receipt to the person who transfers possession of the firearm or ammunition. Not more than 3 calendar days after relinquishing the firearm or ammunition, the person shall file a copy of the receipt with the court as proof of the relinquishment. A person who fails to timely file a receipt commits a class 2 misdemeanor.

A person subject to a protection order who possesses or attempts to purchase or receive a firearm or ammunition while the protection order is in effect violates the protection order.

The bill passed out of the Senate on March 11; it is assigned to the Judiciary Committee in the House.