October 20, 2017

Archives for July 14, 2014

Hon. David R. Gloss to Resign from Gilpin County Court

On Monday, July 7, 2014, the Colorado State Judicial Branch announced the resignation on Hon. David R. Gloss of the Gilpin County Court in the First Judicial District, effective January 13, 2015.

Judge Gloss was appointed to the county court bench in 2011. Prior to his appointment, he was in private practice, focusing on dependency and neglect and truancy issues. He has also worked as an associate at Albert E. Anderson, P.C. and as a deputy district attorney in the Fourteenth Judicial District. He was admitted to practice law in Colorado in 1986.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Gilpin County and must have graduated high school or achieved the equivalent of a high school diploma. Applications are available from Justice Nathan Coats, the ex officio chair of the First Judicial District Nominating Commission, and are also available on the State Judicial website. Applications are due no later than 4 p.m. on August 13, 2014. Anyone wishing to nominate another person must do so no later than 4 p.m. on August 6, 2014.

For more information about the vacancy, click here.

Tenth Circuit: Strong Showing of Scienter Required in Securities Class Action Fraud Case

The Tenth Circuit Court of Appeals issued its opinion in Weinstein v. McClendon on Tuesday, July 8, 2014.

Plaintiffs filed a complaint in federal district court on behalf of a class of purchasers of Chesapeake Energy Corporation common stock, alleging that various corporate officers of Chesapeake, including CEO Aubrey McClendon, materially misled the public through false statements and omissions regarding two products, Volumetric Product Payment (VPP) transactions and the Founder Well Participation Program (FWPP). The district court did not decide whether defendants had made false material statements or omissions of fact, holding simply that the allegations in the complaint did not give rise to a strong inference that defendants acted with the intent to defraud as required by the Private Securities Litigation Reform Act. The district court granted defendants’ motion to dismiss.

In its analysis, the Tenth Circuit examined the burden faced by plaintiffs in securities class actions, and determined that there must be a strong showing of scienter on the part of defendants in order for plaintiffs’ claim to proceed. The Tenth Circuit noted that there was no cogent or compelling inference that defendants materially misrepresented or withheld facts for the purpose of misleading investors. The district court’s dismissal was affirmed.

Tenth Circuit: Anonymous Tip Was Reasonable Basis for Warrantless Search of Probationer’s House

The Tenth Circuit Court of Appeals issued its opinion in Leatherwood v. Welker on Tuesday, July 8, 2014.

Leatherwood was serving probation when his former wife called his probation officer, Denise Welker, to inform her that Leatherwood had raped his current girlfriend, who had filed a restraining order against Leatherwood. The former wife also indicated that Leatherwood might have weapons in his possession, specifically in his truck, in a safe, and on a shelf in his garage. Welker also received an anonymous email tip that Leatherwood had sent emails of a sexual nature to his girlfriend and that he possessed alcohol and sexual materials and devices. Possession of firearms and sexually explicit material was prohibited under the terms of his probation.

Welker met with other corrections officers and obtained permission to conduct a warrantless search of Leatherwood’s home. Firearms were found in the search. Leatherwood initiated litigation, seeking declaratory and monetary relief under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. Defendants moved for summary judgment on qualified immunity grounds, which was denied. Defendants appealed the denial of summary judgment.

The Tenth Circuit reversed, noting that defendants had ample reason for conducting the warrantless search, given the phone call from the former wife and the anonymous email. The Tenth Circuit has allowed  searches of probationers based on anonymous or unverified tips many times previously and found that the search was reasonable and the defendants were entitled to qualified immunity.

Tenth Circuit: Unpublished Opinions, 7/14/2014

On Tuesday, July 14, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Klein v. King & King & Jones

Vigil-Lazo v. Holder

Creditors Insurance Purchasing Group v. Doak

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Notice of Fraudulent Testimony Determined on Date of Testimony, Not Date on Which Affidavit Obtained

The Tenth Circuit Court of Appeals issued its opinion in Taylor v. Martin on Tuesday, July 8, 2014.

Taylor was convicted of first-degree murder and shooting with intent to kill in Oklahoma on May 9, 2009. He appealed to the Oklahoma Court of Criminal Appeals, which affirmed his convictions. He did not appeal that affirmance to the U.S. Supreme Court. On September 16, 2011, Taylor applied for post-conviction relief in state court, based on an affidavit that a government witness, Mr. Cheatham, had lied when he testified that Taylor confessed to the murder. The state court denied his motion and Taylor again appealed to the OCCA, which affirmed the denial. On June 19, 2013, Mr. Taylor filed a petition under 28 U.S.C. § 2254 in federal district court. The government moved to dismiss his petition as time-barred, and the district court agreed. Taylor’s case was dismissed with prejudice and he was denied a Certificate of Appealability (COA). Taylor appealed to the Tenth Circuit.

The Tenth Circuit applied 28 U.S.C. § 2254 and found that Taylor’s claims were time-barred. His convictions became final on May 17, 2011, after the OCCA concluded its review and his 90-day period for appealing to the U.S. Supreme Court expired. Given the statutory tolling for his post-conviction proceedings, Taylor would have had until April 5, 2013 to file his petition. Further, the date on which Cheatham’s perjury was discovered was the date of the testimony, not the date on which he submitted an affidavit to that effect.

The Tenth Circuit denied the COA and dismissed the appeal.

Tenth Circuit: Religious Iconography Testimony Irrelevant and Not Harmless to Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Medina-Copete on Wednesday, June 3, 2014.

Maria Vianey Medina-Copete (Medina) and Rafael Goxcon-Chagal (Goxcon) were traveling in a borrowed truck through New Mexico when they were pulled over for following another vehicle too closely. Officer Chavez, who stopped the vehicle, became suspicious that Medina and Goxcon were engaged in drug activity because of the overwhelming odor of air freshener coming from the vehicle, Medina’s nervousness and chanting of a prayer to Santa Muerte, and the changes in Medina’s and Goxcon’s behavior when questioned about the presence of methamphetamine in the vehicle. Chavez, who is not fluent in Spanish, had difficulty communicating with Medina and Goxcon, who are not fluent in English. Eventually, Chavez obtained consent to search the vehicle with a form written in Spanish, and a drug sniffing dog alerted to the glove box on the passenger side of the truck. After a thorough search, a secret compartment was found on the vehicle containing nearly two pounds of 90% pure methamphetamine.

Medina and Goxcon were placed under arrest, and subsequent to their arrests were interviewed by Spanish-speaking DEA officials. They gave conflicting stories to the DEA officials. At the end of her interview, Medina asked to retrieve her personal belongings from the vehicle, a black duffel bag. The officer who retrieved the bag found a handgun under a piece of clothing. In an indictment, Goxcon and Medina were jointly charged with conspiracy to possess with intent to distribute methamphetamine, possessing with intent to distribute methamphetamine, and using or carrying a firearm in connection with a drug trafficking crime. Medina was also charged with being an illegally present alien in possession of a firearm and with illegal reentry.

In their joint trial, Medina and Goxcon asserted that they had no knowledge of the drugs in their borrowed vehicle. Two experts testified against them, United States Marshal Robert Almonte of the Western District of Texas and DEA Agent Ivar Hella. Almonte testified about his research into religious iconography and its significance in the drug world, specifically Santa Muerte to whom Medina was furiously praying during the traffic stop. Hella testified about drug trafficking between this country and Mexico, and that blind mules are rarely used as drug couriers because of the risks of accidental discovery of the drugs. Medina and Goxcon challenged both experts’ testimony. The jury returned guilty verdicts against both defendants on all counts, and defendants timely appealed.

Defendants asserted that the trial court erred by allowing Almonte to testify, and that his testimony violated FRE 403, 702, and 704(b), as well as their First Amendment rights. The Tenth Circuit evaluated Almonte’s testimony in light of the factors set forth in Daubert and Kumho Tires, and found that his testimony regarding Santa Muerte did not qualify as explicative of a “tool of the trade,” because it was unclear how praying to a religious figure could be a tool in the drug trade. The Tenth Circuit analogized the religious iconography to finding baggies or a razor blade, which can easily be understood to be tools of a drug trade despite their common household use, and found that there was no similar utility to the religious symbols. The Tenth Circuit noted that the district court’s failure to examine how Almonte’s testimony could assist the jury also affected its reliability. Citing a concurrence from the Eighth Circuit analyzing Almonte’s testimony in a different case, the Tenth Circuit found that there was no causal connection between religious iconography and the drug trade, so his testimony was not sufficiently reliable. Because the Tenth Circuit found error in admitting Almonte’s testimony, it evaluated whether the error was harmless, and determined that it was not. The government did not have a strong case against Goxcon and Medina, so the chance that the religious iconography testimony prejudiced the jury was great.

As to Hella’s testimony, the Tenth Circuit found no error. His testimony was relevant to show that it was less likely that Goxcon and Medina were unaware of the presence of methamphetamine in the truck due to various factors, including the unlikelihood of using blind mules and the strong smell of pure methamphetamine.

The Tenth Circuit also reviewed Medina’s assertion that the government had insufficient evidence to convict her, and disagreed. The case was remanded to the district court to vacate the convictions based on drug trafficking and for further proceedings consistent with the opinion. Because Medina did not challenge her illegal reentry or possession of firearm by an illegal alien convictions, the Tenth Circuit did not vacate them.

Tenth Circuit: Non-Disclosure of Unedited Film Substantially Prejudiced Party Claiming Defamation

The Tenth Circuit Court of Appeals issued its opinion in Brokers’ Choice of America, Inc. v. NBC Universal, Inc. on Wednesday, July 9, 2014.

Tyrone Clark and his company, Brokers’ Choice of America, Inc. (BCA) sued NBC Universal and some of its employees after Dateline aired a segment called “Tricks of the Trade” that featured snippets of Clark taken from one of his two-day “Annuity University” seminars filmed at BCA’s Colorado campus. The snippets were surreptitiously recorded, and Clark asserts that they were illegally filmed. Only 112 words were taken from the two-day seminar and were used to portray Clark and BCA as teaching insurance agents to employ misrepresentations and use questionable tactics in order to dupe seniors into purchasing inappropriate annuity products. BCA claims that the statements were taken out of context in order to create a false impression and defame Clark and BCA. BCA also asserts a 42 U.S.C. § 1983 claim because Dateline obtained false credentials from Alabama officials in order to surreptitiously film the seminar.

Dateline moved to dismiss the complaint, maintaining that BCA did not allege sufficient facts to show defamation. It also sought to dismiss BCA’s civil rights claims, stating that BCA’s factual allegations did not demonstrate the help received from Alabama officials was joint conduct. The court granted Dateline‘s motion. BCA appealed, contending the district court failed to credit its allegations as true and improperly made factual determinations to reach its conclusions.

The Tenth Circuit first examined the court’s dismissal of BCA’s claims. The Tenth Circuit determined that BCA had alleged sufficient facts to support its defamation claims, noting that the correct inquiry was not the district court’s determination that the statements were substantially true but rather whether the characterization of BCA was substantially true, a question of fact to be determined by a jury. Because Dateline had contested discovery of its unedited video, the only evidence that could have been used to determine whether the characterization was substantially true, the Tenth Circuit turned its inquiry to the video.

After a lengthy discussion, the Tenth Circuit determined that Colorado’s media privilege statute, C.R.S. § 13-90-119, required disclosure of the video. The Tenth Circuit found that BCA would be substantially prejudiced by non-disclosure, and noted that the statute is to be used as a shield to protect confidential informants, not a sword to defeat potentially viable claims. The “probable falsity” test was unwarranted where no confidential informant existed.

As to BCA’s § 1983 claims, the Tenth Circuit found no merit. The Tenth Circuit noted that the government frequently engages in deception to further investigative interests, and the Alabama officials’ furnishing of broker licenses to the Dateline crew amounted to no more than investigative deception.

The dismissal of the § 1983 claim was affirmed. The dismissal of the defamation claim was reversed, and the case was remanded for further proceedings consistent with the opinion.

Tenth Circuit: Judge’s Comments Could Not Be Shown to Have Influenced Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Johnson on Wednesday, July 2, 2014.

Vanity Johnson pleaded guilty to aggravated identity theft and conspiracy to commit bank fraud, aggravated identity theft, and mail theft. As part of her plea agreement, Johnson admitted that she committed the criminal acts knowingly, voluntarily, and willingly, but asserted that she was a victim of violence at the hands of co-defendant Mario Diaz and that she was coerced into performing the acts because he would beat her if she did not perform them. Despite the appeal waiver in Johnson’s plea agreement, she appealed the imposition of the sentence against her, alleging that the district court injected gender bias into its sentencing decision and allowing the sentence would be a miscarriage of justice. However, she did not raise the gender bias issue at the sentencing hearing.

The Tenth Circuit reviewed the actions of the district court for plain error and found none. After sentencing, the district judge commented that he believed both parties were generally involved in domestic violence cases, and that as a mother of two young children she should obey all the laws, referencing Johnson’s repeated minor traffic violations. The Tenth Circuit noted that the remarks occurred after imposition of the sentence, and at best Johnson could only speculate that the remarks influenced her sentencing, which is not enough to show plain error. The judge remarked that he did not hold the domestic violence against Johnson, but that he felt probation was inappropriate based on her misconduct in the traffic violations, for which she would not have been coerced by Diaz.

The Tenth Circuit granted the government’s motion to enforce the appeal waiver. As to Johnson’s motion to seal her opposition to the motion to enforce, the Tenth Circuit instead allowed her to submit for filing a version of the motion with sensitive materials redacted.

Tenth Circuit: No Need to Suppress Contents of Consensual Search After Legal Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Salas on Tuesday, July 1, 2014.

Defendant Salas was driving through Oklahoma on his way from Arkansas to Texas when he was pulled over by Deputy Gragg for erratic driving. Salas had crossed the fog line on the right side of the lane twice, forming the basis for the traffic stop. Gragg issued Salas a warning for the traffic violations and told him he was good to go, but when Salas shook Gragg’s hand, the deputy asked him if he would mind answering more questions. Gragg asked Salas if he could search the vehicle and Salas consented. The dash cam in the patrol car recorded this interaction. Gragg’s search revealed nine one-gallon ziploc baggies of methamphetamine, weighing nearly 20 pounds. Salas was arrested and charged with one count of possession with intent to distribute methamphetamine. Salas moved to suppress the contents of the search, arguing that Gragg lacked reasonable suspicion to stop Salas and that he did not validly consent to the search.

The district court denied suppression, finding that Gragg had reasonable suspicion to stop Salas based on just one of the two fog line violations. After his motion to suppress was denied, Salas entered a guilty plea. The district court accepted the presentence report’s base offense level and sentenced Salas to 151 months’ imprisonment with three years’ supervised release. Salas challenged both the search and the imposed sentence.

The Tenth Circuit determined that the initial traffic stop was lawful based on the fog line violations, one of which would have been enough to raise reasonable suspicion in the officer. Although Salas’ initial fog line violation occurred near a curve in the road, it would not have been enough to cause a driver to veer halfway over the fog line, and the vehicle he was driving was a four-door sedan that would not have been susceptible to light winds. Because the initial stop was lawful, the Tenth Circuit did not need to apply a heightened standard to the legality of Gragg’s search. Salas had consented to the search after the traffic stop had ended and the encounter became a consensual one, and his consent was recorded on the officer’s dash cam. Therefore, the Tenth Circuit determined that there had been no Fourth Amendment violation.

Salas also argued that his sentence should be reduced because of his acceptance of responsibility. However, the purpose of the sentence reduction is to mitigate trial preparation costs, and Salas did not enter the guilty plea until the day the government filed its trial brief. The government was not required to offer the sentence reduction and did not do so in this case, since it had already begun trial preparation and there was no cost mitigation. The Tenth Circuit determined no error in the government’s failure to offer the sentence reduction.

The district court’s order denying suppression and the sentence were affirmed.

Tenth Circuit: Unpublished Opinions, 7/11/2014

On Friday, July 11, 2014, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Wagner v. Bank of America Corp.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.