April 18, 2018

Archives for August 18, 2014

Colorado Court of Appeals: Defendant Lacked Knowledge of Crime Where No Reason to Believe Victim Was Underage

The Colorado Court of Appeals issued its opinion in People v. Heywood on Thursday, August 14, 2014.

Internet Sexual Exploitation of a Child—Importuned—Invited—Enticed.

Heywood invited a person to view a webcam stream of him masturbating, and then did not stop the stream until several minutes after the viewer (an investigator) had said she was 14 years old. A jury convicted him of violating CRS §18-3-405.4(1)(b), Internet sexual exploitation of a child.

On appeal, Heywood argued that the prosecution failed to prove that he committed Internet sexual exploitation of a child. The Court of Appeals agreed. CRS §18-3-405.4(1)(b) requires knowledge or belief as to the victim’s age. Initially, Heywood did not have any information regarding the investigator’s age. In addition, the Internet chat room was restricted to people at least 18 years old. Further, even though Heywood continued the chat conversation after Gallagher informed Heywood of her age, there was insufficient evidence that he “importuned, invited, or enticed” her to continue viewing. In fact, he said that she “shouldn’t be watching,” and he would “turn it off.” Therefore, Heywood did not continue to invite Gallagher to view his webcam stream merely by failing to disconnect her access to it. The judgment was reversed and the case was remanded to the trial court with directions to enter judgment of acquittal.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Failure to Exhaust Administrative Remedies Resulted in Dismissal of ERISA Claim

The Tenth Circuit Court of Appeals issued its opinion in Holmes v. Colorado Coalition for the Homeless Long Term Disability Plan on Tuesday, August 12, 2014.

Lucrecia Carpio Holmes was employed by Colorado Coalition for the Homeless and suffered from a number of debilitating medical conditions. She applied for disability benefits through the Coalition’s employee benefit plan disability policy through Union Security Insurance Company. Union Security denied her claim, and Holmes appealed the denial on November 21, 2005. Union Security had 45 days within which to either overturn or uphold the denial, excluding certain tolling periods. Union Security issued its denial on April 7, 2006, 137 days after Holmes appealed. Included in each of Union Security’s denials was a document detailing the appeal procedure, which consisted of two levels of administrative appeal with Union Security prior to filing a civil action in district court.

Instead of filing a second appeal with Union Security, Holmes filed a civil action against the Coalition’s Long Term Disability Plan in the district court on April 28, 2008. The defendant was not aware of the appeal, and default judgment entered against it. Upon learning of the suit, Defendant removed the action to federal court and moved to have the default judgment set aside. The district court granted Defendant’s motion, ruling it had not been properly noticed in the lower court proceeding. Both parties filed cross-motions for summary judgment. While those motions were pending, Holmes filed a motion to stay decision, reopen discovery, and proceed to trial if necessary. The district court denied her motion and granted summary judgment to Defendant, holding that Holmes’s claim was barred because she failed to exhaust her administrative remedies. It found that although Union Security issued its second denial after 137 days, 67 of those days were attributable to Holmes, and Holmes had forfeited her right to enforce ERISA deadlines. The district court also held Union Security had complied with applicable ERISA notice and disclosure requirements. Holmes appealed.

The Tenth Circuit first evaluated Holmes’s argument that the district court erred by ruling she failed to exhaust her administrative remedies. Holmes argued that her Summary Plan Description failed to define the two-level review process, and alternatively she should be deemed to have exhausted her administrative remedies because Union Security failed to comply with ERISA’s timing and notice requirements. The Tenth Circuit addressed the language regarding administrative remedies contained in the plan and the Summary Plan Description, and determined that the administrative appeal process was contained in the plan by reference. Because Holmes failed to complete the administrative appeal process, district court review was barred.

The Tenth Circuit agreed with Holmes that Union Security failed to comply with ERISA’s timing and notice requirements; however, it found Holmes was not prejudiced by that failure. Although the Summary Plan Description failed to inform claimants of the review process, it incorporated by reference the letter detailing the review process that Union Security included with each denial.

The Tenth Circuit affirmed the district court’s dismissal.

Tenth Circuit: Fundamentally Ambiguous Questioning Required Plain Error Reversal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hale on Tuesday, August 12, 2014.

Thomas Hale filed a voluntary Chapter 13 bankruptcy petition in 2005. He listed three pieces of property in Schedule A, including a Salt Lake City property he listed as valued at $190,000 despite a property tax assessment indicating the property was worth $268,900; he had challenged the property tax valuation. He moved to convert his Chapter 13 case to Chapter 7 in July 2006 and an order was entered to that effect. This transferred control of his non-exempt assets, including the Salt Lake City property, to a bankruptcy trustee, Elizabeth Loveridge. Loveridge questioned Hale under oath at a creditors’ meeting on August 22, 2006, and Hale testified that the information he provided in his bankruptcy document was true, complete, and accurate. However, that same day, he advertised the Salt Lake City property in two newspapers for $396,075 or appraisal. A real estate agent contacted him and eventually found a buyer for the property who would pay $395,000 if Hale paid half the closing costs. Hale entered into a contract with the buyer and did not inform the buyer about the bankruptcy proceedings. Hale also signed an agreement with the buyer that Hale could continue to live on the property. He did not inform the trustee about the transaction.

When a title insurance representative contacted Loveridge, she instructed him to cancel the sale. Hale appeared at her office twice that day unannounced and appearing “agitated and angry.” At the second meeting, he gave Loveridge several documents, including an ex parte motion to approve the sale and a motion to revert to Chapter 13 status, both of which he had filed with the bankrutpcy court. He attached a letter to the ex parte motion dated ten days previous and an affidavit by his office manager that the letter was mailed on that previous date. However, the letter referenced the ex parte motion, which was filed ten days later and would not have been created if Loveridge had received the letter.

Loveridge hired a real estate agent to renegotiate the contract with the buyer. The renegotiated contract specified that all tenants would be evicted. The bankruptcy court approved the sale and Loveridge initiated eviction proceedings. Hale sent Loveridge several handwritten notes via fax, one of which advised her of a possible haz-mat problem in an orange package. When the orange package arrived, Loveridge called the police. After much inspection, the package was opened, and it contained a baggie with unidentified material and a note that said “Possible haz-mat? Termites or hanta virus [sic] from mice?” It was eventually determined to contain no hantavirus material.

After a jury trial, Hale was convicted of making a materially false statement under oath during the bankruptcy proceeding regarding the value of the Salt Lake City property, concealing the purchase contract from the trustee and creditors, and perpetrating a hoax regarding the transmission of a biological agent. Hale challenged his convictions.

The Tenth Circuit first addressed Hale’s challenge for knowingly and fraudulently making a false statement under oath. The government alleged that he knew well that his property was worth more than he listed in the bankruptcy documents at the time he made statements under oath that the documents were true and correct. Hale countered that the questions were fundamentally ambiguous. The Tenth Circuit conducted a plain error review and concluded that the statements were indeed ambiguous based on prior Tenth Circuit precedent involving similar questions. The Tenth Circuit reversed Hale’s conviction based on this charge and remanded for entry of judgment of acquittal on the false statement charge.

Next, the Tenth Circuit turned to Hale’s concealment of the purchase of the Salt Lake City property. Hale argued that the purchase agreement was void or, alternatively, that it did not meet the statutory definition of “property belonging to the estate of a debtor.” The Tenth Circuit did not support Hale’s argument that the contract was void ab initio, instead finding it was voidable. Hale conceded that the proceeds would be property of the bankruptcy estate but the contract was not. However, the purchase agreement created an interest in proceeds, so the Tenth Circuit affirmed Hale’s conviction on this count.

Finally, the Tenth Circuit addressed Hale’s conviction for perpetrating a hoax involving biological weapons. Hale had relied on the pending U.S. Supreme Court decision in Bond v. United States to render the error plain by holding an analogous statute unconstitutional. However, the Bond ruling did not reach the constitutional issue. Hale’s attack to the sufficiency of the evidence failed and the Tenth Circuit affirmed his conviction on this count.

The order of the district court was affirmed in part, reversed in part, and remanded for entry of acquittal on the false statement charge.

Tenth Circuit: Unpublished Opinions, 8/15/2014

On Friday, August 15, 2014, the Tenth Circuit Court of Appeals issued no published opinion and 11 unpublished opinions.

United States v. Chronister

Brown v. Dowling

United States v. Reeves

United States v. Lee-Speight

Adam v. Holder

Olusegun Akinmade v. Holder

Oliver v. Cline

Nouri v. Farris

Bales v. Colvin

Holz v. Oliver

United States v. Gallegos

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