April 30, 2017

Archives for February 2016

e-Legislative Report: February 22, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up-to-date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings; please RSVP if you are interested.

LPC Meeting Update

The following bills were discussed by the LPC on 2.19.16. Other bills of interest from that agenda are tracked and updated below.

HB 16-1191 Bill Of Rights For Persons Who Are Homeless
The bill creates the “Colorado Right to Rest Act,” which establishes basic rights for persons experiencing homelessness, including, but not limited to, the right to use and move freely in public spaces without discrimination, to rest in public spaces without discrimination, to eat or accept food in any public space where food is not prohibited, to occupy a legally parked vehicle, and to have a reasonable expectation of privacy of one’s property. The bill does not create an obligation for a provider of services for persons experiencing homelessness to provide shelter or services when none are available.
The LPC considered this bill at the request of the Civil Rights Committee, but took no position on the bill.

HB 16-1110 Parent’s Bill Of Rights
The bill establishes a liberty interest and fundamental right for parents in the care, custody, and control of a parent’s child, restricting governmental entities from infringing on such interests and rights without demonstrating a compelling governmental interest that cannot be accomplished through less restrictive means.
The LPC voted to oppose this bill because it reverses the long-standing policy position of the Colorado Judicial system to act in the best interest of the child.

HB 16-1235 Commissions Evaluating State Judicial Performance
The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the “commissions.” The revisions include: changing the makeup of the state commission to include one representative from each judicial district to ensure representation from the entire state; establishing guidelines for when attorneys and nonattorneys are appointed to the state commission by a district commission; not allowing the chief justice to select individuals for the state commission, which reviews the chief justice’s performance; mandating annual public meetings at which the public is invited to attend and confidentially comment on justices and judges; requiring the state commission to obtain and verify required financial disclosures, criminal histories, and driving histories for each justice or judge reviewed by the commissions; requiring judicial evaluations to take place every two years and to be made public at that time; mandating that the commissions make a “do not retain” recommendation when a majority of commissioners determine that it is more probable than not that a justice or judge knowingly committed a dishonest act during the performance of judicial duties, knowingly made inaccurate or insufficient public financial disclosures, or was improperly influenced by a conflict of interest in performing a judicial act; and mandating that the commissions make a “do not retain” recommendation when two-thirds of the attorneys who complete a questionnaire or survey for the commission recommend that the justice or judge not be retained. The bill is funded from any fees and cost recoveries for electronic filings, network access and searches of court databases, electronic searches of court records, and any other information technology services performed pursuant to statute.
The LPC voted to oppose this bill based on the consideration that this is a longstanding and fundamental change that is not in the best interest of the administration of justice in Colorado.

SB 16-085 Uniform Trust Decanting Act
Colorado Commission on Uniform State Laws. “Decanting” is a term used to describe the distribution of assets from one trust into a second trust. The bill enacts the “Colorado Uniform Trust Decanting Act” (Act), which allows a trustee to reform an irrevocable trust document within reasonable limits that ensure the trust will achieve the settlor’s original intent. The Act prevents decanting when it would defeat a charitable or tax-related purpose of the settlor.
The LPC voted to support this Uniform Bill as modified to meet the considerations of Family Law, Trust & Estate and Elder Law sections.

Updates regarding bills the CBA is currently focused on:

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
Senator Newell has pulled the language of concern from the bill.  SB 13 was passed out of committee on Monday.

SB 16-043 Student Loans Consumer Protections
The CBA testified in favor of this bill, at the request of the Colorado Young Lawyers Division. The bill failed to pass out of committee.

SB 16-047 No Detention For Juveniles Who Are Truant
The CBA testified that while detention for truancy is not something the Bar supports as policy, the bill was fundamentally flawed by prohibiting the judicial branch from effecting its own valid orders. Case law from Colorado in the 1990s is directly on point to the Bar’s constitutional concerns.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
The Bar remains neutral on this bill, while the Health Law Section has some concerns and opposition to the language. The bill was heard in committee, but was not voted on. We are waiting for the Senate to take action on the bill.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The CBA has not taken a position on this bill. The Department of Regulatory Affairs has some outstanding concerns that they are addressing with the Uniform Law Commission.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset
This bill, as amended to accommodate both the Trust & Estate and Business Law Sections, is moving through the legislature as anticipated.

SB 16-115 Electronic Recording Technology Board
The bill, which is supported by the Bar and the Real Estate Section, has passed its first two committee hearings and now heads to Senate Appropriations.

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death
The CBA is working with the sponsors on some amendments for this bill. The bill is now in its second chamber.

HB 16-1078 Local Government Employee Whistleblower Protection
The CBA is working on this bill, which was amended and is now headed to appropriations in the House.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

HB 16-1270 Security Interest Owner’s Interest In Business Entity
Under current law, the “Uniform Commercial Code” (Code) invalidates contractual limits on the transferability of some assets that can be subject to a security interest. In 2006, the “Colorado Corporations and Associations Act” (Act) was amended to clearly and broadly exempt an owner’s interest in a business entity from these Code provisions to effectuate the “pick your partner” principle that allows small businesses to control their ownership. Section 3 of the bill narrows the exemption in the Act to that necessary for “pick your partner,” and sections 1 and 2 codify this narrowed exemption in the Code.

HB 16-1275 Taxation Of Corporate Income Sheltered In Tax Haven
The bill pertains to an affiliated group of corporations filing a combined report. In a combined report filing, the tax is based on a percentage of the entire taxable income of all of the includable corporations, but the tax is assessed only against the corporation or corporations doing business in Colorado. Including more affiliated corporations in the combined report may result in an increase in income subject to tax. There are jurisdictions located outside of the United States with no tax or very low rates of taxation, strict bank secrecy provisions, a lack of transparency in the operation of their tax system, and a lack of effective exchange of information with other countries. There are several common legal strategies for sheltering corporate income in such jurisdictions, often called “tax havens.” Notwithstanding a current requirement in state law that those corporations with 80% or more of their property and payroll assigned to locations outside of the United States be excluded from a combined report, the bill makes a corporation that is incorporated in a foreign jurisdiction for the purpose of tax avoidance an includable C corporation for purposes of the combined report. The bill defines a corporation incorporated in a foreign jurisdiction for the purpose of tax avoidance to mean any C corporation that is incorporated in a jurisdiction that has no or nominal effective tax on the relevant income and that meets one or more of five factors listed in the bill, unless it is proven to the satisfaction of the executive director of the department of revenue that such corporation is incorporated in that jurisdiction for a legitimate business purpose. The bill requires the state controller to credit a specified amount per fiscal year to the state education fund to be used to help fund public school education. The bill requires the secretary of state to submit a ballot question, to be treated as a proposition, at the statewide election to be held in November 2016 asking the voters to: increase taxes annually by the taxation of a corporation’s state income that is sheltered in a foreign jurisdiction for the purpose of tax avoidance; provide that the resulting tax revenue be used to help fund elementary and secondary public school education; and allow an estimate of the resulting tax revenue to be collected and spent notwithstanding any limitations in section 20 of article X of the state constitution (TABOR).

SB 16-131 Overseeing Fiduciaries’ Management Of Assets
The bill clarifies statutory language concerning the removal of a fiduciary to ensure that a fiduciary’s authority is suspended as soon as a petition to remove the fiduciary is filed. The bill adds a provision to the conservatorship statutes stating that an adult ward or protected person has a right to be represented by a lawyer of their choosing unless the trial court finds that the person lacks sufficient capacity to provide informed consent for representation by a lawyer. The bill states that after a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court.

SB 16-133 Transfer Of Property Rights At Death
Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The bill removes the requirement that the person who swears to and affirms the supplementary affidavit have no record interest in the real property. The bill includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution. The bill, which amends provisions concerning determination-of-heirship proceedings, clarifies the definition of “interested person,” so that anyone affected by the ownership of property may commence a proceeding; describes when an unprobated will may be used as part of a proceeding; clarifies notice requirements; and ensures that a judgment and decree will convey legal title as opposed to equitable title. The bill enacts portions of section 5 of the “Uniform Power of Appointment Act,” with amendments.

Tenth Circuit: Credit Reporting Agency Need Not Resolve Legal Disputes Regarding Underlying Debt

The Tenth Circuit Court of Appeals issued its opinion in Wright v. Experian Information Solutions, Inc. on Tuesday, November 10, 2015.

Gary A. Wright is the manager, attorney, and registered agent for Attorneys Title Insurance Agency of Aspen LLC (ATA). In May 27, 2009, the IRS filed a notice of federal tax lien (NFTL) with the Pitkin County Recorder against Mr. Wright in his personal capacity for unpaid employment taxes from 2004. However, Mr. Wright had paid the taxes via a check to the IRS dated May 8, 2009. The Pitkin recorder listed the tax lien on its indexing website as against Mr. Wright in his personal capacity, and it was picked up by credit reporting agencies (CRAs) Experian and TransUnion, who received the information from LexisNexis, their contractor.

Mr. Wright discovered the lien on his personal credit report in 2011 and disputed it to Experian and TransUnion, asserting the IRS had withdrawn the lien because it had been paid in full and the NFTL inaccurately stated the lien was against him personally when it should have been listed as against ATA only. He included with his letters a copy of the NFTL, a copy of his letter to the IRS requesting withdrawal of the lien, and the IRS’s release of the lien. In response, the CRAs checked with LexisNexis and marked the lien released because it had been paid in full. The CRAs did not remove the lien from their credit reports because the IRS reported it as released instead of withdrawn. Mr. Wright requested reinvestigation, attaching the same documentation as before. Experian did not perform a second investigation. TransUnion requested documentation, and when LexisNexis reported the same result previously reached, TransUnion sent a summary of the investigation to Mr. Wright.

Mr. Wright sued the CRAs in federal district court, asserting negligent and willful violations of the federal Fair Credit Reporting Act (FCRA) and Colorado’s counterpart, the Colorado Consumer Credit Reporting Act (CCCRA). He asserted claims against the CRAs for failing to follow reasonable procedures to ensure maximum possible accuracy in preparing the credit report. He also asserted a claim for failure to reasonably reinvestigate his claim. The district court granted summary judgment to the CRAs, finding it was reasonable for them to interpret the NFTL as applying to Mr. Wright personally and that the IRS can issue a tax lien against a business entity and its member. Mr. Wright appealed.

The Tenth Circuit first evaluated Mr. Wright’s argument that the CRAs failed to use reasonable procedures in originally reporting the tax lien. The Tenth Circuit evaluated the legal requirements of the FCRA and CCCRA and found no error in the district court’s grant of summary judgment. The Tenth Circuit noted that, to prevail, a plaintiff must show that the CRA failed to follow reasonable procedures to ensure the accuracy of its reports, the report in question was inaccurate, the plaintiff suffered injury, and the CRAs caused the injury. The Tenth Circuit found that Mr. Wright failed to prove the first element because he could not prove the CRAs failed to follow reasonable procedures. The Tenth Circuit noted that to require the CRAs to employ tax professionals to evaluate every tax lien reported by a county recorder or court clerk is unduly burdensome. The Tenth Circuit affirmed the district court’s summary judgment grant to the CRAs.

Next, the Tenth Circuit considered whether the CRAs used reasonable procedures in reevaluating Mr. Wright’s dispute. The Tenth Circuit again found no error, rationalizing that Mr. Wright again failed to show that the CRAs failed to follow reasonable procedures in their reinvestigation. The Tenth Circuit noted that a reasonable reinvestigation does not require a CRA to resolve a legal dispute about the validity of the underlying debt. Judge Bacharach dissented with this portion of the opinion; he believes that the district court employed an incorrect procedure for evaluating the reasonableness of the CRAs investigation and noted that any ambiguity should have been resolved in the consumer’s favor.

The Tenth Circuit affirmed the district court’s grant of summary judgment to the CRAs. Judge Bacharach dissented only with the portion of the opinion concerning reinvestigation.

Tenth Circuit: Unpublished Opinions, 2/26/2016

On Friday, February 26, 2016, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Mickling

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

Hon. Christopher Munch to Retire from First Judicial District Court

MunchOn Thursday, February 25, 2016, the Colorado State Judicial Branch announced the retirement of Hon. Christopher Munch of the First Judicial District Court, effective June 1, 2016. Judge Munch was appointed to the district court bench in 1986, and he handles a mix of civil, domestic relations, and criminal cases. Prior to his appointment, Judge Munch was in private practice. He received his undergraduate degree from Cornell University and his law degree from the Stanford University School of Law.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must have been admitted to practice law in Colorado for five years and must be qualified electors of the First Judicial District. Application forms are available on the State Judicial website and also from the ex officio chair of the First Judicial District Nominating Commission, Justice Nathan Coats. Application forms must be received no later than 4 p.m. on March 25, 2016; anyone wishing to nominate another must do so no later than 4 p.m. on March 18, 2016.

For more information on the vacancy, click here.

Colorado Court of Appeals: Announcement Sheet, 2/25/2016

On Thursday, February 25, 2016, the Colorado Court of Appeals issued nine published opinions and 33 unpublished opinions.

People v. Wilder

People v. Rail

Colorado Department of Revenue v. Astro Imports, Inc.

Colorado Republican Party v. Colorado Ethics Watch

In re Marriage of Vanderborgh

Reid v. Berkowitz

Sandstrom v. Solen

GEICO Casualty Co. v. Collins

Youngquist Brothers Oil & Gas, Inc. v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Tenth Circuit: No Error Where More than One Aggravating Circumstance Proved by Same Facts

The Tenth Circuit Court of Appeals issued its opinion in Jackson v. Warrior on Tuesday, November 10, 2015.

Shelton Jackson repeatedly threw the two-year-old son of his girlfriend, Monica Decator, on the ground, severely injuring the child. He hid the injured child in the crawl space of a nearby vacant house. He went to a convenience store and emptied Ms. Decator’s bank account at an ATM, then went to watch wrestling at his uncle’s apartment as he regularly did. When he returned home, he killed Ms. Decator to keep her from reporting the child abuse to authorities. He then set fire to the house. He was arrested the next afternoon, when the bus in which he was traveling to Houston made a regularly-scheduled stop. At a police station in Tulsa, he gave directions to the child’s location and gave a statement confessing to the child abuse and killing. He was charged with first degree murder, first degree arson, and injury to a minor child. A jury found him guilty of all three crimes and recommended the death penalty. On appeal, the OCCA found that Jackson’s trial attorneys were constitutionally ineffective because they conceded his guilt without consulting with him or obtaining his consent or acquiescence. The OCCA reversed and remanded the murder conviction and death sentence, and affirmed the arson and child abuse charges.

On remand, Jackson was again convicted of first degree murder. At sentencing, the state urged four aggravating factors to support a death sentence: (1) the murder was especially heinous, atrocious, or cruel; (2) Jackson killed Ms. Decator to avoid prosecution for a previous crime; (3) he posed a continuing threat; and (4) During Ms. Decator’s murder, Jackson knowingly created a great risk of death to more than one person. The state offered evidence from the trial as proof of the first three factors and introduced the testimony of a doctor to prove the fourth factor. The sentencing court dismissed the continuing threat aggravator. The defense introduced mitigating evidence, mainly based on Jackson’s history, including cognitive and functional disabilities from fetal alcohol syndrome, severe abuse, teasing, and time in a correctional facility that was later discovered to fail to protect children from abuse. The defense also introduced the testimony of Arthur Farakhan, who testified that Jackson was involved in a program for disadvantaged youth and that his life would have value in prison. The jury returned a death sentence.

On appeal after remand, Jackson asserted multiple contentions of error, including that there was insufficient evidence to prove the great risk of death aggravator beyond a reasonable doubt. The OCCA affirmed the murder conviction and death sentence. Jackson then sought post-conviction relief, contending his counsel was ineffective for calling Farakhan and failing to object to his potentially prejudicial testimony, and also for failing to raise that claim on direct appeal. The OCCA denied all requested relief. Jackson then filed a petition for habeas relief in federal district court, again arguing the evidence was insufficient to prove the great risk of death aggravator and that both trial and appellate counsel were ineffective. The district court denied habeas relief but granted a certificate of appealability.

On appeal to the Tenth Circuit, Jackson argued the trial court’s submission to the jury of the great risk of death aggravator unconstitutionally skewed its deliberations during the penalty phase. The Tenth Circuit recited Oklahoma law, which allows the “great risk of death” aggravator when another person is endangered by defendant’s acts in killing the victim. Jackson strenuously objected to the use of the great risk of death aggravator, contending that the focus should be on the killing act itself, and when he killed Ms. Decator the child was not present. The state argued that Jackson created a great risk of death to the child by killing Ms. Decator because, as his mother, she was the only person likely to look for the child. The trial court agreed with the state. The OCCA did not decide the issue because the facts used to support the great risk of death aggravator were the same facts as used to prove the “avoid arrest” aggravator, so the jury deliberations were not unconstitutionally skewed. The Tenth Circuit analyzed the case on which the OCCA relied, Brown v. Sanders, 546 U.S. 212 (2006). The Tenth Circuit determined that although Oklahoma was a state that weighed aggravating and mitigating factors, Sanders applies equally in weighing and non-weighing states, and the OCCA applied the correct rule in affirming Jackson’s sentence.

Jackson next argued that even if the OCCA applied the Sanders rule correctly, it erroneously conflated admissibility and “aggravatability.” The OCCA held that the great risk of death aggravator was not supported by any evidence that was not also admissible to support other aggravators. The OCCA held that the evidence of the nature and extent of the child’s injuries could have been admitted to prove the valid avoid arrest aggravator. The Tenth Circuit further noted that evidence of the child’s injuries supported Jackson’s knowledge of those injuries and motive of avoiding arrest and prosecution. The Tenth Circuit found that the OCCA’s determination that the physician’s testimony could support the avoid arrest aggravator was not objectively unreasonable. Jackson argued that the physician’s testimony would not have been admissible to prove the avoid arrest aggravator, but the Tenth Circuit disagreed, dismissing Jackson’s argument that the evidence before the jury should have been limited to what Jackson himself admitted. The Tenth Circuit found that the nature and extent of the child’s injuries was best described by a doctor.

Turning to Jackson’s ineffective assistance claim regarding Mr. Farakhan, the Tenth Circuit again found that the OCCA’s decision was objectively reasonable. Mr. Farakhan was brought to testify in Jackson’s mitigation, but he held strong opinions that the death penalty was appropriate for intentional murder. The state questioned Mr. Farakhan about his views on the death penalty, and during this questioning defense counsel did not object. Jackson contends this was error, and his counsel should not have called Mr. Farakhan in the first place because of his views on the death penalty. The OCCA found that defense counsel’s decision to call Mr. Farakhan was neither unreasonable nor unsound, and although the prosecutor’s questioning was improper, the single potentially prejudicial statement did not undermine the rest of the mitigating evidence. The Tenth Circuit applied a “doubly deferential” standard to evaluate the ineffective assistance claim, based on both Strickland and AEDPA. The Tenth Circuit found the OCCA reasonably rejected Jackson’s ineffective assistance claim, since there was ample evidence weighing both for and against the death penalty and it substantially outweighed any potential prejudice from Mr. Farakhan’s single statement.

Finally, Jackson argued that there was cumulative error requiring reversal. The Tenth Circuit found no error, so Jackson could not prove cumulative error. The Tenth Circuit affirmed Jackson’s conviction and sentence.

Tenth Circuit: Trial Counsel’s Strategic Decision Does Not Constitute Ineffective Assistance

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Warrior on Tuesday, November 10, 2015.

As Paul Howell parked his Suburban in his parents’ driveway with his two young daughters and his sister, he was shot by a black man in a white shirt with a black hat and a red bandanna covering his face. His sister grabbed the girls out of the backseat and ran them into the house, and Howell’s parents ran out to find their son, lifeless, in the driveway. The Suburban was gone. Howell died later that day from a gunshot wound to the head. Police later found the Suburban in a convenience store parking lot on the south side of Oklahoma City and canvassed the area, looking for suspects. They interviewed Kermit Lottie at a nearby auto body shop, who informed them that Ladell King and at least one other person had attempted to sell him the Suburban the previous day but he refused to buy it. Police tracked down King later that day, and he gave them a phone number and address for Julius Jones.

Police surrounded Jones’s parents house and called him to tell him that they wanted to talk to him about the murder. Jones escaped through a second-story window. Officers obtained warrants and searched the house, finding in Jones’s room a white t-shirt and black stocking cap that matched the descriptions given by Howell’s sister. Police also found a .25-caliber semi-automatic pistol and ammunition matching the bullets in the Suburban and Howell. Two days later, officers arrested Christopher Jordan, and after a citywide search, they found and arrested Jones. Jordan pleaded guilty and agreed to testify against Jones at trial. Jones was eventually found guilty of first-degree felony murder and sentenced to death.

Jones appealed his convictions and death sentence to the Oklahoma Court of Criminal Appeals (OCCA). He asserted numerous claims of error, including that his trial counsel, David McKenzie, was ineffective for failing to call Emmanuel Littlejohn, an inmate who briefly shared a cell with Jordan, who Jones asserted would have testified that Jordan admitted to shooting Howell and said that Jones wasn’t involved at all. After interviewing Littlejohn and speaking to his attorney about his credibility, McKenzie decided that Littlejohn was a “pathological liar” and lacked credibility. The OCCA found that Jones’ argument about McKenzie’s ineffective assistance went to trial strategy, and found nothing unreasonable about McKenzie’s decision not to call Littlejohn. The OCCA affirmed his convictions and sentence.

Next, Jones sought post-conviction relief in state court, claiming, among other things, that McKenzie was ineffective for failing to investigate whether anyone could corroborate Littlejohn’s story. Jones asserted that Christopher Berry, another inmate who had shared a cell pod with Jordan, had heard Jordan bragging about shooting Howell. McKenzie was also Berry’s attorney, but he never asked Berry about Jones’ case. The OCCA rejected Jones’ claims, noting that Berry suffered from the same credibility problems as Littlejohn and the inmates’ accounts showed only that Jordan changed his story to suit his needs.

Jones then sought federal habeas relief. The federal district court rejected all of Jones’ eight asserted grounds for relief, but granted a certificate of appealability on only one issue: whether McKenzie was ineffective for failing to investigate Littlejohn’s claim that Jordan confessed to the shooting. Using the Strickland analysis, the Tenth Circuit determined that the OCCA had denied relief on the performance prong and had not evaluated the prejudice prong. The Tenth Circuit found that the OCCA had applied the correct legal standard in its decision, and had analyzed trial counsel’s purported deficiency for failing to investigate and present the two witnesses at trial. The Tenth Circuit found Jones failed to establish that the OCCA’s decision was contrary to established law. The Tenth Circuit similarly found no basis for Jones’ claim that the OCCA’s decision was based on an unreasonable determination of the facts.

The Tenth Circuit affirmed the district court’s denial of habeas relief, and denied Jones’ motion to extend the COA to include several additional claims of ineffective assistance.

Tenth Circuit: Unpublished Opinions, 2/25/2016

On Thursday, February 25, 2016, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Taber v. Allied Waste Systems, Inc.

Quintero v. Colvin

Fry v. American Home Assurance Co.

Hernandez-Torres v. Lynch

United States v. Williams

United States v. Reymundo-Lima

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

The Anti-Motivation Strategy (Part 5): Meet John Pepper, the Unmotivated Miracle Walker

Employee-Motivation

We’ve seen earlier in this series that motivation lasts maybe 2 or 3 days, that we have to stay motivated to be motivated, and that the way we usually practice motivation is to trigger the fight or flight wiring in our brains, which keeps the stress hormones adrenaline and cortisol flowing. We can get short term results that way, but in the long run chronic stress hurts: eventually we exhaust ourselves trying to stay pumped up, lose effectiveness, deplete reserves, and impair our long-term health.

In other words, motivation practiced that way is like a well we have to keep filling in order to order to get any water out.

Well-Rhodes

Hmmm… that’s not much of a well.

Swingline

There is a better way. We can tap a spring instead, where the water comes up from way down deep, pure and refreshing. Do that, and we don’t need motivation anymore. Let’s go looking for that spring. Here’s our first stop:

Meet John Pepper: The Conscious Walker

Brain-Healing

Norman Doidge, M.D. introduces John Pepper this way, in his book The Brain’s Way of Healing:

“My walking companion, John Pepper, was diagnosed with Parkinson’s disease, a movement disorder, over two decades ago. He first started getting symptoms nearly fifty years ago. But unless you are a perceptive and well-trained observer, you would never know it. Pepper moves too quickly for a Parkinson’s patient. He doesn’t appear to have the classic symptoms: no shuffling gait, no visible tremor when he pauses or when he moves; he does not appear especially rigid, and seems able to initiate new movements fairly quickly; he has a good sense of balance. He even swings his arms when he walks. He shows none of the slowed movements that are the hallmark of Parkinson’s. He hasn’t been on anti-Parkinson’s medication for nine years, since he was sixty-eight years old, yet appears to walk perfectly normally.

“In fact, when he gets going at his normal speed, I can’t keep up with him. He’s now going on seventy-seven and has had this illness, which is defined as an incurable, chronic, progressive neurodegenerative disorder, since his thirties. But instead of degenerating, John Pepper has been able to reverse the major symptoms, the ones that Parkinson’s patients dread most, those that lead to immobility. He’s done so with an exercise program he devised and with a special kind of concentration.”

Most people’s walking movements are unconscious. That’s why Sienna Miller can talk on her cell phone and walk the dog at the same time. (So can you, but maybe not as stylishly.) For all his years of practice, John Pepper hasn’t gotten to that level. Instead, he walks and controls his tremors consciously. His mind has to stay on the job; if he gets distracted or takes a day or even a moment off, his Parkinson’s symptoms come back.

He must be a really motivated guy!

No he’s not. In fact, if John Pepper had to rely on motivation, he wouldn’t be walking at all. Motivation won’t help John Pepper, because it’s just not there. Parkinson’s Disease has taken it away.

Then how does he do it?

We’ll find out next time.

Rhodes_4This second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

 

 

 

Colorado Judicial Ethics Advisory Opinion 2016-01 Released

On Wednesday, February 24, 2016, the Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2016-01. This opinion addresses whether it is appropriate for a judge sitting on a nonprofit board to personally write or call donors to thank them for their contributions. The requesting judge asked the Advisory Board to consider if such communication would be considered fundraising in violation of the Colorado Code of Judicial Conduct.

The Advisory Board considered applicable provisions of the Code of Judicial Conduct and determined that, in cases where the judge is not soliciting further donations, implicitly or explicitly, it is acceptable for the judge to personally thank donors for their contributions in her role as board member of the nonprofit organization.

The Colorado Judicial Ethics Advisory Board is a committee of the Colorado Supreme Court consisting of judges and non-judges who provide ethical advice to judicial officers who request an opinion on prospective conduct. There are seven committee members: four judges, one lawyer, one non-lawyer citizen, and one law professor. Any Colorado judicial officer may request an opinion. Requests may be submitted to any member of the Advisory Board or to Christine Markman, staff attorney to the Colorado Supreme Court. Requests may be submitted on the Advisory Board’s form, JDF 2.

The full text of C.J.E.A.B. 2016-01 is available here. All of the C.J.E.A.B. opinions are available here.

Tenth Circuit: Confrontation Clause Only Implicated when Statement Admitted to Prove Truth of Matter Asserted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ibarra-Diaz on Monday, November 9, 2015.

An undercover detective with the Wichita Police Department set up a methamphetamine purchase from Jesus Ibarra-Diaz through a confidential informant (CI). The detective met Ibarra-Diaz and his girlfriend, Ana Valeriano-Trejo, in a shopping mall parking lot and got in their vehicle. Ibarra-Diaz indicated that another accomplice, Ricardo Estrada, would bring the drugs. When Estrada arrived, he recognized the detective and informed Ibarra-Diaz and Valeriano-Trejo that he was a cop. The detective got out of Ibarra-Diaz’s vehicle and confronted Estrada, and Ibarra-Diaz started to drive away, at which point police officers surrounded his vehicle and arrested him and Valeriano-Trejo.

After searching the two vehicles, officers found suspected methamphetamine in the wheel well of the vehicle Estrada was driving. Estrada, who was in a patrol car, voluntarily spoke to officers, telling them that there was over a pound of meth at the house he shared with Ibarra-Diaz and Valeriano-Trejo. Officers obtained a warrant and searched the residence, finding several pertinent items, including approximately one pound of meth in a container in the laundry room. A federal grand jury indicted the three co-defendants on one count of possession with intent to distribute a substance containing 50 grams or more of methamphetamine. Ibarra-Diaz exercised his right to a jury trial. He was convicted and sentenced to 188 months’ imprisonment.

Ibarra-Diaz appealed, raising several contentions of error. First, he argued that the district court violated his Confrontation Clause rights when it erroneously admitted several hearsay statements. Next, he argued he was denied a fair trial when the detective was allowed to present inflammatory testimony. Third, he contended that certain evidence rendered the indictment duplicitous and therefore denied him a fair trial. Finally, he contended there was insufficient evidence to support his conviction. The Tenth Circuit rejected each argument in turn, noting as an initial matter that all of Ibarra-Diaz’s arguments except his sufficiency challenge were raised for the first time on appeal and were subject only to plain error review.

Ibarra-Diaz argued that the district court erred in admitting through the detective’s testimony several statements of the CI or Mr. Estrada. The Tenth Circuit analyzed each in turn, reminding Ibarra-Diaz that a statement is only testimonial when it is admitted to prove the truth of the matter asserted. Ibarra-Diaz first argued it was error for the detective to testify that the narcotics investigation commenced because a CI gave information to the detective. The Tenth Circuit found no error, since the trial court stopped the detective’s testimony before he could reveal what he learned from the CI. Next, Ibarra-Diaz argued the court erred in allowing the detective to testify that the CI was afraid of Ibarra-Diaz. Because the detective’s remark was stricken from the record and the court gave the jury two separate instructions to consider only testimony that was not stricken, there was no error. Third, Ibarra-Diaz argued it was error for the detective to testify that the CI told him Ibarra-Diaz had “some dope” for sale. The Tenth Circuit found no error because the statement in question was not hearsay since it was offered for a different purpose than to prove the truth of the matter asserted. The Tenth Circuit similarly found no Confrontation Clause violations for the fourth and fifth points of error, since the actions in question were not statements. The next statement was also not hearsay because it was offered to explain the detective’s conduct. Ibarra-Diaz’s seventh challenge similarly failed because the detective was not reciting statements. The Tenth Circuit found that the eighth statement was also not offered to prove the truth of the matter asserted.

Ibarra-Diaz’s final Confrontation Clause challenge concerned the detective’s testimony that Estrada told him there was additional methamphetamine at the house. The government conceded that the statement was testimonial and violated the Confrontation Clause, but the Tenth Circuit did not find plain error because the admission did not substantially affect the outcome of the proceeding because even without the statement, overwhelming evidence supported Ibarra-Diaz’s conviction.

Ibarra-Diaz argued that some of the detective’s testimony was inflammatory and unduly prejudiced the jury. Ibarra-Diaz argued the statements unfairly painted a picture of him as a dangerous drug dealer. The Tenth Circuit elected to consider Ibarra-Diaz’s arguments as FRE 403 challenges, and found that the testimony was mostly irrelevant and its probative value was outweighed by the danger of confusing the issues or misleading the jury. However, the Tenth Circuit found that even if the district court erred, the error was not clear or obvious, and any error did not substantially prejudice Ibarra-Diaz. The Tenth Circuit noted that the evidence tended to show that the detective was afraid of Mr. Estrada, not Ibarra-Diaz, and the testimony had no effect on Ibarra-Diaz’s substantial rights.

The Tenth Circuit then turned to Ibarra-Diaz’s contention that he was deprived of a unanimous jury verdict by a duplicitous indictment. Ibarra-Diaz acknowledged that the indictment was not duplicitous on its face, but argued that the presentation of the two separate bundles of methamphetamine, taken from the vehicle and the house, rendered the indictment duplicitous because there were two factual presentations for the same offense. The Tenth Circuit declined to consider the issue, which was raised for the first time on appeal.

Finally, Ibarra-Diaz challenged the sufficiency of the evidence. At trial, the prosecution advanced two theories of Ibarra-Diaz’s guilt: as a complicitor and as a principal. Ibarra-Diaz confined his sufficiency challenge to the aiding and abetting theory, notably not challenging the theory of him as principal. The Tenth Circuit found this fatal to his arguments. Because there was more than enough evidence to support Ibarra-Diaz’s convictions as a principal, there was no need to address the aiding-and-abetting theory. However, the Tenth Circuit found ample evidence to support the complicitor theory as well.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 2/24/2016

On Wednesday, February 24, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Parks v. Watts

United States v. Belcher

United States v. Johnson

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