September 24, 2017

Archives for September 9, 2016

Todd Norvell Appointed to Sixth Judicial District Court

On Friday, September 9, 2016, the Colorado State Judicial Branch announced the governor’s appointment of Todd Norvell to the Sixth Judicial District Court. Norvell will fill a vacancy created by the retirement of Hon. Gregory G. Lyman, effective January 10, 2017.

Norvell is currently an Assistant United States Attorney in Durango, where he practices in the criminal division and has served as the tribal liaison. Prior to becoming an AUSA, Norvell was a special agent in the FBI, a deputy district attorney in the Sixth Judicial District, an associate at two Texas law firms, an assistant district attorney in Texas’s Thirty-Fourth Judicial District, and an assistant district attorney in New Mexico’s Eleventh Judicial District. Norvell received his undergraduate degree from Texas Tech University and his law degree from Southern Methodist University.

Colorado Court of Appeals: Defendant’s Confrontation Clause Rights Not Violated by Video Conference Deposition

The Colorado Court of Appeals issued its opinion in People v. Hebert on Thursday, September 8, 2016.

Michelle Ann Hebert convinced an elderly gentleman to give her loans totaling several hundred thousand dollars and did not repay him. The elderly gentleman called the police, and Hebert was charged with theft from an at-risk adult. A public defender was appointed for Hebert, and the prosecution moved that same day to depose the victim. The prosecution requested that the victim be deposed from his own home via video conference due to his failing health. The defense argued that allowing a video conference deposition would violate Hebert’s Confrontation Clause rights, and that his assistance would be ineffective because he did not have time to prepare. The district court granted the prosecution’s motion after a hearing, but ordered that the deposition be held in five weeks in order to give the defense time to prepare. Six weeks later, the victim was deposed via video conference and the deposition was recorded. The victim died before trial, so the recorded deposition was admitted at trial.

After the deposition but before trial, Hebert retained private counsel. Shortly thereafter, the People charged Hebert with additional tax-related offenses, and her private counsel moved to withdraw. Hebert requested appointed counsel, but the public defender’s office determined she was ineligible. She represented herself at trial and was convicted on all counts. She appealed, arguing that the district court erred in failing to make its own findings after the district court found her ineligible for appointed counsel, and by admitting the recorded deposition at trial.

The Colorado Court of Appeals first addressed Hebert’s contention about appointed counsel. In her application, Hebert contended she had meager assets, was responsible for three children, and was separating from her husband. On her joint tax return, she claimed approximately $76,000 in income for that year. The district court considered the tax return and Hebert and her husband’s testimony. Her husband testified that they had never separated, and Hebert admitted she had only claimed they were separating so she could qualify for a public defender. The district court considered the evidence and determined Hebert was not qualified for a public defender. The court of appeals determined the district court’s findings were supported by evidence and therefore there was no abuse of discretion.

The court of appeals next evaluated Hebert’s claims that she was denied a fair trial when the district court admitted the video testimony before her counsel had adequate time to prepare for the deposition. The court of appeals perceived no error. The district court specifically postponed the deposition so that counsel would be able to prepare prior to the deposition.

Hebert also argued her Confrontation Clause rights were violated because she did not have the opportunity to confront her accuser face-to-face. The court of appeals noted that the right to confront an accuser face-to-face is not absolute, and when public policy concerns warrant and the reliability of testimony is otherwise assured, testimony may be obtained other than face-to-face. The court found that the victim in this case was medically unavailable due to his fragile health, crediting two letters and an affidavit from the victim’s doctor that stated that being in the same room with Hebert would cause the victim’s blood pressure to rise to a potentially fatal level. The court of appeals agreed with the district court that the victim’s fragile health necessitated a video conference deposition from the victim’s home. The court found the video reliable, because he gave testimony under oath, was contemporaneously cross-examined by Hebert’s counsel, and the jury was able to assess his demeanor in the video. The court also found no Crawford violation from the video testimony, because the victim was deceased at the time of trial and Hebert was fully able to cross-examine him during the deposition.

The court of appeals affirmed the conviction and sentence.

Tenth Circuit: Nothing in Statute Precludes Managing Partner from Challenging IRS Penalties

The Tenth Circuit Court of Appeals issued its opinion in McNeill v. United States on Tuesday, September 6, 2016.

Corbin McNeill was a utility company executive poised to receive $18 million in a retirement payment. After consulting several attorneys and tax professionals, McNeill attempted to avoid some of the taxes on his retirement payout by purchasing foreign debt. McNeill established a series of partnerships to which the foreign debt holders transferred their underwater debt instruments and their basis in them, enabling McNeill to claim $20 million in losses.

The IRS, working under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), first adjusted the tax inequities at the partnership level and assigned an overall penalty. McNeill contested the partnership-level penalty in district court, but the suit was eventually dismissed without prejudice based on the government’s motion. The IRS then assessed partner-level penalties against McNeill. Under TEFRA, each partner must pay the amount demanded by the IRS but may then contest the penalty and assert partner-level defenses. McNeill paid the partner-level penalty imposed by the IRS, then filed suit in Wyoming district court, asserting he had “reasonable cause” for his position and he acted in “good faith.” The district court declined to address McNeill’s partner-level defenses, finding it was precluded from doing so by the dismissal of the partnership-level case.

The Tenth Circuit found nothing in TEFRA to allow dismissal based on preclusion. The Tenth Circuit in fact found that the text of 26 U.S.C. § 6230(c)(4) expressly allowed partners to contest IRS-imposed penalties after the completion of the partnership-level proceedings. Although the government argued that it was inappropriate to allow a managing partner to assert a good faith defense because the managing partner’s good faith was already tested at the partnership level, the Tenth Circuit disagreed, finding nothing in the statute to support the government’s position. The Tenth Circuit similarly disposed of the government’s argument that because good faith could be a partnership- or partner-level defense, it should not be applied to both.

The Tenth Circuit reversed the district court. Judge Phillips dissented; he would have agreed with the government that McNeill was a savvy businessman who understood what he was doing in participating in the tax-evasion schemes, and would not have allowed McNeill to assert a good faith defense at the partner level.

Tenth Circuit: Unpublished Opinions, 9/8/2016

On Thursday, September 8, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Sollis v. Raemisch

Melander v. State of Wyoming

United States v. McDonald

United States v. MacDonald

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