June 24, 2017

Archives for March 22, 2017

Electronic Court Notice Bill, Increase of Life Insurance Exemption Bill, Subpoena Clarifications Bill, and More Signed Monday.

On Monday, March 20, 2017, the governor signed 17 bills into law. To date, he has signed 80 bills this legislative session. Some of the bills signed Monday include a bill increasing the exemption amount for a cash surrender of life insurance, a bill authorizing the fiduciary of an endowment fund to distribute principal under a unitrust election, a bill allowing an attorney general or district attorney to issue a subpoena for people engaged in deceptive trade practices, a bill allowing court clerks to electronically notice parties, and a bill increasing the appropriation to the Department of Law for providing legal services to the Department of Education. The bills signed Monday are summarized here.

  • HB 17-1023“Concerning a Clarification of Procedures for Subpoenas for Deceptive Trade Practices,” by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Chris Holbert & Lois Court. The bill clarifies that the attorney general or a district attorney may issue a subpoena pursuant to C.R.C.P. 4 to a person whom he or she has reasonable cause to believe has engaged or is engaging in a deceptive trade practice in violation of Colorado statute.
  • HB 17-1039“Concerning Communication Issues Related to Restorative Justice,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill allows the district attorney to consent to an assessment for suitability for participation in restorative justice practices, including victim-offender conferences, as part of a recommended sentence in a plea bargain.
  • HB 17-1041“Concerning Measures to Inform Students of Education Opportunities Leading to Jobs,” by Rep. Phil Covarrubias and Sen. Kevin Priola. The bill requires schools to inform students of military enlistment as a path to educational opportunities.
  • HB 17-1056“Concerning the Eligibility of a Veterans’ Service Organization to Accept Public Service Assignments Offered in Connection with Misdemeanor Sentencing,” by Rep. Michael Weissman and Sens. Bob Gardner & Andy Kefalas. The bill expands the criteria for organizations that may accept community or useful public service assignments to include veterans’ service organizations organized under 501(c)(4) or 501(c)(19) of the tax code, and specifies that the court or other entity making the assignment retains discretion to determine which organizations may be included in its program of community or useful public service.
  • HB 17-1061“Concerning Modification of the Class of Vehicles that is Subject to Regulation as Commercial Vehicles,” by Reps. Jon Becker & Jovan Melton and Sens. Nancy Todd & Ray Scott. The bill increases the minimum weight for classification as a commercial vehicle subject to the statutory and regulatory standards for commercial vehicles from 10,001 pounds to 16,001 pounds unless the vehicle is registered for use in interstate commerce.
  • HB 17-1093“Concerning an Increase in the Exemption for the Cash Surrender Value of Life Insurance,” by Rep. Kim Ransom and Sen. Daniel Kagan. The bill increases the exemption for cash surrender value of life insurance policies to $250,000.
  • HB 17-1096“Concerning Endowment Care Funds Administered for Cemetery Authorities,” by Rep. Larry Liston and Sen. Jim Smallwood. The bill authorizes the fiduciary of an endowment fund to distribute principal, such as capital gains, under a unitrust election.
  • HB 17-1135“Concerning the Portability of Employment Background Checks for a Child Care Worker who Works for the Same Common Ownership Entity,” by Rep. Jeff Bridges and Sen. Kevin Priola. The bill allows a child care worker who is employed in a licensed facility that is wholly owned, operated, and controlled by a common ownership group or school district to use a single completed fingerprint-based criminal history record check and a check of the records and reports of child abuse or neglect to satisfy the requirements of the necessary background checks if the employee also works for or transfers to another licensed facility.
  • HB 17-1142“Concerning Notices of Certain Court Proceedings,” by Rep. Dominique Jackson and Sen. Bob Gardner. The bill allows the clerk of the court to send notice by first-class mail or electronically using the e-filing system of the judicial department.
  • HB 17-1143“Concerning Audits of Correspondence Sent to Medicaid Clients,” by Rep. Lois Landgraf and Sen. Larry Crowder. The bill directs the Office of the State Auditor to conduct or cause to be conducted an audit of client correspondence, including letters and notices, sent to clients or potential clients in Medicaid programs.
  • SB 17-011“Concerning the Creation of a Technical Demonstration Forum to Study Solutions to Improve Transportation Access for People with Disabilities,” by Sen. Kent Lambert and Rep. Polly Lawrence. The bill creates a technical demonstration forum consisting of eight members to study and document how advanced technologies can improve transportation access for people with disabilities.
  • SB 17-041“Concerning Employment Contracts for Positions at Institutions of Higher Education that are Funded by Revenue Generated from Auxiliary Activities,” by Sen. Kevin Priola and Reps. Yeulin Willett & Edie Hooten. The bill exempts certain positions at institutions of higher education from limits for employment contract terms or amounts.
  • SB 17-060“Concerning Relocation of the Colorado Student Leaders Institute from the Office of the Lieutenant Governor to the Department of Higher Education, and, in Connection Therewith, Making and Reducing an Appropriation,” by Sen. Nancy Todd and Rep. James Wilson. The bill relocates the Colorado Student Leaders Institute to the Department of Higher Education with no changes to the program.
  • SB 17-077“Concerning the Eligibility of Certain Government Agencies to Apply for a Special Event Permit to Sell Alcohol Beverages,” by Sen. Cheri Jahn and Reps. Tracy Kraft-Tharp & Yeulin Willett. The bill authorizes certain agencies to obtain a special event permit to sell alcohol beverages for a limited period.
  • SB 17-109“Concerning the Use of Industrial Hemp in Products Designed for Consumption,” by Sen. Kerry Donovan and Rep. Jeni Arndt. The bill creates a group under the commissioner of agriculture to study the feasability of including hemp products in animal feed.
  • SB 17-196“Concerning the Improvement of the Department of Law’s Information Technology Security,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the appropriation to the Department of Law to improve the Department’s information technology security based on an external auditor’s recommendations.
  • SB 17-197“Concerning the Provision of Legal Services for the Department of Education in the 2016-17 State Fiscal Year,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the amount of reappropriated funds that are appropriated to the Department of Law for the purpose of providing additional legal services for the Department of Education.

For a list of the governor’s 2017 legislative actions, click here.

Tenth Circuit: District Court has Wide Discretion to Impose Special Conditions of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bowers on Friday, February 10, 2017.

Donald Bowers was charged and convicted on two counts of civil contempt in violation of 18 U.S.C § 401(3) for willfully and repeatedly violating a permanent injunction against him stemming from a civil trade secret misappropriation suit. Bowers was sentenced to fifteen months’ incarceration and, following his release, a thirty-six month period of supervised release, during which he would make monthly payments of the remaining amount he owed to the plaintiff in the underlying civil suit. Bowers appealed, claiming that the court erred by imposing payments to the plaintiff in the civil case as part of his supervised release, denying his motion for disclosure of the criminal referral, and sentencing him for a period that exceeded six months.

The underlying civil case did not actually include Bowers himself, but his son Lonny Bowers (Lonny) and the officers of WideBand, who were sued by ClearOne Communications, Inc. for misappropriation of trade secrets. Bowers became involved when he entered into an agreement with the defendants in the case to purchase WideBand’s assets in exchange for money to pay their legal fees. The court issued a temporary restraining order and preliminary injunction to stop the transfer of assets to Bowers.

In the civil case against WideBand, the jury returned a verdict against the defendants that included compensatory damages against all the defendants, and punitive damages against two of the WideBand officers (not including Lonny). The day after the verdict in the WideBand case, Bowers filed a statement to perfect a security interest in all of WideBand’s assets. When the court ordered Bowers to appear to show why he was not in contempt for violating the existing temporary restraining order, he failed to appear, and the court determined that he was also subject to the existing restraining order as he acted in concert with the defendants in the WideBand case.

After Bowers failed to appear in multiple contempt hearings and again violated the permanent injunction by setting up and operating DialHD, Inc., a company that used the assets of WideBand, the court issued a memorandum decision and civil contempt order against Bowers for violating the permanent injunction, and directed Bowers to self-surrender for incarceration and pay ClearOne’s reasonable attorney fees and costs. Bowers failed to purge himself of the contempt charge, and the court issued a bench warrant for his arrest. The court rejected both of Bowers’ appeals from the civil cases.

The district court entered a civil judgment against Bowers in an amount of $57,188.61 in attorney fees for violating the permanent injunction, an amount of $22,743.88 to pay ClearOne’s costs and fees from the original ClearOne civil case, and $8,648 in appellate attorney fees in connection with his first appeal in the civil case. In relation to the contempt cases against Bowers, the district court judge who presided over the civil case sent a memo regarding the referral of criminal contempt charges for Bowers to the United States Attorney for the District of Utah, outlining the details of the civil case. A federal grand jury returned an indictment against Bowers for willfully disobeying the permanent injunction and civil contempt order, both in violation of 18 U.S.C. § 401(3). A jury found Bowers guilty on both counts.

Bowers was sentenced to fifteen months’ imprisonment, followed by a term of three years supervised release, during which he would make monthly payments to ClearOne. On appeal, Bowers argued that the district court abused its discretion by ordering him to make monthly payments to ClearOne, denying his motion to compel the government to disclose the criminal referral, and argued that his sentence is illegal because 18 U.S.C. § 402 limits sentences like those Bowers committed to no more than six months.

As to his first contention regarding the imposition of payments as a condition of his supervised release, the court stated that district court has broad discretion to impose special conditions of supervised release, stating that the conditions must only (1) be reasonably related to the nature and history of the defendant’s offense, the deterrence of criminal conduct, the protection of the public from the defendant’s crimes, or the defendant’s educational and other correctional needs; (2) involve no deprivation of liberty than is reasonably necessary; and (3) be consistent with pertinent policy statements issued by the Sentencing Commission. The court rejected Bowers’ argument, stating that the special condition in this case satisfies all of the requisite elements.

Bowers’ second argument on appeal, that the district court erred in denying his motion to discover the criminal referral, was also rejected by the court, as the information in the referral did not contain oral or written statements or other evidence that would render it discoverable under Fed. R. Civ. P. 16. Finally, the court also rejected Bowers’ argument that a sentence of fifteen months for his crimes was illegal under § 402, as he did not raise it at the district court level and therefore waived his right to assert the argument at the appellate level. The court added, however, that even if Bowers had not waived the argument, he still would not be entitled to relief because he was not charged under §402, but under § 401, which does not impose a maximum punishment.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Supreme Court Must Explicitly Hold Case to be Retroactive for Retroactivity to Apply

The Tenth Circuit Court of Appeals issued its opinion in In re Jones on Friday, February 10, 2017.

The Tenth Circuit had to determine if a secondary habeas petition was permissible where the first petition failed. Julius Darius Jones petitioned the court, seeking authorization to file a second capital habeas petition under 28 U.S.C. § 2254 to assert a claim for relief under the Supreme Court ruling in the case of Hurst v. Florida. The court evaluated Jones’ petition under the gatekeeping requirements of 28 U.S.C. § 2244(b) and rejected his petition.

Jones was convicted in 2002 of felony murder and sentenced to death. After Jones’ subsequent appeals were rejected, he filed his first habeas petition in 2007 on the grounds of ineffective assistance of trial and appellate counsel, which was denied by the court in 2013, and which denial was affirmed in 2015. In the present matter, Jones wishes to assert that his sentence violates his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because the jury was not instructed that for the death sentence to be appropriate, the jury must find beyond a reasonable doubt that the aggravating circumstances of his crime outweighed any mitigating factors.

The court evaluated if Jones was entitled to a secondary habeas petition under § 2244(b)(2)(A), which states that the court may only authorize successive claims when the claim relies on a new constitutional rule of law that was made retroactive to cases on collateral review by the Supreme Court, which was not previously available to the claimant.

In rejecting Jones’ petition, the court determined that the case upon which Jones was relying, Hurst v. Florida, (where the court ruled the decision underlying the sentence of death must be found beyond a reasonable doubt) did not warrant retroactivity. The court stated that for a procedural rule of law to be retroactive, the Supreme Court must have explicitly held it to be. Because the Supreme Court has not held the Hurst ruling to be retroactive, the court determined Jones had not met the gatekeeping requirements under § 2244(b).

The Tenth Circuit denied the Motion for Authorization.

Tenth Circuit: Unpublished Opinions, 3/21/2017

On Tuesday, March 21, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Gardner

Lin v. Sessions

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

Harold Sargent Appointed to Jefferson County Court; Richard Medina Appointed to Crowley County Court

On Tuesday, March 21, 2017, the Colorado State Judicial Branch announced the governor’s appointment of Harold Sargent to the Jefferson County Court in the First Judicial District and Richard Medina to the Crowley County Court in the 16th Judicial District. Sargent will fill a vacancy created by the resignation of Hon. Tammy Greene, effective April 1, 2017. Medina will fill a vacancy created by the resignation of Hon. Suzanne A. Grant, effective February 23, 2017.

Sargent is currently a Chief Deputy District Attorney in the First Judicial District. In addition to practicing law, Sargent supervises lawyers in the Juvenile Mental Health Court, Veterans Treatment Court, and Adult Mental Health Court. Before being named Chief Deputy District Attorney in 1999, Sargent was a Deputy District Attorney in the First Judicial District from 1983 to 1999. He received his undergraduate degree from the University of Michigan and his law degree from the University of Denver.

Medina is currently a Crowley County land use administrator and building inspector, and a Kiowa County GED instructor. Medina has also worked as a park ranger for the National Park Service and a case manager for the Colorado Department of Corrections. He received his undergraduate degree from the University of Colorado at Colorado Springs.

For more information about the appointments, click here.

Tenth Circuit: District Court Did Not Err in Finding Assault Occurred Despite Poor Quality Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Henry on Friday, February 3, 2017. Panel rehearing was granted for the sole purpose of adding a footnote; that opinion is available here.

Tremale Henry finished a prison sentence for violating federal drug laws and was under supervised release for five years thereafter. During his five year supervised release, Mr. Henry was found by the district court to be responsible for two separate assaults with a dangerous weapon. The district court sentenced Mr. Henry to a 24-month prison term followed by six further years of supervised release. Mr. Henry argues that the district court impermissibly relied on hearsay when reaching its judgment.

The Tenth Circuit first addressed Mr. Henry’s first assault charge. In finding that Mr. Henry committed this assault, the district court relied on statements from a witness, Candace Ramsey. Ms. Ramsey testified that she saw Mr. Henry lunge at his victim with a small object, but that she could not see exactly what that object was. A probation officer then testified that Ms. Ramsey told him before the hearing that she saw Mr. Henry use a knife. The district court apparently credited this hearsay. Additionally, the district court relied on a surveillance video that showed Mr. Henry make rapid movements towards the victim. Although the video quality was poor and a knife could not clearly visible, the district court found that the reaction of the victim was consistent with a violent assault with a dangerous weapon. The district court found that all of these facts taken together established that Mr. Henry committed the first assault with a dangerous weapon.

The Tenth Circuit held that the district court did not err in its finding regarding the first assault. The Tenth Circuit stated that the usual rules of evidence do not apply in revocation hearings, and that the Supreme Court has allowed hearsay into supervised release proceedings. The Tenth Circuit went on to state that Fed. R. Crim. P. 32.1(b)(2)(C) grants a defendant in a revocation hearing the opportunity to question any adverse witness. Additionally, in United States v. Jones, the Tenth Circuit held that the application of Rule 32.1(b)(2)(C) requires a district court to conduct a balancing test to weigh “the defendant’s interests in confronting a witness against the government’s interest in foregoing the witness’s appearance.”

The Tenth Circuit held that neither Rule 32.1(b)(2)(C) nor Jones was applicable with regard to the first instance of the assault charge because the witness was available for cross-examination. Ms. Ramsey did appear at the hearing and Mr. Henry had the chance to question her about her hearsay statement. Additionally, Mr. Henry did not provide evidence to establish that his minimal due process rights were violated.

The Tenth Circuit next addressed the second assault charge, which consisted of the stabbing of the victim. The district court relied on out-of-court statements that the victim and the victim’s girlfriend made to a police detective. That detective then relayed the statements to Mr. Henry’s probation officer. Mr. Henry’s probation officer presented these statements at the revocation hearing, but neither the victim, his girlfriend, nor the detective was subject to cross-examination. Therefore, the Tenth Circuit held that Rule 32.1(b)(2)(C) and Jones did apply to this assault charge, and that the district court failed to conduct the balancing test Jones required.

The Tenth Circuit held that the district courts failure to apply the relevant tests was not a harmless error. The Tenth Circuit came to this conclusion because it determined that the district court considered both assault charges when it fashioned its sentence. Therefore, the error was not harmless and the Tenth Circuit remanded the case back to the district court for resentencing.

Tenth Circuit: Unpublished Opinions, 3/20/2017

On Monday, March 20, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Sellers v. Wyoming Attorney General

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