September 25, 2017

Archives for July 2017

Tenth Circuit: Appeals Council Required Only to “Consider” New Evidence of Disability

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The US Social Security Administration denied her claim. She received a hearing with an administrative law judge (ALJ), who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Tenth Circuit: Jury Instructions Sufficient to Apprise Jury of Elements of Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wright on Tuesday, February 21, 2017.

Bruce Carlton Wright was convicted on one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344, and on eleven counts of bank fraud in violation of 18 U.S.C. § 1344. Wright was sentenced to thirty-three months imprisonment and ordered to pay restitution to the bank involved. Wright appealed, claiming the district court erred by: (1) not including intent to defraud as an element of conspiracy to commit bank fraud in the jury instruction; (2) responding to a written question from the jury by directing the jury to consider each count of the indictment separately; (3) denying Wright’s motion for new trial based on a Brady violation; (4) improperly calculating of the bank’s loss amount under USSG § 2B1.1(b)(1); and (5) improperly calculating of the restitution amount.

Because Wright did not properly object during his original trial in relation to his first, second, fourth, and fifth claims on appeal, the court reviewed them under the plain-error standard, which requires a plaintiff to establish an “error, that is plain, which affects substantial rights, and seriously effects the fairness, integrity, or public reputation of judicial proceedings.” The court stated that a plain error affects a defendant’s substantial rights if there is a reasonable probability that, if the error had not occurred, the result of the proceeding would have been different.

Concerning Wright’s first claim, that the court erred by not including the necessary element of intent to defraud to convict on a charge of conspiracy to commit bank fraud in the jury instruction, the court reviewed the jury instructions in light of the context of the entire trial to see if the instructions accurately stated the law and provided the jury with a correct understanding of the facts of the case. The court rejected this claim, saying that Wright could not show error because, while the court did not list intent to defraud in the instruction, the omission was cured because the instruction relating to committing bank fraud did incorporate “intent to defraud” by requiring an agreement to commit bank fraud.

During deliberations, the jury asked the judge if it they had to find Wright guilty on count 1 in order to convict him on any of the subsequent counts. Over objection of counsel, who agreed with the legal answer provided by the court but requested different phrasing, the judge responded, “No, you must consider each count separately.” On appeal, Wright contends that the answer should have been “Yes,” because, citing Pinkerton v. United States, the conviction would have been based on the acts of a co-conspirator and not his own acts (as his co-conspirator was testifying at his trial). The court stated that Wright had waived his ability to assert error under Pinkerton by failing to object on that basis at the district court level.  Instead, because Wright had generally objected to the instruction, the court reviews for plain error. However, because Wright argued under an abuse of discretion, and not plain error he waived his right to argue the claim.

In support for his motion for new trial, Wright argued that the government withheld a victim impact statement that the bank president had prepared for his coconspirator’s sentencing. Wright claimed that the information would have helped him to impeach his co-conspirator at his own trial. In their assessment of Wright’s motion, the court stated that Wright would have to show the prosecution suppressed material evidence that was favorable to Wright.  While the court determined the statement was not given to Wright prior to the trial, and that it was favorable to him, he failed in showing that the information included in the impact statement was material enough that it could have undermined confidence in the outcome of the case because Wright already attacked his co-conspirator’s credibility extensively at trial.

In calculating Wright’s sentence and amount of restitution he would be required to pay to the victims, the district court looked to the amount of Wright’s fraudulent draw requests, and determined he owed to be $1,094, 490. Wright was provided the sum in the presentencing report, which he accepted. Because the Bank recovered sums due to its sale, the sales price should be subtracted from the outstanding loan balance to calculate restitution to avoid a windfall to the victim. However, because the amount of restitution and sentence is a factual question, Wright was required to object at the district court level for it to rise to the level of a plain error reviewable on appeal. Wright accepted the amount in the pre-sentencing report, and the court held that Wright had accepted the calculation of restitution and his sentence as correct.

The Tenth Circuit Court of Appeals affirmed the district court’s rejection of Wright’s motion for new trial and rejected Wright’s other claims as to the amount and length of his sentence.

Tenth Circuit: Unpublished Opinions, 7/28/2017

On Friday, July 28, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Garcia-Damian

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

Maria E. Berkenkotter to Retire from 20th Judicial District Court

On Thursday, July 27, 2017, the Colorado State Judicial Branch announced that Maria E. Berkenkotter will retire from the Twentieth Judicial District Court in Boulder, effective October 31, 2017. Judge Berkenkotter was appointed to the Boulder District Court in July 2006. Prior to her appointment, she worked at the Colorado Attorney General’s Office for 16 years. She has also been in private practice, and she clerked for Colorado Supreme Court Justice Howard M. Kirshbaum after law school. She received her law degree from the University of Denver and her undergraduate degree from Western Michigan University.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of Boulder County and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website or from the ex officio chair of the 20th Judicial District Nominating Commission, Justice Monica M. Márquez. Applications must be received no later than 4 p.m. on August 24, 2017; anyone wishing to nominate another must do so no later than August 17, 2017.

For more information about the vacancy, click here.

Finalists Selected for Upcoming Vacancy on La Plata County Court

On Thursday, July 27, 2017, the Colorado State Judicial Branch announced the 6th Judicial District Nominating Commission’s selection of three nominees for an upcoming vacancy on the La Plata County Court. The vacancy will be created by the retirement of Hon. Martha Minot, effective August 29, 2017.

The three nominees are Dondi Osborne of Durango, Graham Smith of Durango, and Reid Stewart of Hesperus. Dondi Osborne is an Assistant United States Attorney at the Durango Branch Office of the Department of Justice. Graham Smith is a litigation attorney in private practice in Durango, where he focuses on civil litigation, insurance defense, commercial law, business law, and real estate. Reid Stewart is an attorney at the District Attorney’s Office in the 6th Judicial District.

Comments about any of the nominees may be submitted to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Tenth Circuit: Unpublished Opinions, 7/27/2017

On Thursday, July 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Payn v. Kelley

United States v. Olden

Coyle v. Jackson

United States v. Kieffer

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

Money, Happiness, Wealth, and Meaning

One reason money doesn’t make us happy is the stress of making it. The following is from Plutocrats: The Rise of the new Global Super Rich and the Fall of Everyone Else, Chrystia Freeland (2012):

Until a few years ago, the reigning theory about money and happiness was the Easterlin paradox, the 1974 finding by Richard Easterlin that, beyond a relatively low threshold more money didn’t make you happier.

But across countries, what millions of immigrants have always known to be true really is: the people of rich countries are generally happier than the people of poor countries.

The latest contrarian finding, however, is that moving to that state of greater wealth and greater happiness is decidedly unpleasant. As Angus Deaton, in a review of the 2006 Gallup World Poll, concluded, “Surprisingly, at any given level of income, economic growth is associated with lower reported levels of life satisfaction.”

Freeland also cites Angus Deaton for showing that “the richer you are, the more covetous you become” — not a likely prescription for happiness.

A 2014 U of Virginia/Gallup study weighed in with similar findings — Emily Esfahani Smith discussed them in The Power of Meaning: Crafting a Life That Matters, (2017):

Though the study was enormous, involving nearly 140,000 people across 132 countries, it was also straightforward. A few years earlier, researchers from Gallup had asked respondents whether they were satisfied with their lives, and whether they felt their lives had an important purpose or meaning. [Prof. Shigehiro Oishi of the University of Virginia and Ed Diener of Gallup] analyzed that data by country, correlating the levels of happiness and meaning with variables like wealth, rates of suicides, and other social factors.

Their findings were surprising. People in wealthier regions, like Scandinavia, reported being happier than those in poorer ones, like sub-Saharan Africa. But when it came to meaning, it was a different story. Wealthy places like France and Hong Kong had some of the lowest levels of meaning, while the poor nations of Togo and Niger had among the highest, even though people living there were some of the unhappiest in the study.

I.e., the ultimate wellbeing culprit is neither money nor the pursuit of it, but whether or not you believe your life has meaning and purpose. And according to this vast, worldwide survey, the residents of wealthy countries rate their lives as less meaningful than those in poor countries.

Analogizing from these findings to the legal profession, we would expect that, because the legal profession runs on the higher side of financial wellbeing, lawyers would report higher levels of happiness than less well-paid workers, but would also suffer from meaning malaise. And, since one of the wellbeing factors used in the survey was rates of suicide, we would also expect lawyers to have a correspondingly higher rate of suicide.

The high lawyer suicide rate (third highest among professionals, after doctors and dentists) has been well documented, and as we’ve been seeing, lawyers as a whole aren’t generally happy with their lives either, despite their profession’s higher rate of wealth.

We’ll look more into the meaning part of the equation next time.

Richard Easterlin is a professor of economics at USC. Sir Angus Stewart Deaton, FBA, is a British American economist and professor at Princeton. In 2015, he was awarded the Nobel Memorial Prize in Economic Sciences for his analysis of consumption, poverty, and welfare.

For a summary of the UVA/Gallup study, see ScienceDaily, 18 December 2013: “Residents of poorer nations find greater meaning in life.” For the original study, see S. Oishi, E. Diener, “Residents of Poor Nations Have a Greater Sense of Meaning in Life Than Residents of Wealthy Nations,” Psychological Science, 2013.

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Announcement Sheet, 7/27/2017

On Thursday, July 27, 2017, the Colorado Court of Appeals issued seven published opinions and 15 unpublished opinions.

People v. Butler

People v. Stewart

People v. Ramos

Pacitto v. Prignano

People v. Baker

Owners Insurance Co. v. Dakota Station II Condominium Association, Inc.

Varsity Tutors, LLC v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming.

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

Tenth Circuit: Unpublished Opinions, 7/26/2017

On Wednesday, July 26, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Greene v. Tennessee Board of Judicial Conduct

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

Discovering Discovery: Building Your Case, Deposition Tips, Expert Witnesses, and More

“Reduced to its essence, discovery is the process of identifying, collecting, producing and/or receiving relevant, nonprivileged materials in connection with pending or reasonably foreseeable litigation. With the advent of notice pleading, civil discovery provides access to the relevant information that litigants and their counsel require to make informed decisions about the merits of their case and the potential for settlement.” -Magistrate Judge Craig B. Shaffer

Discovery is a crucial component of every litigation case. In the last 10 years, civil litigation has changed significantly. The proliferation of electronic data and new rules on both the state and federal level create increasingly difficult challenges for preserving, managing, and producing electronically stored information. Conducting discovery outside Colorado has become mainstream as civil litigation has become more national—even global.

This Friday, CBA-CLE will debut the newest title in our litigation library, Discovery in Colorado, at a full-day program, “Discovering Discovery.” Discovery in Colorado is a practical guide to discovery that brings to life the application of the Colorado and Federal Rules of Civil Procedure governing the discovery process. Discovery in Colorado was written by a variety of different practitioners, overseen by Magistrate Judge Nina Y. Wang and Natalie Hanlon Leh, Esq. Attorneys and judges with backgrounds in private, in-house, and government practice authored individual chapters.

Learn different approaches to discovery and hear distinct perspectives from some of the most experienced trial attorneys and judges in Colorado. Each class attendee receives Discovery in Colorado, 1st Edition, as course materials. Explore the ever-changing state of discovery through this valuable course and companion book. Register using the links below, or call (303) 860-0608.

 

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CLE Program: Discovering Discovery

This CLE presentation will occur on Friday, July 28, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 8:30 a.m. to 4:45 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — Video OnDemandMP3 Audio

Tenth Circuit: Officers Executing Warrant Acted in Objectively Reasonable Reliance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Russian on Tuesday, February 21, 2017.

The Tenth Circuit Court of Appeals had to determine if the good faith exception to the exclusionary rule was properly applied in the case where police searched two cell phones belonging to the appellant after his arrest without first obtaining a valid search warrant. At trial, Mr. Russian moved to have evidence obtained from the phones suppressed for lack of particularity. The district court denied the motion, and sentenced Mr. Russian to 137 months’ incarceration. Mr. Russian appealed, claiming that the district court erred in denying his motion to suppress the phone evidence, and claiming that the 137-month sentence was above the maximum permitted by statute.

The case stems from an incident beginning in Missouri, where police received a 911 call concerning a man matching Mr. Russian’s description threatening two women with a machete and handgun. When police arrived, Russian fled, beginning a high-speed chase into Kansas. Upon Russian’s arrest, Deputy Wilson searched Russian, and found a red and black phone in his possession. Deputy Wilson then found a second phone in Russian’s vehicle, both of which he entered into evidence. Deputy Wilson later applied for a warrant to search Russian’s residence, as well as both the contents of both phones already in police possession, The state district court warrant authorized the search of cell phones that could be used to commit the crimes, and described the locations to be searched, but did not authorize the search of the phones already in police possession.

The Fourth Amendment provides that no citizen will be subjected to unreasonable search and seizure. However, the court added, that even these protections are subject to the harmless error rule, where a search may be upheld if the error is so unimportant and insignificant that they may be deemed harmless beyond a reasonable doubt, not requiring the automatic reversal of the conviction. The court stated that a search warrant must, in addition to probable cause, describe with particularity the place to be searched, and the persons or things to be seized. In this case, the court said that there is little doubt that the search warrant was invalid for lack of particularity, as it did not identify the phones or the data on those phones to be searched.

Although the warrant was invalid, the court still upheld the denial of Mr. Russian’s motion to suppress under the good faith exception. The good faith exception applies to an otherwise invalid search warrant where the officer’s reliance on the warrant was objectively reasonable under the circumstances, and asks if a reasonably well-trained officer would have known the search was illegal despite the warrant’s authorization. However, the court noted that the government is not entitled to the exception when the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officer cannot reasonably presume it to be valid.” In analyzing Deputy Wilson’s search, the court determined that because his affidavit specifically described the phones, the warrant referenced the affidavit, and the exclusion of the evidence would not serve the purpose of the exclusionary rule (to prevent police misconduct) the good faith exception applied.

As to Russian’s second claim, the court agreed that district court erred in relying on a guidelines range that improperly took into account a fifteen year old felony conviction that was too old to be included in the sentencing range. The court also agreed with Russian that the court erred in imposing a 76-month sentence, as it is above the 60-month maximum imposed by statute.

The Tenth Circuit affirmed Russian’s convictions, but remanded for resentencing for three of the counts based on the improperly calculated guidelines range.

Tenth Circuit: Unpublished Opinions, 7/25/2017

On Tuesday, July 25, 2017, the Tenth Circuit Court of Appeals issued ten published opinions and six unpublished opinions.

Duncan v. Allbaugh

Columbian Financial Corp. v. Stork

Wilson v. Dowling

Pecha v. Lake

Brown v. Shoe

Webb v. Allbaugh

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