June 22, 2018

Archives for June 2018

Hon. Thomas R. Ensor to Retire from 17th Judicial District Court

On Tuesday, June 19, 2018, the Colorado State Judicial Branch announced the retirement of Hon. Thomas R. Ensor from the 17th Judicial District Court, effective September 28, 2018. Judge Ensor was appointed to the Adams County Court in the 17th Judicial District in 1978, and was appointed to the district court in 1984. Prior to his appointment to the bench, Judge Ensor was a Deputy District Attorney in the 17th Judicial District. He received his undergraduate degree from Indiana University and his law degree from Indiana University School of Law.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the 17th Judicial District and must have been licensed 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 17th Judicial District Nominating Commission, Justice Monica Marquez. Applications must be received no later than 4 p.m. on July 17, 2018, in order to be considered; anyone wishing to nominate another must do so no later than July 10, 2018.

For more information on the vacancy, click here.

Colorado Court of Appeals: Promissory Note is a Security, Therefore Conviction for Securities Fraud Appropriate

The Colorado Court of Appeals issued its opinion in People v. Thompson on Thursday, June 14, 2018.

Securities Fraud—Jury Instruction—Double Jeopardy—Propensity Evidence—Theft—Sentencing.

Defendant was the sole member of SGD Timber Canyon LLC (SGD), which held an interest in 63 undeveloped lots in the Timber Ridge subdivision. The lots went into foreclosure, and in February 2010 SGD filed for bankruptcy. Defendant did not disclose these facts to the Witts, who later loaned defendant $200,000 to acquire a lot in Timber Ridge and another $200,000 for construction of a home on the lot, with the understanding that the loans would be repaid with a profit share of as much as $400,000 when the home was sold to a prequalified buyer. Later, at defendant’s urging, the Witts increased the loan to $2.4 million and converted their investment into a “bridge loan” to defendant, who represented that the proceeds would be used for continued development of Timber Ridge. The parties executed a promissory note and guarantee agreement. The promissory note was secured by defendant’s primary and secondary residences with collateral to convert the 24 lots in Timer Ridge upon closing and final purchase of Timber Ridge.

Defendant used the money on items not related to Timber Ridge and never developed the property there. Defendant defaulted on the note. He eventually repaid the Witts $70,000. Ultimately, the Witts sued defendant but did not recover any further monies from him. A jury found defendant guilty of two counts of securities fraud and one count of theft, and he was sentenced to 12 years in the custody of the Department of Corrections for each of the securities counts, to be served concurrently, and 18 years for the theft conviction, to be served consecutively to the other sentences.

On appeal, defendant claimed that the evidence was insufficient to support his securities fraud convictions because the promissory note and guarantee he provided to the Witts did not constitute a security. The “family resemblance test” applies to determine when a note is a security under the Colorado Securities Act (CSA). Under the family resemblance test, a note is presumed to be a security, but that presumption may be rebutted by a showing that the note strongly resembles other financial instruments. Here, the Witts’ investment, memorialized by the promissory note, was a transaction protected by the CSA and did not strongly resemble the family of transactions that are not securities. The evidence was sufficient to support the securities fraud convictions.

Defendant also argued that the trial court erred by tendering an inaccurate jury instruction regarding the definition of a security. Defendant did not object to the definition of security that was given to the jury, nor did he tender an alternative instruction. The law regarding the definition of a security was not well settled at the time of defendant’s trial, and thus any error in the jury instruction would not have been obvious or plain.

Defendant also claimed that his convictions and sentences for securities fraud violated double jeopardy because they are alternative ways of committing the same offense, and therefore the two counts should be merged. Defendant failed to raise this issue before the trial court. Here, defendant was charged with and convicted of multiplicitous counts of securities fraud because the evidence showed a sale of one security to one investor based on one set of false or misleading statements. But the law was not well-settled concerning the proper unit of prosecution, so there was no plain error.

Defendant further contended that there was insufficient evidence to support his theft conviction. Although the funds were supposed to be used to develop Timber Ridge, defendant used the funds to pay his own attorney fees, to improve the house that his wife continued to occupy at the time of trial, and for other personal expenses. Therefore, there was sufficient evidence to support the conclusion that defendant knowingly obtained the Witts’ money by deception and intended to permanently deprive them of it.

Defendant also argued that the court erred by admitting propensity evidence that defendant had previously attempted to sell a lot in Timber Ridge that he did not own. However, the evidence was logically relevant to prove identity, motive, knowledge, and lack of mistake, and the probative value was not substantially outweighed by the danger of unfair prejudice.

Lastly, defendant argued that his sentence for theft must run concurrently with the concurrent sentences for securities fraud because the crimes are based on identical evidence. Here, different evidence supported each offense, so there was no sentencing error.

The judgment and sentence were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Grand Jury Foreman’s Failure to Sign Indictment Did Not Deprive Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Tee on Thursday, June 14, 2018.

Criminal Procedure—Grand Jury—Attempt to Influence a Public Servant—Jury—Predeliberation—Waiver—Evidence.

Tee was convicted of multiple charges, including two counts of attempting to influence a public servant.

On appeal, Tee contended that because the indictment received by the district court did not contain the signature of the grand jury foreperson, it did not confer jurisdiction and all charges must be dismissed. However, the signature of the foreperson need not be provided to the district court, and the court had jurisdiction.

Tee also contended that because two jurors engaged in predeliberation, he is entitled to a new trial. Here, defense counsel waived any error as to predeliberation.

Tee further argued that the two convictions for attempting to influence a public servant must be vacated because there was insufficient evidence supporting the convictions. Here, Tee was convicted of two counts of attempting to influence a public servant based on evidence that he made false reports of car accidents. The evidence was sufficient to support one count of attempting to influence a public servant where Tee provided information in person to a police officer who created a report based on what Tee had told him. However, the evidence was insufficient as to the other count where Tee filled in an accident report form on a computer terminal at a kiosk in the police department, because it did not show that Tee was attempting to influence a public servant.

Lastly, the attorney general conceded that the trial court violated Tee’s double jeopardy rights because it orally announced a 12-year sentence but the mittimus showed an 18-year sentence. The mittimus also incorrectly showed a conviction on a count that was dismissed.

The judgment was vacated as to one count and otherwise affirmed. The case was remanded to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 6/21/2018

On Thursday, June 21, 2018, the Colorado Court of Appeals issued no published opinion and 48 unpublished opinions.

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, 6/21/2018

On Thursday, June 21, 2018, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Mosley

Mitchell v. Brennan

Bush v. Allbaugh

United States v. Vann

Dardick v. UNUM Life Insurance Co. of America

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

Reframing “The Economy”

We’ve seen that conventional thinking about “the economy” struggles to accommodate technologies such as machine learning, robotics, and artificial intelligence — which means it’s ripe for a big dose of reframing. Reframing is a problem-solving strategy that flips our usual ways of thinking so that blind spots are revealed, conundrums resolved, polarities synthesized, and barriers transformed into logistics.

The Santa Fe Institute is on the reframing case: Rolling Stone called it “a sort of Justice League of renegade geeks, where teams of scientists from disparate fields study the Big Questions.” W. Brian Arthur is one of those geeks. He’s also onboard with PARC — a Xerox company in “the business of breakthroughs” — and has written two seminal books on complexity economics: Complexity and the Economy (2014) and The Nature of Technology: What it Is and How it Evolves (2009). Here’s his pitch for reframing “the economy”:

The standard way to define the economy — whether in dictionaries or economics textbooks — is as a “system of production and distribution and consumption” of goods and services. And we picture this system, “the economy,” as something that exists in itself, as a backdrop to the events and adjustments that occur within it. Seen this way, the economy becomes something like a gigantic container . . . , a huge machine with many modules or parts.

I want to look at the economy in a different way. The shift in thinking I am putting forward here is . . . like seeing the mind not as a container for its concepts and habitual thought processes but as something that emerges from these. Or seeing an ecology not as containing a collection of biological species, but as forming from its collection of species. So it is with the economy.

The economy is a set of activities and behaviors and flows of goods and services mediated by — draped over — its technologies: the of arrangements and activities by which a society satisfies its needs. They include hospitals and surgical procedures. And markets and pricing systems. And trading arrangements, distribution systems, organizations, and businesses. And financial systems, banks, regulatory systems, and legal systems. All these are arrangements by which we fulfill our needs, all are means to fulfill human purposes.

George Zarkadakis is another Big Questions geek. He’s an artificial intelligence Ph.D. and engineer, and the author of In Our Own Image: Savior or Destroyer? The History and Future of Artificial Intelligence (2016). He describes his complexity economics reframe in a recent article “The Economy Is More A Messy, Fractal Living Thing Than A Machine”:

Mainstream economics is built on the premise that the economy is a machine-like system operating at equilibrium. According to this idea, individual actors – such as companies, government departments and consumers – behave in a rational way. The system might experience shocks, but the result of all these minute decisions is that the economy eventually works its way back to a stable state.

Unfortunately, this naive approach prevents us from coming to terms with the profound consequences of machine learning, robotics and artificial intelligence.

Both political camps accept a version of the elegant premise of economic equilibrium, which inclines them to a deterministic, linear way of thinking. But why not look at the economy in terms of the messy complexity of natural systems, such as the fractal growth of living organisms or the frantic jive of atoms?

These frameworks are bigger than the sum of their parts, in that you can’t predict the behaviour of the whole by studying the step-by-step movement of each individual bit. The underlying rules might be simple, but what emerges is inherently dynamic, chaotic and somehow self-organising.

Complexity economics takes its cue from these systems, and creates computational models of artificial worlds in which the actors display a more symbiotic and changeable relationship to their environments. Seen in this light, the economy becomes a pattern of continuous motion, emerging from numerous interactions. The shape of the pattern influences the behaviour of the agents within it, which in turn influences the shape of the pattern, and so on.

There’s a stark contrast between the classical notion of equilibrium and the complex-systems perspective. The former assumes rational agents with near-perfect knowledge, while the latter recognises that agents are limited in various ways, and that their behaviour is contingent on the outcomes of their previous actions. Most significantly, complexity economics recognises that the system itself constantly changes and evolves – including when new technologies upend the rules of the game.

That’s all pretty heady stuff, but what we’d really like to know is what complexity economics can tell us that conventional economics can’t.

We’ll look at that next time.

 

Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning. Check out his latest LinkedIn Pulse article: “Rolling the Rock: Lessons From Sisyphus on Work, Working Out, and Life.”

Colorado Supreme Court: Respondents’ Complaint Asserted Timely Claim Seeking Declaration that Ordinance Violated City Charter

The Colorado Supreme Court issued its opinion in City of Boulder v. Public Service Co. of Colorado on Monday, June 18, 2018.

Declaratory Judgment Actions—C.R.C.P. 57—C.R.C.P. 106—Municipal Ordinances—Finality.

This case arises out of respondents’ challenge to petitioner city’s attempt to create a light and power utility. Respondents assert that the ordinance establishing the utility violates the city’s charter. Respondents thus seek a declaratory judgment deeming that ordinance null and void. The city asserted that respondents’ complaint was, in reality, an untimely C.R.C.P. 106 challenge to a prior ordinance by which the city had concluded that it could meet certain prerequisites for the formation of the utility as prescribed by the city charter. The district court agreed with the city and dismissed respondents’ complaint for lack of jurisdiction. A division of the court of appeals, however, vacated the district court’s judgment, concluding that neither of the pertinent ordinances was final and therefore respondents’ complaint was premature.

The supreme court reversed the division’s decision and remanded the case for further proceedings on respondents’ declaratory judgment claim. Although the court agreed with the city that the division erred, contrary to petitioners’ position and the premises on which the courts below proceeded, the court agreed with respondents that the complaint asserted a viable and timely claim seeking a declaration that the ordinance establishing the utility violated the city charter. Accordingly, the court concluded that the district court had jurisdiction to hear respondents’ declaratory judgment claim, and the court remanded the case to allow that claim to proceed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Jury’s Refusal to Convict on Pattern of Abuse Charge Does Not Necessitate Retrial on Only Single Act

The Colorado Supreme Court issued its opinion in In re People v. Stackhouse on Monday, June 18, 2018.

Double Jeopardy.

Pursuant to C.A.R. 21, the People challenged a district court order granting Stackhouse’s motion to compel the People to elect a particular allegation of sexual assault on a child as their sole basis for proceeding in Stackhouse’s retrial. The supreme court held that the district court erred when it concluded that the jury in Stackhouse’s first trial had necessarily concluded that he did not commit multiple acts of assault, and therefore that he could not be retried for more than a single assault. The court made the rule to show cause absolute, reversed the district court’s order, and remanded the case to the district court for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/20/2018

On Wednesday, June 20, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Brooks v. Gabriel

Allen v. Lang

Burnett v. Miller

Mielnicki v. Wal-Mart Stores, Inc.

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

Hon. Stephen J. Sletta and Hon. Regina Walter to Retire from El Paso County Court

On Thursday, June 15, 2018, the Colorado State Judicial Branch announced the retirement of Hon. Stephen J. Sletta and Hon. Regina Walter. Both judges sit on the El Paso County Court, and their retirements will be effective on January 7, 2019.

Judge Sletta was appointed to the El Paso County Court in 1991. He mostly presides over a docket of civil cases, including traffic violations and misdemeanor charges. Prior to his appointment to the bench, he was in private practice for 15 years. He received his undergraduate degree from Colorado College and his law degree from the University of Colorado School of Law.

Judge Walter was appointed to the El Paso County Court in August 2008. Prior to her appointment, she was an El Paso County Court magistrate for 21 years, working in the juvenile court. She was also a deputy public defender prior to her appointment as a magistrate. She received her undergraduate degree from Colorado College and her law degree from the University of Tulsa College of Law.

Applications are now being accepted for both upcoming vacancies. Eligible applicants must be qualified electors of El Paso 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 Justice Carlos A. Samour, Jr., the ex officio chair of the Fourth Judicial District Nominating Commission. Applications must be received no later than 4 p.m. on July 23, 2018; anyone wishing to nominate another must do so no later than July 16, 2018.

For more information about the vacancies, click here.

Colorado Supreme Court: Colorado Court Lacks Jurisdiction to Award Attorney Fees for Foreign Action

The Colorado Supreme Court issued its opinion in Roberts v. Bruce on Monday, June 18, 2018.

Attorney Fees—Statutory Interpretation.

In this case, the supreme court considered whether a trial court may award attorney fees under C.R.S. § 13-17-102 for conduct occurring outside Colorado courts. Reviewing the plain language of 13-17-102, the court concluded that an award of attorney fees pursuant to that section is limited to conduct occurring in Colorado courts and therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Foundational Documents Insufficient to Create Homeowners Association for Common Land

The Colorado Supreme Court issued its opinion in McMullin v. Hauer on Monday, June 18, 2018.

Colorado Common Interest Ownership Act—Common Interest Communities—Homeowners’ Associations.

The supreme court reviewed the court of appeals’ opinion affirming the trial court’s order finding that the recorded instruments in this case were sufficient to create both a common interest community by implication and an unincorporated homeowners’ association. The court held that the recorded instruments were insufficient under the Colorado Community Interest Ownership Act to create a common interest community by implication. Accordingly, the court reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.