October 26, 2014

Colorado Court of Appeals: Announcement Sheet, 10/23/2014

On Thursday, October 23, 2014, the Colorado Court of Appeals issued 10 published opinions and 18 unpublished opinions.

People v. Maestas

People v. Castillo

People v. Frye

People v. Bertrand

People v. Beauvais

People v. Calderon

In re Marriage of Johnson

Markus v. Colorado Department of Revenue

In re Marriage of Corak

People in Interest of M.K.D.A.L.

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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Tenth Circuit: Unpublished Opinions, 10/23/2014

Tenth Circuit: No Error in Admission of Other Bad Act Evidence to Prove Intent, Motive, and Opportunity

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nance on Tuesday, September 23, 2014.

Jory Nance used peer-to-peer file sharing software to send images of child pornography to an Oklahoma detective. The detective reported Nance to the FBI, who began surveillance on the house where Nance lived with his wife and two young children. When Nance noticed one of the agents, he began deleting files from his laptop and stopped downloading files. He also researched how to reformat his computer. Shortly thereafter, FBI agents seized his computer, which Nance admitted was solely his but falsely claimed had been inoperable for several months.

The FBI conducted a forensic analysis of Nance’s computer and was able to recover over 1,000 deleted images of child pornography. Additionally, the FBI was able to recover names of files with images that were not recoverable, and found that Nance had used his laptop during the period he claimed it was inoperable to access a nudism website. The United States charged Nance with multiple counts of receiving or attempting to receive child pornography. Nance claimed at trial he did not know the images were on his computer, but the jury rejected his defense and convicted him of eight counts of transporting child pornography (related to the files he shared with the detective) and 49 counts of receiving or attempting to receive child pornography. He was sentenced to 64 months in prison followed by five years’ supervised release. He appeals his convictions, arguing (1) the district court erred in admitting evidence of his other bad acts in violation of FRE 404(b)(2); and (2) the evidence was insufficient to prove he attempted to receive child pornography.

The Tenth Circuit first addressed the other bad act evidence. The district court allowed admission of the evidence to prove motive, intent, and opportunity. In making this determination, the district court concluded the probative value of the evidence outweighed the potential for unfair prejudice. The trial court provided a limiting instruction when it was requested. The Tenth Circuit found no error, because the limiting instruction was available and could have been used each time potentially prejudicial evidence was admitted had it been requested. Because defense counsel did not object to the form or content of the limiting instruction, and did not request it each time potentially prejudicial evidence was introduced, the Tenth Circuit found no error.

As to the second claim, Nance asserted the jury could not prove he attempted to receive child pornography because the charges were based on recovered file names without accompanying images. However, the jury did not need to find Nance actually received child pornography — all the jury needed was to find that Nance believed he would receive child pornography. The graphic nature of the file names was enough to prove Nance’s intent.

The Tenth Circuit affirmed all of Nance’s convictions.

Tenth Circuit: Unpublished Opinions, 10/22/2014

On Wednesday, October 22, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Jones v. Cannon

Craig v. McCollum

United States v. Stewart

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

Colorado Supreme Court: PERA Members Have No Continual Right to Cost of Living Adjustments

The Colorado Supreme Court issued its opinion in Justus v. State of Colorado on Monday, October 20, 2014.

Colorado Public Employee’s Retirement Association Pension Plan (PERA)—Cost-of-Living Adjustment—Contracts Clauses of U.S. and Colorado Constitutions.

In this decision, the Colorado Supreme Court determined whether Colorado PERA members have contractual rights for life without change to the cost-of-living adjustment (COLA) formulas in place at their respective retirements. On summary judgment, the district court ruled that PERA retirees had no such contract right to an unchangeable COLA formula.

The court of appeals disagreed. It determined that the retirees have a contract right, and remanded for further review to determine whether Senate Bill 10-001 violated the Contract Clauses of the U.S. and Colorado Constitutions.

The Court held that the 2010 PERA legislation did not establish any contract between PERA and its members entitling them to perpetual receipt of the specific COLA formula in place on the date each became eligible for retirement or on the date each actually retires. The judgment of the court of appeals was reversed and the trial court’s summary judgment order dismissing this case was upheld.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Forged Check is Not “Of” Bank Into Which it is Eventually Deposited

The Tenth Circuit Court of Appeals issued its opinion in United States v. Powell on Monday, September 22, 2014.

Crosby Powell attracted the attention of federal authorities in 2006 when he deposited stolen checks into his accounts at UMB Bank, Wells Fargo, and TCF Bank. An investigation revealed he had altered payee information or forged endorsements on some of the checks. He was subsequently charged with 11 counts of uttering or possessing forged checks and 17 counts of possessing stolen mail. Powell appealed only the 11 counts of uttering or possessing forged checks, arguing for the first time on appeal that the government’s position that the checks were “of” the bank into which they were deposited was a faulty reading of the statute.

The Tenth Circuit agreed with Powell that the checks were not “of” the depositing organization, but his claims were subject to plain error review since they were not raised in district court. Of the 11 counts, 8 were plainly erroneous, since the checks involved in those counts were not issued by federally insured banks operating in interstate commerce. The Tenth Circuit reversed the convictions regarding these 8 checks.

For two of the remaining three counts, the checks were issued by Wells Fargo, which is a federally insured bank operating in interstate commerce, so the Tenth Circuit found no error in Powell’s convictions and affirmed. The final count was based on two checks, one of which was issued by Wells Fargo and one of which was a U.S. Treasury check. Because one of the checks supporting the count was “of” a federally insured bank, the Tenth Circuit affirmed Powell’s conviction on this count.

The case was affirmed in part, reversed in part, and remanded for further proceedings consistent with the Tenth Circuit opinion.

Tenth Circuit: Unpublished Opinions, 10/21/2014

On Tuesday, October 21, 2014, the Tenth Circuit Court of Appeals issued four published opinions and five unpublished opinions.

Pelletier v. United States

Mendez v. Colvin

Thompson v. Robison

Silva v. Colvin

Thompson v. Martin

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

Tenth Circuit: Unpublished Opinions, 10/20/2014

On Monday, October 20, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Prado-Cervantez

Washington v. Howard

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

Colorado Supreme Court: Announcement Sheet, 10/20/2014

On Monday, October 20, 2014, the Colorado Supreme Court issued one published opinion.

Justus v. State of Colorado

The summary for this case is 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.

10th Circuit: Unpublished Opinions, 10/17/2014

On Friday, October 17, 2014, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Lyman v. San Juan County

United States v. Cordova

United States v. Jordan

Wolfe v. AspenBio Pharma, Inc.

Saleh v. United States

United States v. Brogan

United States v. Mendez-Munoz

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

 

Colorado Supreme Court: Unauthorized Driver of Rental Car Had Standing to Contest Admission of Contents of Search

The Colorado Supreme Court issued its opinion in People v. Sotelo on Monday, October 13, 2014.

Suppression of Evidence—Standing.

In this interlocutory appeal, the Supreme Court addressed whether an unauthorized driver of a rental car has standing to challenge the constitutionality of a state trooper’s search of gift-wrapped packages within the car following a traffic stop. The Court held that under the totality of the circumstances, defendant had a legitimate expectation of privacy in the packages and therefore had standing to contest the search of those packages, even though she was not authorized to drive the rental car. The Court affirmed the trial court’s order suppressing evidence of marijuana concealed in the packages.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Quality Management Program Records Protected Since Program Had CDPHE Approval

The Colorado Supreme Court issued its opinion in Simpson v. Cedar Springs Hospital, Inc. on Monday, October 13, 2014.

Quality Management Privilege.

In this original CAR 21 proceeding, the Supreme Court held that the trial court erred in finding that a hospital must have “authoritative” documentation of approval by the Colorado Department of Public Health and Environment (CDPHE) for the quality management privilege under CRS §25-3-109 to apply. The Court held that because the hospital maintained a CDPHE license at all relevant times, its quality management program was necessarily approved by CDPHE, and the documents from its quality management committee meetings were therefore covered by the quality management privilege. The Court made this rule absolute, and remanded to the district court for further proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.