August 31, 2015

Colorado Court of Appeals: Open Meetings Law Allows Voiding of Actions Taken Without Meeting

The Colorado Court of Appeals issued its opinion in Wisdom Works Counseling Services, P.C. v. Colorado Department of Corrections on Thursday, August 27, 2015.

Sex Offender Treatment—Application—Denial—Colorado’s Open Meeting Law.

The Approved Treatment Provider Review Board (Board) denied two applications by plaintiff for certification as an approved provider of sex offender treatment for Colorado Department of Corrections (DOC) parolees. The Board denied both applications based on independent reviews by two of its members but without a meeting among the members of the entire Board. The trial court concluded that the Board had violated former DOC Regulation 250-23 (2011) by denying the applications without meeting. The DOC appealed.

The Board is a “state public body” and subject to the Colorado’s Open Meetings Law (OML). OML prohibits public businesses from being conducted “in secret.” Although OML does not require public bodies to meet, the remedy of voiding certain actions taken without meeting applies to a public body, even if its regulations or practices do not require a meeting. Because the Board denied the applications without meeting, the denials must be set aside. On remand, the district court shall return the proceeding to the Board for further action consistent with this opinion.

On cross-appeal, plaintiff contended that the trial court erred in holding that the Administrative Procedure Act (APA) did not apply to the Board’s actions and in denying CRCP 106 relief. Because CRS § 17-1-111 exempts the denials from the APA, the portion of the trial court’s order rejecting plaintiff’s APA claim was affirmed.

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

Tenth Circuit: Misrepresentations on Visa Applications Constituted Mail Fraud, Forced Labor, and Visa Fraud

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kalu on Monday, June 29, 2015.

Kizzy Kalu recruited 41 foreign nurses to work in the United States under specialty H-1B visas, advising the nurses they would be nurse instructor/supervisors at Adam University. Instead, when they arrived in the United States, the nurses were placed in nursing homes, where they performed ordinary nursing duties. Kalu’s company, Advanced Training and Education for Foreign Healthcare Professionals Group, LLC (“FHPG”), placed the nurses in the nursing homes and although the nurses were typically paid $35/hour for their labor, FHPG paid the nurses only $20/hour and kept the rest of the money. If the nurses left their FHPG employment, Kalu would charge them $1,000 per month regardless of whether they were employed and would threaten them with deportation, visa revocation, and penalties if they did not pay Kalu’s monthly fee.

Kalu and the former president of AU were charged with a 132-count indictment. In Kalu’s superseding indictment, (1) Counts 1-22 charged mail fraud; (2) Counts 23-37 charged encouraging and inducing an alien; (3) Counts 38-40 charged visa fraud; (4) Counts 41-57 charged forced labor; (5) Counts 55-64 charged trafficking in forced labor; (6) Counts 65-95 charged money laundering. Kalu was eventually convicted on 89 of the 95 counts and sentenced to 130 months’ imprisonment for mail fraud, forced labor, trafficking in forced labor, and money laundering and concurrently sentenced to 120 months’ imprisonment for visa fraud and encouraging and inducing aliens. Kalu was also ordered to pay $475,592.94 in forfeiture and $3,790,338.55 in restitution to compensate the nurses for their losses. Kalu appealed, contending erroneous jury instructions required reversal and the restitution award was erroneously calculated.

The Tenth Circuit first evaluated Instruction 17, which discussed the elements of mail fraud. Kalu contended the trial court plainly erred by failing to instruct the jury that specific intent to defraud is an element of mail fraud. The Tenth Circuit agreed that the trial court plainly erred, but found that the error did not substantially affect the fairness of the proceedings because there was ample record evidence that Kalu misrepresented the details of the nurses’ employment and salaries to the nurses and to immigration officials, knew the statements he was making were false, and profited from the scheme. The Tenth Circuit held Kalu failed to make a showing that the outcome of the proceeding would have been different if the jury had been properly instructed.

Turning next to Kalu’s contention that the district court’s mail fraud instruction constructively amended the superseding indictment, the Tenth Circuit found no error. Kalu’s argument failed at the first prong of plain error review.

Kalu next alleged the instructions misstated the necessary mens rea for encouraging or inducing an alien. The district court’s instructions used a knowledge and negligence standard rather than a knowledge and recklessness standard, thus lowering the burden for convicting Kalu under the statute. The Tenth Circuit agreed with Kalu that the district court plainly erred in instructing the jury on knowledge and negligence rather than recklessness. Again, though, the Tenth Circuit found that the error did not substantially affect Kalu’s rights or the fairness of the proceeding, since Kalu failed to demonstrate a reasonable probability that the outcome would have been different if the jury were properly instructed because the prosecution presented ample evidence of Kalu’s actual knowledge at trial.

Kalu also contended that the instructions misrepresented the definition of “serious harm” by changing the word “compel” to “cause.” The Tenth Circuit found no error in this change, noting that ample evidence showed Kalu compelled the nurses to continue in their forced employment.

Finally, the Tenth Circuit evaluated the restitution award. The trial court calculated the restitution award by subtracting the amount the nurses were actually paid from the amount they were promised. The district court relied on the promised three-year term of employment in its calculations. The Tenth Circuit found no error in this method of calculation. Although Kalu argued he only promised the nurses “up to $72,000 annually,” when he completed their H-1B applications, he wrote they would be paid $72,000 annually, thereby promising them that amount. The Tenth Circuit also rejected Kalu’s argument that the nurses may have left their employment before the expiration of the three-year period, finding the nurses that left did so precisely because of Kalu’s misrepresentations.

The district court’s judgment was affirmed.

Tenth Circuit: USPS Regulations Prohibiting Firearms in Post Office Building and Adjacent Parking Lot Constitutional

The Tenth Circuit Court of Appeals issued its opinion in Bonidy v. United States Postal Service on Friday, June 26, 2015.

Tab Bonidy is a resident of Avon, Colorado, who has a permit to carry concealed firearms. Avon does not have residential postal delivery services; instead, residents must pick up their mail at the Avon post office, which is open to the public at all times. Because the United States Postal Service (USPS) does not allow firearms on its property, Bonidy sends an assistant to pick up his mail. Bonidy, through his attorney, sent a letter to the USPS general counsel, asking if he would be prosecuted for carrying a concealed weapon into the post office or storing it in his truck in the parking lot while he got his mail, and the general counsel said he would. Bonidy sued for declaratory and injunctive relief, claiming the prohibition violated his Second Amendment right to bear arms for self-defense. Bonidy and the government filed cross-motions for summary judgment. The district court held the regulation constitutional as applied to concealed firearms, and the regulation regarding open carry was constitutional as applied to the post office building itself, but not as to the parking lot. The government appealed and Bonidy cross-appealed.

The Tenth Circuit analyzed its own and U.S. Supreme Court case law and affirmed the district court’s holding that the regulation was constitutional as applied to concealed firearms. With regard to open carry, a divided panel of the Tenth Circuit affirmed the district court’s ruling as to the post office building but reversed as to the parking lot, finding it constitutional to prohibit firearms both within the building and in the parking lot.

Citing District of Columbia v. Heller, 554 U.S. 570 (2008), the Tenth Circuit affirmed the prohibition on carrying firearms in “sensitive places such as schools and government buildings.” Although Bonidy argued the language was dicta, the Tenth Circuit noted the Supreme Court repeated its holding in a 2010 case, and the Circuit itself had followed the language in its own holdings, which made it binding precedent. The Tenth Circuit applied an intermediate scrutiny test to determine that the ban on firearms in the post office parking lot was constitutional, since the government is empowered to regulate its own business. The Tenth Circuit further found that, as a national government-owned business, the USPS may create a single national rule regarding firearms carry and need not tailor its rules to each individual customer or building.

The district court’s holding that the concealed carry ban was constitutional as applied to both the USPS building and parking lot was affirmed. The district court’s holding that the prohibition on open carry was constitutional as to the post office building was affirmed. The district court’s holding that the prohibition on open carry was unconstitutional as to the parking lot was reversed. Judge Tymkovich wrote a thoughtful dissent; he would have affirmed the district court in all aspects.

Tenth Circuit: Witness Tampering Charges Affirmed Where Potential Witness Told to Lie About the Important Stuff

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sparks on Friday, June 26, 2015.

Gary Sparks’ daughter, Stacy Ashley, was imprisoned pending trial on charges of distribution of a controlled substance with death resulting. H.L., Ms. Ashley’s daughter, was supposed to testify at trial that she saw her mother and the deceased exchange pills on the night the man overdosed. Three weeks before trial, Sparks took his granddaughter, H.L., to visit her mother in jail, and after seeing Ms. Ashley they went to dinner. H.L. reported that at dinner, Sparks told her “I heard you should only lie about the important stuff,” but Sparks said he only told her that everything would be okay and reassured her to have faith. H.L. never testified at her mother’s trial, but prosecutors eventually learned about the exchange with her grandfather and charged Sparks with two counts of witness tampering. Sparks was convicted and sentenced to 36 months’ imprisonment followed by two years of supervised release. Sparks appealed, arguing the evidence was insufficient to support his conviction and the jury was not properly instructed on an affirmative defense.

The Tenth Circuit first evaluated Sparks’ sufficiency claim. Sparks argued the evidence was insufficient to support his conviction because the phrase “you should only lie about the important stuff” was insufficient to qualify as an attempt to corruptly persuade. Sparks said that because he did not direct his granddaughter to lie he could not have “persuaded” her to do so. The Tenth Circuit disagreed. Analyzing the meaning of the word “persuade” in context of its prior precedent, the Tenth Circuit found no need for “an act, a threat, an emotional appeal, or persistent pleading” in order for a statement to be viewed as persuading. The Tenth Circuit found ample evidence to support the jury’s conviction based on the familial relationship, the proximity of the trial, and the timing of the statement right after seeing H.L.’s mother in jail.

Turning to Sparks’ contention that the jury was not properly instructed on the affirmative defense that his conduct consisted solely of lawful conduct encouraging the witness to testify truthfully, the Tenth Circuit again affirmed the district court. The Tenth Circuit found Sparks’ argument failed at the first prong of plain error review, because even viewing the evidence in the light most favorable to Sparks he did not encourage H.L. to testify truthfully.

The Tenth Circuit affirmed Sparks’ convictions.

Colorado Court of Appeals: Announcement Sheet, 8/27/2015

On Thursday, August 27, 2015, the Colorado Court of Appeals issued four published opinions and 34 unpublished opinions.

Wisdom Works Counseling Services, P.C. v. Colorado Department of Corrections

People in Interest of J.O.

Colorado Springs Citizens for Community Rights v. City of Colorado Springs, Colorado

People in Interest of P.K.

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, 8/26/2015

On Wednesday, August 26, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Cook v. Baca

Villamar v. Lincare, Inc.

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

Tenth Circuit: Bankruptcy Exemption for Retirement Plan Property Not Applicable When Property Withdrawn from Plan

The Tenth Circuit Court of Appeals issued its opinion in In re Gordon: Gordon v. Wadsworth on Friday, June 26, 2015.

In this bankruptcy appeal, the Gordons claimed $2,051 in their savings account as an exempt asset under C.R.S. § 13-54-102(1)(s) because the money represented a lump-sum distribution from their retirement plan and had not been commingled with other funds. The bankruptcy trustee objected on the ground that the exemption for retirement plans does not apply once the money is withdrawn from the plan. The bankruptcy judge agreed with the trustee’s objection and denied the Gordons’ motion for reconsideration. On appeal, the U.S. District Court for the District of Colorado affirmed, as did the Tenth Circuit.

The Tenth Circuit evaluated the language of C.R.S. § 13-54-102(1)(s), which exempts property held in or payable from retirement plans from levy and sale under writ of execution. The Gordons argued that the legislature intended to create an exemption from all retirement funds, regardless of whether they remained in the plan. The Tenth Circuit disagreed, finding the plain language of the statute precluded this reading. The Tenth Circuit found no statutory support for the Gordons’ argument.

The Tenth Circuit affirmed the district court and denied the Gordons’ request to certify questions of law to the Colorado Supreme Court.

Tenth Circuit: Prison Guard May be Liable for Failing to Mitigate Risk of Sexual Assault by Offsite Supervisor

The Tenth Circuit Court of Appeals issued its opinion in Castillo v. Day on Monday, June 22, 2015.

Plaintiffs in this case are a group of women formerly incarcerated at the Hillside Community Corrections Center in Oklahoma City, Oklahoma. As part of an off-site work program, the women performed landscaping and groundskeeping work at the Oklahoma Governor’s Mansion. They were not under the direct supervision of any prison guard while at the mansion, but were supervised by the mansion’s groundskeeper, Anthony Bobelu. Bobelu and Russell Humphries, a cook at the mansion, sexually assaulted and raped the women at the mansion. In January 2009, plaintiff Reeder told Hillside guard Mary Pavliska that she had been sexually abused by Bobelu and Humphries. Pavliska told her to return to her dorm, and Reeder never heard anything else about it. Pavliska testified that she told Charlotte Day, another guard, about the assaults, but Day denied being told. On another occasion, Day taunted plaintiff Garell about beginning a sexual relationship with Bobelu.

Plaintiffs brought suit under 42 U.S.C. § 1983 and alleging violations of their Eighth Amendment right to be free from cruel and unusual punishment. Their complaint named 15 defendants, including Bobelu, Humphries, Day, and Pavliska. The claims against several defendants were dismissed without prejudice, and all remaining defendants except Bobelu moved for summary judgment. The district court granted summary judgment to all except Day and Pavliska, finding a jury could conclude they were deliberately indifferent to the known substantial risk of serious harm to plaintiffs. Day and Pavliska filed interlocutory appeals, arguing the district court erred in finding they were not entitled to qualified immunity.

The Tenth Circuit quickly disposed of Day’s appeal, noting that her challenge was to the district court’s sufficiency determination and not that the plaintiffs failed to assert violation of a constitutional right. Because the sufficiency issue was not ripe for appeal, the Tenth Circuit dismissed Day’s appeal for lack of jurisdiction.

Finding jurisdiction to evaluate Pavliska’s appeal, the Tenth Circuit considered her arguments that she was entitled to qualified immunity because plaintiffs did not allege she affirmatively violated their constitutional rights, the conduct of Bobelu and Humphries did not rise to the level of a constitutional violation, and she did not have actual knowledge of the bad acts of Bobelu and Humphries. Plaintiffs asserted Pavliska violated their Eighth Amendment right to be free from sexual assault while imprisoned by failing to take reasonable measures to abate the risk of assault. Pavliska argued that because she had no official authority over Bobelu and Humphries she could not be liable for their conduct, which the Tenth Circuit characterized as an argument that she could only be liable for conduct of those she supervised directly. The Tenth Circuit rejected this argument, finding it well established that prison officials can be held liable for failing to prevent assault. Pavliska also argued that the conduct of Bobelu and Humphries was not sufficiently serious to constitute a constitutional violation. The Tenth Circuit noted that this was a challenge to the sufficiency of the evidence and it lacked jurisdiction to hear the issue. Finally, Pavliska argued she could not be held liable for any acts occurring before January 2009, but the Tenth Circuit noted the plaintiffs in their opening brief asserted claims arising after January 2009 only.

The district court’s denial of summary judgment as to Pavliska was affirmed insofar as it was a challenge to the motion denial and not to the sufficiency of the evidence, and Day’s and Pavliska’s appeals challenging sufficiency were dismissed for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 8/25/2015

On Tuesday, August 25, 2015, the Tenth Circuit Court of Appeals issued five published opinions and six unpublished opinions.

Cunningham v. Wichita State University

Stauffer v. Blair

Blake v. Janecka

Alvarez v. Maye

Winchester v. Patton

United States v. Huckeba

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

Tenth Circuit: No Speedy Trial Act Violation Where Motions Pending During Contested Period

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zar on Tuesday, June 23, 2015.

Derek Zar and his mother Susanne Zar participated in a mortgage fraud scheme orchestrated by Michael Jacoby. The three were tried together and, after a three-week trial, a jury convicted Jacoby of 11 counts of wire fraud, three counts of money laundering, and two counts of bank fraud; Derek Zar of four counts of wire fraud and one count of money laundering; and Susanne Zar of three counts of wire fraud and one count of money laundering. Each defendant was sentenced to a term of imprisonment and ordered to pay restitution. They each appealed separately, but the Tenth Circuit joined the appeals.

The Tenth Circuit first considered Derek’s and Susanne’s challenges to the district court’s denial of the Zars’ joint motion to sever their trial from Jacoby’s, their joint motion to dismiss the indictment based on Speedy Trial Act violations, and their joint motion to suppress statements made to IRS agents. Because the motion to sever and the motion to dismiss were both based on Speedy Trial Act violations, the Tenth Circuit considered those first. Noting that the Speedy Trial clock is tolled when motions are pending, the Tenth Circuit initially found that motions were pending during the entire period the Zars contest was applicable to their speedy trial rights. The Tenth Circuit analyzed the district court’s rulings and found that it did not abuse its discretion in denying the severance motion, and counted only 23 days ticked off the speedy trial clock between the indictment and the trial. The district court’s denials of the motions to dismiss and to sever were affirmed.

Next the Tenth Circuit evaluated the statements the defendants made to IRS agents. Although it was somewhat concerned that the agents did not specifically announce that their questioning of the Zars was a consensual conversation, the Tenth Circuit found no error in the district court’s allowance of the testimony. The Tenth Circuit found that the statements made by the Zars to the IRS agents were non-testimonial and not barred. Susanne Zar also argued that the admission of statements Derek Zar made to an IRS agent violated her Confrontation Clause rights as stated in Crawford v. Washington. After a plain error review, the Tenth Circuit concluded that the district court’s limiting instruction sufficiently ameliorated any harm that could have come from admission of the statements.

The three defendants jointly argued that Instruction 17 incorrectly stated the elements of wire fraud by omitting an essential element, the scheme to defraud, and by adding an element which impermissibly broadened the basis for conviction. The Tenth Circuit analyzed the instruction and found that the district court correctly applied Tenth Circuit precedent in omitting the language from the instruction. The Tenth Circuit further found that the modifications to the instruction were harmless, and if they had any effect it worked in defendants’ favor. The three defendants also asserted ineffective assistance of counsel claims, which the Tenth Circuit dismissed as unripe since they had not yet been adjudicated in district court.

The defendants also all challenged their sentences, averring the increase in base offense level was unsupported and relying on Apprendi and Alleyne. The Tenth Circuit found their reliance misplaced, since none of the defendants were subject to mandatory minimum sentences. It evaluated each defendant’s sentence and affirmed each separately.

The Tenth Circuit affirmed the district court’s rulings as to each defendant.

Tenth Circuit: Unpublished Opinions, 8/24/2015

On Monday, August 24, 2015, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Macias v. Southwest Cheese Co., LLC

United States v. Soto-Robledo

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

Tenth Circuit: Unpublished Opinions, 8/21/2015

On Friday, August 21, 2015, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Jenkins

Windsor v. Patton

Willis v. Department Stores National Bank

Patriot Manufacturing, LLC v. Hartwig, Inc.

United States v. Turner

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