April 30, 2017

Colorado Court of Appeals: Sentence Enhancement Based on Victims’ Ages Not Structural Error

The Colorado Court of Appeals issued its opinion in People v. Ewing on Thursday, January 26, 2017.

Leon Ewing was accused in March 2013 of sexually assaulting two brothers, M.B. and J.B., during the summer of 2008 while he was living in their family’s home. The boys were around 11 and 13 at the time of the assaults. The allegations arose in May 2011, and although they were investigated, Detective Nicholas Kundert could not locate Ewing until December 2012. After Ewing was located, he was charged with nine class 3 felony counts of sexual assault on a child by one in a position of trust—eight pertaining to the crimes against J.B. and one pertaining to the crimes against M.B. For the eight charges concerning J.B., Ewing was charged with one count of sexual assault on a child by one in a position of trust (pattern of abuse), and one count of sexual assault on a child by one in a position of trust (victim under 15 years old) for each of four separate incidents. The charge pertaining to M.B. was one count of sexual assault on a child by one in a position of trust (victim under fifteen 15 old). The complaint also included three crime of violence counts.

The jury convicted Ewing of two counts of sexual assault on a child by one in a position of trust — one against J.B. and one against M.B. It specifically found that the assault against J.B. was not committed as part of a pattern of abuse. The jury made no findings regarding J.B.’s and M.B.’s ages at the time of the assaults. At sentencing, the court entered convictions and sentences for two counts of class 3 felony sexual assault on a child by one in a position of trust (victim under 15 years old). Sexual assault on a child by one in a position of trust is typically a class 4 felony. However, the offense is elevated to a class 3 felony if the victim is less than 15 years of age.

On appeal, Ewing contended that because the jury made no finding as to the ages of the victims at the time of the assaults, the district court erred in entering convictions and sentences for a class 3 felony. The court of appeals characterized the elevation of the offense to a class 3 felony as a sentence enhancer. The court held that although the district court erred in enhancing Ewing’s sentence without submitting the question to the jury, the error was harmless. The court found no reasonable possibility that the jury could have concluded that the victims were 15 or older at the time of the offenses. The information alleged that the offenses occurred between May 1, 2008, and August 31, 2008. Because each victim testified to his birthday, the jury was presented with undisputed evidence that the boys were not yet 15 years old at the time of the assaults. The Colorado Court of Appeals found no plain error in the district court’s sentence enhancement.

Ewing also argued that his recross-examination of Detective Kundert was impermissibly limited by the trial court. During Detective Kundert’s testimony, defense counsel asked to recross the detective “on biases,” arguing that the prosecution brought up “witness bias and/or interviewer/interrogative bias,” which had not been previously raised on direct or cross-examination. Defense counsel did not, however, raise a Confrontation Clause issue. The court denied the request, stating that the issue was extrinsic and had already been addressed. Because Ewing did not raise the Confrontation Clause issue in the trial court, the court of appeals reviewed for plain error and found none. The court found that the trial court’s decision to deny the recross was not in error because any information that could potentially have been elicited was only marginally relevant. Even assuming error, the court of appeals did not find that it rose to the level of plain error.

The court of appeals affirmed Ewing’s convictions and sentences.

Colorado Court of Appeals: Retrial Following Hung Jury Does Not Violate Double Jeopardy Clause

The Colorado Court of Appeals issued its opinion in People v. Beller on Thursday, December 30, 2016.

Peter Wilson Sund Beller arranged to buy two ounces of marijuana from a man named Justin Singleton. Singleton testified that Beller attempted to steal marijuana from him and his dad, and during the ensuing shooting Singleton’s dad was fatally shot and Beller was shot in the chest. Beller was charged with felony murder, two counts of aggravated robbery, and lesser non-included offenses of attempted aggravated robbery, robbery, and attempted robbery. The jury acquitted Beller of aggravated robbery but was hung on the felony murder count. He was retried for felony murder.

Before the second trial, Beller moved for judgment of acquittal, arguing that the Double Jeopardy clause precluded retrial on that count. During the second trial, the court identified robbery and attempted robbery as the predicate offenses for felony murder, but they were not charged separately. Beller was convicted of felony murder.

On appeal, Beller argued his second trial and conviction violated the Double Jeopardy clause, and the court’s admission of certain statements violated hearsay rules and the Confrontation Clause. The court of appeals addressed his Double Jeopardy claims first.

Beller argued that the felony murder charge and all four robbery charges were the same offense for Double Jeopardy purposes. The court agreed. However, the court noted that the Double Jeopardy clause only applies where there has been an event, such as an acquittal, that terminates the original jeopardy, and noted that a hung jury is not such an event. Beller argued that the first jury’s not guilty verdicts on the robbery offenses precluded the second trial on the greater offense of felony murder. He also argued that the acquittals precluded the use of the robbery charges in the second trial as predicate offenses. The court of appeals disagreed with both arguments. The court found that the fact that Beller was charged in the same information in the same case was fatal to his arguments. After a detailed analysis of other Double Jeopardy cases, the court of appeals noted that Double Jeopardy only applied where the offenses were charged separately. The court concluded that jeopardy did not terminate on the felony murder charge after Beller’s first trial.

The court also disagreed with Beller that his acquittals on the aggravated robbery charges precluded the use of robbery as a predicate offense for the felony murder charge. The court noted that there were several possible reasons for the jury’s acquittal, such as finding that Beller did not actually steal anything of value from the Singleton residence, or that he repeatedly asserted he did not remember firing his weapon. The court noted that the acquittal on the aggravated robbery charge did not necessarily decide whether he committed the lesser offense of simple robbery. The court found that Beller’s retrial was not barred by Double Jeopardy or issue preclusion.

Beller also argued that the trial court erred in allowing hearsay statements from the girlfriend of his accomplice, Shaffer, and from his girlfriend. The statements in question were made by Shaffer to the two women regarding the crime and Beller’s admission to the hospital. The court of appeals found no error in their admission. The court found the statements admissible under the statement against interest exception to the hearsay rule, CRE 804(3). The key issue was whether the statements were independently trustworthy. The court concluded that they were, finding that because they were made shortly after the crime and at the home of his girlfriend and Beller’s girlfriend, they were sufficiently trustworthy.

The court of appeals affirmed Beller’s conviction.

Colorado Court of Appeals: Cell Phone Records Created in Regular Course of Business are Nontestimonial

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, October 20, 2016.

Two men, one masked and one not masked, held up a fast-food restaurant at gunpoint. The unmasked man was identified in surveillance video as David Maestas. Police found a car nearby that was registered to Maestas’ wife, and in the car was a cell phone and pair of jeans consistent with those used in the robbery. DNA on the waistband of the jeans was traced to defendant, and several cell phone calls were made to a number listed in the phone as “Ray’s mom.” Defendant was tried separately from Maestas, and a jury convicted him of aggravated robbery. He was adjudicated a habitual offender.

Defendant appealed, arguing three points of error: (1) his Confrontation Clause rights under the U.S. and Colorado Constitutions were violated by admission of the cell phone records; (2) he was denied a fair trial because the prosecutor misstated the evidence; and (3) during the habitual offender trial, his Confrontation Clause rights were violated by admission of sentencing and prison records.

The Colorado Court of Appeals first addressed Defendant’s contention that admission of the cell phone records violated his Confrontation Clause rights. The court examined Crawford v. Washington and found that in order to be considered testimonial, the records must have been made in anticipation of litigation. The court also found a Tenth Circuit opinion dispositive, United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011). In Yeley-Davis, the Tenth Circuit determined that cell phone records kept in the course of regular business by the cell phone company were nontestimonial. The Colorado Court of Appeals found this reasoning persuasive. Although the printout of the records was ultimately included in evidence, the cell phone company created the records in the ordinary course of business and not for litigation purposes. Defendant also contended that his Colorado constitutional rights were violated because there was no showing that the custodian of the records was unavailable. The court of appeals disagreed, citing People v. Dement, 661 P.2d 675 (Colo. 1983). The supreme court’s Dement test provides that the unavailability requirement is subject to an exception when the utility of trial testimony is very remote. Because there would be little practical effect of having the cell phone company’s custodian of records testify, the court found no error.

Defendant also contended the prosecutor impermissibly informed the jury that it was impossible that someone other than Defendant had contact with the jeans. The court of appeals disagreed with Defendant’s characterization of the prosecutor’s statements. The court found that, although the prosecutor’s statements could have been worded more artfully, he did not tell the jury with certainty that the jeans came from Defendant. The court found no error. The court also found no cumulative error, since it found no error at all.

Defendant argued that, during the habitual offender phase of his trial, the court erroneously allowed evidence of sentencing and prison records without requiring the presence of the record custodian. The court of appeals found this contention analogous to Defendant’s argument about the cell phone records and found no error for the same reason.

The court of appeals affirmed the judgment.

Colorado Court of Appeals: Defendant’s Confrontation Clause Rights Not Violated by Video Conference Deposition

The Colorado Court of Appeals issued its opinion in People v. Hebert on Thursday, September 8, 2016.

Michelle Ann Hebert convinced an elderly gentleman to give her loans totaling several hundred thousand dollars and did not repay him. The elderly gentleman called the police, and Hebert was charged with theft from an at-risk adult. A public defender was appointed for Hebert, and the prosecution moved that same day to depose the victim. The prosecution requested that the victim be deposed from his own home via video conference due to his failing health. The defense argued that allowing a video conference deposition would violate Hebert’s Confrontation Clause rights, and that his assistance would be ineffective because he did not have time to prepare. The district court granted the prosecution’s motion after a hearing, but ordered that the deposition be held in five weeks in order to give the defense time to prepare. Six weeks later, the victim was deposed via video conference and the deposition was recorded. The victim died before trial, so the recorded deposition was admitted at trial.

After the deposition but before trial, Hebert retained private counsel. Shortly thereafter, the People charged Hebert with additional tax-related offenses, and her private counsel moved to withdraw. Hebert requested appointed counsel, but the public defender’s office determined she was ineligible. She represented herself at trial and was convicted on all counts. She appealed, arguing that the district court erred in failing to make its own findings after the district court found her ineligible for appointed counsel, and by admitting the recorded deposition at trial.

The Colorado Court of Appeals first addressed Hebert’s contention about appointed counsel. In her application, Hebert contended she had meager assets, was responsible for three children, and was separating from her husband. On her joint tax return, she claimed approximately $76,000 in income for that year. The district court considered the tax return and Hebert and her husband’s testimony. Her husband testified that they had never separated, and Hebert admitted she had only claimed they were separating so she could qualify for a public defender. The district court considered the evidence and determined Hebert was not qualified for a public defender. The court of appeals determined the district court’s findings were supported by evidence and therefore there was no abuse of discretion.

The court of appeals next evaluated Hebert’s claims that she was denied a fair trial when the district court admitted the video testimony before her counsel had adequate time to prepare for the deposition. The court of appeals perceived no error. The district court specifically postponed the deposition so that counsel would be able to prepare prior to the deposition.

Hebert also argued her Confrontation Clause rights were violated because she did not have the opportunity to confront her accuser face-to-face. The court of appeals noted that the right to confront an accuser face-to-face is not absolute, and when public policy concerns warrant and the reliability of testimony is otherwise assured, testimony may be obtained other than face-to-face. The court found that the victim in this case was medically unavailable due to his fragile health, crediting two letters and an affidavit from the victim’s doctor that stated that being in the same room with Hebert would cause the victim’s blood pressure to rise to a potentially fatal level. The court of appeals agreed with the district court that the victim’s fragile health necessitated a video conference deposition from the victim’s home. The court found the video reliable, because he gave testimony under oath, was contemporaneously cross-examined by Hebert’s counsel, and the jury was able to assess his demeanor in the video. The court also found no Crawford violation from the video testimony, because the victim was deceased at the time of trial and Hebert was fully able to cross-examine him during the deposition.

The court of appeals affirmed the conviction and sentence.

Colorado Court of Appeals: No Confrontation Clause Right Exists in Restitution Hearing

The Colorado Court of Appeals issued its opinion in People v. Vasseur on Thursday, July 14, 2016.

Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Note Written by Murder Victim was Testimonial Hearsay

The Colorado Court of Appeals issued its opinion in People v. McFee on Thursday, June 30, 2016.

L.E. was an in-house manager of a residential facility for people with HIV and AIDS. One night, a resident found her lying in a pool of blood in the hallway. By the time police arrived, L.E. was dead. A few months later, police arrested Jonathan McFee, L.E.’s ex-boyfriend, for the murder. At trial, numerous witnesses testified about hearing McFee threaten to kill L.E., and the prosecution introduced an audio recording of a statement muttered by McFee during a break in interviewing that sounded like “I did it. That bitch.” A handwritten note from L.E. was admitted into evidence, which expressed that McFee had threatened to kill her and it was only a matter of time until he succeeded. The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.

McFee appealed, arguing that testimony of L.E.’s mother, daughter, and cousin about McFee’s intention to kill L.E. were hearsay and were improperly admitted. McFee also argued that the handwritten note was testimonial hearsay that was improperly admitted. The district court determined that the statements of the mother, daughter, and cousin were admissible under CRE 807 (residual exception), and arguably under CRE 803(3) (state of mind exception). The court of appeals agreed with the district court that the statements were properly admitted under CRE 807. The court of appeals found that L.E.’s statements were trustworthy because they were made spontaneously to close family members, they were not self-serving, and L.E. had no motive to lie about McFee’s threats. Additionally, all of the witnesses testified that L.E. seemed afraid when describing the threats. Further, the statements tended to show that L.E.’s and McFee’s relationship was volatile and he had a motive to kill. The court found that the statements were properly admitted.

Next, McFee argued that L.E.’s note was testimonial hearsay and should have been excluded because it violated his Sixth Amendment Confrontation Clause rights. The court of appeals agreed, but found that any error in admitting the note was harmless beyond a reasonable doubt. The court of appeals found that the note was created out of court to substitute for testimony in the event of L.E.’s death and therefore was “testimonial.” And because L.E. was unavailable at trial and McFee had not had prior opportunity for cross-examination, admission of the note violated McFee’s Confrontation Clause rights. However, the court found that any error in admitting the note was harmless beyond a reasonable doubt. Several witnesses testified as to threats McFee had made to kill L.E., McFee’s DNA was on the murder weapon, he had a key to the facility where L.E. lived on his key ring at the time of his arrest, he failed to contact L.E.’s daughter after the murder despite his close relationship with her, and he may have said “I did it” on the audio recording. Given the plentiful evidence of McFee’s guilt, the court found that admission of the note was harmless beyond a reasonable doubt.

The court of appeals affirmed McFee’s conviction.

Colorado Court of Appeals: Confrontation Rights Violated when Defendant Not Allowed to Ask Victim About Impairment

The Colorado Court of Appeals issued its opinion in People v. Dunham on Thursday, May 19, 2016.

The victim and his friend were involved in a confrontation in an apartment complex parking lot in the early morning hours of July 8, 2012. At some point, Defendant pointed a gun at the victim and his friend. The confrontation ended when Defendant pointed his gun into the air and fired. After leaving the parking lot, the victim was shot several times at a nearby intersection. The only witnesses besides Victim and Defendant were a husband and wife who saw a man running from the scene of the shooting but could not identify the shooter.

Defendant was charged with attempted first degree murder after deliberation, attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. At trial, defense counsel sought to admit evidence that Victim had consumed methamphetamine the night of the shooting as res gestae evidence under CRE 404(b). The issue arose several times during trial and each time the trial court denied the defense’s request. Defendant was acquitted of the first degree murder charge but convicted on the other charges and sentence enhancer. He appealed, contending the trial court committed constitutional error by denying his requests to question the victim about his methamphetamine use.

The Colorado Court of Appeals found that the trial court erred in finding the evidence was insufficient to allow the jury to consider the matter, and further found that CRE 104(a) governed the relevance of the evidence. The court of appeals found that the evidence was sufficient to allow a jury to consider the statements made by Victim to police and hospital staff regarding his methamphetamine use. The court further found that the error was constitutional because Defendant’s Confrontation Clause rights were violated.

The court reversed and remanded for a new trial on the charges on which Defendant was convicted.

Colorado Court of Appeals: Defendant Must Personally Waive Presence During Crucial Times of Trial

The Colorado Court of Appeals issued its opinion in People v. Janis on Thursday, May 5, 2016.

Erin Janis stabbed Farest Logan outside a bar on Colfax. Janis, who was quickly apprehended by police, admitted to stabbing Logan, but asserted she did it in self-defense because he had helped someone else rape her and had assaulted her previously that day. Logan said he was just standing outside the bar when Janis stabbed him. Janis was charged with first degree assault.

At trial, defense counsel approached the bench during Logan’s testimony and informed the court that Janis was suffering ill effects from her psychiatric diagnoses and needed to leave the courtroom. The court granted defense counsel’s request without questioning Janis. She was ultimately convicted and sentenced to 12 years in prison, and appealed her sentence and conviction.

The court of appeals addressed whether a defendant in custody can waive appearance through counsel, and determined that it could not. Janis was in custody during the trial and was available for the court to question her regarding whether waiving her right to confront Logan was voluntary. Because the right to confront adverse witnesses is grounded in the Sixth Amendment and is fundamental, Janis was deprived of her right to a fair trial by not personally waiving her appearance.

The judgment was reversed and the case was remanded for a new trial.

Tenth Circuit: Confrontation Clause Only Implicated when Statement Admitted to Prove Truth of Matter Asserted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ibarra-Diaz on Monday, November 9, 2015.

An undercover detective with the Wichita Police Department set up a methamphetamine purchase from Jesus Ibarra-Diaz through a confidential informant (CI). The detective met Ibarra-Diaz and his girlfriend, Ana Valeriano-Trejo, in a shopping mall parking lot and got in their vehicle. Ibarra-Diaz indicated that another accomplice, Ricardo Estrada, would bring the drugs. When Estrada arrived, he recognized the detective and informed Ibarra-Diaz and Valeriano-Trejo that he was a cop. The detective got out of Ibarra-Diaz’s vehicle and confronted Estrada, and Ibarra-Diaz started to drive away, at which point police officers surrounded his vehicle and arrested him and Valeriano-Trejo.

After searching the two vehicles, officers found suspected methamphetamine in the wheel well of the vehicle Estrada was driving. Estrada, who was in a patrol car, voluntarily spoke to officers, telling them that there was over a pound of meth at the house he shared with Ibarra-Diaz and Valeriano-Trejo. Officers obtained a warrant and searched the residence, finding several pertinent items, including approximately one pound of meth in a container in the laundry room. A federal grand jury indicted the three co-defendants on one count of possession with intent to distribute a substance containing 50 grams or more of methamphetamine. Ibarra-Diaz exercised his right to a jury trial. He was convicted and sentenced to 188 months’ imprisonment.

Ibarra-Diaz appealed, raising several contentions of error. First, he argued that the district court violated his Confrontation Clause rights when it erroneously admitted several hearsay statements. Next, he argued he was denied a fair trial when the detective was allowed to present inflammatory testimony. Third, he contended that certain evidence rendered the indictment duplicitous and therefore denied him a fair trial. Finally, he contended there was insufficient evidence to support his conviction. The Tenth Circuit rejected each argument in turn, noting as an initial matter that all of Ibarra-Diaz’s arguments except his sufficiency challenge were raised for the first time on appeal and were subject only to plain error review.

Ibarra-Diaz argued that the district court erred in admitting through the detective’s testimony several statements of the CI or Mr. Estrada. The Tenth Circuit analyzed each in turn, reminding Ibarra-Diaz that a statement is only testimonial when it is admitted to prove the truth of the matter asserted. Ibarra-Diaz first argued it was error for the detective to testify that the narcotics investigation commenced because a CI gave information to the detective. The Tenth Circuit found no error, since the trial court stopped the detective’s testimony before he could reveal what he learned from the CI. Next, Ibarra-Diaz argued the court erred in allowing the detective to testify that the CI was afraid of Ibarra-Diaz. Because the detective’s remark was stricken from the record and the court gave the jury two separate instructions to consider only testimony that was not stricken, there was no error. Third, Ibarra-Diaz argued it was error for the detective to testify that the CI told him Ibarra-Diaz had “some dope” for sale. The Tenth Circuit found no error because the statement in question was not hearsay since it was offered for a different purpose than to prove the truth of the matter asserted. The Tenth Circuit similarly found no Confrontation Clause violations for the fourth and fifth points of error, since the actions in question were not statements. The next statement was also not hearsay because it was offered to explain the detective’s conduct. Ibarra-Diaz’s seventh challenge similarly failed because the detective was not reciting statements. The Tenth Circuit found that the eighth statement was also not offered to prove the truth of the matter asserted.

Ibarra-Diaz’s final Confrontation Clause challenge concerned the detective’s testimony that Estrada told him there was additional methamphetamine at the house. The government conceded that the statement was testimonial and violated the Confrontation Clause, but the Tenth Circuit did not find plain error because the admission did not substantially affect the outcome of the proceeding because even without the statement, overwhelming evidence supported Ibarra-Diaz’s conviction.

Ibarra-Diaz argued that some of the detective’s testimony was inflammatory and unduly prejudiced the jury. Ibarra-Diaz argued the statements unfairly painted a picture of him as a dangerous drug dealer. The Tenth Circuit elected to consider Ibarra-Diaz’s arguments as FRE 403 challenges, and found that the testimony was mostly irrelevant and its probative value was outweighed by the danger of confusing the issues or misleading the jury. However, the Tenth Circuit found that even if the district court erred, the error was not clear or obvious, and any error did not substantially prejudice Ibarra-Diaz. The Tenth Circuit noted that the evidence tended to show that the detective was afraid of Mr. Estrada, not Ibarra-Diaz, and the testimony had no effect on Ibarra-Diaz’s substantial rights.

The Tenth Circuit then turned to Ibarra-Diaz’s contention that he was deprived of a unanimous jury verdict by a duplicitous indictment. Ibarra-Diaz acknowledged that the indictment was not duplicitous on its face, but argued that the presentation of the two separate bundles of methamphetamine, taken from the vehicle and the house, rendered the indictment duplicitous because there were two factual presentations for the same offense. The Tenth Circuit declined to consider the issue, which was raised for the first time on appeal.

Finally, Ibarra-Diaz challenged the sufficiency of the evidence. At trial, the prosecution advanced two theories of Ibarra-Diaz’s guilt: as a complicitor and as a principal. Ibarra-Diaz confined his sufficiency challenge to the aiding and abetting theory, notably not challenging the theory of him as principal. The Tenth Circuit found this fatal to his arguments. Because there was more than enough evidence to support Ibarra-Diaz’s convictions as a principal, there was no need to address the aiding-and-abetting theory. However, the Tenth Circuit found ample evidence to support the complicitor theory as well.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Gang Can Meet RICO’s Interstate Commerce Element if Larger Encompassing Gang Trafficks Drugs

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia on Tuesday, July 14, 2015.

Defendants Pablo Garcia and Gonzalo Ramirez were members of the Diablos Viejos (DV) subset of the Norteños gang in Dodge City, Kansas. Garcia and Ramirez participated in several instances of gang violence, including a shooting at the Hernandez house involving Defendant Ramirez, a home invasion of a Guatemalan immigrant involving both Garcia and Ramirez, and a shooting of rival Sureños gang members in which Garcia shot and killed one man. Defendants, along with 21 others affiliated with the Norteños, were indicted in the U.S. District Court for the District of Kansas. Defendants were charged with (1) a conspiracy to violate RICO; (2) four VICAR offenses and discharge of a firearm in furtherance of a crime of violence; and (3) two VICAR offenses and brandishing of a firearm in furtherance of a crime of violence. In addition, Ramirez was charged with three VICAR offenses and discharge of a firearm in furtherance of a crime of violence. Twenty of the other defendants pleaded guilty and one was dismissed, leaving Ramirez and Garcia to stand trial. Defendants were found guilty by a jury on all counts. Ramirez was sentenced to life imprisonment plus 57 years, and Garcia was sentenced to live imprisonment plus 32 years.

Defendants appealed, arguing several points of error: (1) a Brady violation due to the government’s failure to disclose promises made to a key cooperating witness; (2) a Napue violation based on the government’s false trial evidence concerning the same promises to the cooperating witness; (3) an incorrect jury instruction on RICO elements; (4) unconstitutional application of VICAR because their crimes did not affect interstate commerce, and (5) a Confrontation Clause violation based on erroneously admitted hearsay testimony by an expert witness.

The Tenth Circuit first addressed Defendants’ claims of a Brady violation. The witness in question, Worthey, was also a DV member who was present during the shooting. The government disclosed several meetings with Worthey but failed to disclose two meetings, during one of which he was told that his cooperation in an unrelated state case would influence the government to recommend a lower sentence in the federal case. The government falsely stated that Worthey received nothing in exchange for his testimony, but later conceded the sentence reduction. The Tenth Circuit noted that the government conceded the first two prongs of a Brady evaluation — that the government suppressed evidence favorable to defendant — but disputed the third prong — the evidence’s materiality. Evaluating Worthey’s testimony and its significance, the Tenth Circuit found that although Worthey was a key witness, Defendants vigorously impeached him, including by admitting evidence of Worthey’s other meetings with the government and his testimony in exchange for sentence reductions. The Tenth Circuit found that although the government’s concealment of the meetings was “at best, . . . the result of gross incompetence,” the nondisclosure was immaterial.

Next, the Tenth Circuit evaluated Defendants’ Napue claim, premised on the same nondisclosure. The Tenth Circuit noted that the standard for a Brady claim is lower than that for Napue, since Napue requires intentional concealment. The Tenth Circuit found that Defendants failed to establish any elements of a Napue claim, finding that the district court could reasonably have accepted that the “imprecise questioning” of defense counsel could have led a police detective to misunderstand the question regarding Worthey’s interviews, and that it was reasonable that Worthey could have forgotten to mention the recorded meetings with the government. The Tenth Circuit found it illogical to presume Worthey would have intentionally failed to disclose two meetings when he disclosed others that were equally damaging to his credibility.

The defendants next argued that jury was improperly instructed on the evidence necessary to meet RICO’s interstate commerce requirement. Defendants argued that more than a minimal effect on interstate commerce was necessary to support the RICO charges, but the Tenth Circuit disagreed, finding plenty of precedent that a minimal effect of interstate commerce is sufficient. Defendants also argued that the DVs did not directly engage in economic activity. The Tenth Circuit, however, found ample evidence that the Norteños engaged in drug trafficking, including sending money to California for drug sales and selling drugs imported from California, so it found no error in the RICO instruction. The VICAR claims were premised on the interstate commerce requirement as well, so the Tenth Circuit rejected them for much the same reason.

Finally, the Tenth Circuit addressed the Confrontation Clause issue. Defendants asserted that the testimony of gang expert Shane Webb improperly “parroted” testimonial hearsay in violation of their Confrontation Clause rights. The Tenth Circuit evaluated Webb’s challenged testimony and agreed that some of the testimony was “quintessential parroting.” However, because the evidence was cumulative, the Tenth Circuit found the testimony harmless beyond a reasonable doubt.

Defendants’ convictions were affirmed.

Tenth Circuit: No Error in Admission of Anonymous 911 Call for Purpose of Explaining Investigation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, March 24, 2015.

After an anonymous 911 call alerted McAlester, Oklahoma police about two men transporting drugs, Maurice Edwards and Tony Washington were arrested. Both were charged with aiding and abetting each other to possess controlled substances with intent to distribute. At trial, Edwards objected to admitting the phone call into evidence, but the trial court ruled that the call was admitted for the limited purpose of explaining why an investigation was undertaken and therefore was not hearsay. The jury found defendant guilty beyond a reasonable doubt of either possession with intent to distribute or aiding and abetting possession with intent of marijuana and 5 grams or more of methamphetamine.

Edwards raised three arguments on appeal: (1) the phone call was testimonial hearsay and its admission violated the Confrontation Clause; (2) his indictment charged him only as an aider and abettor, not a principal, so the trial evidence and jury instructions constructively amended his indictment; and (3) in order for him to have been convicted as an aider and abetter, the jury was required to find beyond a reasonable doubt that someone else was the principal.

The Tenth Circuit first addressed the anonymous 911 call. Even assuming the call was inadmissible hearsay, the Tenth Circuit found any error was harmless because other evidence of Edwards’ guilt was overwhelming, the trial court issued a limiting instruction, and the Tenth Circuit found Edwards’ proffered defense “utterly implausible.”

Next, the Tenth Circuit evaluated Edwards’ constructive amendment argument for plain error since it was not properly preserved below. The Tenth Circuit found that Edwards’ argument failed at the first prong of the plain error test because there was no error. His indictment was sufficient to charge him both as a principal and an aider and abettor. The Tenth Circuit noted the indictment allowed Edwards to assert a double jeopardy defense.

The Tenth Circuit next evaluated Edwards’ argument that the aiding and abetting instruction omitted the essential element that someone else committed the crime. Again, the Tenth Circuit’s review was for plain error because the argument was not preserved below. The Tenth Circuit first noted there was no requirement for the district court to follow pattern jury instructions, and found that if there was any error in the proffered instructions, it was not plain.

The Tenth Circuit affirmed Edwards’ conviction.

Colorado Court of Appeals: Employment is a Thing of Value for Identity Theft Purposes

The Colorado Court of Appeals issued its opinion in People v. Campos on Thursday, April 23, 2015.

Employment—Identify Theft—Evidence—Impeachment—Credibility.

A police investigator discovered that defendant, an employee of ABM Janitorial Services, had been receiving paychecks under the name “S.A.” for approximately four years using S.A.’s social security number. Defendant was charged with identity theft, criminal impersonation, and two counts of forgery related to her hiring paperwork. The jury convicted defendant of identity theft and criminal impersonation but acquitted her of the two forgery counts.

On appeal, defendant contended that the evidence at trial was insufficient to convict her of identity theft. Because employment is a “thing of value” within the meaning of the identity theft statute, the evidence that defendant used S.A.’s personal identifying information to obtain employment at ABM was sufficient to sustain the conviction.

Defendant also contended that the trial court abused its discretion in restricting defense counsel’s recross-examination of Juan Martinez, an ABM manager, about whether he (1) had a valid social security number, and (2) was required to give ABM a social security number when he went to work there. The record shows that the trial court was well within its discretion to conclude that these two questions were repetitive of the areas already covered and were only marginally relevant. Further, precluding responses to the two questions did not excessively limit the defense’s ability to cross-examine Martinez, nor did the questions relate to Martinez’s bias, prejudice, or motive for testifying. Therefore, the court’s ruling was not an abuse of discretion and did not violate defendant’s rights under the Confrontation Clause. The judgment was affirmed.

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