March 1, 2015

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

e-Legislative Report: February 17, 2015

legislationCBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Meeting held Friday, February 13

SB 15-129 — Preserving Parent-child Relationships
Sponsor: Senator Kevin Lundberg (R)
The LPC voted to oppose this bill in part because of the fundamental way that it changed the presumption of parenting time away from the “best interest of the child” to a different standard more focused on the parents in divorce proceedings. The bill was heard in committee on Wednesday the 11th and was passed on a party line vote after substantial amendments. SB-129 was referred to the Appropriations Committee for consideration of the bill’s fiscal impact.

SB 15-174 — Uniform Substitute Decision Making Documents Act
Sponsor: Senator Patrick Steadman (D)
The LPC voted to oppose this bill. The committee felt that the bill conflicts with existing statute, was unnecessary in many respects and that it potentially created more gaps and questions with existing law than its adoption would solve.

HB 15-1091 — Policies On Juvenile Shackling In Court
Sponsors: Representative Susan Lontine (D), Senator Michael G. Merrifield (D)
The LPC was concerned that while this bill was very well intentioned, it raised significant potential problems with separation of power between the legislative and judicial branches.

At the Capitol: Week of February 9

SB 15-049 — Real Estate Title Vests In Entity Once Formed
Sponsors: Senator Beth Martinez Humenik (R), Representative Jon Keyser (R)
This bill, supported by the Bar, passed through the Senate this past week. It has been assigned to the House Business Affairs and Labor Committee and has not yet been calendared for a hearing.

HB 15-1121 — Wind Energy Generation
Sponsors: Representative Jon Becker (R), Senator Jerry Sonnenberg (R)
The bill, supported by the Bar, also passed through its first chamber (the House) last week. It will next be heard in the Senate, where it has been assigned to the Agriculture, Natural Resources & Energy Committee. It will be heard by that committee on February 19.

SB 15-077 — Parents’ Bill of Rights
Sponsors: Senator Tim Neville (R), Representative Patrick Neville (R)
The bill passed out of the Senate committee hearing on a party line vote, and was debated on the floor. The bill was passed with amendments, and now moves to the House for consideration. It has not been calendared for consideration.

SB 15-042 — Mandatory Reports Of Animal Abuse
Sponsors: Senator Jerry Sonnenberg (R), Representative Jon Becker (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1101 — Public Defender ADC Records Open Records
Sponsors: Representatives Rhonda Fields (D), Polly Lawrence (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1174 — Information Protections Domestic Violence Victims
Sponsors: Representative Terri Carver (R), Senator Laura Woods (R)
The CBA has not taken a position on this bill—though we are working with the sponsors to ensure that the program will work as intended and not harm the real estate transaction process as a result of its adoption or implementation. It is likely that the CBA and its sections will participate in stakeholder groups and work sessions this summer.

New Bills of Interest

Senate

SB 15-177 — HOA Construction Defect Lawsuit Approval Timelines
Sponsors: Brian DelGrosso (R), Mark Scheffel (R), Jonathan Singer (D), Jessie M. Ulibarri (D)
The bill states that when the governing documents of a common interest community require mediation or arbitration of a construction defect claim and the requirement is later amended or removed, mediation or arbitration is still required for a construction defect claim. These provisions are in section 2 of the bill.

Section 2 also specifies that the mediation or arbitration must take place in the judicial district in which the community is located and that the arbitrator must:

  • Be a neutral third party;
  • Make certain disclosures before being selected; and
  • Be selected as specified in the common interest community’s governing documents or, if not so specified, in accordance with the uniform arbitration act.

Section 1 adds definitions of key terms. Section 3 requires that before a construction defect claim is filed on behalf of the association:

  • The parties must submit the matter to mediation before a neutral third party; and The board must give advance notice to all unit owners, together with a disclosure of the projected costs, duration, and financial impact of the construction defect claim, and must obtain the written consent of the owners of units to which at least a majority of the votes in the association are allocated.

Section 4 adds to the disclosures required prior to the purchase and sale of property in a common interest community a notice that the community’s governing documents may require binding arbitration of certain disputes.

House

HB 15-1025 — Competency To Proceed Juvenile Justice System
Sponsors: Representative Paul Rosenthal (D), Senator Linda M. Newell (D)
The bill establishes a juvenile-specific definition of “incompetent to proceed” for juveniles involved in the juvenile justice system, as well as specific definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.

HB 15-1216 — Basis For Expert Opinion Testimony
Sponsors: Representative Kevin Priola (R), Senator John Cooke (R)
The bill prohibits a person from testifying concerning the person’s expert opinion unless certain conditions are met.

Tenth Circuit: Fourth Amendment Does Not Require Judge’s Signature on Search Warrant

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

Raul Cruz was convicted by a jury of knowingly and intentionally possessing methamphetamine with intent to distribute and sentenced to 63 months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Cruz subsequently filed a motion to vacate, set aside, or correct his sentence, alleging his trial counsel was ineffective for failing to move to suppress evidence uncovered during the search of his residence pursuant to an unsigned search warrant. The district court denied relief on this assertion, and Cruz appealed.

The Tenth Circuit found, upon examination of the record, that the affidavit and warrant had been presented to a New Mexico district judge on March 26th, 2010. The judge signed the signature lines on the affidavit but neglected to sign the warrant at that time. Officers executed the warrant on March 29, 2010, and found methamphetamine, horse steroids, cash, and false identification. Officers found no evidence of drug use in the home or by Cruz. Cruz admitted to possession of the drugs but not intent to distribute. Approximately a month later, the judge signed the warrant, dated it March 26, 2010, and wrote “Nunc Pro Tunc on this April 23, 2010″ below the date line.

Cruz asserted that his counsel should have moved to suppress the evidence seized during the search of his residence, as well as his subsequent statements to police about the fruits of the search, because the unsigned warrant was not “issued” by a judge. Cruz claims that such motion would have been meritorious and would ultimately have led either to dismissal of the charges against him or his acquittal at trial. The Tenth Circuit disagreed, finding instead that nothing in the text of the Fourth Amendment conditions the validity of a warrant on its being signed. The First Circuit recently dealt with surprisingly similar facts and rejected the defendant’s argument, concluding that nothing in the Fourth Amendment required the judge who made the probable cause determination to also sign the warrant. The Tenth Circuit exhaustingly examined the meaning of the term “issue” under the Fourth Amendment, and found no reason to impose conditions on a validity of a warrant that were not set forth by the Fourth Amendment itself. The Tenth Circuit therefore concluded that there was no support for an inference that Cruz’s counsel’s motion to suppress would have been meritorious, and found no deficient performance of his counsel.

The district court’s judgment was affirmed.

Colorado Supreme Court: Error for Trial Court to Take Judicial Notice of Defendant’s Absence in Court

The Colorado Supreme Court issued its opinion in Doyle v. People on Tuesday, February 17, 2015.

Colorado Rules of Evidence—Judicial Notice.

Defendant petitioned for review of the court of appeals’ judgment affirming his conviction for violating a condition of his bail bond. At the request of the prosecution, the trial court took judicial notice of the fact that defendant failed to appear in court on a particular day, as mandated by the relevant condition of his bond. The court instructed the jury that although it need not accept this judicially noticed fact as true, a judicially noticed fact is one that the court has determined is not the subject of reasonable dispute and one that the court has accepted as true.

The Supreme Court reversed. The resolution of a factual matter at issue in a prior judicial proceeding does not become an indisputable fact within the contemplation of CRE 201 because it was reflected in a court record. Accordingly, the trial court erred in taking judicial notice that defendant failed to appear in court on a particular day. Because the jury was instructed that this judicially noticed fact was not subject to reasonable dispute and had already been accepted as true by the court, the error was not harmless.

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

Tenth Circuit: Unregistered Firearm Charge Upheld Even Where Defendant Could Not Register Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Berres on Wednesday, January 21, 2015.

Bryan Berres entered a propane company in Oklahoma and set his backpack by the front door. Berres first asked if he could call his wife, then requested employees call an ambulance to take him to the VA hospital. Employees, suspecting Berres needed psychiatric treatment, called the ambulance. Medical personnel asked Berres if he had weapons. He relinquished a knife and said he had a .38 pistol in his bag. Police were called, and when they questioned Berres about the bag, he told police it also contained a flash bang device, electric matches, 8″ leads, and squibs. The propane company was evacuated, and Berres was transported to the hospital.

While at the hospital, an ATF agent from the Drug and Violent Crime Task Force interviewed Berres about the contents of the bag. Berres was “more than willing” to talk with the agent, and relayed that the bag contained a flash bang device, a .38 pistol, about 50 feet of Class C squib, about 70 feet of red paper fuse, two pounds of black powder, and night vision goggles. Berres relayed that he was taking the items to a wooded area to “get the government out of his body.” The agent spoke with the ATF officers at the propane store and they safely opened the backpack, finding a flash bang device, two cans of black powder, six feet of cannon fuse, 36 electric matches, 60 feet of quick match fuse, a .38 pistol, nearly 300 rounds of .38 ammunition, and 30 rounds of .223 ammunition. Berres was subsequently placed on a 72-hour mental health hold by hospital personnel.

Berres was eventually charged with three counts of possession of unregistered firearms, one for the flash bang device (Count 1) and two for combinations of parts from which an explosive device can be readily assembled (Counts 2 and 3). He filed a motion to dismiss, arguing that Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device, and that Counts 2 and 3 were multiplicitous. He also filed a motion to suppress the statements he made to the ATF agent at the hospital. The district court denied his motions but said that he could raise his multiplicity argument again at trial. Berres pled guilty before trial, specifically reserving his right to appeal.

On appeal, Berres argued first that his conviction on Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device as a transferee; flash bang devices must be registered by the maker or transferor and the transferee must be identified as part of the registration process. The Tenth Circuit, however, found that even though Berres could not register the device, it was legally registrable, and therefore the Tenth Circuit upheld his conviction on this count.

Berres next argued that Counts 2 and 3 failed to state an offense, because there is no duty to register an explosive device until it is assembled. The Tenth Circuit disagreed. The Tenth Circuit found that the statutory language “any combination of parts” precluded Berres’ argument. Berres next argued that Counts 2 and 3 were multiplicitous, since he could only make one explosive device from the parts. However, the indictment listed each can of black powder as a single ingredient, so the combinations of black powder canisters, cannon fuse, and electric matches could have been used to make more than one explosive device. The Tenth Circuit found no double jeopardy in the two counts.

Finally, Berres argued that his statements to the agent at the hospital should have been suppressed. The Tenth Circuit examined the circumstances of the interview and found it to be non-custodial. Berres was at the hospital at his own request, he was seated by the door during the interview, and he stated he was “more than willing” to talk with the agent. The Tenth Circuit found no error in allowing Berres’ statements.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Pretrial Motion Insufficient to Preserve Issue for Appellate Review

The Colorado Court of Appeals issued its opinion in People v. Dinapoli on Thursday, February 12, 2015.

Assault—Jury—Modified Allen Instruction—Mistrial—Pretrial Ruling—Contemporaneous Objection.

K.M.’s dog and defendant’s dog “got into a tussle.” After the dogs separated, K.M. and defendant engaged in a physical altercation, during which defendant hit K.M. with a tree branch, dislocating her arm. Defendant claimed it was self-defense. The jury found defendant guilty of one count of second-degree assault.

On appeal, defendant contended that she was entitled to a new trial because the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict. In response to the jury’s concern that they could not reach a verdict on the fourth charge, the court gave the jury a modified Allen instruction and instructed the jury to continue deliberations (Allen v. United States, 164 U.S. 492 (1896)). Trial courts are not required to supplement a modified Allen instruction with a mistrial advisement. Therefore, defendant was not entitled to a new trial on this argument.

Defendant also contended that she was entitled to a new trial because the prosecutor committed misconduct by referring to K.M. as the “victim” during trial. Although defendant obtained a pretrial ruling that precluded the parties from referring to K.M. as the victim, she never sought to enforce that ruling at trial with a contemporaneous objection. Because this error was not obvious and did not constitute plain error, defendant was not entitled to a new trial on this argument. The judgment was affirmed.

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

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

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

Colorado Court of Appeals: No Error in Denial of Crim. P. 35(c) Postconviction Relief Motion

The Colorado Court of Appeals issued its opinion in People v. Romero on Thursday, February 12, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Fifth Amendment—Sixth Amendment—Right to Counsel—Competency—Prosecutorial Misconduct.

Romero was convicted of first-degree murder for shooting A.S. He was sentenced to life in prison without the possibility of parole. He filed a motion for post-conviction relief pursuant to Crim.P. 35(c), which was denied without a hearing.

On appeal, Romero contended that attorney F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. Romero’s Fifth Amendment right to counsel had not attached because the police interview was not custodial. Romero’s Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s pre-indictment representation failed.

Romero contended that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. Because F.G. did not represent Romero during any critical stages of the case, did not help him prepare his defense, and did not otherwise appear on his behalf, the constitutional guarantee of effective assistance did not apply. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s post-indictment advice also failed.

Romero further contended that D.J. and R.C. ineffectively assisted him when they (1) allowed him to be tried while incompetent, and (2) failed to object contemporaneously to alleged prosecutorial misconduct at trial. The record reflects that defense counsel raised the issue of Romero’s competency numerous times, and the court made adequate rulings on the record each time. In regard to Romero’s claims of prosecutorial misconduct, even assuming that the prosecutor’s statements were improper and that counsel’s failure to object constituted deficient performance, Romero failed to allege facts demonstrating prejudice. Therefore, the post-conviction court did not err in dismissing these claims without an evidentiary hearing. The order was affirmed.

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

Colorado Court of Appeals: Period of Probation Under Deferred Judgment Does Not Count when Deferral Revoked

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, February 12, 2015.

Probation Termination—CRS § 18-1.3-1008(2).

In 2002, Anderson pleaded guilty to one count of sexual assault on a child, a class 4 felony, and one count of unlawful sexual contact, a class 1 misdemeanor. As part of the plea agreement, Anderson entered into a stipulation for a deferred judgment and sentence on the felony count, which continued the case for four years.

Three years later, the probation department filed a revocation complaint claiming Anderson had been unsuccessfully terminated from his sex offender treatment program for violating his treatment contract and was in arrears on payments toward the costs of his supervision. Anderson admitted to the violations and the district court revoked his deferred judgment and probation.

At a March 2006 hearing, the court sentenced Anderson to probation for ten years to life on the felony count. In August 2013, Anderson moved to terminate his probation and for a review hearing under CRS § 18-1.3-1008(2). He argued that he had been on probation for eleven years. He acknowledged that his deferred judgment had been revoked but claimed he had maintained compliance with his probation. Although the probation department agreed he had successfully completed his treatment, it stated it could not recommend termination because he had not completed ten years of probation. The district court denied Anderson’s request without a hearing.

On appeal, Anderson argued that the period during which he was supervised in connection with his unsuccessful deferred judgment constituted probation within the meaning of CRS § 18-1.3-1008(2). The Court of Appeals was not persuaded. Under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), a district court may sentence a sex offender to probation for at least ten years for a class 4 felony. After serving ten years of probation, the offender may petition the court to be discharged from the indeterminate probation sentence. There is no discretion to terminate probation before a sex offender has completed the minimum term of probation. The Court rejected Anderson’s argument that supervision under a deferred judgment is the same as probation under SOLSA. His argument contravenes the plain language of the statute.

The Court concluded that the district court correctly determined it did not have authority to consider Anderson’s request at the time it was made. Accordingly, the order was affirmed.

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

e-Legislative Report: February 10, 2015

legislationCBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Meeting held Friday, February 6
The following bills were discussed for action during last Friday’s LPC meeting.  Other bills of interest from that agenda are tracked and updated below.

SB 15-042 – Mandatory Reports Of Animal Abuse
(Senator Sonnenberg & Representative J. Becker)
The intent of the sponsors was to criminalize the recording of undercover videos showing animal cruelty in farming practices.  The Bar sections could not support the bill, or a subsequent “strike below”* amendment, because the language was overly broad, potentially unconstitutional and would lead to unintended consequences.  The LPC voted to oppose this bill at the recommendation of the Animal Law and Agricultural Law Sections.

HB 15-1101 – Public Defender ADC Records Open Records
(Representatives Field and Lawrence)
The LPC voted to oppose this bill as well.  The committee was concerned about the impact of Rule 1.6 and the financial impact of the bill to the State.  There was also concern that this bill would open the door for CORA requests of the Judicial Branch – and the potential impact that would have.  The LPC voted unanimously to oppose this bill.

HB 15-1037 – Freedom of Conscience Higher Ed
(Representative Priola & Senator Neville)
This bill was considered at the request of the Civil Rights Committee who presented that the bill was intended to “protect religious freedom and the right of association.”  After some discussion, the LPC voted to take no position on this bill.

At the Capitol: Week of February 2

HB 15-1135 – Terminally Ill Individuals End-of-life Decisions
(Representatives Court and Ginal & Senator Guzman)
HB 1135 was the big bill last week at the capitol.  Testimony began a little after 9:30am and concluded shortly before 10pm!  The emotional level of testimony was compelling.  There were approximately 120 people that signed up to testify for the bill ranging from all types of organizations and all walks of life. Many made passionate testimony on both sides of the bill which was a true indicator that our group made the correct policy decision to fix the issues and then maintain our neutrality. It is an issue that people either feel at a core level to support or they don’t.  The Committee voted to send the bill to the next committee Appropriations.  That motion failed 8-5.  There was a motion to Postpone the bill indefinitely, (passing 9-4) killing the bill for the remainder of the session.

Many Bar sections weighed in on the bill, its technical merits, and the drafting problems of the bill.  While individual sections had vigorous debates on the policy of “death with dignity” or physician assisted suicide, the LPC took no position on the bill itself.

SB 15-077 – Parents’ Bill of Rights
(Senator Neville & Representative Neville)
This Senate Bill sponsored by the father-son legislative team from Jefferson County was heard and passed out of the Senate committee last week.  The bill is set for its key second reading on Wednesday. Senate Bill 77, the so-called “Parents’ Bill of Rights” sponsored by Sen. Tim Neville and Rep. Patrick Neville, would give parents certain rights over the health care, education and mental health care of minor children.  The Bar Association voted to oppose this legislation at its LPC meeting on January 30.

SB 15-049 – Real Estate Title Vests In Entity Once Formed
(Senator Martinez Humenik & Representative Keyser)
This bill – supported by the bar – continues through the legislature on a straightforward course. It has now passed the Senate and will be heard in the Hose Business Affairs and Labor Committee, where Rep. Keyser will be the key sponsor.

HB 15-1121 – Wind Energy Generation
(Representative J. Becker & Senator Sonnenberg)
This Bar supported bill is also progressing through the legislative process.  Representative Becker has successfully completed the House process, and the bill passes to Senator Sonnenberg for the final leg of its legislative journey.

New Bills of Interest

Senate

SB 15-129 – Preserving Parent-child Relationships
(Senator Lundberg)
The bill amends provisions relating to best interests of a child in domestic relations actions and certain other actions in the juvenile code. With respect to such actions, the bill:

Amends the legislative declaration to emphasize the fundamental liberty interest of both parents and children in maintaining the parent-child relationship;

With respect to temporary orders hearings, if there has been a temporary or permanent protection order entered against one or both parties either prior to or in conjunction with the domestic relations action, requires the court to grant an expedited hearing at the request of either party for purposes of modifying provisions in the protection order relating to parenting time, communication, and access to a child. The court shall order substantially equal parenting time and access to the child unless it finds that such orders are clearly not in the child’s best interest. The court shall also enter any orders necessary for the safety of the protected party relating to the restrained party’s parenting time with the child.

Changes the nature of an investigation by a court-appointed child and family investigator (CFI) from evaluation and recommendations to investigation and fact-finding. CFIs will conduct an objective investigation of issues as specifically directed by the court and will provide written factual findings to the court that are supported by credible evidence. A CFI’s report will not make recommendations regarding the allocation of parental responsibilities but will provide the court with the factual findings the court deems necessary to make such determinations.

Amends language in the legislative declaration regarding the allocation of parental rights and responsibilities relating to the best interests of the child. Also, the bill requires the court to allocate substantially equal parenting time unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall award mutual decision-making responsibilities with respect to the child unless the court finds that such an order is clearly not in the child’s best interest.

For purposes of temporary orders in a domestic relations action, requires the court to award substantially equal parenting time to the parties unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall order mutual decision-making responsibilities unless mutual decision-making is clearly not in the child’s best interest.

Changes the nature of an evaluation by a court-appointed parental responsibilities evaluator to an investigation by a mental health professional. The mental health investigation is limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court’s allocation of parental responsibilities for the child. The investigator’s report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities.

Clarifies that the 2-year restriction on filing motions that request a substantial change in parenting time and that also change the party with whom the child resides the majority of the time do not apply to moderate changes to parenting time when the existing parenting time order awarded substantially equal parenting time to the parties; and

Amends the provisions relating to modification of decision-making responsibility for a child from requiring the court to retain the prior decision-maker unless certain criteria are met to permitting the court to change the decision-maker after considering certain criteria, including whether an award of mutual decision-making responsibilities is now in the child’s best interest.

SB 15-174 – Uniform Substitute Decision Making Documents Act
(Senator Steadman)
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Substitute Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute decision-making document (document) executed outside this state is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a substitute document is subject to:  A court order mandating acceptance of the document; and Liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a substitute document under certain described conditions.

House

HB 15-1043 – Felony Offense For Repeat DUI Offenders
(Senators Cooke and Johnson & Representatives McCann and Saine)
Under current law, a DUI, DUI per se, or DWAI is a misdemeanor offense. The bill makes such an offense a class 4 felony if the violation occurred: (1) After 3 or more prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof; or (2) not more than 7 years after the first of 2 prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof, if the violation included at least one of the following circumstances: One or more persons less than 18 years of age were present in the person’s vehicle at the time of the violation;  In committing the violation, the person caused damage or injury to any property or persons;  After committing the violation, the person fled the scene; or At the time of the violation, or within 2 hours after the violation, the person’s BAC was 0.15 or higher. Under current law, aggravated driving with a revoked license is a class 6 felony. The bill changes the penalty to a class 1 misdemeanor but requires a sentencing court to ensure that an offender spends a minimum of 60 days in the custody of a county jail. Under current law, a person whose privilege to drive was revoked for multiple convictions for any combination of a DUI, DUI per se, or DWAI must hold an interlock-restricted license for at least one year following reinstatement prior to being eligible to obtain any other driver’s license. The bill expands this period to a minimum of 2 years and a maximum of 5 years. The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. The bill makes conforming amendments.

HB 15-1161 – Public Accommodation First Amendment Rights
(Representative Klingenschmitt)
The bill specifies that neither the civil rights division, the civil rights commission, nor a court with jurisdiction to hear civil actions brought under the public accommodations laws may compel involuntary speech or acts of involuntary artistic expression or involuntary religious expression by a person when such speech or acts of artistic or religious expression would lead to that person directly or indirectly participating in, directly or indirectly supporting, or endorsing or impliedly endorsing an ideology, ceremony, creed, behavior, or practice with which the person does not agree.

HB 15-1189 – Uniform Fiduciary Access to Digital Assets Act
(Representative Keyser & Senator Steadman)
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Fiduciary Access to Digital Assets Act”, as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access: The content of an electronic communication of a principal or decedent; A catalog of electronic communications sent or received by a decedent or principal; and  Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws.

“Fiduciary” means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill.

HB 15-1203 – Concerning earned time for certain offenders serving life sentences as habitual offenders
(Representative Rosenthal & Senator Steadman)
Under current law, an offender who was sentenced to a habitual offender 40-calendar-year life sentence before July 1, 1993, is not accruing earned time. The bill permits those sentenced under those circumstances to accrue earned time.

HB 15-1212 – Authority To Sell State Trust Lands To Local Gov
(Representative KC Becker & Senator Kerr)
In 2010, a law was enacted that allowed the state board of land commissioners (board) to convey land to units of local government if the conveyance would add value to adjoining or nearby state trust property, benefit board operations, or comply with local land use regulations. When enacted, the authority was set to repeal on July 1, 2015. The bill repeals that automatic repeal and makes the board’s authority permanent.

 

*a “Strike Below” amendment essentially replaces the entire bill below the title with an entirely different bill.  In practice this changes almost everything about the bill – but addresses the same topic, allowing for the sponsor to retain his/her bill and to continue working on the topic.  It is generally used when interested parties and stakeholders need a complete rewrite of the bill as originally introduced in ordrr to try and reach consensus.

 

Tenth Circuit: District Court Required to Review All Circumstances in Determining Validity of Batson Challenge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vann on Friday, January 16, 2015.

Rayvell Vann paid cash for a one-way Amtrak ticket from Los Angeles to Kansas City two hours before the train departed. A confidential informant relayed the unusual circumstances of the ticket purchase to DEA Agent Small in Albuquerque, and when the train made a scheduled stop in New Mexico, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann’s bags and he consented. The search revealed two bottles of codeine, 25 OxyContin pills, and two jars containing approximately 100 grams of PCP. Vann was interrogated and admitted to dealing drugs, but he contended he did not know the PCP was in the box where the pills were found because he had shipped the PCP via UPS. He was charged with two counts of possession with intent to distribute PCP and codeine, and was convicted on both counts. He dismissed his attorneys at sentencing, deciding instead to proceed pro se, and was sentenced to 15 years’ imprisonment. He appealed, raising four issues.

Vann’s first issue on appeal was that the district court committed legal error during jury selection because it improperly administered the three-part Batson test after the government moved to strike the sole African-American member of the venire. Both sides concede that the other party met its obligation as to the first and second parts of the Batson test, so the Tenth Circuit analyzed only the third part — the district court’s obligation to consider all circumstances in determining whether there was racial animosity in the juror strike. During trial, Vann objected to the prosecution’s strike of the juror, but Vann also filed a post-trial Rule 33 motion, arguing that the government’s reasons for striking the juror were pretextual. The Tenth Circuit examined the record, acknowledging the record was limited as to the district court’s reasons for accepting the prosecution’s race-neutral explanations. However, the Tenth Circuit noted that its precedent makes clear that the district court need not make a complete record as to the reasons for denying a Batson challenge, although the better practice may be to complete the record. As to Vann’s post-trial motion, the Tenth Circuit strongly discouraged the practice, finding that this put the district court into an awkward position. Vann could have instead reiterated his Batson challenge after the completion of voir dire but before the jury was empaneled, which would have allowed the court to adequately compare similarly situated jurors before the trial began.

Vann next contended the district court erred by allowing Agent Small’s expert testimony at trial. Vann does not claim error in the court’s qualification of Agent Small as an expert, contesting only the reliability of the testimony. The Tenth Circuit noted that the district court properly vetted Agent Small through a Daubert hearing and at trial. The Tenth Circuit also found that, contrary to Vann’s assertions, Agent Small had considerable experience in the drug trade and had attested to numerous PCP arrests. The Tenth Circuit found no abuse of discretion.

Vann’s third claim was that the district court erred in not sua sponte addressing alleged prosecutorial misconduct during trial. After reviewing the record, the Tenth Circuit found that the prosecution’s comments were “simply lawyering,” or attempts to influence the jury’s verdicts by presenting evidence favorable to its case. Further, a limiting instruction provided by the district court and limiting remarks made by the prosecutor mitigated any error there might have been.

Vann’s final claim is that he did not knowingly waive his right to counsel at sentencing. The district court had conducted a waiver-of-counsel inquiry at the beginning of trial, and Vann elected to have representation at trial. When Vann discharged his attorney at the sentencing phase, the trial court questioned whether he was firing his attorney as a tactic to gain time, since he had fired two previous attorneys. The court allowed him to proceed pro se at the sentencing phase. Vann contends that he did not receive an adequate waiver-of-counsel inquiry prior to sentencing, but the Tenth Circuit found he was adequately informed of the risks of proceeding unrepresented due to the previous inquiry.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Under Particular Circumstances, Officers Justified in Taking Protective Custody of Seemingly Intoxicated Individual

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Friday, January 16, 2015.

In January 2013, National Western Stock Show workers alerted police to the presence of a disoriented and seemingly intoxicated man, Andre Gilmore, wandering near cattle tie-ins in an exhibitor parking lot at the Stock Show. The responding officers parked near Mr. Gilmore, exited their vehicle, and began walking toward him. Mr. Gilmore did not appear to notice the police officers until they spoke to him. When the officers asked if he was alright and what he was doing in the area, Mr. Gilmore did not respond. One of the uniformed officers identified himself a police officer and asked again, and Mr. Gilmore mumbled an incoherent answer. The officers determined that Mr. Gilmore was highly intoxicated and was a candidate for protective custody. They conducted a pat-down search of Mr. Gilmore and found a handgun tucked into his waistband. The officers arrested him for possessing a firearm while intoxicated in violation of C.R.S. 18-12-106(d) and drove him to the Stock Show security office. Mr. Gilmore was in and out of consciousness during this time, but he managed to provide his name and birthdate to one of the officers, who used the information to access his criminal history. They discovered he had a prior felony conviction that prohibited him from possessing a firearm, and a federal grand jury eventually charged Mr. Gilmore with one count of being a felon in possession.

Before trial, Mr. Gilmore filed a motion to suppress the gun seized during the pat-down search, arguing the officers lacked reasonable suspicion to believe he was armed and dangerous. The district court held an evidentiary hearing and determined that although the evidence did not support a reasonable suspicion that Mr. Gilmore was armed and dangerous, the police had probable cause to take Mr. Gilmore into protective custody for detoxification, and as such were justified in conducting a pat-down search before taking him into custody. After the evidentiary hearing, Mr. Gilmore signed a conditional plea agreement, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 28 months in prison and timely appealed.

On appeal, Mr. Gilmore argued the district court erred in concluding the officers had probable cause to believe he was a danger to himself based on (1) his intoxication, (2) the dangerousness of the surrounding area, and (3) the danger posed by the cold weather. He conceded that if the officers had probable cause to believe he was a danger to himself, they were justified in conducting the pat-down search.

Mr. Gilmore contended that there was no evidence of his intoxication other than witness testimony that he appeared intoxicated, since there was no blood or breath analysis for alcohol intoxication. However, examining the totality of the circumstances, the Tenth Circuit found the officers were justified in finding Mr. Gilmore was a threat to himself or others due to his intoxication. His behavior suggested that he was disoriented and under the influence of alcohol or drugs, he did not initially react to the presence of the uniformed officers, and his reaction times were impaired.

Mr. Gilmore next argued that the government offered no evidence that the Stock Show was dangerous. However, officers testified that there was significant gang activity in the surrounding areas, and a disoriented person carrying a briefcase would be at risk for harm. Additionally, there were busy streets nearby, and Mr. Gilmore was at risk for wandering into traffic in his disoriented state.

As to Mr. Gilmore’s claims that he was dressed appropriately for the weather, the Tenth Circuit found evidence to support an inference that he would not have been appropriately dressed if he had passed out and been subjected to the day’s low temperature of -10 degrees Fahrenheit.

The Tenth Circuit affirmed the district court, concluding the officers had reasonable suspicion to believe Mr. Gilmore was a danger to himself because of his apparent intoxication in an environment that posed significant risks. The Tenth Circuit stressed that its finding was fact-specific and narrow, and that officers must have probable cause to take a person into protective custody.