June 18, 2013

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Tenth Circuit: Court Declines to Take Sides on Outrageous Governmental Conduct Defense

June 18, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Dyke on Monday, June 17, 2013.

Randy Dyke and Donald Steele labored in a small time criminal ring on a Kansas farm. They forged checks, peddled pills, and sold marijuana. The government convinced them to expand their operation, and they eventually counterfeited currency and manufactured methamphetamine. A jury found them guilty of drug, forgery, and counterfeiting charges. They appealed, arguing the charges against them should have been dismissed as a matter of law because the undercover operation amounted to outrageous governmental conduct.

A defendant asserting the outrageous governmental conduct defense bears the burden of proving either “(1) excessive government involvement in the creation of the crime, or (2) significant governmental coercion to induce the crime.” United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994).

The Tenth Circuit found that the existing cases suggested that looking to the defendants’ predisposition and his past and current conduct was appropriate because what qualifies as outrageous governmental conduct depends on an appreciation of the totality of the circumstances. After reviewing the record, the Tenth Circuit concluded that a reasonable jury could well have found Mr. Steele predisposed to manufacture methamphetamine and counterfeit currency.

The Tenth Circuit declined to take sides in the debate on the outrageous governmental conduct defense because in this case — as in so many cases before it — the right answers to the hard questions about the doctrine just don’t matter. The Court found defendants’ convictions to be legally sound, and the Tenth Circuit was confident the government had not crossed any boundary line in this case.

AFFIRMED.

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Tenth Circuit: Defendant’s Sentence for Cocaine Distribution and Revocation of Supervised Release Affirmed

June 18, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Dunbar on Monday, June 17, 2013.

Defendant appealed his cocaine distribution conviction and the revocation of supervised release. He raised four challenges: (1) that the district court conducted an inadequate inquiry into his request for new counsel and abused its discretion in denying his request; (2) that the district court abused its discretion in failing to construe his pro se pleading and various oral protests as motions to withdraw his plea; (3) that his plea was not knowing and voluntary because his counsel had given him inaccurate information; and (4) that his sentence on revocation of supervised release was procedurally and substantively unreasonable.

The Tenth Circuit held as follows: first, the district court conducted an adequate inquiry into Defendant’s request for new counsel, and did not abuse its discretion in denying the request because defense counsel’s explanation could persuade a reasonable jurist that counsel’s performance had been satisfactory and that any failures of communication had been Defendant’s fault. Second, the court did not err in declining to treat Defendant’s pro se pleading and oral statements as motions to withdraw his plea because Defendant was represented by counsel who did not make a timely motion to permit withdrawal of the plea and Defendant’s statements in any event were unclear or untimely. Third, Defendant did not raise in district court a challenge to the validity of his plea, and there was no plain error because the pertinent facts were not established in the record. And fourth, as to Defendant’s sentence on violation of the terms of supervised release, he failed to show plain error with respect to the procedural reasonableness of his sentence and his sentence was not substantively unreasonable.

AFFIRMED.

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Tenth Circuit: Petition for Writ of Habeas Corpus Granted Because Murders Occurred in Indian Country

June 17, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Magnan v. Trammell on Friday, June 14, 2013.

On March 3, 2004, James Howard and Karen Wolf were shot to death at a house in rural Seminole County, Oklahoma. Two other people, Lucilla McGirt and Eric Coley, were shot and wounded at the house.  McGirt died approximately two weeks later from complications of her gunshot wounds. Coley survived his injuries. All of the victims except Howard were enrolled members of the Seminole Nation of Oklahoma.

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest was unobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue.

In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability.

The Tenth Circuit only addressed the status of the surface estate and agreed with Magnan that the location where the crimes occurred was “Indian country” pursuant to 18 U.S.C. § 1151. The location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met. As a result, the state trial court lacked jurisdiction over the crimes. The federal government had exclusive criminal jurisdiction over his crimes pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153.

Consequently, the Tenth Circuit reversed the judgment of the district court and remanded with instructions to grant Magnan’s petition for writ of habeas corpus.

 

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Tenth Circuit: No Merit to Double-Jeopardy Claims in Charges Stemming from Shooting of US Marshals

June 17, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Angilau  on Friday, June 14, 2013.

This appeal arises from the latest in a series of four prosecutions by Utah and federal authorities of Defendant Siale Angilau on charges stemming from the shooting of two deputy United States marshals in August 2007. In the case before the Tenth Circuit, Defendant was indicted on four counts by a grand jury for the United States District Court for the District of Utah.

The four counts were as follows: one count charged racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO); the other three were based on the shooting: assaulting a federal officer (the assault count); assault with a dangerous weapon in aid of racketeering  (the VICAR count); and using or carrying a firearm during a crime of violence (the firearm count).

Defendant moved to dismiss the three shooting-related charges as barred by double jeopardy. He founded his argument on events in the first case brought against him by the federal government, in which prosecutors dismissed charges of assaulting the marshals. The district court ordered that the dismissal be with prejudice, because the government had not provided sufficient reasons for seeking dismissal.

Defendant argued that the three counts must be dismissed because they were based on the previously dismissed charges. The court granted his motion as to the assault count, which it ruled was identical to the assault charge in the first federal case, but it denied the motion as to the VICAR and firearm counts. Also, it rejected Defendant’s separate argument that all charges against him should be dismissed because the government had violated his due process rights by repeatedly bringing and dismissing charges against him. Defendant appealed while his case was pending trial.

On appeal, he continued to press his due-process challenge to both the firearm and VICAR charges. He also maintained that the Double Jeopardy Clause compelled dismissal of the firearm count, because it was the same offense as the firearm charge dismissed with prejudice in the first federal case. He added the new argument that the double-jeopardy doctrine of collateral estoppel barred the government from prosecuting the VICAR and firearm charges because facts necessary to convict him on these charges were found in his favor when the charges in the first federal case were dismissed with prejudice.

The Tenth Circuit held that (1) it had jurisdiction to hear Defendant’s double-jeopardy claims but lacked jurisdiction to hear Defendant’s due-process claim before final judgment in the criminal proceedings; (2) there was no merit to his double-jeopardy claim that the firearm count in this case was the same as the firearm count dismissed with prejudice in the first federal case, because the predicate crime of violence in the prior case had different elements than the predicate crime of violence in this case (the VICAR offense); and (3) neither the firearm charge nor the VICAR charge was barred by collateral estoppel because the previous dismissal did not resolve in his favor any element of the two charges.

 

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Tenth Circuit: Second-Degree Murder Conviction Affirmed of Mother Whose Daughter Died of Dehydration in Her Care

June 13, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Christie on Tuesday, June 11, 2013.

For Rebecca Christie, life must have seemed more virtual than real. She usually awoke around noon, settled in before her computer, and logged on to World of Warcraft for gaming sessions lasting well past midnight. There she assumed a new identity in a fantastical world filled with dragons and demons where players staged heroic adventures with and against other players. All the while back in the real world Ms. Christie ignored the needs of her three-year-old daughter (“BW”). The neglect didn’t prove fatal so long as Ms. Christie’s husband Mr. Wulf was around to provide some care. But nine days after her husband left for an out-of-state deployment, the child was dead from dehydration.

Ms. Christie appealed her second-degree murder and state child abuse convictions, raising significant questions about computer searches under the Fourth Amendment and the exclusion of witnesses from trial under the Sixth Amendment. The government’s cross-appeal raised important questions, too, touching on the Assimilative Crimes Act and the Fifth Amendment’s double jeopardy guarantee.

The Tenth Circuit held that the district court handled all these questions well and carefully and saw no grounds on which to reverse its judgment in this tragic case.

Much of the evidence presented at trial came from the computer she so prized. From their forensic analysis, FBI investigators learned that Ms. Christie’s online activities usually kept her busy from noon to 3 a.m. with little pause. They learned that she was in a chat room only an hour before finding BW near death, and that she was back online soon afterwards. They learned from Ms. Christie’s messages to other gamers that she was annoyed by her responsibilities as a mother and “want[ed] out of this house fast.”

Ms. Christie contended this evidence and more from her computer was uncovered in violation of her Fourth Amendment rights and the district court should have suppressed it from her trial. Ms. Christie doesn’t question whether the government’s seizure of the computer satisfied the Fourth Amendment. Instead, Ms. Christie attacked the propriety of the two searches the government undertook once it had control of the computer. To justify its searches, the government pointed to a pair of warrants it sought and received, one for each search. It was these warrants Ms. Christie challenged.

The first warrant came some five months after authorities seized the computer. Ms. Christie argued this delay was constitutionally impermissible, should have precluded any warrant from issuing, and itself required the suppression of everything the government found.

An unreasonable delay in obtaining a search warrant can sometimes violate the Fourth Amendment. In assessing the reasonableness of a delay in seeking a warrant, we must take account of “the totality of the circumstances.” United States v. Sokolow, 490 U.S. 1, 8 (1989). The task in each case is to “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983).

Mr. Wulf was at least a co-owner of the computer, he consented to its seizure, and Ms. Christie herself raised no objection to the seizure either at the time or in the following weeks and months. There was also undisputed evidence that the government was called away on other operations in the intervening months. The Tenth Circuit held that the government’s side of the ledger revealed a colorable interest in prioritizing law enforcement efforts while Ms. Christie could point to little harm to her interests in light of her husband’s express consent and her lack of objection.

Next Ms. Christie attacked the validity of the second warrant to conduct a more thorough search of her computer. She argued this warrant violated the Fourth Amendment’s promise that “no Warrants shall issue” without “particularly describing the place to be searched, and the persons or things to be seized.” A warrant isn’t ever supposed to be a license for just “a general . . . rummaging.” United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005).

No doubt the particularity requirement and its underlying purposes are fully engaged when investigators seek to search a personal computer. Personal computers can and often do hold “much information touching on many different areas of a person’s life.” United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001). They can contain (or at least permit access to) our diaries, calendars, files, and correspondence — the very essence of the “papers and effects” the Fourth Amendment was designed to protect.

The warrant in this case allowed the police to search the computer for “[a]ll records and information relating to the murder, neglect, and abuse of [BW] from June 19, 2002 (date of birth) to May 4, 2006, (date computer seized.” The Tenth Circuit found this limiting direction particular enough under the case law. See Brooks, 427 F.3d at 1252.

In her final Fourth Amendment attack, Ms. Christie returned to the theme of faulting the government for its delay in seeking the second warrant. However, after the government executed its first search warrant and found incriminating evidence, it was presumptively entitled to retain the computer through trial. The general rule is that lawfully seized property bearing evidence relevant to trial “should be  returned to its rightful owner once the criminal proceedings have terminated,” not before. United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1212 (10th Cir. 2001).

Ms. Christie further objected to the district court’s decision to exclude Mr. Wulf from the courtroom during the brief testimony of his ten-year-old daughter. Mr. Wulf’s exclusion, Ms. Christie insisted, violated her Sixth Amendment right to a public trial.

To support a partial closure of a trial, the district court need only identify a “‘substantial’ interest and document it with “sufficient findings to allow the reviewing court” to assess the decision. The Tenth Circuit held that “safeguarding the physical and psychological well-being of a minor” qualifies not just a substantial interest but a compelling one. See Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 607 (1982).

This took the Court to the government’s cross-appeal. At the end of Ms. Christie’s trial, the jury convicted her of one federal charge (second-degree murder) and three crimes assimilated from New Mexico state law (intentional child abuse resulting in death, negligent child abuse resulting in death, and negligent child abuse not resulting in death). After receiving the verdict, the district court dismissed the two assimilated state homicide charges, leaving Ms. Christie responsible for second-degree murder and negligent child abuse not resulting in death. In explaining its dismissal of the assimilated homicide charges, the court pointed to the fact New Mexico does not permit more than one homicide conviction per death and, in this case, Ms. Christie already stood convicted for second-degree murder.

On appeal, the government argued the state assimilated homicide charges should be reinstated. The Assimilative Crimes Act (ACA), 18 U.S.C. § 13, states in part that anyone “guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed . . . within the jurisdiction of the State . . . in which [the federal enclave] is situated, . . . shall be guilty of a like offense and subject to a like punishment.” In this case, the ACA required the district court to dismiss the assimilated state law claims after trial because New Mexico prohibits the entry of convictions for child abuse-resulting-in-death alongside a conviction for any other form of homicide. See State v. Santillanes, 27 P.3d 456, 468 & n.3 (N.M. 2001).

Apart from the ACA but not wholly unrelated to it, there remains the question of double jeopardy. The Double Jeopardy Clause of the Fifth Amendment protects not only against successive trials on the same charges but also against “multiple punishments for the same offense.” Whalen v. United States, 445 U.S. 684, 688 (1980). When a federal statute contains a plainly expressed direction on the question of multiple punishments, it controls. See Garrett v. United States, 471 U.S. 773, 779 (1985). In this case, the ACA states specifically how much punishment Congress wants the Court to impose: the ACA authorizes federal courts to impose “like punishment” and no more. “Like punishment” in this case means no punishment at all because in New Mexico courts would have to dismiss both of the child-abuse-resulting-in-death convictions given the presence of another homicide conviction. So, Ms. Christie cannot stand convicted of both second-degree murder and the dismissed state offenses.

One final issue remained. Ms. Christie argued the district court erred by failing to dismiss the state homicide charges before trial, rather than after. Even assuming (without deciding) that the district court committed an error by failing to dismiss the state homicide charges before trial, the Tenth Circuit found any such error was harmless.

AFFIRMED.

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Colorado Supreme Court: Dismissal of Defendant’s Petition for Postconviction Relief Based on Opposing Motion from Defendant’s Own Counsel Improper

June 12, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in Dooly v. People on Monday, June 10, 2013.

Post-conviction Relief—Crim.P. 35(c)—Crim.P. 12(a)—Ineffective Assistance of Counsel.

Defendant Joshua Dooly sought review of the court of appeals’ judgment in People v. Dooly (No. 10CA1751), which affirmed the district court’s dismissal of his application for post-conviction relief pursuant to Crim.P. 35(c). The district court denied Dooly’s request for new counsel and instead granted his existing counsel’s motion to dismiss his application altogether, on the ground that the issues it raised failed to state a claim and therefore were without arguable merit. The court of appeals upheld the district court’s order of dismissal, reasoning that Crim.P. 12(a) provides for a motion to dismiss an application for post-conviction relief, and that the public defender, as Dooly’s counsel of record, could file motions on behalf of his client, including a motion to dismiss his client’s application for relief from his convictions despite being in clear contravention of his client’s wishes.

Every person convicted of a crime is provided a statutory right to make application for post-conviction relief and is entitled to a prompt review and ruling on any motion substantially complying with Form 4 of the Rules of Criminal Procedure. Therefore, the district court erred in granting the motion to dismiss against defendant’s wishes. The judgment of the court of appeals was reversed with instructions to order that defendant’s application for post-conviction relief be reinstated.

Summary and full case available here.

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Tenth Circuit: Sentence Enhancements Appropriate Where Defendant Pled Guilty to Trafficking of Counterfeit Goods

June 12, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Zhou on Monday, June 10, 2013.

In 2009, federal agents began investigating Shengyang Zhou for selling counterfeit weight loss products to consumers throughout the United States. Over the course of the investigation, which lasted several years, undercover agents purchased tens of thousands of pills containing Sibutramine, a Schedule IV non-narcotic controlled substance that was at the time approved by the FDA only for the treatment of obesity in a patented drug commonly known as “Meridia.” Mr. Zhou’s pills were packaged and labeled as the weight loss drug “Alli.” The genuine product is manufactured by the pharmaceutical company Glaxo Smith Kline (GSK) and contains Orlistat. Mr. Zhou also packaged thousands of boxes of the Sibutramine labeled as “Super Slim” and “Meizitang,” two products listed in FDA alerts as containing ingredients that could put consumers’ health at risk.

Ultimately, at a meeting in Hawaii, a federal agent handed Mr. Zhou a stack of U.S. currency that was purportedly part of the $55,000 the agents had promised to pay him that day in exchange for a large shipment of counterfeit weight loss pills. Mr. Zhou was arrested after he accepted the money.

During a series of post-arrest interviews, Mr. Zhou told agents that he had been planning on completing a 10,000 unit order of counterfeit Alli and shipping the products to the undercover agents. He acknowledged that the contents of the capsules he had been distributing, and had been preparing to provide, did not contain the same ingredient as genuine Alli but instead contained Sibutramine.

Mr. Shengyang Zhou pled guilty to trafficking and attempted trafficking of counterfeit goods in violation of 18 U.S.C. § 2320 and § 2. He was sentenced to eighty-seven months’ imprisonment and three years’ supervised release, and he was ordered to pay restitution of $507,567.

Mr. Zhou raised four issues on appeal, and they were all objections to sentence enhancements.

A. Infringement Amount

Mr. Zhou first contended the district court erred in imposing a 14-level enhancement to his offense level by miscalculating the “infringement amount” under U.S.S.G. § 2B5.3(b)(1). He contended the court erred by including the not-yet-completed order of 10,000 bottles of counterfeit Alli without making findings regarding whether the sentencing guidelines provision on “attempt,” U.S.S.G. § 2X1.1, was satisfied.

The fact that the counterfeit Alli packaging was virtually indistinguishable from the authentic items supports the district court’s application of the 14-level enhancement. Samples of this packaging were sent to GSK employees who determined that, while counterfeit, the packaging was identical to or substantially indistinguishable from genuine packaging materials.

B. Mr. Zhou as Organizer or Leader

Mr. Zhou contested the four-level enhancement for being an “organizer or leader” under U.S.S.G. § 3B1.1(a), claiming the court failed to articulate the factual basis for this enhancement. Finding no clear error, the Tenth Circuit found that the record supported the district court’s conclusion that he was a leader or organizer for purposes of § 3B1.1(a). The record included Mr. Zhou’s statements to the agents that he owned two companies producing and distributing the counterfeit weight loss drugs, that he was “the boss” of this enterprise, and that he had no other partners in the venture.

C. Conscious or Reckless Risk of Death or Serious Injury

Mr. Zhou challenged the district court’s application of the two-level increase based on U.S.S.G. § 2B5.3(b)(5), asserting there was insufficient evidence he was consciously aware of a risk of death or serious bodily injury, and arguing the court failed to apply the correct standard of “recklessness” in making this determination.

The Tenth Circuit found no clear error in the district court’s finding that Mr. Zhou was consciously aware of both the FDA alerts describing the serious health risks posed generally by drugs containing Sibutramine, and the warnings specifically addressing the health risks of the counterfeit Alli he was producing and distributing. In light of this uncontested evidence, it was appropriate to add the two-level increase to Mr. Zhou’s offense level in accordance with § 2B5.3(b)(5).

D. Restitution

Mr. Zhou’s final argument was that the district court erred in ordering him to pay $417,396.39 in restitution to GSK under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. To the extent Mr. Zhou made legal arguments he failed to raise in district court, the Tenth Circuit found no  egregious or obvious and substantial legal error. A district court has broad discretion in crafting a restitution order under the MVRA. In sum, although the Tenth Circuit doubted there was any error at all, it affirmed the restitution order “because if there was error, it was not ‘clear or obvious under current law.’”

AFFIRMED.

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Bills Regarding Crimes Against Pregnant Women, UCC Article 9 Security Interests, and Valuations of Real Property Signed

June 11, 2013 by Leave a Comment

On June 5, 2013, Governor Hickenlooper signed 52 bills, the final bills of the 2013 legislative session. Any bills as yet not signed or vetoed by the governor 30 days after the last day of the legislative session, May 8, 2013, will become law.

Although there is not room here to summarize all of the bills signed on June 5, some of them are discussed below.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

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Colorado Court of Appeals: Private Employee Working at Public Building Not Considered “Public Official or Employee” in Criminal Context

June 11, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Moore on Thursday, June 6, 2013.

Impeding a Public Official or Employee—Private Employer—CRS § 18-9-110(2).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of impeding a public official or employee in a public building. The judgment was vacated.

Defendant, an attorney, injured a 61-year-old woman security guard when he forcibly passed through the security checkpoint at the Denver City and County Building. The victim was employed by a private security company.

The People argued that the trial court’s denial of defendant’s motion to dismiss was rendered moot by the subsequent trial and was no longer reviewable. However, the trial court construed the statute to permit defendant’s prosecution under the statute as a matter of law. The jury was bound by this determination. Therefore, the jury’s verdict did not render moot the denial of defendant’s motion to dismiss or preclude him from challenging his conviction on appeal.

Defendant contended that his judgment of conviction should be vacated because the victim was not a “public employee,” which is a prerequisite to establishing criminal liability under the statute. Because the victim was not a public employee, but was employed by a private security company, defendant’s conviction under CRS § 18-9-110(2) was vacated.

Summary and full case available here.

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Colorado Court of Appeals: Defendant’s Prior Felony Convictions were “Grave and Serious” and Merited Habitual Offender Sentence Enhancer

June 9, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Foster on Thursday, June 6, 2013.

Sex Offender Registration—Evidence—Prior Act—Character—Sentence Enhancer—Habitual Criminal Sentence—Undue Delay—Due Process.

Defendant appealed the judgment entered on a jury verdict finding him guilty of one count for failure to register as a sex offender. He also appealed the proportionality of the twelve-year sentence imposed under the habitual criminal statute. The judgment and sentence were affirmed.

Defendant contended that the trial court erred by admitting evidence of his previous failure to register as a sex offender. Defendant’s knowledge of the registration requirements relates to whether he knowingly failed to register as a sex offender. Because this evidence was relevant and was not unfairly prejudicial, the trial court did not abuse its discretion by admitting this evidence.

Defendant also contended that the trial court erred in deciding that the prior offense sentence enhancer had been proven, rather than submitting a special interrogatory on this issue to the jury. However, defense counsel chose to have the court, not the jury, decide the enhancer. Because of defense counsel’s affirmative conduct, invited error precludes review of the trial court’s decision not to submit the prior conviction aggravator to the jury.

Defendant contended that record evidence was insufficient to support the conclusion that he “established a residence” and was present at his new address. Although defendant introduced evidence to the contrary, the record contains sufficient evidence to support the jury’s verdict, including the fact that defendant told the Department of Corrections more than two weeks before his arrest that he had changed his residence and provided his new address, which he referred to as his home.

Defendant also challenged his twelve-year habitual criminal sentence as “grossly disproportionate” under the Eighth Amendment, alleging that none of his prior felonies was grave and serious. Although defendant’s triggering offense was not grave and serious under the circumstances, the felonies underlying the sentence collectively were grave and serious. Therefore, because defendant’s sentence did not raise an inference of gross disproportionality, the sentence was affirmed.

Defendant further contended that “the excessive and undue delay in the Attorney General’s filing of the Answer Brief” constituted a denial of due process. Because defendant did not demonstrated prejudice, he was not entitled to relief.

Summary and full case available here.

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Colorado Court of Appeals: Sentence of Life Without Possibility of Parole Unconstitutional for Juvenile Offender

June 9, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Valles on Thursday, June 6, 2013.

Juvenile—Direct File Statute—Unconstitutional—Speedy Trial—Continuance—Hearsay—Sentence—Parole.

Defendant Alberto Valles appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of one count first-degree extreme indifference murder and four counts of attempted extreme indifference murder. He also appealed the sentence imposed. The judgment was affirmed, the sentence was vacated, and the case was remanded.

Valles was a member of a gang that was feuding with another gang. When Valles was 17 years old, he fired multiple rifle shots at rival gang members in another car. One of the shots hit R.S., fatally wounding him.

On appeal, Valles argued that a previous version of Colorado’s direct file statute, which allowed prosecutors to directly file criminal charges against certain juveniles in district court, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Specifically, Valles contended that a jury was required to make the factual findings required by the direct file statute—that he was a juvenile and that he was alleged to have committed, and was convicted of, a class 1 felon—before the prosecution could file charges in the district court. The direct file statute, however, involves a prosecutor’s pretrial exercise of discretion, not a post-trial finding of fact. Therefore, Apprendiand Blakelydo not apply to the direct file statute.

Valles asserted that the trial court violated his statutory and constitutional rights to a speedy trial by granting the prosecution a continuance six weeks beyond his statutory speedy trial date. The record supports the trial court’s findings that (1) a material witness’s live testimony was unavailable; (2) the prosecution used due diligence to secure it; and (3) it would be available at a later date. Therefore, the trial court did not abuse its discretion by extending Valles’s statutory speedy trial date and granting the prosecution’s requested continuance. Furthermore, the trial court did not err by denying Valles’s motion to dismiss for violation of his constitutional right to a speedy trial.

Valles also asserted that the trial court abused its discretion and violated his rights under the Confrontation Clauses of the U.S. and Colorado Constitutions by admitting hearsay evidence that exculpated the co-conspirator/declarant and inculpated Valles. The statement, however, fell within the hearsay exception allowing the introduction of statements against self-interest and was admissible.

Valles contended that the trial court erred by sentencing him to life without the possibility of parole, because the sentence was unconstitutional. The Eighth Amendment of the U.S. Constitution forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Accordingly, defendant’s sentence as to life imprisonment was affirmed, but it was vacated to the extent it denied him the possibility of parole. The trial court was directed on remand to sentence Valles to life in prison with the possibility of parole after forty years.

Summary and full case available here.

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Colorado Supreme Court: Evidence Produced by Dog’s Sniff for Drugs Rightly Suppressed by Trial Court Since No Suspicion Supported Dog Sniff

June 5, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Mason on Monday, June 3, 2013.

Interlocutory Appeal—Reasonable Articulable Suspicion—Suppression of Evidence.

The People filed an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1, challenging the trial court’s suppression of drugs discovered in defendant’s pickup truck. Grounds for the search came from the alert of a narcotics detection canine led around the vehicle. Although the district court upheld the initial traffic stop, it found that defendant was illegally detained at the time of the dog sniff, because the purpose for the initial stop of his vehicle had already been accomplished and no other reasonable suspicion existed to support further investigation. The court therefore suppressed the results of the subsequent search as the product of an illegal detention.

The Supreme Court affirmed, holding that because the prosecution failed to present any evidence supporting police suspicions that defendant had committed, was committing, or was about to commit a crime other than traffic offenses, they lacked reasonable articulable suspicion to detain him for further questioning or investigation after issuing him a summons and completing the traffic stop. The contraband seized from defendant’s vehicle therefore was properly suppressed as the product of an illegal detention.

Summary and full case available here.

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