August 23, 2014

Colorado Court of Appeals: Statutory Language Precludes Discontinuation of Colorado Sex Offender Registration for Out of State Conviction

The Colorado Court of Appeals issued its opinion in People v. Curtiss on Thursday, August 14, 2014.

Sexual Assault on a Child—Sex Offender Registry—Petition to Discontinue Registration.

Curtiss pleaded guilty to the felony charge of first-degree sexual assault of a child in Oneida County, Wisconsin. He was required to register as a sex offender as a condition of his probation. Thereafter, Curtiss moved to Colorado and registered as a sex offender in this state. Curtiss later filed a petition in district court requesting to be removed from the Colorado sex offender registry, which was denied by the district court.

On appeal, Curtiss argued that the district court erred in denying his petition to discontinue registration. CRS §16-22-113(3) applies to persons whose convictions were obtained from out-of-state courts and prohibits removal from the registry for an offense comparable to sexual assault on a child in Colorado. Because Curtiss was convicted of an offense comparable to Colorado’s offense of sexual assault on a child, he was not eligible for discontinuation of sex offender registration. The order was affirmed.

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

Colorado Court of Appeals: Constitutional Right to Counsel Applies at All Critical Stages of Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Fritts on Thursday, August 14, 2014.

Sexual Assault—Child—Sentence—Consecutive—Right to Counsel—Crim.P. 35(a).

Defendant was charged with sixteen counts of sexual assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life. Defendant later filed a Crim.P. 35(a) motion to correct an illegal sentence. After a hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

On appeal, defendant argued that the post-conviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim.P. 35(a) motion. Here, although defendant had a right to appointed counsel because the motion involved resentencing and the court erred in ruling otherwise, the error was harmless beyond a reasonable doubt because defendant was represented by privately retained counsel at the resentencing hearing.

Defendant also argued that the consecutive sentences imposed by the post-conviction court on resentencing were unconstitutional and illegal. However, the aggregate sentence imposed on resentencing was not harsher than defendant’s original sentence. Further, the record supports the court’s finding that two factually distinct offenses occurred. Therefore, the post-conviction court did not abuse its discretion by imposing consecutive sentences, and the consecutive sentences imposed on resentencing did not deprive defendant of due process of law. In addition, defendant’s rights against double jeopardy were not violated. The sentences were affirmed.

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

Tenth Circuit: Newly Discovered Evidence of Actual Innocence Tolls Time Period for Filing Habeas Claims

The Tenth Circuit Court of Appeals issued its opinion in Doe v. Jones on Tuesday, August 12, 2014.

John Doe, a federal prisoner, was convicted of first-degree murder in Oklahoma and sentenced to life without parole. He was separately convicted in federal court of bank robbery, which took place in connection with the Oklahoma murder. His direct appeal to the murder conviction was unsuccessful and he did not appeal further or file a habeas petition in federal court. While serving the federal life sentence in Texas, he was convicted of murdering a fellow inmate and sentenced to death.

Following the imposition of the death sentence, Doe contends that new evidence came to light that established his actual innocence for the Oklahoma murder and federal robbery. He filed a petition for post-conviction relief in state court and the instant § 2254 petition in federal court two days before the expiration of the one-year statute of limitations for habeas petitions. He also filed a motion to stay the federal § 2254 petition pending outcome of the state court case. He raised the actual innocence claim both as a new constitutional claim and a “gateway” to introduce time-barred constitutional claims such as ineffective assistance of counsel and suppression of exculpatory evidence. The district court judge, adopting the recommendations of a magistrate, dismissed the § 2254 petition without prejudice. It also denied his motion to alter and amend judgment and his request for a certificate of appealability.

The Tenth Circuit reviewed prisoners’ requirements to exhaust all state remedies in light of the Supreme Court’s ruling in Rhines v. Weber, 544 U.S. 269 (2005). The Tenth Circuit discussed that before Rhines and before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, there was no time limit for filing federal habeas petitions and there was no need for prisoners to raise all claims in state court prior to filing in federal court. However, Rhines and the AEDPA limited these filings and required habeas petitions to be filed within one year of the date the judgment became final. Circuit case law suggested that petitioners nearing the end of the one-year limitations period should file their state court claims and also file § 2254 petitions in the federal district court, asking the district court to stay the proceeding until resolution of the state court claims in order to preserve their federal remedies. Based on a 2010 Tenth Circuit opinion, the magistrate in this case determined that the limitations period would be tolled by the actual innocence claim so a stay was not warranted. During the pendency of this appeal, the Supreme Court decided that a credible showing of actual innocence provides an outright equitable exception to AEDPA’s statute of limitations. Therefore, the petitioner in this case does not have a legitimate concern that his federal claims will be time-barred.

The district court’s dismissal was affirmed.

Colorado Court of Appeals: Victim’s Entire Interview Admissible to Give Jury Complete View of Credibility

The Colorado Court of Appeals issued its opinion in People v. Miranda on Thursday, August 14, 2014.

Sexual Assault on a Child—Evidence—Recording—Prior Consistent Statements—Confrontation Clause—Res Gestae Evidence—Hearsay.

A jury convicted Miranda of sex offenses involving his girlfriend’s 11-year-old daughter, E.S., and her friend, V.M. On appeal, Miranda contended that the trial court erred either in admitting a DVD recording of E.S.’s entire forensic interview or in allowing the prosecution to introduce the recording after E.S. had testified and been released, claiming it violated his confrontation rights. The entire recording was admissible as a prior consistent statement because Miranda broadly attacked the credibility of E.S. Further, the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced, which happened in this case. Therefore, Miranda’s confrontation rights were not violated, and the trial court did not commit plain err in admitting the recording.

Miranda also argued that the trial court abused its discretion in admitting evidence that he had groomed E.S., because the evidence was not admissible as res gestae. The record reveals that both the charged offenses and the grooming acts occurred over approximately the same two-year period, and it was helpful to explain the context of the assaults. Therefore, the trial court acted within its “substantial discretion” in admitting the acts as res gestae evidence.

Miranda contended that the trial court erred in admitting a list made by E.S.’s step-mother of the abuse told to her by E.S. However, both the step-mother and E.S. were available to testify, and although roughly two years lapsed between the first assault and the creation of the list, this time span was not so long that E.S. could no longer accurately recall the events that she recited. Thus, the trial court did not commit plain error in admitting the list under CRE 803(5).

Miranda contended that the trial court erred in denying his motion for judgment of acquittal on the V.M. attempt counts because “there was no evidence presented of any overt request and/or expressed dare for a sex act that Mr. Miranda made to V.M.” However, the there was sufficient evidence showing that Miranda had taken all steps preparatory to assaulting V.M. in the same way he assaulted E.S., and had engaged her in a game of truth or dare for the purposes of sexual exploitation.

Finally, Miranda argued that he was entitled to a new trial because his statements to the detective regarding the game incident were taken out of context in a redacted DVD that was given to the jury before deliberation. However, Miranda denied having played the game with the girls in both the redacted and unredacted versions, and he denied having done so at trial. Therefore, he was not entitled to a new trial. The judgment was affirmed.

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

Colorado Court of Appeals: Defendant Need Not Renew Pretrial Objection to Joinder to Preserve Issue

The Colorado Court of Appeals issued its opinion in People v. Curtis on Thursday, August 14, 2014.

Sexual Assault on a Child—Joinder—Motion to Suppress Evidence.

Curtis appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child and two counts of aggravated incest, all arising from sexual acts with his two daughters, S.C. and C.C. These assaults began when the victims were 9 or 10 years old and continued until they were removed from the home several years later.

On appeal, Curtis contended that the trial court abused its discretion in allowing the prosecution to join for trial the charges involving the two victims. Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. Here, the evidence of Curtis’s assaults of the two victims would have been admissible in separate trials under both CRE 404(b) and CRS §16-10-301. The evidence at issue related to material facts, including Curtis’s intent and the fact that he was engaged in a common plan, scheme, or design, and this evidence was relevant because it made it likely that Curtis had committed the crimes charged. Accordingly, the trial court did not abuse its discretion in allowing the prosecution to join the charges pertaining to both victims.

Curtis also contended that the trial court erred in refusing to suppress the statements that he made during his interview with an agent from the Colorado Bureau of Investigation. Curtis claimed these statements were involuntary and were made after he had invoked his right to silence. However, Curtis voluntarily waived his Miranda rights, agreed to take a polygraph examination, was not in custody during the examination, and did not unambiguously invoke his right to silence. In addition, the officer’s conduct was not coercive. Therefore, the trial court did not err in denying Curtis’s motion to suppress.

Finally, Curtis contended that the trial court abused its discretion in admitting evidence of his conduct concerning S.C.’s stillborn baby after its birth (specifically, that Curtis removed the stillborn baby from S.C.’s room and concealed it in a box and then in a jar). Curtis’s conduct after the stillborn birth reflected efforts to conceal that birth, shows consciousness of guilt, explained how the abuse continued leading to S.C.’s second pregnancy, and undermined Curtis’s defense that he was unaware he had intercourse with S.C. because she had drugged and sexually assaulted him. Therefore, the trial court did not abuse its discretion in admitting the evidence at issue here. The judgment was affirmed.

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

Colorado Court of Appeals: Defendant Lacked Knowledge of Crime Where No Reason to Believe Victim Was Underage

The Colorado Court of Appeals issued its opinion in People v. Heywood on Thursday, August 14, 2014.

Internet Sexual Exploitation of a Child—Importuned—Invited—Enticed.

Heywood invited a person to view a webcam stream of him masturbating, and then did not stop the stream until several minutes after the viewer (an investigator) had said she was 14 years old. A jury convicted him of violating CRS §18-3-405.4(1)(b), Internet sexual exploitation of a child.

On appeal, Heywood argued that the prosecution failed to prove that he committed Internet sexual exploitation of a child. The Court of Appeals agreed. CRS §18-3-405.4(1)(b) requires knowledge or belief as to the victim’s age. Initially, Heywood did not have any information regarding the investigator’s age. In addition, the Internet chat room was restricted to people at least 18 years old. Further, even though Heywood continued the chat conversation after Gallagher informed Heywood of her age, there was insufficient evidence that he “importuned, invited, or enticed” her to continue viewing. In fact, he said that she “shouldn’t be watching,” and he would “turn it off.” Therefore, Heywood did not continue to invite Gallagher to view his webcam stream merely by failing to disconnect her access to it. The judgment was reversed and the case was remanded to the trial court with directions to enter judgment of acquittal.

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

Tenth Circuit: Fundamentally Ambiguous Questioning Required Plain Error Reversal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hale on Tuesday, August 12, 2014.

Thomas Hale filed a voluntary Chapter 13 bankruptcy petition in 2005. He listed three pieces of property in Schedule A, including a Salt Lake City property he listed as valued at $190,000 despite a property tax assessment indicating the property was worth $268,900; he had challenged the property tax valuation. He moved to convert his Chapter 13 case to Chapter 7 in July 2006 and an order was entered to that effect. This transferred control of his non-exempt assets, including the Salt Lake City property, to a bankruptcy trustee, Elizabeth Loveridge. Loveridge questioned Hale under oath at a creditors’ meeting on August 22, 2006, and Hale testified that the information he provided in his bankruptcy document was true, complete, and accurate. However, that same day, he advertised the Salt Lake City property in two newspapers for $396,075 or appraisal. A real estate agent contacted him and eventually found a buyer for the property who would pay $395,000 if Hale paid half the closing costs. Hale entered into a contract with the buyer and did not inform the buyer about the bankruptcy proceedings. Hale also signed an agreement with the buyer that Hale could continue to live on the property. He did not inform the trustee about the transaction.

When a title insurance representative contacted Loveridge, she instructed him to cancel the sale. Hale appeared at her office twice that day unannounced and appearing “agitated and angry.” At the second meeting, he gave Loveridge several documents, including an ex parte motion to approve the sale and a motion to revert to Chapter 13 status, both of which he had filed with the bankrutpcy court. He attached a letter to the ex parte motion dated ten days previous and an affidavit by his office manager that the letter was mailed on that previous date. However, the letter referenced the ex parte motion, which was filed ten days later and would not have been created if Loveridge had received the letter.

Loveridge hired a real estate agent to renegotiate the contract with the buyer. The renegotiated contract specified that all tenants would be evicted. The bankruptcy court approved the sale and Loveridge initiated eviction proceedings. Hale sent Loveridge several handwritten notes via fax, one of which advised her of a possible haz-mat problem in an orange package. When the orange package arrived, Loveridge called the police. After much inspection, the package was opened, and it contained a baggie with unidentified material and a note that said “Possible haz-mat? Termites or hanta virus [sic] from mice?” It was eventually determined to contain no hantavirus material.

After a jury trial, Hale was convicted of making a materially false statement under oath during the bankruptcy proceeding regarding the value of the Salt Lake City property, concealing the purchase contract from the trustee and creditors, and perpetrating a hoax regarding the transmission of a biological agent. Hale challenged his convictions.

The Tenth Circuit first addressed Hale’s challenge for knowingly and fraudulently making a false statement under oath. The government alleged that he knew well that his property was worth more than he listed in the bankruptcy documents at the time he made statements under oath that the documents were true and correct. Hale countered that the questions were fundamentally ambiguous. The Tenth Circuit conducted a plain error review and concluded that the statements were indeed ambiguous based on prior Tenth Circuit precedent involving similar questions. The Tenth Circuit reversed Hale’s conviction based on this charge and remanded for entry of judgment of acquittal on the false statement charge.

Next, the Tenth Circuit turned to Hale’s concealment of the purchase of the Salt Lake City property. Hale argued that the purchase agreement was void or, alternatively, that it did not meet the statutory definition of “property belonging to the estate of a debtor.” The Tenth Circuit did not support Hale’s argument that the contract was void ab initio, instead finding it was voidable. Hale conceded that the proceeds would be property of the bankruptcy estate but the contract was not. However, the purchase agreement created an interest in proceeds, so the Tenth Circuit affirmed Hale’s conviction on this count.

Finally, the Tenth Circuit addressed Hale’s conviction for perpetrating a hoax involving biological weapons. Hale had relied on the pending U.S. Supreme Court decision in Bond v. United States to render the error plain by holding an analogous statute unconstitutional. However, the Bond ruling did not reach the constitutional issue. Hale’s attack to the sufficiency of the evidence failed and the Tenth Circuit affirmed his conviction on this count.

The order of the district court was affirmed in part, reversed in part, and remanded for entry of acquittal on the false statement charge.

Tenth Circuit: Alleyne Not Retroactive in Scope so Defendant’s Appeal Untimely

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hoon on Tuesday, August 12, 2014.

Kenneth Hoon was convicted of drug charges in federal court, and his conviction was final in March 2008. After unsuccessfully appealing, he filed a motion to vacate his sentence, which the district court dismissed as untimely. Hoon seeks a Certificate of Appealability, relying on the Supreme Court’s decision in Alleyne v. United States to support his argument that Alleyne created a new rule of constitutional law and an exception to the limitations period.

The Tenth Circuit rejected Hoon’s argument, ruling that Alleyne had not been applied by any court as retroactive in scope on collateral review and no reasonable jurist would allow an exception to the one-year limitations period for appellate review.

The Tenth Circuit declined to issue a Certificate of Appealability and dismissed the appeal.

Tenth Circuit: Entrapment By Estoppel Instruction Inappropriate Where Defendant Unreasonably Concluded Government Consent

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rampton on Friday, August 8, 2014.

April Rampton learned of a tax refund scheme involving filing 1099-OID forms claiming interest income on debts she owed others, such as her mortgage. She filed her 2007 tax return but subsequently amended it based on the 1099 scheme. She received a refund check from the IRS for $228,967.28 and took that to mean that the tax scheme was legitimate. Subsequently, she told several friends about the scheme and helped them file similar false returns. She charged for her help, even though she was not an accountant or tax professional. In January 2009, an IRS agent met with one of the people Rampton had assisted in the tax scheme. The agent informed Rampton’s friend that she could be fined or imprisoned for her false use of the forms. The friend called Rampton and reported what the agent had said. Rampton told the friend the agent was using a “scare tactic” and continued the scheme. She assisted nine other people in filing false tax returns using the 1099 scheme after the IRS agent visited the friend. Eventually, she was indicted by a grand jury of one count of using a false tax return for herself (Count 1) and 14 counts of helping others file false returns (Counts 2 through 15). She moved to dismiss Counts 2 through 15 before trial based on entrapment by estoppel, averring that the refund check issued by the IRS was an affirmative demonstration that her conduct was legal. The motion failed, but during trial she proposed a jury instruction on the defense of entrapment by estoppel, which was similarly rejected. The jury could not reach a verdict on the first six counts, but convicted her on the remaining nine counts relating to the nine people Rampton assisted after learning the scheme was fraudulent.

Rampton appealed, asserting she was deprived of a fair trial because the jury was not informed of her defense of entrapment by estoppel. The Tenth Circuit disagreed because she was not entitled to the instruction. The Tenth Circuit found no reasonable basis for Rampton to have believed the refund check was a symbol of her conduct’s legality. Rather, it was unreasonable for Rampton to believe the tax scheme was legal.

The Tenth Circuit affirmed Rampton’s convictions.

Tenth Circuit: Habeas Petition Timely Despite Delay Because State Court Eventually Ruled on Merits

The Tenth Circuit Court of Appeals issued its opinion in Fisher v. Raemisch on Tuesday, August 5, 2014.

in January 2001, Michael Fisher was convicted of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery, and in October 2001, he filed a Crim. P. 35(c) application for relief in Colorado state court. Fisher’s counsel set a notice of hearing in 2006 and the hearing was held three years later. Fisher presented evidence at the 2009 hearing and the state court denied his application on the merits. Fisher appealed, and the Colorado Court of Appeals affirmed on the merits in 2012. Fisher filed a petition for certiorari in the Colorado Supreme Court, which was denied. Fisher then filed for federal habeas relief in federal district court. The federal court determined that Fisher’s state court Crim. P. 35(c) petition was no longer pending as of October 2004, despite the state court’s rulings in 2006 and 2009, and denied habeas relief on grounds that the petition was untimely. Fisher appealed to the Tenth Circuit.

The Tenth Circuit first addressed Respondents’ argument that the one-year limitation period for habeas relief began on January 8, 2001, when Fisher’s convictions became final. Because Fisher filed an application for state court relief in October 2001, however, the limitations period was tolled while the application was pending. Fisher asserts that the period remained tolled until October 2012, when the Colorado Supreme Court denied certiorari. Respondents argue that Fisher abandoned his application by not requesting an expeditious determination. The Tenth Circuit disagreed with Respondents, ruling that an application does not stop pending at the time that it could be deemed abandoned. Because the state court eventually ruled on Fisher’s Crim. P. 35(c) application, this implied that the state courts never deemed Fisher’s application abandoned. No court has suggested that an action automatically terminates when its bringer fails to request expeditious ruling. Since the federal interpretation of “pending” indicates final resolution in state court, Fisher’s action did not terminate until the Colorado Supreme Court denied certiorari.

The Tenth Circuit found Fisher’s habeas petition timely and reversed and remanded for hearing on the habeas petition.

Tenth Circuit: No Speedy Trial Violation for Continuances Requested by Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Banks on Monday, August 4, 2014.

Defendants Banks, Barnes, Harper, Stewart, Walker, and Zirpolo operated or were associated with the entities Leading Team, Inc. (LT) and DKH, Inc. (DKH). In 2003, Defendants stopped operating LT and began operating a third entity, IRP Solutions Corporation (IRP). IRP was formed to develop computer software, and one of its software offerings was purportedly designed for sale to law enforcement to develop a nationwide database for law enforcement.

Beginning in about October 2002, Defendants began contacting various staffing agencies and soliciting payrolling services, in which the staffing agency would hire and pay Defendant’s choice of employee and then Defendant would repay the staffing agencies, plus a small increase for profit for the staffing agency. In order to convince the staffing agencies to agree to the payrolling services, Defendants claimed that their law enforcement database software was on the verge of being sold to the Department of Justice and several law enforcement agencies. Over the course of several years, Defendants received over $5 million in staffing payments from 42 different staffing companies that they did not repay.

Defendants were indicted in June 2009, and in 2011 they were convicted after a jury trial of several counts of wire fraud and mail fraud, and conspiracy to commit wire fraud and mail fraud, and sentenced to various terms of imprisonment ranging from 87 months to 135 months. They appealed, asserting four issues: (1) their speedy trial right was violated when the district court granted four continuances at Defendants’ request; (2) the district court compelled co-defendant Barnes to testify in violation of his Fifth Amendment privilege against self-incrimination; (3) the district court abused its discretion by excluding the testimony of two of Defendants’ potential witnesses; and (4) the cumulative effect of the court’s otherwise harmless errors necessitated reversal.

The Tenth Circuit first examined the speedy trial claim. Four different times, Defendants requested continuances from the district court. Defendants asserted that, due to the prolonged investigation beginning in 2004, discovery in the case was voluminous (totaling over 20,000 pages of documents), and they would not be able to adequately prepare for trial without the continuances. Each time, the district court examined the circumstances and issued findings that the ends of justice served by granting the continuance outweighed the public’s and Defendants’ interest in the speedy trial. Although the total continuance time was quite long, the Tenth Circuit determined no error in the district court’s decisions, finding instead that the unique circumstances of this case, including the high volume of discovery materials and potential witnesses, supported the district court’s decisions to grant continuances. Further, the Tenth Circuit noted that each continuance was requested by Defendants, and they could not assert prejudice from delays they requested.

Next, the Tenth Circuit turned to Defendants’ claim that Barnes was compelled to testify in violation of his Fifth Amendment privilege against self-incrimination and the district court declined to give a curative instruction to satisfy the Sixth Amendment. The Tenth Circuit found that although the district court requested the defense to call a witness, Barnes was not the only witness available to testify at that time, and he testified voluntarily at the behest of his co-defendants. Further, when offered a curative instruction, Barnes declined. The Tenth Circuit found no error in the actions of the district court.

As to the third claim regarding the district court’s denial of testimony by the two defense witnesses, the Tenth Circuit again found no error. The district court denied the testimony because Defendants failed to disclose the witnesses in violation of Federal Rule of Criminal Procedure 16 and Federal Rule of Evidence 702. Although Defendants concede that they violated Rule 16 and FRE 702, they argue that the record reflects their efforts were made in good faith and the court’s chosen remedy of exclusion violated precedent. The Tenth Circuit rejected these claims. The district court had allowed testimony similar to that proffered from the two rejected witnesses, and concluded that the testimony of those two witnesses would be cumulative. The Tenth Circuit found no abuse of discretion in this action.

Finally, the Tenth Circuit addressed Defendants’ argument that the effect of the harmless errors in their case caused cumulative error requiring reversal. The Tenth Circuit rejected this claim, noting that Defendants failed to show any error, much less error requiring reversal.

The district court’s judgment was affirmed.

Colorado Court of Appeals: Advising Person Not to Talk to Police Is Not Witness Tampering

The Colorado Court of Appeals issued its opinion in People v. Nozolino on Thursday, July 31, 2014.

Witness Tampering—Evidence—Protected Speech—Recusal.

In 2001, someone fired shots into the home of Nozolino’s ex-wife’s divorce attorney. Later that year, shots were fired into the home of Judge Gilbert Martinez of the Fourth Judicial District, who presided over portions of Nozolino’s divorce case. In 2002, the divorce attorney was shot in the face. In 2008, a man who allegedly had an affair with Nozolino’s ex-wife was fatally shot outside his home. Nozolino instructed numerous witnesses regarding these incidents not to cooperate or communicate with the police or provide any testimony. Based on these communications, the grand jury indicted Nozolino on five counts of witness tampering.

On appeal, Nozolino contended that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. The prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony. Nozolino sent an e-mail to his mother and brother recommending that they not cooperate with the police. Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Accordingly, Nozolino’s convictions for witness tampering with respect to counts 4 and 5 were vacated.

The Court of Appeals found that the witness tampering statute is facially constitutional. Therefore, Nozolino’s argument that the witness tampering statute is unconstitutional and infringes on his right to free speech failed.

Nozolino contended that his distribution of pre-printed statements to witnesses Feller and Shrecengost to invoke their right not to testify is akin to the public leafleting and is protected speech. However, Nozolino’s actions were not directed to the general public, did not occur in a public forum, and did not address issues of general public concern. Rather, Nozolino’s pre-printed statements were targeted at specific individuals, were distributed privately, and concerned matters of self-interest. The preprinted statements attempted to induce the witnesses to unlawfully withhold testimony in violation of the witness tampering statute. Therefore, they fall within the proscriptions of the witness tampering statute and the statute is not unconstitutional as applied to Nozolino.

Finally, the district court did not err in finding that the jury instruction regarding disrupting a lawful assembly did not “fit the facts of the case at all.” The judgment was affirmed in part and reversed in part, and the case was remanded to the district court with directions to enter judgment of acquittal on counts 4 and 5.

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