December 8, 2016

Tenth Circuit: Taser is “Dangerous Weapon” Because it is Capable of Causing Serious Bodily Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Quiver on Tuesday, November 17, 2015.

Delray Quiver and another man were intoxicated and creating a disturbance at their grandmother’s house on an Indian reservation. The grandmother called the police and Officer Friday was dispatched to the scene. The grandmother told Officer Friday that she wanted the men arrested and removed, so he tried to take them outside. However, Quiver was uncooperative, impeding Officer Friday from escorting him by the arm. Quiver tried to walk away from Officer Friday toward the road. Officer Friday tripped Quiver and pushed him face-down in the snow, and removed the prong-mode cartridge from his taser so that it could only be used in drive-stun mode. Quiver punched Officer Friday in the face, breaking his glasses, and wrestled the taser from him. Quiver tased Officer Friday on the thigh, leaving two burn marks from the prongs. The two engaged in a fistfight, which Officer Friday eventually won, and Officer Friday regained control of his taser. After arresting Quiver, Officer Friday sought medical treatment for both himself and Quiver.

Quiver pleaded guilty to forcibly assaulting, resisting, and injuring Officer Friday while he performed official duties. The probation officer recommended a four-level enhancement for use of a dangerous weapon during the assault, which the court applied. Quiver’s resulting Guidelines range was 92 to 115 months’ imprisonment, but the court varied downward to a 70-month sentence based on its view of the danger of tasers as opposed to firearms. Quiver appealed the sentence enhancement.

The Tenth Circuit evaluated the four definitions of “dangerous weapon” contained in U.S.S.G. §§ 2A2.2(b)(2) and found that the first definition applied. The Tenth Circuit found no question that a taser qualifies as a dangerous weapon, even in drive-stun mode, because it is “capable of . . . inflicting serious bodily injury,” which includes injuries causing extreme pain. The Tenth Circuit pointed out that the two burn marks on Officer Friday’s thigh were evidence of the taser’s capability of causing serious bodily injury. The Tenth Circuit rejected Quiver’s argument that the dangerous weapon must actually cause serious bodily injury, noting that there is an additional enhancement for that situation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Second or Successive § 2255 Motion Requires Showing of New Evidence or New Rule of Constitutional Law

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wetzel-Sanders on Monday, November 16, 2015.

Laura Wetzel-Sanders pleaded guilty to bank robbery and was sentenced to 151 months’ imprisonment because she was deemed a career offender based on two prior convictions. She did not file a direct appeal but filed two motions for relief under § 2255. The first motion claimed a deteriorating mental condition and was dismissed as untimely and outside the scope of the court’s jurisdiction. She then filed a second § 2255 motion based on claims of ineffective assistance of counsel. The district court deemed the motion successive and filed without authorization, and dismissed it for lack of jurisdiction. Wetzel-Sanders then petitioned the Tenth Circuit to file a second or successive § 2255 motion, which the circuit denied. She filed another petition to the Tenth Circuit, which was also denied.

She then filed the present petition, joined by the government, arguing that she was sentenced based on materially incorrect information, namely that one of her prior convictions should not count toward the career offender designation because her sentence was for less than a year. The parties based their argument on the Tenth Circuit decision in United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014). The district court was not convinced that Brooks applied and denied the motion but granted a certificate of appealability.

The Tenth Circuit found it a stretch to say that the instant motion was not a second or successive motion, because the same relief was sought in Wetzel-Sanders’ previous § 2255 motions. Although in the joint motion the government “waived any procedural hurdles” to § 2255 relief, the Tenth Circuit found that jurisdiction is not waivable. In order to file a second or successive § 2255 motion, Wetzel-Sanders needed to show the existence of newly discovered evidence or a new rule of constitutional law, neither of which was present. The Tenth Circuit noted that the district court should have either dismissed the petition for lack of jurisdiction or transferred it to the Tenth Circuit, but should not have decided the motion. The Tenth Circuit therefore vacated the district court’s decision for lack of jurisdiction.

The Tenth Circuit dismissed the appeal and vacated the district court’s order.

Colorado Supreme Court: Reasonable Suspicion Analysis Requires Examination of Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, February 29, 2016.

Fourth Amendment—Reasonable Suspicion—Traffic Stops.

The Supreme Court held that an assessment of whether a motorist’s driving gave rise to a reasonable suspicion of a violation of CRS § 42-4-1007(1)(a), which requires a vehicle to be driven entirely within a single lane “as nearly as practicable,” requires consideration of the totality of the circumstances. The Court reversed the trial court’s suppression order, which concluded the officer lacked an objectively reasonable basis to stop defendant. Defendant’s semi-truck crossed the line separating the right lane from the shoulder twice. The Court concluded that, under the circumstances, defendant’s driving gave rise to a reasonable suspicion that the statute had been violated. Therefore, the initial stop was reasonable.

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

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

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

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

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

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

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

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

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

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

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

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Community Corrections Sentence Subject to Blakely

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, February 11, 2016.

Alfred Gabriel Sandoval went to the victim’s apartment to collect a drug debt and shot the victim in the knee. He was charged with first degree assault and possession of a weapon by a previous offender. He entered into a plea agreement with the prosecution where he agreed to plead guilty to felony menacing in exchange for the original charges being dropped. The People notified Sandoval of possible penalties, including DOC confinement of 1 to 3 years with a possible aggravation of 6 years, but stipulated that he would receive a non-DOC sentence. He was ultimately sentenced to 6 years of community corrections, and the judge remarked that he aggravated the sentence based on Sandoval’s conduct in “knee-capping” the victim. Defendant appealed, arguing the aggravated sentence violated Blakely v. Washington, 542 U.S. 296 (2004), which requires that aggravating circumstances be proved beyond a reasonable doubt.

The Colorado Court of Appeals analyzed the transcript and determined that the sentencing judge did not find facts beyond a reasonable doubt to support the aggravated sentence. The court of appeals noted that a community corrections sentence is subject to Blakely just like a DOC sentence. Because the sentencing judge increased Defendant’s penalty beyond the statutory maximum without finding facts beyond a reasonable doubt to support the aggravation, the court of appeals vacated the sentence and remanded for resentencing. Although Defendant argued that the court of appeals should impose the statutory sentence, the court declined to do so, noting that on remand the sentencing court could find the requisite facts to support the aggravated sentence.

The sentence was vacated and the case was remanded for resentencing consistent with the opinion.

Colorado Supreme Court: Felony Murder Charge Cannot Stand Where Acquitted of Predicate Offense

The Colorado Supreme Court issued its opinion in Doubleday v. People on Monday, January 11, 2016.

Felony Murder—Affirmative Defenses—Duress.

A jury found John Andrew Doubleday guilty of felony murder, despite finding him not guilty, based on the affirmative defense of duress, of the charged predicate offense. Under the plain language of CRS § 18-3-102(1)(b), to be convicted of felony murder, a defendant must have committed or attempted to commit one of the enumerated predicate offenses. The question presented in this case is whether Doubleday can be said to have committed the charged predicate offense of attempted aggravated robbery when he was acquitted of that offense based on the affirmative defense of duress. The Supreme Court concluded that to establish that a defendant committed a predicate offense within the meaning of the felony murder statute, the prosecution must prove beyond a reasonable doubt all of the elements of the predicate offense, including the inapplicability of any properly asserted affirmative defense to the predicate offense. Because the prosecution did not meet this burden here, Doubleday’s felony murder conviction cannot stand.

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

Colorado Court of Appeals: Restitution Award Appropriate When Based on Amount Actually Paid by CVCB

The Colorado Court of Appeals issued its opinion in People v. Bohn on Thursday, December 31, 2015.

Assault—Restitution—Lost Wages—Future Wages.

Defendant’s neighbor attempted to stop defendant from assaulting two people. Defendant pushed the neighbor down a flight of stairs, causing a broken bone in the neighbor’s foot. After defendant pleaded guilty to second-degree assault and third-degree assault, the prosecution moved for $9,985 in restitution to be paid to the Crime Victim Compensation Board (CVCB), which the court granted. The documentation attached to the motion showed that the CVCB had paid the neighbor $3,185 for the neighbor’s medical bills and $6,800 to the neighbor for his lost wages.

On appeal, defendant contended that the district court erred by ordering restitution based in part on the CVCB’s payment to a crime victim for lost wages when, at the time the CVCB paid the claim, at least a portion of the payment was for wages that the crime victim expected to lose in the future. A district court may order restitution to reimburse a CVCB for payments it made to a crime victim for lost wages, some of which covered post-payment periods, so long as the wages at issue were based on work actually missed before the restitution order was entered. Here, the district court did not abuse its discretion in ruling that the prosecution proved the neighbor’s lost wages by a preponderance of the evidence. The documentation that the prosecution submitted—a lost wage form from the neighbor’s employer and a letter from the orthopedic practice—was sufficient to show that, before the restitution hearing and the court’s order of restitution, the neighbor actually lost the wages that the CVCB reimbursed. The order was affirmed.

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

Colorado Court of Appeals: One-on-One “Show Up” Identification In Court Not Definitively Error

The Colorado Court of Appeals issued its opinion in People v. Garner on Thursday, December 17, 2015.

Due Process—In-Court Identification—Prosecutorial Misconduct—Evidence—Prejudicial.

C.A.D. and his brothers R.A.D. and A.A.D. were celebrating C.A.D.’s birthday at a bar. Before the group left, R.A.D. went to the bathroom. On his way back from the bathroom, someone from defendant’s group pushed R.A.D. into a table. During the ensuing chaos, defendant fired a shot at R.A.D., grazing his wrist. Defendant then turned, shot, and injured both C.A.D. and A.A.D. Defendant was convicted of two counts of attempted reckless manslaughter, one count of first-degree assault, and one count of reckless second-degree assault.

On appeal, defendant contended that his right to due process and the requirements of various rules of evidence were violated when the court allowed the brothers to make impermissibly suggestive in-court identifications after failing to make a pretrial identification. While the inability of a witness to identify the defendant in a photographic lineup is relevant and certainly grist for cross-examination, it does not, as a matter of law, preclude the victim from making an identification upon seeing the defendant in court. Instead, the previous inability to identify goes to the weight of his identification testimony rather than to its admissibility. Therefore, the trial court did not err in admitting the evidence.

Defendant contended that numerous instances of prosecutorial misconduct violated his right to a fair trial. There was only one instance of prosecutorial misconduct, which occurred when the prosecutor improperly used the word “lie” when hypothecating about the veracity of the three brothers as witnesses during rebuttal closing argument. However, viewing the comments in context and in light of all of the evidence, the prosecutor’s single use of the word “lie” was not so flagrantly, glaringly, or tremendously improper as to rise to the level of plain error.

Defendant also argued that the trial court committed reversible error in admitting as evidence a report containing the data extracted from a cell phone found at the crime scene. The cell phone belonged to defendant’s friend, Velasquez, who was also present the evening of the shooting. The evidence included photos of defendant and Velasquez making hand gestures that could be interpreted as gang signs and text messages that were violent in nature. The photos and text messages on the phone, however, were not prejudicial enough to conclude that the trial court abused its discretion in admitting this evidence. The judgment was affirmed.

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

Tenth Circuit: As-Applied Challenge to Special Condition Allowed Despite Failure to Object to Condition’s Imposition

The Tenth Circuit Court of Appeals issued its opinion in United States v. LeCompte on Tuesday, September 1, 2015.

In 2003, Paul LeCompte pleaded guilty in New Mexico state court to five counts of criminal sexual penetration due to a relationship he had with a 14-year-old girl when he was 29 years old. He was sentenced to 15 months in prison and was required to register as a sex offender. In 2010, he traveled from New Mexico to Nevada and failed to update his registration. He pleaded guilty, and at sentencing the district court judge imposed several conditions of supervised release, including a prohibition against associating with minors except in the presence of an approved responsible adult.

In 2014, LeCompte’s probation officer visited him at his grandparents’ home and saw LeCompte sitting on the porch with his grandparents, his then-girlfriend (now fiancee), and the girlfriend’s 3-year-old granddaughter. This presented a technical violation of his probation condition. After a polygraph test revealed that LeCompte may have had more contact with minors, an officer petitioned to revoke LeCompte’s supervised release. LeCompte moved to dismiss the petition, challenging the prohibition as applied. The district court held a hearing and denied LeCompte’s motion to dismiss, rejecting LeCompte’s as-applied challenge. He was sentenced to six months in prison and five years’ supervised release, subject to six sex offender special conditions. LeCompte appealed the denial of his motion to dismiss and challenged the procedural and substantive reasonableness of the six sex offender special conditions.

The Tenth Circuit evaluated LeCompte’s as-applied challenge, finding that the district court dismissed the challenge because LeCompte had not appealed when the special condition was imposed. The Tenth Circuit found that LeCompte need not have appealed the imposition of the special condition to raise an as-applied challenge. The Tenth Circuit found that because the condition could be imposed in a way as to violate a defendant’s rights, failure to appeal was not a procedural bar to an as-applied challenge. The Tenth Circuit noted that when a court imposes a condition of release, a defendant may not be able to anticipate that particular conduct will be prohibited, so allowing as-applied challenges accounts for unanticipated consequences. Turning to the district court’s denial of LeCompte’s motion to dismiss, the Tenth Circuit found that the district court failed to make findings connecting the condition of release to the charged conduct, and failed to consider LeCompte’s relevant characteristics in denying his as-applied challenge.

The Tenth Circuit reversed the district court’s denial of the motion to dismiss and remanded for further proceedings consistent with its opinion.

Colorado Court of Appeals: Entry Into Motor Vehicle Contemplated by Motor Vehicle Theft Statute

The Colorado Court of Appeals issued its opinion in People v. Wentling on Thursday, December 3, 2015.

First-Degree Criminal Trespass—Evidence—Motor Vehicle Theft—CRS § 18-1-303(1)—Equal Protection—Presentence Confinement Credit.

Wentling was arrested in Utah after he was found asleep in a vehicle that had been reported as stolen in Colorado. Wentling was charged with multiple offenses in Colorado, including first-degree criminal trespass with intent to commit motor vehicle theft.

On appeal, Wentling contended that there was insufficient evidence to convict him of first-degree criminal trespass with intent to commit motor vehicle theft. However, the motor vehicle theft statute does not preclude prosecution under a general criminal statute, and the People had discretion to prosecute under either. Here, there was sufficient evidence that Wentling entered the motor vehicle with the intent to commit motor vehicle theft inside the vehicle, which was sufficient to prove first-degree criminal trespass with intent to commit motor vehicle theft.

In the alternative, Wentling contended that he was improperly prosecuted in Colorado in violation of CRS § 18-1-303 because he was previously convicted in Utah for the same conduct. Wentling’s prosecution under the Colorado statute was not barred by CRS § 18-1-303(1) because the law defining each offense was intended to prevent a substantially different harm or evil.

Wentling also contended that when the People charged him with first-degree criminal trespass with intent to commit motor vehicle theft rather than attempted motor vehicle theft, it violated his right to equal protection under the law because it subjected him to more severe punishment. Attempted motor vehicle theft and criminal trespass have different elements and, thus, it is permissible for the legislature to prescribe different penalties for similar conduct. Therefore, the trial court did not violate Wentling’s right to equal protection.

Wentling further contended that the trial court erred when it denied his request for 89 additional days of presentence confinement credit (PSCC). Wentling was entitled to PSCC from October 11, 2011, when he arrived in Moffat County Jail, until February 7, 2012, when he finished his Utah sentence, because this period of time resulted from the charges brought by the State of Colorado. The case was remanded to amend the mittimus to include the correct additional PSCC days.

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

Tenth Circuit: Special Conditions of Release that Affect Employment Require Specific Findings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodebaugh on Tuesday, August 25, 2015.

Dennis Rodebaugh operated a hunting business in Colorado, where he would take mostly out-of-state clients on elk and deer hunting trips through the White River National Forest. Rodebaugh’s business had a high success rate for shooting animals, but at some point officials were tipped off that Rodebaugh was illegally baiting the animals by spreading salt below his deer stands. After a lengthy investigation, he was interviewed by authorities, to whom he eventually confessed that he was baiting the animals and knew it was illegal.

He was indicted on several counts of Lacey Act violations, which Act prohibits selling wildlife taken in violation of state law. Rodebaugh moved to suppress his confession, arguing it was involuntary, but the district court ultimately denied his motion. Rodebaugh also moved to dismiss the indictment, arguing the Colorado regulations against baiting were unconstitutionally vague. The district court denied his motion to dismiss without prejudice but granted leave for Rodebaugh to raise the vagueness issue at trial. During the multi-day trial, Rodebaugh again raised his vagueness argument, but he was ultimately convicted of six Lacey Act violations. The district court applied three sentencing enhancements to arrive at a Guidelines range of 41-51 months. It sentenced him to 41 months imprisonment followed by three years’ supervised release, during which time he could not engage in or accompany others in any hunting or fishing activities. Rodebaugh appealed.

The Tenth Circuit first addressed Rodebaugh’s contention that the district court erred in denying his motion to suppress, arguing that his confession was involuntary and that the district court erred by making him present first at the suppression hearing. The Tenth Circuit examined the circumstances under which Rodebaugh’s confession was obtained and found it fully voluntary. Rodebaugh contended that because he had only slept three hours in the past two days, he should have been allowed to take a nap before talking to the agents, but the Tenth Circuit disagreed, finding record support that it was customary for Rodebaugh to receive little sleep and that he was coherent throughout the interview. The Tenth Circuit also evaluated the circumstances of the interview, including that it lasted only three hours, it was outdoors, and Rodebaugh was free to leave, and found that the circumstances did not support an inference of involuntariness. Next, Rodebaugh urged that his confession was involuntary because an agent told him that if he did not confess they would take his house and all his property away from him. The Tenth Circuit found this statement troubling, but not enough so to render the confession involuntary. The Tenth Circuit affirmed the district court’s denial of Rodebaugh’s motion to suppress. The Tenth Circuit also rejected Rodebaugh’s argument that the district court erred by making him present first at the suppression hearing, finding it well within the district court’s discretion to determine how best to run the courtroom.

The Tenth Circuit next evaluated and rejected Rodebaugh’s argument that the Colorado law prohibiting baiting was unconstitutionally vague, finding no support for either Rodebaugh’s facial or as-applied challenges. The Tenth Circuit also rejected Rodebaugh’s sufficiency of the evidence challenges, finding that Rodebaugh’s confession, specific testimony from an undercover agent and others, and evidence that he had salt in his home supported his convictions. Rodebaugh also challenged the procedural reasonableness of his sentence, but the Tenth Circuit found support for each of the enhancers applied by the district court.

The Tenth Circuit then turned from the majority opinion to Judge Matheson’s dissent regarding Rodebaugh’s appeal of the special condition of supervised release that prohibited him from any hunting or fishing activities. Judge Matheson noted that the district court failed to make any specific findings about imposing a restriction on Rodebaugh’s employment, which it was required to do. Judge Matheson’s dissent was well-reasoned, noting that although Rodebaugh failed to raise the argument in district court, the government failed to object when Rodebaugh raised it again, and therefore there was no prejudice in addressing the argument. Judge Matheson would have remanded to the district court for further findings on the issue of whether the employment restrictions were warranted. However, the majority opinion resumed, and the majority declined to apply the waiver-of-the-waiver argument championed by Judge Matheson. The majority decided that because Rodebaugh’s main argument against the hunting and fishing prohibition is that it deprived him pleasure, there was no need to discuss employment restrictions, and therefore the district court’s order was affirmed.

The Tenth Circuit affirmed the district court on all counts. Judge Matheson wrote a thoughtful dissent regarding the employment restrictions imposed by the district court.

Colorado Supreme Court: Complicitor Liability Not Limited to Crimes Containing Culpable Mental State

The Colorado Supreme Court issued its opinion in People v. Childress on Monday, November 23, 2015.

Complicity—Mental State Requirement of Complicitor Liability—Applicability of Complicitor Liability to Strict Liability Offenses.

The People petitioned for review of the court of appeals’ judgment vacating defendant’s conviction of vehicular assault while operating a motor vehicle under the influence of alcohol or drugs. Although it was undisputed that defendant was not driving the vehicle in question, the jury was instructed that he could be found guilty as a complicitor. The court of appeals concluded that because vehicular assault while under the influence is designated a strict liability offense, it requires no culpable mental state on the part of the driver. It further found that the Supreme Court had previously held complicitor liability inapplicable to crimes lacking a culpable mental state requirement.

The Supreme Court reversed the judgment of the court of appeals. The Court reconsidered and clarified the reach and requirements of complicitor liability in this jurisdiction and determined that, as clarified, complicitor liability can extend to strict liability offenses. It remanded the matter to the court of appeals with directions to address any other of defendant’s assignments of error possibly impacting his conviction of vehicular assault.

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