January 30, 2015

Tenth Circuit: Sanctions Reversed for Lack of Notice and Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Melot on Friday, September 26, 2014.

Katherine Melot (plaintiff) and her husband Billy owe the government millions of dollars in federal taxes, and Billy is serving a prison sentence for tax crimes. The tax debt led the government to foreclose on the Melots’ properties. The Melots tried to stop the foreclosures using fraudulent methods — namely, by asserting liens on the property in the name of Stephen Byers, an incarcerated and destitute person. The liens and Byers’ motion to intervene in the foreclosure proceedings were signed by Mrs. Melot and they were mailed from the address of a friend of the Melots. The government suspected fraud and, at the hearing on the motion to intervene, presented evidence tending to show the scheme between Melot and Byers.

At the hearing, Mrs. Melot’s counsel requested notice prior to the imposition of any sanctions, and the magistrate noted that the Melots would be noticed on any hearing regarding the contempt. The magistrate certified criminal contempt by the Melots. More than a year later, the district court issued an order addressing the contempt certifications, and, recognizing the costs of prosecuting a criminal contempt matter, declined to order contempt, instead imposing the following sanctions: (1) removal of Mrs. Melot and her children from the property; (2) reimbursement of the government’s costs for the hearing; (3) striking the Melots’ pending motions, responses to motions, and requests for stays; and (4) imposing filing restrictions.

Mrs. Melot appealed the sanctions, arguing the district court violated the Fifth Amendment’s Due Process clause by imposing sanctions without giving the Melots notice and an opportunity to be heard. The Tenth Circuit agreed. Sanctions cannot be imposed without notice that sanctions are being considered by the court and a subsequent opportunity for the defending party to be heard. Although the magistrate had provided notice of the possibility of criminal contempt, there was no notice of the imposition of sanctions. The Tenth Circuit reversed the district court’s sanction order and remanded for further proceedings, noting that the district court was not barred from re-imposing sanctions after proper notice and hearing.

New Rule of Criminal Procedure Added Regarding e-Filing

On Wednesday, September 24, 2014, the Colorado Supreme Court issued Rule Change 2014(12), adding new Rule 49.5, “Electronic Filing and Service System,” to the Colorado Rules of Criminal Procedure. The new rule is effective immediately.

The rule provides that e-filing and e-service may be used for criminal cases in Colorado as determined by the Colorado Supreme Court through Chief Justice Directives. The rule was added in anticipation of the criminal e-filing pilot program in Pueblo, scheduled to begin in October.

For the complete text of the new rule, click here. For all the Colorado Supreme Court’s rule changes, click here.

Tenth Circuit: No Fourth Amendment Violation in Search of Abandoned Bag

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tubens on Tuesday, September 2, 2014.

Peter Tubens was on a Greyhound bus in Utah en route to Philadelphia when Utah Highway Patrol officers and their drug-sniffing dogs stopped the bus during a routine drug interdiction activity. Both dogs alerted to one bag in the luggage compartment marked as Tubens’. One officer entered the bus and asked for Mr. Tubens in a loud, clear voice, but Tubens did not respond. After checking all the passengers’ tickets, the police located Tubens and questioned him. Because of his suspicious behavior and knowledge that drug traffickers tend to move drugs between their checked bags and carry-ons, the officers asked to search Tubens’ carry-ons. Tubens said he did not have any, but another passenger said Tubens had been putting a bag in the carry-on area. Officers found a paper bag and CD case on Tubens’ seat, neither of which contained drugs. The officers, by this time quite suspicious of Tubens, asked everyone on the bus to claim their carry-ons, after which there was one bag remaining. The officer asked in a loud, clear voice if the bag belonged to anyone, but no one claimed it. They asked Tubens if the bag was his and he denied ownership. They proceeded to search the bag and found two cylinders containing meth as well as two prescriptions belonging to Tubens. He was charged with possession of methamphetamine with intent to distribute and sentenced to 240 months’ imprisonment. Tubens appealed, arguing that the evidence obtained by searching the bag should be suppressed because it was obtained in violation of the Fourth Amendment.

The Tenth Circuit disagreed. The officers’ initial stop and dog sniff was a lawful investigation, and no justification was needed. Even assuming the officers’ search required reasonable suspicion, they had ample reason to be suspicious of Tubens, given the dogs’ positive reactions to the bag and Tubens’ evasive behavior. No Fourth Amendment violation precipitated Tubens’ abandonment of his bag. And, because Tubens unequivocally proclaimed the abandoned bag was not his, he lacked standing to challenge its search. The district court’s judgment was affirmed.

Colorado Supreme Court: Defendant’s Statements to Investigators Were Voluntary and Suppression Inappropriate

The Colorado Supreme Court issued its opinion in People v. Liggett on Monday, September 22, 2014.

Suppression of Statements—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing statements that defendant made to investigators during an interview. The trial court found that defendant did not make the statements voluntarily. The Supreme Court held that, when considering the totality of the circumstances, the investigators never overbore defendant’s will; thus his statements were voluntary. Accordingly, the trial court’s suppression order was reversed and the case was remanded.

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

Colorado Supreme Court: Officer’s Stop and Search Legal and Evidence from Search Should Not Have Been Suppressed

The Colorado Supreme Court issued its opinion in People v. Vaughn on Monday, September 22, 2014.

Suppression of Evidence—Traffic Stop, Arrest, and Inventory Search.

In this interlocutory appeal, the Supreme Court reversed the trial court’s order suppressing drug evidence that was seized after a traffic stop. The officer had reasonable suspicion to stop the vehicle and probable cause to arrest defendant. After arresting defendant, who was the sole occupant of the vehicle, the officer acted pursuant to standardized departmental policy in deciding to impound the vehicle and performing an inventory search. The evidence therefore was seized as a result of a valid inventory search. The case was remanded to the trial court.

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

Colorado Court of Appeals: Statutory Language Deprived Court of Appeals of Jurisdiction in Bond Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Jones on Thursday, September 11, 2014.

Bond—Revocation—Petition for Review—Jurisdiction.

In this felony case, the trial court set bond for defendant. He posted the bond, and the jail released him from its custody. While he was free on bond, a second court found that there was probable cause to believe that he had committed another felony. Based on that finding, the trial court revoked his release on bond in this case, and it ordered that the jail hold him without bond until this case was resolved. Defendant filed a petition for review in this court.

The prosecution argued that the Court of Appeals did not have jurisdiction over defendant’s petition for review. Defendant filed his petition for review relying on CRS §16-4-204(1), which authorizes review of trial court orders issued under CRS §§16-4-104, -107, and -201. Here, the prosecution’s motion to revoke defendant’s bond relied on CRS §16-4-105(3), which is not mentioned in CRS §16-4-204(1). Because it is not mentioned, a defendant cannot seek appellate review of an order issued under CRS §16-4-105(3) by filing a petition for review under CRS §16-4-204(1). Therefore, the Court of Appeals did not have jurisdiction over defendant’s petition for review, and the appeal was dismissed. Defendant may, however, seek the Supreme Court’s discretionary review of the trial court’s order under CAR 21.

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

Tenth Circuit: Judge’s Consideration of Deportability as Sentencing Factor Harmless Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sanchez-Leon on Monday, August 25, 2014.

After a raid of his home by Drug Enforcement Agency officers that uncovered methamphetamine, guns, and approximately $20,000 in U.S. currency, Abel Sanchez-Leon was charged with various drug offenses. During the lunch break on the first day of trial, he accepted a plea agreement offered by the government in which he agreed to plead guilty to eight counts in exchange for a sentence of 17.5 years (210 months), greatly reduced from the Guidelines range of 295 to 353 months. At charge of plea hearing through an interpreter, Sanchez-Leon expressed his understanding of the contents of the plea agreement and that the judge may vary in sentence imposed from the sentence recommended by the prosecutor. The court concluded that Sanchez-Leon’s plea was “voluntarily and intelligently made” and that he understood the penalty to be imposed. After the charge of plea hearing, Sanchez-Leon complained that he received ineffective assistance of counsel because he was pressured into accepting the plea agreement and did not fully understand its contents. He also wrote a letter to the judge, in Spanish, to that effect, but the judge could not read the letter and did not have it translated.

Sanchez-Leon argued on appeal that the district court’s denial of his motion to withdraw his guilty plea was in error because the plea was not made knowingly or voluntarily. He also appealed his sentence as substantively and procedurally unreasonable, and contended that the district court committed error by relying on abrogated law. The Tenth Circuit addressed each claim in turn.

The Tenth Circuit rejected Sanchez-Leon’s argument that his plea was not made knowingly or voluntarily. Sanchez-Leon had been questioned in court through an interpreter regarding his awareness of the contents of the plea agreement and the potential consequences of the agreement, and he affirmed on the record that he understood the contents and consequences. The Tenth Circuit found no reason to discredit this testimony. As to the sentence, the Tenth Circuit agreed that the case law on which the sentencing judge had relied was no longer valid law at the time of sentencing, but found any error to be harmless because the judge had considered several factors in determining the sentence and the sentence was within the applicable Guidelines range.

The judgment and sentence of the district court were affirmed.

Tenth Circuit: Prosecutor’s Closing Remarks Did Not Clearly Use Co-Conspirators’ Guilty Pleas to Support Defendant’s Guilt

The Tenth Circuit Court of Appeals issued its opinion in United States v. Woods on Friday, August 22, 2014.

James Woods and several co-conspirators were indicted for conspiracy to distribute methamphetamine. The co-conspirators agreed to testify against Woods at the indictment in connection with their guilty pleas. Woods’ defense at trial was that he was not distributing meth. At trial, prosecutors introduced several phone calls between Woods and the co-conspirators allegedly talking about meth, although meth was never mentioned explicitly or in code. Defense argued they could have been talking about some other drug or something else. The co-conspirators also testified against Woods regarding the meth distribution scheme. Defense repeatedly pointed to their agreements to testify in exchange for reduced sentences. During closing argument, the prosecution argued that the co-conspirator witnesses would not have testified that they were involved in a meth distribution scheme had they not actually been distributing meth. Defense did not simultaneously object. Woods was indicted, and appealed.

On appeal, Woods argued that the prosecutor’s closing remarks impermissibly encouraged the jury to look at the co-conspirators’ guilty pleas and the fact of prosecution as substantive evidence of Woods’ guilt. Because he did not raise the issues in the district court, the Tenth Circuit conducted a plain error review and found none. The prosecutor’s remarks could be interpreted multiple ways, including to bolster the argument that the co-conspirators were truthful since their credibility had been attacked by defense counsel. Because there was no “clear and obvious” error, the Tenth Circuit upheld the indictment.

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: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Colorado Supreme Court: District Courts Should Order Disclosure of Possibly Exculpatory Material Throughout Post-Conviction Proceedings

The Colorado Supreme Court issued its opinion in In re People v. Owens on Monday, June 30, 2014.

CAR 21 Original Proceeding—Death Penalty—CRS §§ 16-12-201 to -210—Discovery and Disclosure.

Owens and Ray petitioned pursuant to CAR 21 for relief from a series of discovery rulings of the district court relative to post-conviction proceedings in their respective death penalty cases. Each had moved to discover the prosecution’s investigation of the claims raised by Owens’s motion for post-conviction review, on the grounds that such disclosure was required either by Crim.P. 16 or by the federal or state constitution. The district court ruled that Crim.P. 16 did not impose obligations on the prosecution with respect to its preparation to meet defendants’ post-conviction claims, but that the prosecution continued to have obligations to disclose information that was both exculpatory and constitutionally material, without regard for the time of or impetus for its discovery.

The Supreme Court issued a rule to show cause why the district court’s ruling should not be disapproved for too narrowly limiting the prosecution’s discovery obligations during the unitary review proceedings prescribed by statute for all death sentences and convictions resulting in death sentences in this jurisdiction. The Court held that because Crim.P. 16 imposes disclosure obligations on the prosecution only with regard to materials and information acquired before or during trial, the district court did not err in finding it inapplicable to information acquired in response to defendants’ post-conviction claims. However, because the Court previously has held not only that a prosecutor’s constitutional obligation to disclose information favorable to an accused extends through the appeal of a death sentence, but also that district courts should order the disclosure of some possibly exculpatory material, despite being unable to find a reasonable probability that nondisclosure would change the result of the proceeding, the Court remanded the cases with directions for the district court to apply the due process standard and procedure announced in People v. Rodriguez, 786 P.2d 1079 (Colo. 1989).

Summary and full case available here.

Colorado Supreme Court: Trial Court Abused Discretion by Denying Unopposed Motion to Dismiss

The Colorado Supreme Court issued its opinion in People v. Storlie on Monday, June 16, 2014.

Criminal Law—Dismissal, Nolle Prosequi, or Discontinuance.

In this CAR 21 proceeding, defendant and the district attorney sought extraordinary relief from the trial court’s denial of the district attorney’s motion to dismiss the charges against defendant pursuant to Crim.P. 48(a). The Supreme Court issued a rule to show cause and made the rule absolute. A trial court may deny the prosecution’s unopposed motion to dismiss only where it has been shown by clear and convincing evidence that the interests of the defendant or the public are jeopardized by the refusal to prosecute. The prosecution is presumed to be acting in the best interests of the public unless the prosecution is shown to have been acting in bad faith. Here, the district attorney made a good-faith prosecutorial decision to dismiss the charges based on an assessment of available testimony. Accordingly, the trial court’s denial of the motion to dismiss was an abuse of discretion.

Summary and full case available here.