February 19, 2018

Colorado Supreme Court: District Court Erred in Stripping Documents of Attorney-Client Privilege Without Satisfying Test

The Colorado Supreme Court issued its opinion in In re 2015–2016 Jefferson County Grand Jury on Monday, February 5, 2018.

Privileged Communications and Confidentiality—Crime–Fraud exception—Wiretapping.

A grand jury investigating M.W. and his company I.I. issued a subpoena duces tecum to I.I.’s attorney ordering her to produce all documents related to her representation of I.I. Along with the subpoena, the People served a notice of hearing to determine whether the documents were protected by the attorney-client privilege. In the notice, the People provided wiretap summaries as an offer of proof that the crime-fraud exception to the attorney-client privilege applied. Reasoning that I.I.’s entire endeavor was illegal, the district court ordered all of the attorney-client communications stripped of privilege without reviewing them in camera.

The Colorado Supreme Court held that a two-step process applies when a party seeks disclosure of attorney-client-privileged documents under the crime-fraud exception. First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred.” Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that (1) the client was committing, or attempting to commit, a crime or fraud, and (2) the communication was made in furtherance of the putative crime or fraud. Because the People failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. The court also held that, based on the facts of this case, the district court should have required the People to disclose the applications and authorizations for the intercepts that it provided to support the subpoena under C.R.S. § 16-15-102(9) of Colorado’s wiretap statutes.

Summary provided courtesy of Colorado Lawyer.

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.

Tenth Circuit: No Appellate Jurisdiction Where Grand Jury Subpoena Complied With

The Tenth Circuit published its opinion in In re Grand Jury Subpoena on Friday, March 1, 2013.

The appellant was the sole member of a limited liability company (LLC) whose federal income taxes were being investigated by a grand jury. The “Custodian of Records” of the LLC was subpoenaed to bring LLC records to the grand jury. As the records custodian, the appellant moved to quash the subpoena duces tecum on the ground that it violated his personal Fifth Amendment privilege against self-incrimination. The district court denied the motion to quash and refused to grant a stay pending appeal. The appellant complied with the district court’s order to produce the records.

A protesting grand jury witness may seek appellate review only after the witness refuses to obey the subpoena and is held in contempt. The appellant argued that he came within the Perlman exception that allows a witness to appeal based on a third party’s intent to produce records. The appellant’s argument that the subpoena was directed to the custodian of records of the LLC and the capacity in which he claimed a privilege—as an individual entitled to the protection of the Fifth Amendment—was distinct from his capacity as the LLC’s records custodian did not qualify as a third-party situation. The Tenth Circuit dismissed the appeal because it lacked jurisdiction.

Colorado Court of Appeals: Grand Jury Report Did Not Identify Malfeasance and Therefore Was Appropriately Withheld from Public Release

The Colorado Court of Appeals issued its opinion in In re Denver County Grand Jury, and Concerning the Grand Jury Report Issued December 8, 2010 on March 15, 2012.

Grand Jury—Report—Public Document—Misfeasance.

This appeal involved the potential public release of a report, issued by a grand jury, that declined to return an indictment in an investigation involving alleged perjury. Special prosecutor Scott W. Storey, the First Judicial District Attorney, appealed the court’s order declining to release the report, contending that the report met the “public interest” criteria of CRS § 16-5-205.5. He also asserted that the court erroneously refused to extend the term of the grand jury so that it could consider whether to modify its report. The order was affirmed.

A Denver County grand jury convened in September 2010 to investigate allegations of perjury by a police officer. The grand jury did not return an indictment. It did, however, issue a report concerning its investigation, which identified purported deficiencies in policies and procedures relating primarily to the Denver Police Department. The grand jury sought to make the report public pursuant to CRS § 16-5-205.5. The trial court reviewed the report and declined to release it as a public document.

The special prosecutor asserted that the grand jury report contained allegations of government misfeasance within the meaning of CRS § 16-5-205.5(5) and, therefore, should have become a public document. Although CRS § 16-5-205.5 may provide for exposure of “government actions that fall short of criminal activity, but are nonetheless not good government,” misfeasance involves conduct that is not simply bad public policy, but an illegal, wrongful, or corrupt exercise of government power. The grand jury’s recommendations regarding public policy and other matters of judgment or discretion did not constitute allegations of government misfeasance under CRS § 16-5-205.5. The report does not sufficiently allege misfeasance and therefore does not qualify for public release.

The special prosecutor also contended that the court erroneously refused to extend the term of the grand jury so it could review and modify its report, or draft a new one, in light of the court’s order denying publication. The role of the district court is to review the report independently to determine whether, on its face, the report satisfies the requirement that it concern matters of public interest. The governing statutes cast the district court as an independent gatekeeper, not as an active partner in the publication of a report. Further, minor revisions or the use of different terminology would not change the fact that the grand jury report did not allege sufficient misconduct to permit publication under CRS § 16-5-205.5. The grand jury’s desire to revise its report for publication cannot override the court’s determination that the allegations in the report do not meet the public interest standard. Therefore, the trial court did not abuse its discretion by refusing to extend the grand jury’s term.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.