April 30, 2017

HB 17-1040: Adding Human Trafficking to List of Crimes for Which Interception of Communications Authorized

On January 11, 2017, Reps. Paul Lundeen & Mike Foote and Sens. Cheri Jahn & Kevin Priola introduced HB 17-1040, “Concerning Authorizing the Interception of Communication Relating to a Crime of Human Trafficking.”

Under current law, a judge may issue an ex parte order authorizing the interception of certain communications if there is probable cause to believe that evidence of a crime that is on the statutory list will be obtained. The bill adds to the list of crimes human trafficking for involuntary servitude and for sexual servitude.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled to be heard in committee on January 24, 2017, at 1:30 p.m.

Bills Regarding Name Change After Divorce, Unattended Remote Vehicles, and More Signed

On Thursday, March 31, 2016, Governor Hickenlooper signed 8 bills into law, and he signed three more bills on Friday, April 1. To date, the governor has signed 70 bills into law this legislative session. The signed bills include a bill to simplify the name change process for parties to dissolutions of marriage or legal separation if those parties did not request a name change during the dissolution proceedings, a bill to change the name of “area vocational schools” to “area technical colleges,” a bill allowing the use of remote starter systems in unattended vehicles, and a bill allowing reimbursement of travel expenses of members of the Colorado Human Trafficking Council.

March 31, 2016

  • SB 16-121 – Concerning the Percentage of Tuition Revenue that an Institution of Higher Education is Authorized to Pledge for Contracts for the Advancement of Money, by Sen. Jack Tate and Rep. Alec Garnett. The bill allows the governing board of an institution of higher education to pledge up to 100 percent of tuition revenues to fund capital projects.
  • HB 16-1046 – Concerning the Response to Hazardous Substance Incidents Under Designated Emergency Response Authority Responsibility, by Rep. Tracy Kraft-Tharp and Sen. Randy Baumgardner. The bill requires local governments to report to the Colorado State Patrol who they designate as emergency response personnel for hazardous substance incidents, and narrows the appropriate response.
  • HB 16-1061 – Concerning a Requirement that the Transportation Infrastructure Needs of Federal Military Installations be Given Full Consideration During the Preparation of the Comprehensive Statewide Transportation Plan, by Reps. Terri Carver & Dan Nordberg and Sen. Nancy Todd. The bill requires the Colorado Department of Transportation to coordinate with federal military installations within the state when developing statewide transportation plans.
  • HB 16-1082 – Concerning Area Vocational Schools and, in Connection Therewith, Changing the Name of Area Vocational Schools to Area Technical Colleges and Adding Representation for Area Technical Colleges to Certain Boards, by Reps. Alec Garnett & Yeulin Willett and Sen. Nancy Todd. The bill changes all statutory references to “area vocational schools” to “area technical colleges” and adds a representative of area technical colleges to the Concurrent Enrollment Advisory Board and the Colorado Workforce Development Council.
  • HB 16-1085 – Concerning Simplifying the Process for Returning to a Prior Name After a Decree of Dissolution or Legal Separation Has Been Entered, by Rep. Dan Thurlow and Sen. Jack Tate. The bill makes it easier for a person to restore a previous name after a divorce or separation of he or she did not request the name change during the dissolution or separation proceedings.
  • HB 16-1122 – Concerning the Use of Remote Starter Systems on Unattended Vehicles, by Rep. Justin Everett and Sens. Owen Hill & Vicki Marble. The bill exempts vehicles with remote starter systems from the law prohibiting unattended idling as long as the vehicle owner takes precautions against theft.
  • HB 16-1144 – Concerning Transparency in Postsecondary Courses Offered to High School Students, by Reps. Jon Becker & Brittany Pettersen and Sen. Kevin Grantham. Currently, local education providers are required to notify parents and students annually when qualified students are eligible for concurrent enrollment in high school and college. The bill requires local education providers to notify parents and students if the students’ college classes do not qualify for concurrent enrollment.
  • HB 16-1151 – Concerning the Expansion of Penalty Mitigation Under the Alcohol Beverage Laws for Vendors Meeting the Definition of a “Responsible Vendor” as Provided by Law, by Rep. Dan Pabon and Sen. Chris Holbert. The bill requires state and local licensing authorities to consider licensees’ responsible alcohol vendor training as a mitigating factor for certain violations of state liquor laws.

April 1, 2016

  • HB 16-1033 – Concerning the Colorado Human Trafficking Council, by Reps. Beth McCann & Dan Nordberg and Sens. John Kefalas & Linda Newell. The bill allows members of the Colorado Human Trafficking Council to be reimbursed for their travel expenses.
  • HB 16-1038 – Concerning Optional Affiliation with the Fire and Police Pension Association by a County Sheriff Department that Does Not Participate in Social Security, by Reps. Jovan Melton & Joseph Salazar and Sen. Matt Jones. The bill allows counties to elect coverage in the Fire and Police Pension Association even when they decline to participate in Social Security.
  • HB 16-1083 – Concerning the Role and Mission of Western State Colorado University, by Reps. J. Paul Brown & Millie Hamner and Sens. Kerry Donovan & Kevin Grantham. The bill changes the admission standard of Western State Colorado University from “moderately selective” to “selective.”

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.

Tenth Circuit: Misrepresentations on Visa Applications Constituted Mail Fraud, Forced Labor, and Visa Fraud

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kalu on Monday, June 29, 2015.

Kizzy Kalu recruited 41 foreign nurses to work in the United States under specialty H-1B visas, advising the nurses they would be nurse instructor/supervisors at Adam University. Instead, when they arrived in the United States, the nurses were placed in nursing homes, where they performed ordinary nursing duties. Kalu’s company, Advanced Training and Education for Foreign Healthcare Professionals Group, LLC (“FHPG”), placed the nurses in the nursing homes and although the nurses were typically paid $35/hour for their labor, FHPG paid the nurses only $20/hour and kept the rest of the money. If the nurses left their FHPG employment, Kalu would charge them $1,000 per month regardless of whether they were employed and would threaten them with deportation, visa revocation, and penalties if they did not pay Kalu’s monthly fee.

Kalu and the former president of AU were charged with a 132-count indictment. In Kalu’s superseding indictment, (1) Counts 1-22 charged mail fraud; (2) Counts 23-37 charged encouraging and inducing an alien; (3) Counts 38-40 charged visa fraud; (4) Counts 41-57 charged forced labor; (5) Counts 55-64 charged trafficking in forced labor; (6) Counts 65-95 charged money laundering. Kalu was eventually convicted on 89 of the 95 counts and sentenced to 130 months’ imprisonment for mail fraud, forced labor, trafficking in forced labor, and money laundering and concurrently sentenced to 120 months’ imprisonment for visa fraud and encouraging and inducing aliens. Kalu was also ordered to pay $475,592.94 in forfeiture and $3,790,338.55 in restitution to compensate the nurses for their losses. Kalu appealed, contending erroneous jury instructions required reversal and the restitution award was erroneously calculated.

The Tenth Circuit first evaluated Instruction 17, which discussed the elements of mail fraud. Kalu contended the trial court plainly erred by failing to instruct the jury that specific intent to defraud is an element of mail fraud. The Tenth Circuit agreed that the trial court plainly erred, but found that the error did not substantially affect the fairness of the proceedings because there was ample record evidence that Kalu misrepresented the details of the nurses’ employment and salaries to the nurses and to immigration officials, knew the statements he was making were false, and profited from the scheme. The Tenth Circuit held Kalu failed to make a showing that the outcome of the proceeding would have been different if the jury had been properly instructed.

Turning next to Kalu’s contention that the district court’s mail fraud instruction constructively amended the superseding indictment, the Tenth Circuit found no error. Kalu’s argument failed at the first prong of plain error review.

Kalu next alleged the instructions misstated the necessary mens rea for encouraging or inducing an alien. The district court’s instructions used a knowledge and negligence standard rather than a knowledge and recklessness standard, thus lowering the burden for convicting Kalu under the statute. The Tenth Circuit agreed with Kalu that the district court plainly erred in instructing the jury on knowledge and negligence rather than recklessness. Again, though, the Tenth Circuit found that the error did not substantially affect Kalu’s rights or the fairness of the proceeding, since Kalu failed to demonstrate a reasonable probability that the outcome would have been different if the jury were properly instructed because the prosecution presented ample evidence of Kalu’s actual knowledge at trial.

Kalu also contended that the instructions misrepresented the definition of “serious harm” by changing the word “compel” to “cause.” The Tenth Circuit found no error in this change, noting that ample evidence showed Kalu compelled the nurses to continue in their forced employment.

Finally, the Tenth Circuit evaluated the restitution award. The trial court calculated the restitution award by subtracting the amount the nurses were actually paid from the amount they were promised. The district court relied on the promised three-year term of employment in its calculations. The Tenth Circuit found no error in this method of calculation. Although Kalu argued he only promised the nurses “up to $72,000 annually,” when he completed their H-1B applications, he wrote they would be paid $72,000 annually, thereby promising them that amount. The Tenth Circuit also rejected Kalu’s argument that the nurses may have left their employment before the expiration of the three-year period, finding the nurses that left did so precisely because of Kalu’s misrepresentations.

The district court’s judgment was affirmed.

Tenth Circuit: District Court Judgment Affirmed Despite Multiple Assertions of Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brinson on Monday, December 8, 2014.

An undercover officer in Oklahoma solicited prostitution from a website called Backpage.com, and agreed to meet a prostitute at a motel in room 123. At the motel, Officer Osterdyk met C.H., who appeared much younger than 21, and she agreed to perform oral sex on him. She had a cell phone open on the bed, and received text messages during the exchange saying “Don’t do nothing. It’s the cops.” After receiving these messages, C.H.’s demeanor changed, and Officer Osterdyk arrested her.

Other officers were in the parking lot of the motel and observed a black SUV approaching room 123. One of the officers spoke to the hotel desk clerk, who reported that room 123 was rented out to Tarran Brinson, a young black male with dreadlocks or braids wearing a red shirt and a red Chicago Bulls hat. The clerk told the officer that Brinson was a “regular” at the hotel and had rented out four other rooms that week, always paying cash. The clerk said that Brinson drove a black SUV and pointed it out in the parking lot. It was the same SUV the officers saw approaching room 123. Roughly 45 minutes later, the officers found Brinson in the parking lot of a nearby motel and arrested him.

Brinson was charged with conspiracy to engage in sex trafficking, sex trafficking of children, attempted sex trafficking of children, use of a facility in interstate commerce in aid of racketeering enterprise, coercion and enticement, obstruction of justice, and obstruction of justice by threat or corruption. After the government presented its case, Brinson moved for a judgment of acquittal on all charges. The court granted his motion as to the obstruction of justice by threat or corruption charge and denied it as to all other counts. A jury convicted Brinson on the remaining six counts. He appealed on six points of error.

Brinson first argued the district court erred by allowing expert witness testimony on child prostitution, arguing the testimony would not have aided the jury’s assessment and it was not reliable because the expert officer was not familiar with the facts of the case. The Tenth Circuit disagreed. The officer presented testimony on certain terms of the child prostitution trade, which proved helpful to the jury because other witnesses used these terms in testimony. Brinson also argued the testimony was not reliable because the expert officer was not familiar with the facts of the instant case. However, his testimony was used to define terms of the prostitution trade, not to verify the facts of the instant case, and there was no error in its admission.

Next, Brinson argued the admission of certain Facebook and text messages violated his Sixth Amendment Confrontation Clause rights. Ample evidence suggested Brinson had authored the Facebook messages, and they were therefore properly admitted as statements of a party opponent, not implicating the Sixth Amendment. As for the text messages, Brinson failed to specify which messages violated his Sixth Amendment rights, so his argument failed.

Brinson also argued the district court erred in allowing introduction of hearsay statements to Officer Osterdyk during his undercover investigation. The statements did not constitute hearsay, as they were not offered to prove the truth of the matter asserted, but rather to explain why Officer Osterdyk was in room 123, why he knew the price of the sexual act, and why he agreed to pay for oral sex. The statements were not hearsay, and the Tenth Circuit found that even if they had been, they were not “testimonial” and therefore no Confrontation Clause violation occurred.

Brinson next argued the district court erred by admitting a certificate authenticating debit card records. The prosecution admitted the certificate to authenticate the records as business records under FRE 902(11). The Tenth Circuit has previously held that such certificates are non-testimonial and therefore do not implicate the Sixth Amendment. Brinson argued that the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), was dispositive, but the Tenth Circuit disagreed, finding instead that the records in Brinson’s case differed from those offered in Melendez-Diaz because the certificate did not contain any “analysis” that would constitute out-of-court testimony.

Brinson argued the evidence obtained after his arrest should have been suppressed, since the police lacked probable cause to arrest him. However, the police had ample reason to arrest Brinson, and there was no error in allowing the evidence obtained after his arrest.

Finally, Brinson argued the evidence was insufficient to support his conviction on each of the six counts. The Tenth Circuit analyzed each count individually and found a reasonable jury could have found Brinson guilty beyond a reasonable doubt of each count.

The Tenth Circuit found that the district court committed no error, and Brinson’s convictions were affirmed.

HB 14-1273: Repealing and Reenacting Certain Statutory Provisions Regarding Human Trafficking

On February 6, 2014, Rep. Beth McCann and Sen. Linda Newell introduced HB 14-1273 – Concerning Human Trafficking. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts, with amendments, existing provisions concerning human trafficking.

A person who knowingly sells, recruits, harbors, transports, transfers, isolates, induces, entices, provides, receives, or obtains by any means another person for the purpose of coercing the other person to perform labor or services commits human trafficking for involuntary servitude. Human trafficking of an adult for involuntary servitude is a class 3 felony. Human trafficking of a minor for involuntary servitude is a class 2 felony.

A person who knowingly sells, recruits, harbors, transports, transfers, isolates, induces, entices, provides, receives, or obtains by any means a person for the purpose of coercing the person to engage in commercial sexual activity commits human trafficking for sexual servitude. Human trafficking of an adult for sexual servitude is a class 3 felony. Human trafficking of a minor for sexual servitude is a class 2 felony.

In any prosecution for human trafficking of a minor for sexual servitude, it is not a defense that:

  • The minor consented to being sold, recruited, harbored, transported, transferred, isolated, induced, enticed, provided, received, obtained, or maintained by the defendant for the purpose of engaging in commercial sexual activity;
  • The minor consented to participating in commercial sexual activity; or
  • The defendant did not know the minor’s age or reasonably believed the minor to be 18 years of age or older, or that the minor or another person represented the minor to be 18 years of age or older.

Human trafficking of a minor for sexual servitude is a “sex offense against a child” for the purposes of the statute of limitations. This means that there is no limit to the period of time within which criminal proceedings may be initiated against an offender.

The bill creates the Colorado human trafficking council (council) within the department of public safety (department). The bill establishes the membership of the council and sets forth the duties of the council.

In any criminal prosecution for a human trafficking offense or for any offense relating to child prostitution, evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, or opinion evidence of the victim’s or a witness’s sexual conduct, or reputation evidence of the victim’s or a witness’s sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, may only by admitted under specific circumstances.

For a conviction for human trafficking for involuntary servitude or for human trafficking for sexual servitude, the court shall order restitution, if appropriate, even if the victim is unavailable to accept payment of restitution. If the victim is deceased or unavailable for 5 years after the date of the restitution order, the defendant shall pay the ordered restitution to the prostitution enforcement cash fund.

The bill makes conforming amendments.

On March 11, the Judiciary Committee amended the bill and referred it to the Appropriations Committee; the bill is scheduled to be heard by the Appropriations Committee on Friday, April 4 at 7:30 a.m.

Colorado Court of Appeals: Defendant’s Tattoo Evidence Relevant Under CRE 404(b)

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, March 27, 2014.

Trafficking in Children—Pimping—Prostitution—Res Gestae Evidence.

The victim, a 17-year-old girl, met defendant, an 18-year-old man, at a rave. They became friends and entered into an agreement whereby defendant would post advertisements offering the victim to provide massages with the ultimate goal for the victim to engage in sexual acts for money. The jury convicted defendant of trafficking in children, pimping an adult, pimping a child, pandering a child, and inducing child prostitution.

On appeal, defendant contended that the trial court erred when it denied his motion for judgment of acquittal on the trafficking in children charge because the evidence was not sufficient to support a conviction on that charge. To prove that a defendant has violated CRS § 18-3-502(1)(a), the prosecution must establish that the defendant sold a child, exchanged a child, bartered a child, or leased a child. Here, there was no evidence that defendant facilitated the transfer of the victim’s physical or legal custody to the callers. Because the evidence in the record does not support defendant’s conviction for trafficking in children, the conviction and sentence on that charge were reversed and vacated, and the case was remanded to the trial court to enter a judgment of acquittal on that charge.

Defendant also contended that the trial court erred when it admitted evidence about his tattoo. The victim’s friend testified that she was with defendant when he got the tattoo, which occurred during the same period when the victim and the friend were engaged in defendant’s prostitution ring. The friend stated that defendant told her the “MOB” tattoo meant “money over bitches.” The prosecution argued at trial that the term “money over bitches” showed that defendant had a “calculated plan to exploit” the victim and her friend, that he “put a price tag” on them, and that the phrase was “a sex trafficker’s motto.” Thus, the tattoo evidence was relevant, it was res gestaerather than CRE 404(b) evidence, and it was not unduly prejudicial. Accordingly, the trial court did not err when it admitted evidence about defendant’s tattoo.

Summary and full case available here.