July 22, 2017

Colorado Court of Appeals: Multiple Errors from Prosecutorial Overreach Did Not Influence Outcome of Trial

The Colorado Court of Appeals issued its opinion in People v. Howard-Walker on Thursday, June 15, 2017.

Batson Challenges—Peremptory Strikes—Jurors—Testimony—Expert Opinion—Lay Witness—Prosecutorial Misconduct—Jury Instructions—Cumulative Error Doctrine.

Defendant was charged with first degree burglary and conspiracy to commit first degree burglary. Among other evidence presented, his girlfriend and Detective Garcia testified at his trial. He was convicted as charged and sentenced.

On appeal, defendant contended that the trial court erred when it denied his challenges, under Batson v. Kentucky, to the prosecutor’s peremptory strikes excusing three prospective jurors—one who identified himself as African-American and two who identified themselves as Hispanic—asserting that the prosecutor’s “race-neutral” reasons for removing the jurors were not worthy of belief. One challenged juror was disinterested, the second juror had a negative experience with law enforcement and a belief that police officers sometimes misidentify suspects, and the third juror had previously faced criminal charges from the same district attorney’s office and had a negative view of law enforcement. Therefore, the trial court’s Batson findings are supported by the record.

Defendant next argued that the admission of several portions of Garcia’s testimony constituted reversible error: (1) Garcia was not admitted as an expert witness, but gave opinions regarding whether the gun depicted in the video surveillance was real. Although this was improper, it did not constitute plain error. (2) Garcia testified about the manner in which the gun was being used. Any error in admitting this testimony was harmless. (3) It was not error for Garcia to identify defendant. No specialized knowledge is necessary to recognize an individual in a video and this evidence was probative of a material fact. (4) Garcia testified regarding probable cause, which was not relevant; however, this was not plain error. (5) Garcia testified but had no personal information about the reasons why defendant’s girlfriend was crying during the police interview. This testimony was not obviously improper and did not undermine the fairness of the trial. (6) Garcia opined about defendant’s statement regarding another perpetrator. Even if this was improper, it did not undermine the fundamental fairness of the trial. (7) Garcia opined about the truthfulness of defendant’s statements to police. Though this testimony was improper, it does not rise to the level of plain error because there was other sufficient evidence to support his conviction.

Defendant next asserted that the prosecutor engaged in reversible misconduct. Although the prosecutor stepped over the line when he repeatedly suggested that the girlfriend was committing perjury, the prosecutor did not threaten or coerce her, and any misconduct was not reversible. The prosecutor also commented on the girlfriend’s truthfulness. The evidence supported a reasonable inference that her testimony was false, and thus these comments were proper. Finally, although the court did not condone the prosecutor’s comment on defendant’s decision not to testify, the comment did not amount to plain error.

Defendant further argued that the trial court erred when it failed to instruct the jury on the predicate crime of theft and when it failed to define the word “intent.” While the jury instructions were deficient, (1) the record demonstrates that the specification of the underlying crime was not a controverted element of the burglary offense; therefore, the court’s failure to instruct the jury on theft was not plain error, and (2) under the circumstances of this case, the court’s failure to define the culpable mental state similarly did not constitute plain error.

Finally, defendant argued that the cumulative effect of the trial court’s errors and prosecutorial misconduct violated his right to a fair trial. The errors were relatively small events occurring over a two-day trial during which substantial evidence was presented. Defendant received a fair trial in spite of the identified errors.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prosecutorial Misconduct Not Intended to Provoke Mistrial

The Colorado Court of Appeals issued its opinion in People v. August on Thursday, April 21, 2016.

Double Jeopardy—Prosecution Intentionally Seeking a Mistrial.

Defendant was tried twice on charges of kidnapping and sexual assault of his former wife. The first trial was declared a mistrial and the charges were dismissed on federal double jeopardy grounds based on a finding that the prosecution had willfully violated a court order. On appeal, a division of the court of appeals concluded that the reprosecution would only be barred if the prosecutor had acted with the intent to provoke a mistrial, and the case was remanded with directions to make findings on this issue. On remand, the trial court found that the prosecutor had not intended to provoke defendant into moving for a mistrial, denied defendant’s motion to dismiss the charges, and held a second trial.

At the second trial the defense objected to the prosecution’s closing statement referencing a prior assault and remark that “history repeats itself” as an impermissible reference to propensity. The court agreed with the defense, declared a mistrial, and heard argument as to whether the charges should be dismissed under the double jeopardy provisions of the U.S. and Colorado constitutions. The trial court dismissed the charges on double jeopardy grounds, finding that the prosecutor had willfully goaded the defense into asking for a mistrial in order to try the case a third time and benefit from the experience of the second trial’s weaknesses.

On appeal, the People argued that the trial court erred. The court agreed, finding that the state and federal standard on this issue is the same: a retrial is barred only if prosecutorial misconduct giving rise to the mistrial was intended to provoke the defense into moving for a mistrial. Double jeopardy bars retrial in the mistrial context only where the prosecutor’s intent is to avoid a jury verdict. In evaluating the prosecutor’s conduct, the trial court used an improper legal standard and may not have considered the totality of the circumstances surrounding the prosecutor’s conduct.

The order of dismissal was vacated and the case was remanded to the trial court for reconsideration of its ruling and further findings of fact consistent with the court’s opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prosecutor “Channeling” Victim in Opening Statement was Error but Not Plain

The Colorado Court of Appeals issued its opinion in People v. Manyik on Thursday, March 24, 2016.

Prosecutorial Misconduct—Amended Information—Crim.P. 7(e)—Jury Instruction—Mistaken Belief—Hearsay.

Adams was romantically involved with Manyik and lived in his house. Adams remained in contact and continued to socialize with the victim, with whom she previously had been in a relationship. Adams invited the victim to Manyik’s house and told victim that Manyik was out of town on a hunting trip. When the victim arrived, Manyik shot and killed him.

Manyik was convicted of second-degree murder, aggravated robbery, and tampering with physical evidence.

Manyik raised five arguments on appeal. First, he argued that the prosecutor’s “channeling” (a technique by which a lawyer speaks to the jury in the first person as though he is the injured or deceased person) constituted prosecutorial misconduct and required reversal of his convictions. Although the prosecutor’s opening statement was impermissible, under the limited circumstances of this case it was not plain error and did not require reversal of Manyik’s convictions.

Second, Manyik argued that the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial. Because the amended information charged a different offense and subjected Manyik to mandatory sentencing for a crime of violence, while the original charge did not, Crim.P. 7(e) precluded the amendment. Manyik’s conviction for aggravated robbery was reversed and the case was remanded for a new trial on that charge.

Third, Manyik argued that the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers. The tendered instruction emphasized only selective evidence that was favorable to Manyik and thus was improper. The trial court did not err in rejecting Manyik’s proposed jury instruction on this issue.

Fourth, Manyik contended that the court’s jury instruction on the defense of mistaken belief of fact was incorrect. The language of the instruction given was almost identical to that in the relevant statute, CRS § 18-1- 504(1)(c). Additionally, defense counsel’s argument about Manyik’s mistaken belief made the jury aware of his mistake of fact defense. Therefore, the given instruction was proper.

Lastly, Manyik argued that the court erred in excluding evidence of recorded statements he made during telephone conversations with family members when he was at the police station. Because the statements contained impermissible hearsay, the court did not err in excluding them.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

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

Colorado Court of Appeals: Prosecution Not Entitled to Withdraw from Plea Bargain Regardless of Prosecutorial Misconduct

The Colorado Court of Appeals issued its opinion in People v. Mazzarelli on Thursday, March 10, 2016.

Mazzarelli was charged with child abuse in violation of C.R.S. § 18-6-401(1)(a), a class 3 felony, but entered into a plea agreement in which he agreed to plead guilty to a reduced charge of class 4 felony child abuse in exchange for a stipulated sentencing range of 2 to 8 years. The trial court accepted the plea agreement at the initial hearing but delayed sentencing until it could review the presentence report.

At the next hearing, the prosecution proposed a five-year sentence, arguing that the defendant was unemployed and was playing video games when the incident in question occurred. The trial judge, who was also presiding over the accompanying dependency and neglect proceeding, informed the prosecution that it disliked the sentence because the father’s incarceration would not be in the child’s best interest, further saying he was not going to accept the plea agreement. The judge offered the parties a chance to withdraw the agreement at that time.

After that hearing, Mazzarelli filed a motion for a special prosecutor due to “blatantly false statements” made by the People. At the third hearing, the People clarified the misstatements, saying that defendant had been employed when the abuse occurred and was not playing video games as they had previously represented. The People requested to withdraw the plea agreement and set the case for trial, but the trial court denied the request and sentenced Mazzarelli to 36 months supervised probation.

The People appealed, contending the trial court should be bound by the plea agreement because it did not inform the parties that it was not inclined to accept the proposed sentencing, and that the court erred when it found prosecutorial misconduct and would not allow the People to withdraw from the plea agreement. The court of appeals disagreed with the People’s arguments but did not address the prosecutorial misconduct issue because the People had no right to withdraw from the plea agreement, further finding that the trial court had decided not to sentence the defendant pursuant to the plea agreement prior to having knowledge of the prosecutorial misconduct.

The court of appeals affirmed.

Tenth Circuit: Excessive Force Claim Does Not Require Showing of More than De Minimus Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodella on Wednesday, November 4, 2015.

Michael Tafoya was driving home from his grandfather’s house in rural Rio Arriba County, New Mexico, when a green Jeep began tailgating him and flashing its headlights. Tafoya stepped on his brakes to try to get the Jeep to back off, and flipped off the driver of the Jeep through his back window, but the Jeep continued to tailgate him. Eventually, he found a place to pull over and allowed the Jeep to pass. When it sped past him, Tafoya again flipped off the driver. The Jeep slammed on its brakes and rapidly reversed back to where Tafoya was stopped. Two men got out of the Jeep: defendant Thomas Rodella, who was the passenger, and his son, Thomas Rodella Jr., who was the driver. The two men approached Tafoya and urged him to “come on.” Although Rodella was the acting sheriff of Rio Arriba County, at no point did he identify himself as a law enforcement officer.

Tafoya, believing the men wanted to fight him, sped off, followed by the Jeep. Tafoya became scared and began driving 60 to 65 miles per hour down the road, despite the 35 mph posted speed limit. He tried to plan a route to reverse his course but missed his turn. Panicked, he yelled out the window at a passing jogger to call the police. Tafoya turned into a nearby driveway, and the Jeep quickly followed. Tafoya reversed, trying to evade the Jeep, but crashed into a metal pole in the middle of the driveway. His vehicle became stuck.

Rodella jumped out of the passenger side of the Jeep and tried to get into the driver’s side. When that failed, he successfully entered the passenger side with a shiny silver firearm in his hand, later confirmed to be a .38 special revolver. Rodella tried to turn the gun toward Tafoya, who grabbed at his wrists, begging, “Please don’t kill me!” Rodella responded by saying, “It’s too late, it’s too late.” As the two struggled, Rodella Jr. approached the vehicle and pulled Tafoya out. Tafoya struggled to get up, continuing to say “Please don’t kill me.” As Rodella Jr. held him down, he told Tafoya that his dad was the sheriff. Tafoya reported that he froze in shock, and eventually calmly asked Rodella to show him his badge in order to confirm he was the sheriff. Rodella said, “You want to see my badge?,” grabbed Tafoya by the hair, and smacked him across the face with his badge, saying “Here’s my badge, motherfucker.”

Tafoya remained on the ground for several minutes until deputies from the Rio Arriba County Sheriff’s Office arrived on the scene. The deputies were contacted by Rodella directly during the chase; he did not report the chase to dispatch. The deputies took Tafoya to his car, frisked him, and transported him to the jail. Although Tafoya attempted repeatedly to explain what happened, they did not listen, and eventually charged him with a felony offense. Tafoya remained in jail for several days until his grandfather bailed him out. The criminal charges against Tafoya were eventually dismissed, and Tafoya contacted the FBI to report what had happened to him.

In August 2014, a federal grand jury indicted Rodella on four counts: conspiring with his son to violate Tafoya’s constitutional rights against unreasonable seizures, depriving Tafoya of his civil rights, brandishing a firearm in the commission of that offense, and falsifying a document because of his official written report documenting what happened before and during the arrest of Tafoya. In September 2014, the grand jury returned a superseding indictment charging two offenses: deprivation of Tafoya’s constitutional right to be free of unreasonable searches and seizures by a law enforcement officer and brandishing a firearm duing the commission of that offense. Rodella proceeded to trial, and the jury found him guilty on both counts. He was sentenced to a total term of imprisonment of 121 months. He appealed.

On appeal, Rodella argued the evidence was insufficient to show that he had subjected Tafoya to a deprivation of rights while under color of law. The government presented two theories to show Rodella’s violation of 18 U.S.C. § 242: that Rodella unlawfully arrested Tafoya, and that he used unreasonable force in the course of arresting Tafoya. The jury accepted the government’s theory on both counts. Considering the unreasonable force theory, the jury found beyond a reasonable doubt that Rodella used or threatened to use a dangerous weapon, but not that he caused serious bodily injury. Rodella challenged both theories of liability on appeal.

The Tenth Circuit initially noted that Rodella failed to preserve his argument that Tafoya was committing certain traffic infractions, thus supplying reasonable cause to stop him. The Tenth Circuit further noted that, because Rodella did not testify in his defense, the jury could only evaluate the testimony of the other eyewitnesses: Tafoya, Rodella Jr., and Mark Thompson, the owner of the property where Tafoya crashed his car. Thompson’s testimony generally supported Tafoya’s, and although Rodella Jr.’s testimony was dramatically different, the jury could have reasonably found it was not credible. Additionally, because Rodella was not in uniform, he could not have arrested Tafoya for the traffic offenses under New Mexico law. The Tenth Circuit found the evidence sufficient to support the unlawful arrest charge.

Next, the Tenth Circuit examined Rodella’s challenge to the sufficiency of the evidence supporting the excessive force claim. Rodella based his challenge on a Tenth Circuit opinion that an excessive force claim in the context of handcuffing too tightly requires more than a de minimus injury. The Tenth Circuit noted that the holding on which Rodella relied was limited to handcuffing injuries, and also that the Supreme Court rejected the theory that more than a de minimus injury was required to support an excessive force claim. The Tenth Circuit rejected Rodella’s claim that more than a de minimus injury was required to support excessive force and therefore concluded the evidence was sufficient for Tafoya’s excessive force claim. Rodella also argued that he was deprived of his Fifth and Sixth Amendment rights when the jury was not instructed that excessive force requires more than a de minimus injury, which the Tenth Circuit similarly rejected.

Next, Rodella argued the district court erred in admitting evidence of three similar incidents in which he was involved. Prior to trial, the government had filed a motion in limine, seeking to introduce evidence of the three similar incidents pursuant to FRE 404(b) to show motive, intent, plan, knowledge, absence of mistake, and lack of accident, listing specifically what the government thought the evidence would show. The district court granted the government’s motion on the eve of trial. To reduce the risk of prejudice, the court ordered the government to instruct the jury specifically for what purpose the evidence was admitted. The Tenth Circuit rejected Rodella’s argument that the evidence tended to make propensity-based inferences in order to show willfulness. The Tenth Circuit found that the evidence had significant probative value and was not unfairly prejudicial.

Rodella similarly argued the prosecution committed misconduct when it improperly referenced his other bad acts during closing argument, pointing to eight specific statements. The Tenth Circuit evaluated each statement separately. As to the statements that contrasted the personalities of Rodella and Tafoya, the Tenth Circuit found no misconduct. The Tenth Circuit also found no prejudice in the prosecutor’s statement that Rodella’s tailgating of Tafoya was “familiar,” considering the other similar incidents. The Tenth Circuit similarly found the prosecutor’s mention of the other three incidents acceptable three other times. As for the government’s mention of the emotional distress suffered by one of the other victims, the Tenth Circuit found no error because the government’s evidence was sufficient to establish that Tafoya experienced emotional distress from the incident. Finally, the Tenth Circuit found the last statement proper because it asked the jury to infer from the totality of the circumstances that Rodella had acted willfully.

The Tenth Circuit also rejected Rodella’s claim that the admission of evidence on officer training was an abuse of discretion, noting that the evidence showed that Rodella knew his conduct was illegal. The Tenth Circuit also addressed Rodella’s cumulative error claim, finding that it only had accepted one instance of prosecutorial misconduct as potentially erroneous and that was not enough to prove cumulative error.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Instruction Advising on Knowing and Dishonest Conduct Correctly Stated Mens Rea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sorensen on Monday, September 14, 2015.

Jerold Sorensen, an oral surgeon in California, found Financial Fortress Associates (FFA) in 2000 after an online search to develop a business plan for his dental practice. FFA offered seminars advising attendees to develop “pure trust organizations” (PTOs) in order to reduce or eliminate tax liabilities. Sorensen developed six PTOs with the help of Melissa Sugar, an attorney who spoke at the first FFA seminar Sorensen attended and opened a bank account titled “Northside Management,” which was titled in the trusts’ names. Sugar was the trustee of the trusts but Sorensen had full account privileges because he was named as Sugar’s “administrative assistant” for the trust. Sorensen retained full control over the Northside Management account. Sorensen retitled his personal residence, dental practice, and dental equipment into the trust, then had his dental practice pay the trust to “rent” his home, dental practice, and dental equipment. He deposited dental income directly into the trust and reported the rental expenses as business expenses, thereby avoiding taxes. No tax return was ever filed for the trusts, which were active from 2002 through 2008.

Soon after establishing the trusts, Sorensen approached his longtime accountant and family friend about the FFA pure trust program. Sharp researched the program and advised Sorensen that the IRS considered it a scheme, and that she could no longer provide tax services to Sorensen if he continued with the PTOs. Sorensen hired a new accountant, Wayne Paul, who was recommended by FFA, to prepare his business returns, and had his personal returns prepared by H&R Block. He never informed H&R Block about the trusts or the Northside Management account, which he explained was because they never asked.

In May 2007, an IRS special agent executed a search warrant at Sugar’s law office. By August of that year, Sorensen knew of the search but did not stop using the trust or Northside account. Sorensen later told IRS Special Agent Michelle Hagemann that although he thought he should stop using the FFA services, “he was in too deep, he couldn’t get out, and he didn’t want to pay the tax.” Also in 2007, Sorensen approached his son’s father-in-law, CPA Keith Wilcox, about the trusts. Wilcox testified that he told Sorensen the trusts were a complete sham. Wilcox prepared amended tax returns for Sorensen, but Sorensen did not file them for two more years.

Agent Hagemann sent Sorensen a certified letter in 2008 to advise him he was the subject of a criminal investigation. Sorensen refused the letter, following advice received at an FFA seminar. Later, when Agent Hagemann appeared at Sorensen’s dental offices, Sorensen refused to let her in, again following FFA advice, and sent her a public servant’s questionnaire requesting information such as her birthdate, home address, and social security number.

Sorensen’s defense theory was that he believed PTOs were completely legal. However, he admitted at trial that the payments made to the PTOs were not legitimate business deductions, and he also admitted that he underpaid his taxes by more than $1.5 million from 2002 through 2007. In November 2013, a Colorado federal grand jury indicted Sorensen, charging him with violating 26 U.S.C. § 7212(a) by corruptly endeavoring to impede administration of Internal Revenue laws.

The primary issue at trial was whether the statute required knowledge of illegality and whether Sorensen acted with such knowledge. The defense argued that Sorensen was a gullible, naive man who was unaware his conduct violated the law. Dr. Dana Cogan, a forensic psychiatrist, testified on Sorensen’s behalf that he was “law abiding” and “very naive.” Nevertheless, in 2014, the jury convicted Sorensen of corruptly endeavoring to obstruct or impede the due administration of internal revenue laws in violation of § 7212(a)’s omnibus clause. The district judge varied downward from the guidelines range and statutory maximum and sentenced Sorensen to 18 months’ imprisonment. Sorensen appealed, raising seven issues, which the Tenth Circuit addressed in turn.

Sorensen first contended that his conduct should have been charged under 26 U.S.C. §§ 7201 and 7203 because it amounted to evading taxes, and that § 7212 requires something more than tax evasion. The Tenth Circuit first noted that the government may choose what conduct to charge when the underlying conduct satisfies requirements of more than one charging statute. Because § 7212 requires that the tax evasion be done corruptly instead of willfully, the two sections address different conduct. Willfully evading taxes is the more serious crime. The Tenth Circuit noted that Sorensen used trusts created with no EIN, which prevented the IRS from tracking them and therefore obstructed and impeded the IRS from duly administering the tax code. The Tenth Circuit concluded Sorensen’s charge fit within the omnibus clause of § 7212.

Sorensen next raised three challenges to the jury instructions: (1) the district court erroneously refused to give an instruction on knowledge of illegality, (2) the court erroneously gave a deliberate ignorance instruction, and (3) the court erroneously gave an instruction that allowed the jury to convict on any one of the “means” alleged in the indictment. As to the first issue, the Tenth Circuit found the mens rea element was properly set forth in the court’s instruction, and therefore the district court did not err by denying Sorensen’s request for a separate instruction that knowledge of illegality is required. The Tenth Circuit further found that the district court’s instruction on Dr. Sorensen’s good faith belief of legality satisfied any question of whether the jury believed he had acted “knowingly and dishonestly” with regard to the trusts.

Sorensen also challenged the court’s deliberate ignorance instruction, because he denied only criminal intent, not knowledge of any fact. The Tenth Circuit found no error, noting the instruction assisted the jury in determining whether the government had proved Sorensen’s knowledge of facts bearing on the trusts’ illegality. The Tenth Circuit then addressed Sorensen’s argument that the district court erred by, sua sponte, providing an instruction that the jury must convict Sorensen based on unanimous agreement of any of the means provided in the indictment. Although the Tenth Circuit agreed that it was error for the district court to so advise the jury, the error benefited Sorensen and therefore was harmless.

Sorensen next argued the district court erred by refusing to allow him to present surrebuttal evidence. The Tenth Circuit found this decision well within the district court’s discretion, and noted that the court would have allowed the evidence during Sorensen’s case in chief but refused to allow it as surrebuttal because of a fear it would have devolved into back-and-forth accusations. Sorensen also contended the prosecution’s closing rebuttal argument misstated the evidence to mount an attack on Sorensen’s credibility. The Tenth Circuit analyzed each statement in turn. For the first instance, the Tenth Circuit found the court’s curative instruction resolved any potential error. For the next assertions of error, Sorensen failed to preserve them for appellate review, and the Tenth Circuit found that the prosecutor’s misstatements did not affect Sorensen’s substantial rights. The Tenth Circuit also held that there was no error in the district court’s failure to declare a mistrial based on the prosecutor’s improper remarks. Finally, the Tenth Circuit rejected Sorensen’s cumulative error argument, noting he failed to cite any conclusory authority to support his bare assertion of cumulative error.

The Tenth Circuit affirmed Sorensen’s conviction.

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.

Colorado Court of Appeals: Momentary Eye Contact Sufficient to Support Bail Bond Violation Charge

The Colorado Court of Appeals issued its opinion in People v. Serra on Thursday, September 28, 2015.

Bail Bond Conditions— Protective Order—Harassment—Evidence—Contact—Character—Prosecutorial Misconduct.

Serra was the elected district attorney for the Seventh Judicial District when he was arrested and charged with unlawful sexual contact and extortion. The victim in this case, who had worked for Serra at the district attorney’s office for several years before his arrest, was also a named victim in the sexual contact case. Serra was released on a bail bond pending trial. A condition of the bond was that he have no contact with the victim. Several months before the date of the preliminary hearing in the unlawful sexual contact case, Serra encountered the victim at a department store. Based on that encounter, he was charged and convicted of violation of his bail bond conditions, violation of a protective order, and harassment.

On appeal, Serra argued that the evidence was insufficient to support his convictions. The evidence that Serra happened upon the victim, stared at her for 10 to 15 seconds, and made a facial expression supported his convictions for violation of bond conditions and violation of a protection order. The evidence was insufficient, however, to support his conviction for harassment because there was no evidence that he followed the victim. Therefore, the harassment conviction was vacated.

Serra argued that the trial court erred in defining the term “contact” for the jury and that it incorrectly defined the term. The term “contact,” as used in CRS §§ 18-8-212 and 18-6-803.5, has a commonly accepted and understood meaning. Thus, a further clarifying definition was not required to inform the jury of the governing law. However, the court’s definition of “contact” did not state the plain and ordinary meaning of the term. In light of the minimal amount of evidence establishing the element of contact, this error was not harmless. Therefore, Serra’s convictions for violation of bond conditions and violation of a protection order were reversed.

Serra also argued that the trial court erred in admitting evidence of the victim’s character for truthfulness. Because defense counsel’s cross-examination of the victim did not amount to an attack on her character for truthfulness, testimony that she was a truthful person was inadmissible. On remand, the trial court should not admit evidence that the victim is truthful unless her character for truthfulness is attacked first.

Serra contended that evidence of his bad character was improperly admitted. The witnesses’ testimony about their experiences with Serra’s smirk constituted “other acts” evidence. It was relevant here because it established that Serra used a smirk to communicate. If the testimony is offered as evidence on retrial, the trial court likewise must evaluate it for admissibility under CRE 404(b).

Finally, Serra contended that some of the statements the prosecutor made in closing were improper. On remand, the prosecutor should only refer to facts admitted in evidence and must not use the words “lie,” “BS,” “deceit,” or similar terms to refer to Serra’s testimony or defense counsel’s argument.

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

Tenth Circuit: District Court Required to Review All Circumstances in Determining Validity of Batson Challenge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vann on Friday, January 16, 2015.

Rayvell Vann paid cash for a one-way Amtrak ticket from Los Angeles to Kansas City two hours before the train departed. A confidential informant relayed the unusual circumstances of the ticket purchase to DEA Agent Small in Albuquerque, and when the train made a scheduled stop in New Mexico, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann’s bags and he consented. The search revealed two bottles of codeine, 25 OxyContin pills, and two jars containing approximately 100 grams of PCP. Vann was interrogated and admitted to dealing drugs, but he contended he did not know the PCP was in the box where the pills were found because he had shipped the PCP via UPS. He was charged with two counts of possession with intent to distribute PCP and codeine, and was convicted on both counts. He dismissed his attorneys at sentencing, deciding instead to proceed pro se, and was sentenced to 15 years’ imprisonment. He appealed, raising four issues.

Vann’s first issue on appeal was that the district court committed legal error during jury selection because it improperly administered the three-part Batson test after the government moved to strike the sole African-American member of the venire. Both sides concede that the other party met its obligation as to the first and second parts of the Batson test, so the Tenth Circuit analyzed only the third part — the district court’s obligation to consider all circumstances in determining whether there was racial animosity in the juror strike. During trial, Vann objected to the prosecution’s strike of the juror, but Vann also filed a post-trial Rule 33 motion, arguing that the government’s reasons for striking the juror were pretextual. The Tenth Circuit examined the record, acknowledging the record was limited as to the district court’s reasons for accepting the prosecution’s race-neutral explanations. However, the Tenth Circuit noted that its precedent makes clear that the district court need not make a complete record as to the reasons for denying a Batson challenge, although the better practice may be to complete the record. As to Vann’s post-trial motion, the Tenth Circuit strongly discouraged the practice, finding that this put the district court into an awkward position. Vann could have instead reiterated his Batson challenge after the completion of voir dire but before the jury was empaneled, which would have allowed the court to adequately compare similarly situated jurors before the trial began.

Vann next contended the district court erred by allowing Agent Small’s expert testimony at trial. Vann does not claim error in the court’s qualification of Agent Small as an expert, contesting only the reliability of the testimony. The Tenth Circuit noted that the district court properly vetted Agent Small through a Daubert hearing and at trial. The Tenth Circuit also found that, contrary to Vann’s assertions, Agent Small had considerable experience in the drug trade and had attested to numerous PCP arrests. The Tenth Circuit found no abuse of discretion.

Vann’s third claim was that the district court erred in not sua sponte addressing alleged prosecutorial misconduct during trial. After reviewing the record, the Tenth Circuit found that the prosecution’s comments were “simply lawyering,” or attempts to influence the jury’s verdicts by presenting evidence favorable to its case. Further, a limiting instruction provided by the district court and limiting remarks made by the prosecutor mitigated any error there might have been.

Vann’s final claim is that he did not knowingly waive his right to counsel at sentencing. The district court had conducted a waiver-of-counsel inquiry at the beginning of trial, and Vann elected to have representation at trial. When Vann discharged his attorney at the sentencing phase, the trial court questioned whether he was firing his attorney as a tactic to gain time, since he had fired two previous attorneys. The court allowed him to proceed pro se at the sentencing phase. Vann contends that he did not receive an adequate waiver-of-counsel inquiry prior to sentencing, but the Tenth Circuit found he was adequately informed of the risks of proceeding unrepresented due to the previous inquiry.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Defendants’ Convictions in Methamphetamine Trafficking Conspiracy Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Serrato on Friday, February 7, 2014.

Eddie Serrato and Sotero Negrete are drug dealers. In this case, they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raised four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines;  and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment.

Mr. Negrete raised arguments one and two above and added that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.

First, both defendants challenged as prosecutorial misconduct two separate remarks made by government counsel during trial—one in the course of making an objection during the defendant’s cross-examination of DEA Special Agent Ryan Cox, and the other in counsel’s rebuttal closing argument. They contended that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.

During cross-examination of Special Agent Cox, defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded “I didn’t prepare it today.” Government counsel objected: “Your Honor,  I’m going to object now. Counsel has every bit of discovery. If counsel wants to play a recording, he can play it. It’s not Mr. Cox’s responsibility to bring the recordings for Mr. Pretty [Defendant Serrato’s attorney]. He’s got them in discovery.”

Mr. Serrato’s attorney then asked for a sidebar and moved for a mistrial on the basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth Amendment right to remain silent. Mr. Negrete’s attorney joined in the motion. The district court denied the motion.

The second challenged remark occurred during the government’s rebuttal closing argument. The defense called into question the veracity of the testimony of a confidential informant. Government counsel stated: “If you remember, these defense counsel had an opportunity to ask Agent Malone whatever they wanted. They never asked him.” Counsel for Mr. Serrato objected. Mr. Negrete’s counsel immediately joined the objection, stating, “That’s prosecutorial—as instructed, no defendant has any obligation to present a single piece of evidence or a single question.” The district court overruled the objection.

The Tenth Circuit assumed without deciding that the government  counsel’s comments were improper. Nevertheless, despite the impropriety, the court did not view the comments in a vacuum. The district court immediately and specifically gave the jury a curative instruction. As for the prosecutor’s comment during his rebuttal argument that the defendants could have asked Agent Malone questions if they had wanted to, the court found that sustaining the objection would have been the better course. However, the Tenth Circuit did not view that manner of responding to the objection as an error of constitutional significance.

Second, Defendants argued that the government failed to prove at trial the existence of one single conspiracy as charged in the indictment, resulting in a fatal variance between the charge and the evidence. A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. A variance is reversible error only if it affects the substantial rights of the accused.

The court concluded that the defendants’ actions, particularly providing assistance to Mr. Negrete in selling methamphetamine provided by Mr. Serrato, were acts in furtherance of the shared objective of distributing drugs received from a common source. The evidence before the jury was substantial enough to allow it to draw the conclusion that there existed an ongoing, facilitative relationship between parties who were aware of the scope of one another’s activities. The Tenth Circuit held that the evidence was sufficient to support the jury’s conviction on the single conspiracy as charged.

Third, Mr. Serrato appealed the district court’s calculation of his offense level under the Federal Sentencing Guidelines, arguing that a two-level increase for offenses involving the importation of methamphetamine should not have been applied. The court concluded that even if the district court erroneously included the importation enhancement in its calculation of the offense level—which the court neither reached nor decided—the error would be harmless.

Fourth, Mr. Serrato challenged the district court’s denial of his motion to suppress evidence obtained from a stop of his vehicle on April 6, 2011. Mr. Serrato argued that the stop was an unreasonable seizure under the Fourth Amendment. The district court found that law enforcement knew from surveillance that cars, particularly out-of-state cars, would come to Mr. Negrete’s house for the purpose of delivering methamphetamine and would park in the garage; and that a delivery of methamphetamine to be later transported to Iowa was scheduled to occur on approximately April 6, 2011. On that date, law enforcement observed a Utah vehicle and an Iowa vehicle at Negrete’s house. They stopped the vehicle with the Utah plates after it left Mr. Negrete’s house to identify the driver whom they suspected of distributing methamphetamine to Mr. Negrete. The stop lasted approximately 10 minutes, and the only information that was obtained was the driver’s (Serrato’s) identification. The district court concluded that these facts established that law enforcement had a reasonable suspicion of Defendant Serrato’s involvement with illegal activity when they stopped him. The Tenth Circuit concluded that these facts gave rise to reasonable and articulable suspicion that Mr. Serrato’s vehicle was involved in drug activity and justified a traffic stop.

Finally, Mr. Negrete was convicted of knowingly using and carrying a firearm during the commission of a drug trafficking crime (namely, conspiracy to possess with intent to distribute and distribution of methamphetamine). Mr. Negrete challenged the sufficiency of evidence, arguing that the government did not place a specific firearm into evidence at trial. Viewing the evidence in the light most favorable to the government, the court held that there was substantial evidence of Mr. Negrete’s guilt. The court did not know why a firearm was not placed in evidence, but the charge was proved by other means. The court was not persuaded that the jury’s determination should be overturned.

AFFIRMED.

Tenth Circuit: Secret Vehicle Compartment Maker’s Conviction for Conspiracy and Witness Intimidation Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Anaya on Friday, August 16, 2013.

Alfred Anaya built secret compartments in vehicles for a major drug trafficking organization to hide drugs and money. He was indicted on one count of conspiracy to distribute and possess with intent to distribute cocaine, methamphetamine (“meth”), and marijuana; and on two counts of intimidation of federal witnesses. A jury convicted him on the conspiracy charges related to cocaine and meth and on both counts of intimidation. The district court sentenced him to 292 months in prison for the conspiracy count and 240 months for the intimidation counts, to run concurrently.

Anaya argued the evidence was insufficient for the jury to convict him of conspiracy. The Tenth Circuit disagreed. To prove Anaya knowingly joined the conspiracy, the government did not need to prove Anaya knew of every type or amount of drug trafficked by the conspiracy. It only needed to prove Anaya knew that conspiracy members “knowingly or intentionally” possessed a “controlled substance” with the intent to distribute it.

Next, Anaya argued prosecutorial misconduct rendered his trial so unfair as to make his conviction a violation of due process. The court set out the possible standards of review and concluded plain error review applied, but none occurred.

Anaya also argued that evidence did not support the willful blindness jury instruction that was given. The court held this was not error given the substantial evidence of Anaya’s guilt. The court also rejected his cumulative error argument and affirmed.

Tenth Circuit: Lack of Vehicle Record May Not Provide Basis for Traffic Stop if Database is Unreliable

The Tenth Circuit Court of Appeals published its opinion in United States v. Esquivel-Rios on Friday, August 2, 2013.

A Kansas trooper made a traffic stop after requesting verification of the vehicle’s temporary Colorado tag. Dispatch informed the trooper that there was no return on the record but that “Colorado temp tags usually don’t return.” The trooper had no basis for the stop other than the lack of record. Antonio Esquivel-Rios, the driver, was convicted of federal drug charges based on methamphetamine the trooper found after a search of the vehicle.

The district court denied Esquivel-Rios’s motion to suppress based on the stop being a violation of his Fourth Amendment rights. The district court held the trooper had reasonable suspicion to believe the temporary tag was forged.

The Fourth Amendment reasonable suspicion analysis requires a careful consideration of the “totality of the circumstances.” The reliability of the database is central to the case as the lack of return of record provided the only basis for the stop. Because the district court failed to consider the dispatcher’s comment that the database usually failed to return Colorado temporary tags, the court remanded for the district court to determine whether the database was unreliable and, if so, if the remedy is to exclude evidence of the methamphetamine.

Esquivel-Rios also argued on appeal that other crimes evidence should not have been admitted, expert testimony about the significance of a tattoo and a book that are associated with drug traffickers should have been excluded, and prosecutorial misconduct was committed in closing argument. The Tenth Circuit rejected all these arguments.