April 28, 2017

Colorado Supreme Court: Speedy Trial Deadlines Not Violated by Prosecution’s Requested Continuance

The Colorado Supreme Court issued its opinion in Mosley v. People on Monday, April 10, 2017.

Criminal Trials—Speedy Trial—Continuances.

The Colorado Supreme Court reviewed the Colorado Court of Appeals’ construction of Colorado’s speedy trial statute, C.R.S. § 18-1-405. The court rejected Mosley’s contention that the exclusions of time listed in subsection (6) of the statute apply only to the speedy trial calculation for an initial trial, and not for a new trial following reversal of a conviction on appeal under subsection (2). The court concluded that subsection (1) of the statute establishes the basic right to a speedy trial, and that subsection (2) clarifies that right by identifying the trial court’s receipt of the mandate as the event that triggers the six-month speedy trial period for a new trial following reversal of a conviction on appeal. Because a defendant’s speedy trial right—whether in an initial trial or on retrial—derives from subsection (1), the exclusions of time listed in subsection (6) apply to both an initial trial and a new trial following reversal of a conviction on appeal.

The court further rejected Mosley’s contention that the trial court erred in granting a continuance and extending the speedy trial deadline in this case. The court therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court’s Grant of Continuance Did Not Violate Speedy Trial Act

The Colorado Supreme Court issued its opinion in Delacruz v. People on Monday, April 10, 2017.

Criminal Trials—Speedy Trial—Continuances.

The Colorado Supreme Court reviewed the Colorado Court of Appeals’ construction of Colorado’s speedy trial statute, C.R.S. § 18-1-405. Following Mosley v. People, 2017 15 CO 20, the court rejected Delacruz’s contention that the exclusions of time listed in subsection (6) of the statute apply only to the speedy trial calculation for an initial trial, and not for a new trial following reversal of a conviction on appeal. The court concluded that subsection (1) of the statute establishes the basic right to a speedy trial, and that subsection (2) clarifies that right by identifying the trial court’s receipt of the mandate as the event that triggers the six-month speedy trial period for a new trial following reversal of a conviction on appeal. Because a defendant’s speedy trial right—whether in an initial trial or on retrial—derives from subsection (1), the exclusions of time listed in subsection (6) apply to both an initial trial and a new trial following reversal of a conviction on appeal.

The court further rejected Delacruz’s contention that the trial court erred in granting a continuance and extending the speedy trial deadline in this case. The court therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: No Speedy Trial Act Violation Where Motions Pending During Contested Period

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zar on Tuesday, June 23, 2015.

Derek Zar and his mother Susanne Zar participated in a mortgage fraud scheme orchestrated by Michael Jacoby. The three were tried together and, after a three-week trial, a jury convicted Jacoby of 11 counts of wire fraud, three counts of money laundering, and two counts of bank fraud; Derek Zar of four counts of wire fraud and one count of money laundering; and Susanne Zar of three counts of wire fraud and one count of money laundering. Each defendant was sentenced to a term of imprisonment and ordered to pay restitution. They each appealed separately, but the Tenth Circuit joined the appeals.

The Tenth Circuit first considered Derek’s and Susanne’s challenges to the district court’s denial of the Zars’ joint motion to sever their trial from Jacoby’s, their joint motion to dismiss the indictment based on Speedy Trial Act violations, and their joint motion to suppress statements made to IRS agents. Because the motion to sever and the motion to dismiss were both based on Speedy Trial Act violations, the Tenth Circuit considered those first. Noting that the Speedy Trial clock is tolled when motions are pending, the Tenth Circuit initially found that motions were pending during the entire period the Zars contest was applicable to their speedy trial rights. The Tenth Circuit analyzed the district court’s rulings and found that it did not abuse its discretion in denying the severance motion, and counted only 23 days ticked off the speedy trial clock between the indictment and the trial. The district court’s denials of the motions to dismiss and to sever were affirmed.

Next the Tenth Circuit evaluated the statements the defendants made to IRS agents. Although it was somewhat concerned that the agents did not specifically announce that their questioning of the Zars was a consensual conversation, the Tenth Circuit found no error in the district court’s allowance of the testimony. The Tenth Circuit found that the statements made by the Zars to the IRS agents were non-testimonial and not barred. Susanne Zar also argued that the admission of statements Derek Zar made to an IRS agent violated her Confrontation Clause rights as stated in Crawford v. Washington. After a plain error review, the Tenth Circuit concluded that the district court’s limiting instruction sufficiently ameliorated any harm that could have come from admission of the statements.

The three defendants jointly argued that Instruction 17 incorrectly stated the elements of wire fraud by omitting an essential element, the scheme to defraud, and by adding an element which impermissibly broadened the basis for conviction. The Tenth Circuit analyzed the instruction and found that the district court correctly applied Tenth Circuit precedent in omitting the language from the instruction. The Tenth Circuit further found that the modifications to the instruction were harmless, and if they had any effect it worked in defendants’ favor. The three defendants also asserted ineffective assistance of counsel claims, which the Tenth Circuit dismissed as unripe since they had not yet been adjudicated in district court.

The defendants also all challenged their sentences, averring the increase in base offense level was unsupported and relying on Apprendi and Alleyne. The Tenth Circuit found their reliance misplaced, since none of the defendants were subject to mandatory minimum sentences. It evaluated each defendant’s sentence and affirmed each separately.

The Tenth Circuit affirmed the district court’s rulings as to each defendant.

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

Colorado Court of Appeals: Speedy Trial Act Implicated when Charges Filed, Dropped, Then Filed Again

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, December 4, 2014.

Rental Vehicle—Speedy Trial—Jury Instructions—Affirmative Defense—Consent—Mistake of Fact.

Defendant rented a vehicle from Mesa Motors, Inc. (Mesa). After using the vehicle for about two months, defendant told Mesa’s owner he wanted to buy the vehicle and agreed to pay any accrued rental charges up to the date of purchase; however, defendant did not pay the purchase price or the unpaid rental charges. Mesa’s owner went to the address defendant had provided him and discovered that defendant no longer lived there. He reported the vehicle stolen and left a message with defendant to that effect, at which point defendant surrendered the vehicle. A jury found defendant guilty of aggravated motor vehicle theft.

On appeal, defendant contended that his statutory right to a speedy trial was violated. The prosecutor dismissed the original charges against defendant and later refiled them. The district court found, with record support, that the prosecutor had not dismissed the charges and refiled them to avoid the statutory six-month deadline. Because defendant’s trial began within six months after he pleaded not guilty to the refiled charges, there was no violation of his statutory right to a speedy trial.

Defendant also contended that his right to a speedy trial under both the U.S. and Colorado Constitutions was violated. The period during which defendant originally faced the charges must be included in considering his constitutional speedy trial claim. Adding the period from the initial filing of the charges to the dismissal of the charges (229 days) to the period from the refiling of the charges to the beginning of trial (189 days) equals more than one year, a presumptively prejudicial length of time. However, because defendant failed to establish any significant prejudice by the delay, he was not denied his constitutional right to a speedy trial.

Defendant further argued that the court erred in denying his two jury instructions on purported affirmative defenses: consent and mistake of fact. Though consent and mistake of fact can be affirmative defenses (depending on the elements of the charged crime), they were not affirmative defenses in this case because defendant denied committing the crime. Therefore, although defendant was free to argue that the evidence of consent and mistake of fact showed that he had not deceived the victim, he was not entitled to separate instructions on those defenses characterizing them as affirmative defenses, which the prosecution was required to disprove beyond a reasonable doubt. The judgment was affirmed.

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

Colorado Court of Appeals: Defendant Timely Files Motion to Dismiss Even on Day of Trial if Filed Prior to Any Hearing

The Colorado Court of Appeals issued its opinion in People v. Desantiago on Thursday, May 22, 2014.

Speedy Trial—CRS 18-1-405(5)—Motion to Dismiss—Timeliness.

At his arraignment in this case on November 4, 2010, defendant entered a not-guilty plea, and the court set a trial date of April 6, 2011. Because defendant was in federal custody and his presence could not be secured by the prosecution through a writ to federal authorities, defendant did not appear in court for a hearing in this case until July 14, 2011. A new trial date was set for September 7, 2011. Though a motions hearing was held on August 5, 2011, defendant did not then move to dismiss based on the speedy trial statute. However, on August 26, 2011, before the September 7 trial setting, defendant moved to dismiss the charges against him, asserting violation of his statutory speedy trial right, which was denied by the court as untimely filed.

On appeal, defendant contended that the trial court should have granted his motion to dismiss for violation of his statutory right to speedy trial. Under Colorado’s speedy trial statute, if a defendant has not been brought to trial within six months from the date of entry of a plea of not guilty, charges against him or her must be dismissed with prejudice. Under the plain meaning of CRS § 18-1-405(5), a defendant timely files a motion to dismiss even if it is filed on the day of trial, as long as it is filed before any hearing on any pretrial motion that is set for hearing on that date. Therefore, defendant’s motion to dismiss was timely filed. However, the trial court’s findings were insufficient to determine whether dismissal of the case was warranted on speedy trial grounds with regard to whether the prosecution made diligent efforts to secure defendant’s presence. Accordingly, the case was remanded to the trial court for the limited purpose of having the court make findings of fact and conclusions of law on that issue.

Summary and full case available here.

Tenth Circuit: Judgment Affirmed on Several Disputed Issues but Remanded for Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Thomas on Tuesday, April 29, 2014.

Defendant Thomas was charged in federal court with selling crack cocaine and maintaining a place to manufacture, distribute, or use a controlled substance. He went to trial 146 days after his arraignment. At the trial, an informant (“L.H.”) testified that she had bought crack cocaine three times from Thomas. The jury found Thomas guilty on: (1) three counts of possession of crack cocaine with intent to distribute, and (2) two counts of using or maintaining a place for the manufacture or distribution of crack cocaine. With this finding, the court convicted Thomas and sentenced him to five concurrent prison terms of 130 months.

Thomas raised nine issues on appeal: (1) violation of the Speedy Trial Act; (2) admissibility of L.H.’s testimony; (3) admissibility of drug evidence; (4) incorrect terminology used in jury instructions; (5) sufficiency of the evidence; (6) cumulative error; (7) sentencing based on unproven convictions; (8) sentencing based on conduct that was not involved in the convictions; and (9) whether the district court should have used a lower guideline range based on Thomas’ status as a minor participant. The Tenth Circuit addressed each contention in turn and affirmed all but the seventh issue, sentencing based on unproven convictions.

The Tenth Circuit determined that there was no Speedy Trial Act violation because certain blocks of time were excluded from the time between Defendant’s arraignment and trial. The amount of time between arraignment and trial that was not excluded was 61 days, therefore there was no speedy trial violation.

The Tenth Circuit reviewed the admissibility of L.H.’s testimony and determined that it was admissible as relevant. It also determined that the drug evidence was properly submitted and that the jury instructions were not deficient, so there was no need to address Defendant’s contentions that the evidence was not sufficient to support his conviction or that there was cumulative error.

The Tenth Circuit addressed Defendant’s argument that his sentence was based on unproven convictions and agreed. The government failed to present evidence documenting five of the convictions on which Defendant’s sentence was based, and Defendant’s criminal history score of 12 was incorrectly calculated. The Tenth Circuit determined that the government should not be allowed to present evidence of the undocumented convictions upon remand, and ordered the district court to recalculate the sentence based on the existing record.

The Tenth Circuit reviewed Defendant’s final two claims and determined that there was no further error.

Tenth Circuit: Criminal Justice Act Provides Counsel Necessary for an Adequate Defense, Not an Unlimited Defense

The Tenth Circuit Court of Appeals published its opinion in United States v. Clark on Tuesday, June 18, 2013.

Defendant-Appellant Richard Clark was charged and convicted of multiple counts relating to his participation in a “pump-and-dump” securities fraud scheme. He asserted several claims of error, with many arguments the same as those unsuccessfully made by his co-conspirator in United States v. Gordon, 710 F.3d 1124 (10th Cir. 2013).

Clark argued “‘[t]he government violated [his] constitutional rights to due process and a fair trial’ in its pre-indictment decision to place a caveat on his home, without notice.” The Tenth Circuit found Clark had failed to preserve these arguments, but even under plain error review, they failed.

Clark challenged the sufficiency of the evidence on all of his counts of conviction: conspiracy to commit wire fraud, securities fraud, and money laundering; wire fraud; securities fraud; and money laundering. The court found there was sufficient evidence for any rational factfinder to determine that Clark had committed the acts resulting in conviction so his arguments were without merit.

Clark also claimed that he was denied a fair trial when the district court rejected his request under provisions of the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to appoint substitute or additional counsel with expertise in securities law. The attorney who had represented him for over two years moved to withdraw due to nonpayment of legal fees but the district court denied the motion. Later, the attorney filed the CJA motion for substitute or additional counsel. The court found no abuse of discretion in the trial court’s denial. His attorney was a highly experienced criminal defense lawyer who had no conflict of interest. The CJA provides counsel necessary for an adequate defense, not an unlimited defense, so an additional attorney was not necessary based on the facts of this case.

Clark objected to the district court’s decision not to sever his trial from that of Mr. Gordon, his co-defendant. He argued that the admission of inculpatory out-of-court statements by Mr. Gordon violated his Confrontation Clause rights under Bruton. Because the statements were not testimonial, the court rejected this argument, as well as his other severance-related arguments.

Finally, the court found no abuse of discretion in the trial court’s ends-of-justice continuance under the Speedy Trial Act. The Tenth Circuit affirmed Clark’s conviction.