August 24, 2019

Archives for October 2010

Tenth Circuit: Opinions, 10/28/10

Marcia Waters Named Director of Real Estate Division

After serving six months as the division’s interim director, Marcia Waters has been made the permanent head of the Colorado Division of Real Estate. As reported by the Denver Post, Waters had previously served as the agency’s director of investigations and compliance for over five years. Waters also brings her experience as a real estate broker and detective for law enforcement to the position.

Waters replaces Erin Toll, who was put on administrative leave last spring for reporting that Senator Ted Harvey and the mortgage brokerage he works for were under investigation for allegedly breaking advertising rules. DORA later stated that Harvey was under no such investigation. Toll resigned and reached a settlement with the state in June.

Tenth Circuit: Opinions, 10/27/10

The Tenth Circuit on Wednesday issued no published opinions and four unpublished opinions.


Medina v. Hatch

United States v. Zeigler

McCary v. Peters

United States v. Christian

No Colorado Supreme Court Opinions: Week of October 24, 2010

There are no new cases to report.

Tenth Circuit: Opinions, 10/26/10

The Tenth Circuit on Tuesday issued four published opinions and one unpublished opinion.


In Bahrani v. ConAgra, Inc., the Court affirmed in part and reversed in part the district court’s decision granting treble damages and attorney fees to Petitioner. Petitioner alleged the Respondents altered thousands of beef and hide export certificates issued by the USDA to avoid fees for replacement certificates. However, the Court found that such minor alterations to certificates are not in violation of the FCA’s reverse false claims provision.

In Doe v. Shurtleff, the Court affirmed the district court’s decision to uphold a Utah statute requiring all sex offenders living in the state to register their “internet identifiers” and their corresponding websites with the state. Petitioner, a registered sex offender, claimed that the law violated his rights under the First or Fourth Amendments or the Ex-Post Facto Clause of the United States Constitution. Petitioner’s First Amendment challenge fails as his ability to speak anonymously is not infringed because he is not forced to reveal his identity as a precondition to expression. Additionally, there is no proof that the legislature’s intent was so punitive as to transform the civil remedy into a criminal penalty to violate the Ex Post Facto Clause.

In Klaas v. Comm’r of Internal Revenue, the Court affirmed the tax court’s assessment of income tax deficiencies by Petitioners in taxable year 2001. Petitioners claimed that the tax court inappropriately determined the tax deficiency based on a legal theory raised solely in the Commissioner’s post-trial brief and thus abused its discretion. However, the Court found that Petitioners failed to show that they were prejudiced by the late introduction of the date-of-merger theory, or offer proof to rebut it, and therefore the tax court did not err in its decision.

In Gee v. Wyoming Dep’t of Corrs., the Court affirmed in part and reversed in part the district court’s dismissal of Petitioner’s claims with prejudice. Petitioner, a prisoner in the Wyoming State Penitentiary, alleged his rights were violated under the First, Fourth, and Fourteenth Amendments of the United States Constitution; the district court dismissed the claims for failure to state a claim upon which relief could be granted and for being frivolous. The Court, however, found potential merit in a portion of Petitioner’s claims free speech claims, and determined that his retaliation claims were improbable, but not implausible, and should have been allowed to proceed. Additionally, the district court should have allowed Petitioner to amend his claims before outright dismissing them in their entirety.


United States v. Wilson

Colorado Court of Appeals: Week of October 17, 2010 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and 47 unpublished opinions for the week of October 17, 2010.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Tenth Circuit: Opinions, 10/25/10

The Tenth Circuit on Monday issued no published opinions and one unpublished opinion.


United States v. Young

Tenth Circuit: Opinions, 10/22/10

The Tenth Circuit on Friday issued no published opinions and five unpublished opinions.


United States v. Franklin-El

United States v. Washington

Jackson v. Green

United States v. Marta

Rose v. States of Utah

Two Recent Ethics Opinions on Social Media Investigations

This is a guest post by Stuart Teicher, attorney and professional legal educator. Teicher will be speaking at CBA-CLE on November 3 on “What NASCAR, Jay-Z & the Jersey Shore Teach About Attorney Ethics” and “2011: MySpace Odyssey.” This was originally posted at Teicher’s blog, Trends.

Most lawyers are already using information found on social media sites as evidence in the courtroom. The New York Bar Association Committee on Professional Ethics recently issued an opinion confirming that gathering that information is permitted, if you’re viewing public pages (Opinion 843, 9/10/10). See the New York Opinion Here

In the New York opinion the question was whether the lawyer could access pages of an adverse party if they’re only accessing the public portion of the page- no friending involved. The NY Bar said that’s okay.

“Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted. Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.

That’s a little different from the opinion issued by the Philadelphia Bar (Opinion 2009-02). There, a lawyer asked whether she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for impeaching the witness at trial. The third party would friend the witness purportedly for social reasons, though the real reason would be to collect the information for trial.

The Philadelphia Committee determined that the proposed “friending” is deception in violation of Rules 8.4 and 4.1, and also a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit). See the Philadelphia Opinion Here

I think it’s important to consider that term “deception” from the Philadelphia opinion. I often tell lawyers that the best approach when using social media is to “Be Smart.” The concept of avoiding deception puts a little meat on those bones.

Guest author Stuart Teicher will be speaking at CBA-CLE on November 3, 2010, on “What NASCAR, Jay-Z & the Jersey Shore Teach About Attorney Ethics” and “2011: MySpace Odyssey.” This program is also available via live webcast and as a homestudy in the following formats: online video and MP3 audio download.

Tenth Circuit: Opinions, 10/21/10

The Tenth Circuit on Thursday issued one published opinion and eight unpublished opinions.


In United States v. Huyoa-Jimenez, the Court remanded the case back to the district court to vacate and Petitioner’s sentence and re-sentence in accordance with the Court’s decision. Petitioner illegally reentered the United States after being deported for felony drug trafficking, and received an entirely suspended sentence. Petitioner claimed that the district court erred by applying a twelve-level enhancement for his prior drug offenses, and at most could impose an eight-level enhancement for his aggravated felonies. The Court determined that an entirely suspended sentence is akin to no sentence being “imposed” and, therefore, the eight-level enhancement would be appropriate.


United States v. Walker

Bonomelli v. Dinwiddie

Hill v. State of Oklahoma

Strickland v. Wilson

United States v. Nguyen

Clark v. O’Brien

United States v. Cosey

Sherrat v. Friel

Tenth Circuit: Opinions, 10/20/10

The Tenth Circuit on Wednesday issued one published opinion and one unpublished opinion.


In DeFranco v. Storage Technology Corp., the Court affirmed the district court’s grant of summary judgment in favor of Respondents. Petitioner accepted a two-year overseas assignment after receiving assurances of a permanent position in Colorado upon his return, subsequently signing an agreement that his employment was strictly at will. After his return, the position was eliminated and Petitioner sued his former employer claiming breach of contract and promissory estoppel. The promises allegedly made to Petitioner were superseded by signing the agreement. Additionally, upon his return, Petitioner’s agreement to take on certain duties did not constitute special consideration in exchange for a promise of permanent employment, and merely were services incident to his at will employment. The lack of special consideration or express stipulation as to the length of employment negates any claim of promissory estoppel.


Logsdon v. Turbines, Inc.

University of Colorado Gun Ban Issue to be Decided by Colorado Supreme Court

As reported yesterday by State Bill Colorado, the Colorado Supreme Court has accepted the University of Colorado’s appeal of the Colorado Court of Appeals’ spring ruling that allowed for concealed weapons to be carried on campus.

CU contends that it has both constitutional and statutory authority to enact safety measures for its campuses, including implementing such a gun ban, which was initially enacted in 1994. Unlike the other state colleges, which have repealed their campus gun bans since the ruling, “CU and its board of regents were created by the original state constitution.”

Following pressure from CU President Bruce Benson, the regents voted 5-4 to appeal the case on June 25, largely along party lines.