July 19, 2019

Archives for January 2011

Tenth Circuit: Opinions, 1/28/11

The Tenth Circuit on Friday issued two published opinions and four unpublished opinions.

Published

In Ritonga v. Holder, Jr., the Court denied Petitioners’ petitions for review. Petitioners sought review of the final order of the Board of Immigration Appeals denying their application for asylum and restriction on removal under the Immigration and Nationality Act, and request for protection under the United Nations Convention Against Torture. The Court found that, although there are religious problems in Indonesia, the Board of Immigration Appeals did not rule contrary to the weight of evidence that there was insufficient well-founded fear of persecution.

In United States v. Goodman, the Court reversed and remanded for a new trial the district court’s conviction. Petitioner, an Iraq War veteran, was convicted of multiple robbery and firearms offenses but claims that the district court erred by limiting lay witness testimony about his sanity. The Court found that “the district court erred by placing temporal limits on lay witness testimony and by limiting lay witnesses to non-opinion testimony.” Because the restrictions on lay testimony were not harmless, the Court remanded for a new trial.

Unpublished

Aguiar v. Bartlesville Care Center

Shaw v. Tulsa Dynaspan Arrow Concrete

United States v. Juarez

United States v. Gonzalez

Hickenlooper Appoints New DA for Seventh Judicial District

Last week, Governor John Hickenlooper appointed Dan W. Hotsenpiller of Montrose as the District Attorney for the Seventh Judicial District, which serves Delta, Gunnison, Hinsdale, Montrose, Ouray, and San Miguel counties.

Hotsenpiller has been a general practice lawyer at Delman & Hotsenpiller in Montrose since 2005. His previous work includes the U.S. Attorney’s Office, District of Colorado, in Grand Junction as Assistant U.S. Attorney and in the Office of the District Attorney, Seventh Judicial District, as Assistant District Attorney. He was also an associate with Charles R. Greenacre P.C., in Montrose, and an associate at Weller, Friedrich, Ward & Andrew in Denver.

Hotsenpiller earned his J.D. from the University of Colorado School of Law in 1988.

The appointment was effective Tuesday, January 25 and shall continue until a new District Attorney is elected for the Seventh Judicial District in the 2012 general election and takes the oath of office on January 8, 2013.

Court Temporarily Stays Colorado’s Online Sales Tax Law

Law Week Colorado reports that U.S. District Court Judge Robert Blackburn issued a preliminary injunction on Wednesday that prevents the state from enforcing a 2010 law that would impose an online sales tax.

Judge Blackburn’s ruling was disclosed in a press release issued by State House Majority Leader Amy Stephens. The Direct Marketing Association, a trade association, is challenging provisions of the Colorado law that it says are unenforceable under the Commerce Clause.

Law Week Colorado has published the court’s ruling and Stephens’ press release.

Colorado Court of Appeals: Week of January 23, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and 40 unpublished opinions for the week of January 23, 2011.

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

Tenth Circuit: Opinions, 1/27/11

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

Published

In United Fire & Casualty Co. v. Boulder Plaza Residential, LLC, the Court affirmed the district court’s decision. Petitioners claim that the district court erred in finding that Respondents, an insurer, owed no duty of defense, nor duty of indemnification, under Colorado law. The Court found that “[b]ecause the allegations fail to indicate any ‘factual or legal basis on which the insurer might eventually be held liable to indemnify the insured,'” Respondents did not owe a duty of defense.

Unpublished

United States v. Mojica-Fabian

Colorado Court of Appeals: Once a Magistrate Has Entered a Written and Signed Order on a Matter Without Consent, the Magistrate May Not Alter or Amend the Written Order

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities of M. B.-M., and Concerning Berndt on January 20, 2011.

Contempt—Written Order—Amendment.

In this parental responsibilities case involving two adoptive parents, Marie Berndt appealed from two district court orders on her contempt motion against Rebecca McBlair. The orders were reversed and the case was remanded for further proceedings.

Berndt filed a motion for contempt against McBlair, alleging she had violated a court order to share joint decision making and parenting time for their child, M.B.-M. Specifically, McBlair enrolled M.B.-M. in a new daycare without Berndt’s knowledge or consent, and failed to list Berndt as a parent on the admission form. The court found McBlair in contempt and ordered her to list Berndt as a parent on the daycare admission form (to purge the contempt), as well as to pay Berndt’s attorney fees. This order was not reduced to writing.

At the sentencing hearing on July 7, the magistrate found that McBlair had purged the contempt and issued a minute order reducing the attorney fees award to judgment. On July 13, the magistrate issued another written order, ruling that Berndt had not met her burden to prove contempt, and vacated the attorney fees award.

On appeal, Berndt contended that the district court erred in adopting the magistrate’s order, which overturned its previous order finding McBlair in contempt. The magistrate’s July 7 written and signed minute order stands as a written contempt order. Where a magistrate considers a motion for contempt under C.R.C.P. 107, consent of the parties to hear the matter is not required. A magistrate may not entertain a motion for reconsideration under C.R.C.P. 59 or for relief from a judgment under C.R.C.P. 60. Once a magistrate has entered a written and signed order on a matter without consent, the magistrate may not alter or amend the written order, except to correct clerical errors, whether on application of a party or sua sponte. Thus, the magistrate’s July 13 order, which purported to amend the July 7 order by concluding that McBlair was not in contempt and vacating the award of attorney fees to Berndt, was void. The district court’s orders were reversed and the case was remanded for further proceedings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 20, 2011, can be found here.

Colorado Court of Appeals: Post-Judgment Interest Not Unconstitutional, Even Against Prisoner Who Cannot Find Gainful Employment

The Colorado Court of Appeals issued its opinion in People v. Cardenas on January 20, 2011.

Restitution—Post-judgment Interest—Eighth Amendment—Constitution.

Defendant appealed the trial court’s order denying his constitutional challenge to the post-judgment interest component of the restitution order entered in his case. The order was affirmed.

Defendant pleaded guilty to first-degree criminal trespass. As a condition of the plea agreement, he agreed to pay $3,640 in restitution. At sentencing, the trial court imposed a prison term, ordered defendant to pay the previously set restitution figure, and, pursuant to statute, ordered him to pay post-judgment interest of 12 percent per year on the restitution amount. The interest began accruing on the sentencing date.

Defendant argued that the post-judgment interest component of the order was unconstitutional as applied to him under the Eighth Amendment and Article II, §20, of the Colorado Constitution. Specifically, he argued that because he was imprisoned, he would not be able to find gainful employment. Therefore, the statutory mandate requiring him to pay post-judgment interest constituted an excessive fine. Post-judgment interest is not a fine. It is a statutory mechanism designed to achieve the legislature’s goal of making victims whole by encouraging defendants to pay restitution promptly. Therefore, post-judgment interest is not unconstitutional, and the court’s requirement to include post-judgment interest on any restitution order is not unconstitutional. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 20, 2011, can be found here.

Colorado Court of Appeals: Combination of Factors Indicated Juror Was Unable to Render Impartial Verdict

The Colorado Court of Appeals issued its opinion in People v. Roldan on January 20, 2011.

Theft—Juror—Challenge for Cause—Bias.

Defendant Daniel Roldan appealed the judgment of conviction entered on a jury verdict finding him guilty of theft by receiving. The judgment was reversed and the case was remanded for a new trial.

In March 2007, Roldan purchased stolen automotive parts valued at $1,600; he paid $500 for the parts. The jury found Roldan guilty as charged, and the trial court sentenced him to three years’ probation.

Roldan contended that the trial court abused its discretion by denying his challenge for cause to Juror R, because (1) she held a bias for law enforcement; (2) she stated that she might base her opinion of Roldan’s guilt on evidence that was not admitted; and (3) she stated that she was biased because of her experiences with theft. Defendant removed Juror R with a peremptory challenge and exhausted all available peremptory challenges. Although the single factor that Juror R.’s husband, brother, and cousin were police officers was insufficient to require her dismissal as a prospective juror, a combination of factors indicate that Juror R. demonstrated a “clear expression of bias” in favor of law enforcement witnesses and was unable to render an impartial verdict. Accordingly, the trial court abused its discretion when it denied the challenge for cause of the prospective juror. The judgment was reversed and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 20, 2011, can be found here.

Colorado Court of Appeals: Where a Person Enters Only Once, Even If Multiple Assaults Occur, Only One Conviction for First-Degree Burglary May Stand

The Colorado Court of Appeals issued its opinion in People v. Fuentes on January 20, 2011.

Assault—First-Degree Burglary—Double Jeopardy—Merger—Evidence—Right to be Present.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of third-degree assault and two counts of first-degree burglary. The judgment was affirmed in part and reversed in part, and the case was remanded for correction of the mittimus.

C.M. and her daughter, N.M., were at their home entertaining friends and family when defendant and another man forced their way into the home and began swinging their fists. The fight continued outside the home.

Defendant contended that double jeopardy principles preclude the two convictions for first-degree burglary because he committed only one unlawful entry. Burglary is an offense against property. The General Assembly intended the additional element of assault in the first-degree burglary statute to modify and aggravate the crime of burglary and not to change the gravamen of it. Therefore, where a person enters only once, even if multiple assaults occur, only one conviction for burglary may stand. Defendant’s conviction for first-degree burglary as to N.M. was vacated.

Defendant also contended that his conviction for third-degree assault as to N.M. must merge into a single conviction for first-degree burglary because, under CRS §18-1-408, assault as charged and tried here is a lesser-included offense of burglary. Although defendant was correct in his argument, the court vacated the burglary conviction as to N.M. to maximize the effect of the jury’s verdict. Therefore, defendant’s conviction for third-degree assault as to N.M. is not a lesser-included offense and thus does not merge.

Defendant argued that the evidence was insufficient to support the jury’s verdict convicting him of first-degree burglary as to C.M. Specifically, he argued that there was insufficient evidence that the assault on C.M. occurred in the “immediate flight” from the home. A person commits an assault in immediate flight from a building where the assault is part of a continuous integrated attempt to get away from the building. Here, the assault occurred in the street between the home and a van used by defendant, shortly after the entry and before defendant’s group drove away in the van. Therefore, there was sufficient evidence to support defendant’s conviction for first-degree burglary as to C.M.

The trial court did not violate defendant’s right to be present when it ruled on the prosecution’s motion to continue his trial in his absence. Defendant failed to state any basis for his objection, and his new trial date was within the speedy trial period.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 20, 2011, can be found here.

Arizona-Style Immigration Bill Introduced in Colorado Senate

The Denver Post reports that an immigration bill patterned after Arizona’s controversial law was introduced in the Colorado Senate last week. Senate Bill 54 was filed last Wednesday by Sen. Kent Lambert, R-Colorado Springs, and emulates many of the same provisions contained in Arizona’s Senate Bill 1070, which passed last year.

Colorado’s version of the immigration crackdown would allow police to “arrest anyone if they had probable cause to believe they were an illegal immigrant who is facing deportation or against whom federal immigration authorities have issued a detainer order, or who has been indicted or convicted of aggravated felonies.” The law would be permissive, and not require an officer to make such an arrest.

The bill also specifies that the measure would apply to “anyone who had failed to register as an alien entering the country under federal law, meaning that police could arrest someone if they had probable cause to believe the person was an illegal immigrant.”

A district court has blocked a similar provision contained in the Arizona bill after finding that “the state law intrudes on the power of the federal government to enforce immigration law.”

Sen. Lambert’s bill would enhance an existing Colorado law, passed in 2006, that requires police to report to U.S. Immigration and Customs Enforcement anyone they arrest and suspect of being an illegal immigrant, except in cases of domestic violence.

Tenth Circuit: Opinions, 1/26/11

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

Unpublished

United States v. Parada

Farm Bureau Life Ins. v. American Nat’l Ins.

Parker v. Province

Olivan-Duenas v. Holder, Jr.

Wright v. Arellano

Tenth Circuit: Opinions, 1/25/11

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

Published

In Blakely v. USAA Casualty Ins. Co., the Court affirmed in part and reversed in part the district court’s decision. Petitioners’ home was damaged by a fire and were insured by Respondent. Regarding their recovery from the fire, Petitioners claimed that Respondent was liable for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of industry standards and statutes, and intentional infliction of emotional distress; the district court granted summary judgment for Respondent. The Court agreed that summary judgment was appropriate for the breach of contract claims, but their claims of breach of good faith and fair dealing were not frivolous; Petitioners presented sufficient evidence to suggest that Respondent acted unreasonably in taking its initial position regarding the loss amount.

Unpublished

United States v. Lopez