August 20, 2019

Archives for May 13, 2011

Tenth Circuit: Petitioner Not Entitled to Attorney Fees Under Hyde Amendment Because Government’s Prosecution Was Not Frivolous

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lain, Jr. on Thursday, May 12, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was charged with willfully transferring a firearm across state lines without the proper license to another individual who also lacked the proper license. The case was ultimately dismissed by a jury, and Petitioner sought attorney’s fees from the government. Petitioner claims that the district court erred by failing to grant him attorney’s fees under the Hyde Amendment, “which permits defendants in criminal cases to recover attorney’s fees when the Government’s position was vexatious, frivolous, or in bad faith.” However, the Court found that the district court did not abuse its discretion in concluding that a legal and factual basis existed for the charge. Accordingly, the government’s prosecution was not frivolous and Petitioner is not entitled to attorney’s fees under the Hyde Amendment.

Tenth Circuit: Defendant Deficient on Rent Has No Reasonable Expectation of Privacy to Counter a Warrantless Entry

The Tenth Circuit Court of Appeals issued its opinion in United States v. Creighton on Thursday, May 12, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner, in an effort to support his and others’ drug habits, stole large quantities of personal mail from apartment buildings and condominiums in the Denver metro area. Petitioner used the information obtained to generate false identifications and counterfeit checks, which were passed to local businesses. Over the eighteen month course of the scheme, Petitioner had four run-ins with the police, three of which uncovered the evidence at issue in his appeal. Petitioner claims that the evidence garnered during his arrests was produced in violation of the Fourth Amendment. However, the Court determined that the record supports the district court’s conclusion that the police’s inventory search of Petitioner’s luggage was undertaken pursuant to “standard criteria or established routine,” and thus “sufficiently regulated” so as to serve the purposes of a legitimate inventory search. Additionally, the Court concluded that evidence garnered from the warrantless entry into Petitioner’s room, in which incriminating evidence was in plain sight and led to his arrest, was not improper. Petitioner was on notice that rent was overdue and that he must pay or vacate the premises; Petitioner did not have a reasonable expectation of privacy under the circumstances.

Colorado Court of Appeals: Announcement Sheet, 5/12/11

On Thursday, the Colorado Court of Appeals issued eight published opinions and thirty-nine unpublished opinions.


People v. Hill

In re the Parental Responsibilities of E.S. and Concerning Lauzon

Mathers Family Trust v. Cagle

Jackson v. American Family Mutual Ins. Co.

Munoz v. Industrial Claim Appeals Office of the State of Colorado

Holley v. Huang

People In the Interest of J.C.R., N.M-E., and N.M-E, Children, and Concerning B.R. and T.R.

Romero v. City of Fountain, Colorado

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Application Period Open for Appointment to the Colorado Health Benefits Exchange Board

On Wednesday, Governor John Hickenlooper announced that the Office of Boards and Commissions is now accepting applications for appointments to serve on the Colorado Health Benefits Exchange Board. The Office will be accepting applications through Monday, May 23, 2011.

The Colorado Health Benefits Exchange Board will have nine members: Governor Hickenlooper will appoint five members, with the House and Senate appointing the other four. The majority of the board members will be comprised of individuals and business representatives who are not directly affiliated with the insurance industry.

Each person appointed to the board should have demonstrated expertise in two or more of the following areas:

  1. Individual health insurance coverage;
  2. Small business health insurance coverage;
  3. Health benefits administration;
  4. Health care finance;
  5. Administering a public or private health care delivery system;
  6. Purchasing health insurance coverage;
  7. Health care consumer navigation or assistance;
  8. Health care economics or health care actuarial sciences;
  9. Information technology;
  10. Starting a small business with fifty or fewer employees; and
  11. Expert in the provision of health care service.

Interested candidates must fill out a Boards and Commissions application, attach a resume, and in a one page cover letter address his or her expertise and why they want to serve on the Board. For more information on Boards and Commissions, click here or email the Office.

Tenth Circuit: Drug Evidence Found During Investigatory Stop Inadmissible Because Scope of Search Exceeded Underlying Justification

The Tenth Circuit Court of Appeals issued its opinion in United States v. Trestyn on Wednesday, May 11, 2011.

The Tenth Circuit reversed and vacated the district court’s convictions and sentences. Petitioners challenge the district court proceedings that led to their guilty pleas for possession with intent to distribute MDMA, or ecstasy, and aiding and abetting. They allege that the district court denied their Sixth Amendment right to counsel of choice when it did not continue a suppression hearing; they also raise ineffective assistance of counsel claims and challenge the district court’s refusal to suppress illicit drugs discovered in their minivan during a traffic stop.

The Court concluded that the district court did not abuse its discretion by denying Petitioners’ motion for a continuance; Petitioners waited until the day before the suppression hearing to file the motion for continuance, which would have inconvenienced witnesses, the court, counsel, and the parties. Also, Petitioners failed to establish legitimate reasons that would warrant a delay, or demonstrate that there was no competent counsel to represent them at the time. As to the ineffective assistance of counsel claims, they are inappropriate on direct criminal appeals and generally reserved for collateral proceedings. Lastly, the Court agreed with Petitioners on their evidence claim. The trooper initially stopped Petitioners’ minivan because he did not see proper registration numbers on their license plates. When he approached the minivan on foot, “he reasonably could have observed the registration number on the minivan’s license plate.” At that point, the trooper should have known that Petitioners were not in violation because the registration number was displayed on the back license plate. Therefore, the continued detention of Petitioners “exceeded the scope of the stop’s underlying justification,” and their convictions based upon this evidence must be vacated.

Tenth Circuit: Warrantless Search Gained by Consent Produced Inadmissible Evidence as Entry Was Gained through Coercion and Trickery

The Tenth Circuit Court of Appeals issued its opinion in United States v. Harrison on Wednesday, May 11, 2011.

The Tenth Circuit affirmed the district court’s decision. Respondent was charged with being a felon in possession of a firearm and ammunition. The firearm was discovered by agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) during a warrantless search of Respondent’s apartment. The ATF agents had insufficient evidence to get a warrant; instead, they decided on a “knock and talk” wearing plainclothes, and gained entry by telling Respondent that they had received an anonymous call that there were drugs and bombs at the apartment, and that their boss makes them investigate calls like this with potential danger to the community. Respondent moved to suppress evidence of the loaded firearm, alleging that he had not voluntarily consented to the search. At a suppression hearing, the district court agreed, finding that deceitful tactics used by the ATF to gain consent to search rendered Respondent’s consent involuntary.

The Court stated that “a warrantless search of a home is presumptively unreasonable, and evidence obtained from such a search is inadmissible, subject only to a few carefully established exceptions. . . . Voluntary consent to search is one such exception.” However, the Fourth and Fourteenth Amendments require that consent not be coerced, “by explicit or implicit means.” The government bears the burden of proving that consent is given freely and voluntarily. Deception and trickery are among the factors that can render consent involuntary, especially when the deception implies that the defendant will be in physical danger if they refuse to consent to the search. The Court determined that there need not be evidence that Respondent felt coerced or in danger by the statements. Under the totality of the circumstances, the government failed to prove Respondent was not coerced by the statements and, therefore, the district court’s decision was not clearly erroneous.