August 20, 2019

Archives for August 8, 2011

Tenth Circuit: Constitution Does Not Bar the Government from Peremptorily Striking Prospective Jurors Because of Their Views on Marijuana Legalization

The Tenth Circuit Court of Appeals issued its opinion in United States v. Prince on Friday, August 5, 2011.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner was charged with one count of manufacturing marijuana plants, twenty-five counts of making false statements to a federally licensed firearms dealer, and one count of unlawful use of a controlled substance while possessing a firearm. He now challenges his drug convictions, asking the Court to decide two questions of first impression in the Tenth Circuit.

First, Petitioner asks the Court to determine if the Constitution bars the government from peremptorily striking prospective jurors because of their views on marijuana legalization. The Court found no constitutional protection. “Given the posture of [Petitioner]’s case, the Constitution does not prohibit parties from striking jurors on this basis.”

Second, he questions whether a conviction under 18 U.S.C. § 924(a)(1)(A), which criminalizes making false statements to federally licensed firearms dealers, requires a defendant to know that his false statement will be kept in the firearm dealer’s written records, as mandated by federal law. The Court determined that such knowledge is not necessary because the records-keeping requirement is purely a jurisdictional element; there is no such mens rea requirement.

Tenth Circuit: An Appeal of a Decision by a Bankruptcy Judge Must Be Taken Only to the District Court for the District in which the Bankruptcy Judge is Serving

The Tenth Circuit Court of Appeals issued its opinion in Healthtrio, Inc. v. Centennial River Corp. on Friday, August 5, 2011.

The Tenth Circuit affirmed the district court’s decision. The primary issue in this Chapter 7 bankruptcy case is whether the United States Bankruptcy Appellate Panel of the Tenth Circuit had jurisdiction to review an “order for relief” entered by a bankruptcy judge serving in the United States Bankruptcy Court for the District of Delaware. The Delaware bankruptcy judge entered the order for relief after the effective date of a transfer of venue he had ordered to the United States Bankruptcy Court for the District of Colorado. “The parties agree that the order should be vacated on the ground that it is void because it was issued after the transfer was complete and therefore in the absence of jurisdiction, a proposition that finds footing in the case law of both the Third and Tenth Circuits.”

However, the Tenth Circuit Bankruptcy Appellate Panel concluded that it did not have jurisdiction because, under 28 U.S.C. § 158(a), an appeal of a decision by a bankruptcy judge must “be taken only to the district court for the judicial district in which the bankruptcy judge is serving.” The Court agreed.

Vacancy on the First Judicial District Bench Following Judge Jackson’s Appointment to the U.S. District Court for Colorado

The First Judicial District Nominating Commission will meet Thursday, September 15, 2011, at the Jefferson County Combined Court, 100 Jefferson County Parkway, to interview and select nominees for appointment by Governor Hickenlooper to the office of district judge for the First Judicial District, which serves Gilpin and Jefferson counties. The vacancy will be created by the resignation of the Honorable R. Brooke Jackson from that court, following his appointment last week to the United States District Court for the District of Colorado. The vacancy will occur on September 2, 2011.

Eligible applicants for appointment to fill the vacancy must be qualified electors of the First Judicial District and must have been admitted to the practice of law in Colorado for five years. Applications must be received by Friday, August 26. The appointed district court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

Further information about the resignation of Judge Jackson and applying for the vacancy is available from the Colorado Judicial Branch.

Verify Your Information Now for the 2012 Colorado Legal Directory

The Denver Bar Association has taken over the production of the 2012 Colorado Legal Directory and is now accepting Attorney and Firm Listing Verifications, Updates, and Upgrades.

To decrease costs and increase efficiency, we will collect all verifications and changes to your printed listing through our website. Please take the time to verify the information for your free listing in the 2012 edition of the Colorado Legal Directory, which is scheduled to be printed in November 2011.

  • Click here or go to and click on Colorado Legal Directory on the left-hand side of the page to log in and verify your listing.
  • If you are not a CBA member, simply enter all your information.
  • When viewing your record, for a small fee you will be given opportunities to choose fields of practice to be listed in, as well as bolding and firm listings.
  • We are unable to accept verifications and updates by e-mail, fax, or phone.
  • Click here for a list of frequently asked questions.
  • Other questions? Call (303) 860-1115 or e-mail

You must verify your listing even if the information shown online is correct. If we do not receive a response from you by September 1, your listing may not appear in the 2012 Directory. Attorneys practicing out of state will be listed by request only. Attorneys on inactive status with the Colorado Supreme Court will not be listed. If you are practicing out of state or are inactive as of June 1, 2011, you must go online and request to be included in the directory. Information listed was gathered from the Colorado Supreme Court Office of Attorney Registration on June 1, 2011.

Information we collect for the Directory will not be given or sold to any third parties and will only be used by the Colorado and Denver Bar Associations.

Colorado Court of Appeals: Action for Declaratory Judgement of Non-Liability for Promissory Note Based on Statute of Limitations Does Not Trigger Counterclaim Revival Statute

The Colorado Court of Appeals issued its opinion in Tidwell v. Bevan Properties, Ltd. on August 4, 2011.

Promissory Note—Statute of Limitations—Counterclaim Revival Statute—Declaratory Judgment—Evidence.

Defendant Bevan Properties, Ltd. appealed the district court’s summary judgment in favor of plaintiffs Lloyd A. Tidwell, Betty H. Tidwell, and BLT Consulting, Inc. The judgment was affirmed.

On May 12, 1998, BLT Consulting executed a promissory note for $65,000 in favor of defendant. The Tidwells personally guaranteed the note. The note was due and payable on or before October 1, 1998, and was secured by a deed of trust on real estate owned by the Tidwells. The deed of trust was recorded in the local county clerk’s office on October 21, 1998. No payment was ever made on the note. On July 9, 2010, plaintiffs filed this action for declaratory relief requesting that the note, the personal guarantees, and the deed of trust be held unenforceable. The district court entered summary judgment in favor of plaintiffs.

On appeal, defendant contended that the counterclaim revival statute, CRS § 13-80-109, applies in cases where a plaintiff brings a declaratory relief action based on expiration of the statute of limitations. In Colorado, the general six-year limitations statute applies to promissory notes. If, after a debtor defaults on a promissory note, a creditor fails to sue to enforce the note within the six-year limitations period, the creditor’s right to foreclose on the deed of trust lien is extinguished. Here, the promissory note became due on October 1, 1998. Thus, on October 2, 2004, an action on note was barred by the statute of limitations, and the lien created by the deed of trust was extinguished. An action for declaratory judgment of non-liability based on statute of limitations grounds is not a “claim” triggering the counterclaim revival statute. Therefore, the district court correctly granted summary judgment in favor of plaintiffs.

Defendant further contended that the allegations contained in the affidavit it submitted to the district court raised a genuine issue of material fact. The affidavit defendant submitted purported to establish that the parties had verbally agreed to extend the payment of the note and therefore tolled the payment period. However, defendant failed to present any admissible evidence that could demonstrate that the limitations period was tolled by written agreement of the parties. Because defendant failed to produce a written instrument signed by plaintiffs acknowledging a delay in the payment of the promissory note, the district court correctly held that defendant’s affidavit failed as a matter of law to raise a genuine issue of material fact precluding summary judgment.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Court of Appeals: Heirs of Decedent Who Died Intestate Have Priority Over Creditors to Serve as or Nominate Personal Representative of Estate

The Colorado Court of Appeals issued its opinion in In re the Estate of Newton: Mojo Properties, LLC v. Woods on August 4, 2011.

Personal Representative—Priority—Nominee—Creditor.

Mojo Properties, LLC (creditor) appealed the district court’s order appointing Patrick Woods (nominee) to be personal representative of the estate of Kathryn E. Newton (decedent). The order was affirmed.

Decedent died in December 2009. She was survived by two daughters and nominee, who had lived with her for approximately ten years. She did not leave a will. In March 2010, both daughters nominated nominee to act as personal representative of decedent’s estate. Creditor requested to be appointed as personal representative of the estate; however, the district court rejected creditor’s argument that it had statutory priority to serve as personal representative of the estate, and appointed nominee.

Where, as here, an unmarried person dies intestate, his or her heirs have priority over creditors. Also, an heir or group of heirs may nominate a person to serve as personal representative. The nominee of one with a prior right to appointment stands in the shoes of his or her nominator with regard to that priority. Thus, the probate court properly appointed nominee as personal representative.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Court of Appeals: Use of Anonymous Written Ballots to Fill Council Vacancies and Appoint Judge During Public Meeting Not a Violation of State Law

The Colorado Court of Appeals issued its opinion in Henderson v. City of Fort Morgan on August 4, 2011.

Colorado Open Meetings Law—Ballots—Public Meetings.

Plaintiff Ronald Henderson appealed the trial court’s C.R.C.P. 12(b)(5) dismissal of his claims for injunctive and declaratory relief against defendant, City of Fort Morgan, asserting that the Fort Morgan City Council’s voting procedure violated the Colorado Open Meetings Law (COML). The order was affirmed.

Henderson contended that CRS § 24-6-402(2)(b) and the COML prohibited the Fort Morgan City Council’s use of anonymous written ballots to fill two council vacancies and appoint a municipal judge during its public meetings in 2009 and 2010. Neither § 24-6-402(2)(b), nor any other section of the COML, imposes specific voting procedures on local public bodies. Instead, the COML requires that the public have access to meetings of local public bodies and be able to observe the decision-making process. Henderson does not claim that the public was prohibited from observing, participating in, or listening to the discussions regarding the candidates or the deliberation process. The ballots were completed in the public meeting, and the result was announced at the public meeting. Therefore, the City Council’s voting procedure could not have violated the statute or the COML. Accordingly, the trial court properly dismissed Henderson’s action under C.R.C.P. 12(b)(5) for failure to state a claim based on this ground.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Court of Appeals: Property Taxes on Qwest Operations in Colorado Determined through “Actual Value” Assessment without Regard to a Cost Cap

The Colorado Court of Appeals issued its opinion in Qwest Corp. v. Colorado Div. of Property Taxation on August 4, 2011.

Property Tax—Public Utility—Cable Company—Intangible Property Exemption—Cost Cap Limitation—Equal Protection—Administrative Convenience.

In this property tax dispute, plaintiff Qwest Corporation appealed the trial court’s judgment granting the motion to dismiss of defendant, Colorado Division of Property Taxation, Department of Local Affairs (DPT). Because Qwest failed to state a claim as a matter of law, the judgment was affirmed.

DPT is responsible for determining for property tax purposes the actual value of the operating property and plant of all public utilities doing business in Colorado. The definition of “public utility” includes telephone companies but not cable companies.

Qwest contended that DPT can and should interpret the intangible property exemption, CRS § 39-3-118, and the “cost cap” limitation on value, CRS § 39-1-103(13), as applying to its property. However, the plain language of § 39-3-118 states otherwise. Further, § 39-4-102(1) specifically covers public utilities and mandates “actual value” assessment, without regard to a cost cap. Therefore, implying that the DPT administrator must employ a cost cap, in the absence of any specific statutory direction, would conflict with this mandate. Because DPT’s interpretation of § 39-1-103(13) was reasonable, it was entitled to deference.

Qwest also contended that the trial court erred in summarily rejecting its claims that DPT’s interpretation and application of §§ 39-3-118 and 39-1-103(13) deny it the guarantees of uniform taxation and equal protection. DPT’s application of the tax statutes to value utility property as a unit could rationally have been based on administrative convenience. Achieving the equality Qwest demanded would require a multi-step process as to a significant amount of property. Further, even if the classification based on status as a public utility results in some inequity, the administrative convenience aspect of the rational basis test does not demand that the governmental decision maker choose the best possible solution.

Therefore, because DPT could reasonably have concluded that apportioning and valuing public utility property as Qwest asserted would result in administrative inconvenience, there was no equal protection violation by DPT in refusing to interpret and apply the statutes as Qwest urged. Additionally, the Gallagher Amendment did not prohibit the legislature from creating a tax classification based on status as a public utility; therefore, DPT constitutionally applied §§ 39-3-118 and 39-1-103(13) to Qwest.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Court of Appeals: Briefs Stricken and Appeal Dismissed for Uncivil Language and Failing to Comply with Appellate Rules

The Colorado Court of Appeals issued its opinion in Martin v. Essrig, and Concerning Carroll on August 4, 2011.

Civility—C.A.R. 38(d) and (e)—CRS § 13-17-102—Attorney Fees—Sanctions.

Paul Essrig (tenant), a former tenant of a residence owned by Bernie Martin (owner), appealed the district court’s denial of his C.R.C.P. 60(b)(3) motion challenging as void a judgment in owner’s favor on a claim that tenant had breached the parties’ lease. Tenant and his counsel, David Carroll, also challenged the district court’s award of attorney fees incurred by owner in responding to the motion. The appeal was dismissed and the case was remanded with directions.

Owner argued that tenant’s briefs should be stricken, the appeal dismissed, and other appropriate sanctions imposed because tenant failed to comply with the appellate rules governing the form and content of briefs and because tenant’s opening brief contained “inappropriate and unprofessional commentary.” In rare cases, conduct in prosecuting an appeal is so contrary to court rules and so disrespectful of the judicial process and its participants that the right to appellate review is forfeited.

Here, Carroll filed briefs supporting this appeal, which largely failed to advance a coherent argument in support of the contention of error. Most troubling, however, was the tenor of the opening and reply briefs. They were suffused with uncivil language directed primarily against owner’s attorneys, and were filled with sarcastic and bombastic rhetoric. This was bad advocacy and in large part inconsistent with Carroll’s professional obligation to represent his client in a civil manner. Therefore, the opening and reply briefs were stricken, the appeal was dismissed, attorney fees and double costs were assessed against Carroll, and the case was remanded to the district court for a determination of the reasonable attorney fees owner has incurred on appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Court of Appeals: No Abuse of Discretion in Denying Challenge for Cause to Potential Juror; Defendant Not Entitled to Jury Instruction on Duress

The Colorado Court of Appeals issued its opinion in People v. Palomo on August 4, 2011.

Challenge for Cause—Jury—Affirmative Defense—Duress—Costs.

Defendant appealed his conviction entered on jury verdicts finding him guilty of vehicular eluding and the lesser non-included charge of eluding or attempting to elude a police officer. He also appealed the assessment of costs and fees, including the costs of prosecution, in the amount of $2,379.65. The conviction was affirmed, the order assessing the costs of prosecution was vacated, and the case was remanded for further proceedings.

Defendant contended that the trial court erred when it denied his challenge for cause to a potential juror (TJ). Defendant asserted that TJ was biased against criminal defendants and would not hold the prosecution to its burden to prove the culpable mental state of the offenses charged. When questioned by the court, however, TJ unequivocally stated that he would both follow the law and not disregard the culpable mental state element of an offense when instructed that it needed to be proved. Therefore, the trial court did not abuse its considerable discretion in denying defendant’s challenge for cause.

Defendant next contended that the trial court erred when it refused to instruct the jury on the affirmative defense of duress. A defendant is entitled to a duress instruction on a threshold showing of (1) an immediate threat of death or bodily injury; (2) a well-grounded fear the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm. Here, even if it is assumed that defendant was threatened with death or serious bodily injury, there was no evidence that he had a well-grounded fear that the threat would be carried out, or that there was no reasonable opportunity for escape. Accordingly, the trial court did not err in refusing to give the jury an instruction on the affirmative defense of duress.

Defendant also contended that the trial court erred in granting the motion for costs of prosecution. A defendant convicted of fewer than all of the counts in a multi-count indictment or criminal information, or in consolidated cases, can be assessed only those costs of prosecution attributable to the counts for which he or she was convicted, if an allocation is practicable. Here, the majority of the trial was consumed with the prosecution’s ultimately unsuccessful effort to prove the attempted first-degree murder and second-degree assault charges, and a majority of the assessed costs, if not all of them, were spent on these charges. Therefore, the order assessing all the costs of prosecution cannot stand. On remand, the trial court may assess only those costs that are related to the prosecution of the eluding counts of which defendant was convicted, to the extent an allocation is practicable.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Court of Appeals: Sufficient Evidence Presented to Allow Jury to Find that Children Depicted in Pornographic Images Were Real

The Colorado Court of Appeals issued its opinion in People v. Brown on August 4, 2011.

Sexual Exploitation of a Child—Photographs—Foundation—Authentication—C.R.E. 403—Expert Testimony—Prosecutorial Misconduct.

Defendant appealed his judgments of conviction entered on jury verdicts finding him guilty of three counts of sexual exploitation of a child. The judgments were affirmed.

After executing a search warrant for defendant’s home, the police seized numerous items, including a laptop computer and an external hard drive. On the laptop and hard drive, the police found a photograph and two videos depicting child pornography.

Defendant contended that the trial court erroneously admitted the photo and videos over his objections based on foundation, authentication, and C.R.E. 403. Defendant was correct that the government was required to prove that the images were of actual children; however, there was sufficient evidence presented on which the jury could have found that the children depicted in the images were real. To establish a proper foundation and authentication, the prosecution only needed to prove a chain of evidence and not who was portrayed in the photograph and videos. The images were direct proof of an essential element of the charged crimes, and the fact that the nature of the charges may have been prejudicial to defendant does not justify exclusion of such evidence. Accordingly, it was not error to admit the images into evidence.

Defendant also contended that there was insufficient evidence presented that the images depicted real children and, consequently, there was insufficient evidence to sustain his convictions. However, the images appeared to depict real persons. A doctor stated that he believed the images were children based on certain physical characteristics, and a detective stated that there was no evidence that the images were fake or of virtual children. Under these circumstances, the evidence was sufficient to permit the jury, as the finder of fact, to determine that the prosecution had met its burden of proving that the individuals depicted were real children.

Defendant further contended that the trial court’s admission of a detective’s expert testimony warranted reversal. However, the court’s qualification of the detective as an expert was not manifestly unreasonable, arbitrary, or unfair in light of the detective’s experience. Moreover, any error in qualifying the detective as an expert was rendered harmless when the doctor testified in detail as to her opinion that the individuals in the images were under the age of 18.

Finally, defendant contended that reversal was warranted because of prosecutorial misconduct in closing argument. The prosecution’s position was a reasonable inference drawn from the images and testimony in the case and did not misstate the prosecution’s burden of proof. Therefore, reversal was not warranted.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Colorado Supreme Court: Week of August 7, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of August 7, 2011.