April 20, 2019

Archives for July 9, 2012

Colorado Court of Appeals: Forgery Includes Falsely Completing Appraisals by Certifying Them as True, Accurate, and in Compliance with Professional Guidelines

The Colorado Court of Appeals issued its decision in People v. Kovacs on July 5, 2012.

Forgery—Written Instrument.

The People appealed the district court’s order dismissing for lack of probable cause their indictment of defendant Alexander Kovacs for forgery. The order was reversed and the case was remanded.

In 2010, a grand jury indicted Kovacs on five counts of forgery of a written instrument. The indictment alleged that Kovacs provided various parties appraisals that contained material misrepresentations or omissions. The district court dismissed the indictment, finding that the appraisals were not “forged instruments” as that term is defined in CRS § 18-5-101(5).

The People argued that the district court erred in dismissing the indictment. Under CRS § 18-5-101(3)(b), a person falsely “completes” a written instrument when he or she adds materially false information to any instrument, genuine or non-genuine, so as to render it legally operative. Here, Kovacs falsely completed the appraisals when he certified the appraisals as true and accurate, and as having been completed in compliance with the applicable professional guidelines. Therefore, the district court erred in dismissing the indictment based on its view that the forgery statute required the completion of a non-genuine instrument.

Summary and full case available here.

Colorado Court of Appeals: Arrest No Longer Prerequisite to Request for Chemical Testing; Order Revoking Driver’s License Reinstated

The Colorado Court of Appeals issued its decision in Francen v. Colorado Department of Revenue, Division of Motor Vehicles on July 5, 2012.

Revocation of Driver’s License—Alcohol—Reasonable Suspicion—Initial Stop—Express Consent Statute—Exclusionary Rule.

Respondent Colorado Department of Revenue (Department) appealed the trial court’s order reversing its revocation order concerning petitioner Tom Francen. The judgment was reversed and the case was remanded to the district court for reinstatement of the Department’s order revoking Francen’s driver’s license.

The Department revoked Francen’s driver’s license based on a determination that he had driven a motor vehicle with a legally excessive breath alcohol content. The district court reversed the revocation order, finding that the initial stop of his vehicle by police was not supported by reasonable suspicion.

The Department argued that the district court erred in reversing the revocation order because the police officer’s initial contact with Francen was unlawful. The express consent statute no longer provides that an arrest is a prerequisite to a request for chemical testing. Therefore, the legality of the initial contact between a driver and police is not relevant in a civil revocation proceeding, and the Department should not apply the exclusionary rule in civil revocation proceedings.

Summary and full case available here.

Colorado Court of Appeals: Detective Who Interrogated Defendant in Spanish Is Permitted to Testify About Translation Without Being Certified as an Interpreter

The Colorado Court of Appeals issued its decision in People v. Munoz-Casteneda on July 5, 2012.

Intent to Distribute a Schedule II Controlled Substance—Possession of Drug Paraphernalia—Fact Witness—Interpreter—Prosecutorial Misconduct.

Defendant appealed from the judgment of conviction entered on jury verdicts finding him guilty of possession with intent to distribute a schedule II controlled substance (cocaine) and possession of drug paraphernalia. The judgment was affirmed.

Defendant contended that the trial court erred by allowing the detective who interrogated him in Spanish to translate that recorded interrogation during his trial testimony without meeting the requirements for interpreters set forth in CRE 604 and 702. The detective had personal knowledge of the relevant conversation. Therefore, he was a fact witness and was permitted to testify without first being certified as an interpreter.

Defendant also contended that the prosecutor impermissibly introduced the issue of Mexican drug trafficking organizations into the trial through his voir dire questioning of prospective jurors and his direct examination of his expert witness. Although the prosecution’s comments were improper (because this case did not involve drug trafficking organizations or allegations of complicity), the misconduct does not warrant reversal in light of the overwhelming evidence of defendant’s guilt.

Summary and full case available here.

Colorado Court of Appeals: Twenty-Six Convictions for Theft by Receiving Merged into Five Convictions

The Colorado Court of Appeals issued its decision in People v. Randell on July 5, 2012.

Fraud—Tax Refunds—Theft by Receiving—Units of Prosecution—Forgery—Conspiracy—Computer Crime—Colorado Organized Crime Control Act—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of multiple felonies in connection with a scheme to obtain fraudulent tax refunds and credits from the Colorado Department of Revenue (CDOR). Defendant’s twenty-six theft by receiving convictions were merged into five, the case was remanded for resentencing and correction of the mittimus, and the judgment was affirmed in all other respects.

Defendant, his girlfriend, and his wife diverted more than $11 million in fraudulent income tax refunds and credits from the CDOR to bank accounts and business entities controlled by defendant. Defendant asserted that he could not be convicted of twenty-six counts of theft by receiving under CRS § 18-4-410(7), because that statute required all thefts within a six-month period to be prosecuted as a single felony. Defendant was convicted of twenty-six counts of theft by receiving under CRS 18-4-410, based on acts occurring between August 29, 2005 and April 12, 2007. Starting with August 29, 2005, the facts support five convictions, not four as argued by defendant. Therefore, the twenty-six theft by receiving convictions were merged into five.

Defendant also challenged his convictions for forgery, conspiracy to commit forgery, conspiracy to commit computer crime, and violation of the Colorado Organized Crime Control Act (COCCA). Regarding the forgery charges, the jury could have found from the girlfriend’s testimony that she committed forgery by falsely making illegitimate tax refunds, or falsely altering legitimate ones, with intent to defraud the State of Colorado. Whether the jury believed defendant was guilty of forgery as a principal was irrelevant, because the evidence was sufficient to show that defendant was guilty, as a complicitor, for the forgery committed by the girlfriend. Regarding the computer crime charges, a rational jury could find that defendant’s creation of entities and communications of account information were overt acts in a conspiracy to commit computer crime, even if they were not criminal acts in themselves. Regarding the COCCA charge, defendant claims that his actions were not related to the conduct of an “enterprise.” Predicate acts in a pattern of racketeering activity must “protect the integrity of the ongoing enterprise” and be “related to the conduct of the enterprise.” Here, the indictment defined the alleged enterprise as more than a dozen corporate and other entities created by defendant and the girlfriend to receive fraudulent tax refunds. Defendant’s predicate acts were “related to the conduct of the enterprise,” because they channeled stolen money through corporate and other entities set up specifically for that purpose. Therefore, the evidence was sufficient to support the jury’s verdict on these convictions.

Defendant further argued that the prosecution engaged in prosecutorial misconduct. Specifically, the prosecution argued that defendant “stole from” the jury and “spent [jurors’] money” by defrauding Colorado taxpayers. Although the prosecution’s comments were improper, they did not undermine the fundamental fairness of this trial, where misappropriation of public funds was a central issue.

Summary and full case available here.

Colorado Court of Appeals: Abuse of Discretion in Denying Petition to Discontinue Registration as Sex Offender

The Colorado Court of Appeals issued its decision in People v. Carbajal on July 5, 2012.

Sex Offender Registration—Deferred Judgment—Dismissal.

Defendant appealed the trial court’s order denying his petition to discontinue sex offender registration. The order was reversed and the case was remanded to the trial court with directions to grant defendant’s petition.

On August 30, 2001, defendant entered guilty pleas in several cases, including a charge of second-degree sexual assault in this case, and the trial court imposed a deferred judgment with four years’ supervision to run consecutively to the prison term in a Montrose case for drug possession and bail violation. Defendant’s parole in the Montrose case subsequently was revoked, and he returned to prison. The People filed a petition to revoke defendant’s deferred judgment in this case, and as a result, the court extended defendant’s deferred judgment to July 2010. The Supreme Court later issued a decision dismissing defendant’s case entirely, finding that the trial court exceeded its jurisdiction in extending the deferred judgment. The trial court subsequently denied defendant’s petition to discontinue sex offender registration because defendant failed to complete sex offender treatment, failed to pay restitution, and later was convicted of trespass.

On appeal, defendant argued that the trial court erred in denying his petition to discontinue sex offender registration. When defendant’s deferred judgment terminated as a matter of law on August 30, 2005, four years after defendant’s guilty plea, the court implicitly found that all of the probationary obligations associated with the deferred judgment also ended, including the requirement to complete sex offender treatment and to pay restitution. Accordingly, to hold defendant responsible for fulfilling conditions that he no longer was legally obligated to complete was an abuse of discretion by the trial court. Therefore, the trial court abused its discretion in denying defendant’s petition for an order to discontinue the requirement that he register as a sex offender.

Summary and full case available here.

Colorado State Judicial Branch Revises Several Probate Forms

This is Part 1 of 4 posts about new forms from State Judicial. Check back soon for more updates.

The Colorado State Judicial Branch issued 15 revised forms in July 2012 for probate proceedings, including instructions and forms regarding guardianships and conservatorships, as well as publication and notice forms. Practitioners should begin using the new forms immediately.

These forms were amended by the Colorado Supreme Court on June 29, 2012, and outlined as Rule Change 2012(11).

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.

Probate

  • JDF 714 – “Affidavit Regarding Due Diligence and Proof of Publication” (revised 7/12)
  • JDF 716 – “Notice of Hearing By Publication” (revised 7/12)
  • JDF 785 – “Final Order Accepting Guardianship/Conservatorship in Colorado From Sending State” (revised 7/12)
  • JDF 807 – “Notice of Hearing to Respondent (Adult or Minor)” (revised 7/12)
  • JDF 821 – “Affidavit of Acceptance of Appointment By Written Instrument as Guardian for Minor” (revised 7/12)
  • JDF 823 – “Instructions for Appointment of Guardian – Minor” (revised 7/12)
  • JDF 840 – “Instructions for Appointment of Guardian – Adult” (revised 7/12)
  • JDF 844 – “Notice of Appointment of Emergency Guardian and Notice of Right to Hearing” (revised 7/12)
  • JDF 860 – “Instructions for Appointment of Conservator – Minor” (revised 7/12)
  • JDF 875 – “Instructions for Appointment of Conservator – Adult” (revised 7/12)
  • JDF 882 – “Conservator’s Inventory with Financial Plan and Motion for Approval” (revised 7/12)
  • JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 7/12)
  • JDF 945 – “Notice of Disallowance of Claims” (revised 7/12)
  • JDF 949 – “Notice of Hearing to Interested Persons and Owners By Inheritance” (revised 7/12)
  • JDF 950 – “Notice of Hearing By Publication to Interested Persons and Owners By Inheritance” (revised 7/12)

For a complete list of probate forms from State Judicial, click here.

New Colorado Courts E-Filing System to Launch January 1, 2013

New E-Filing System: On January 1, 2013, the Colorado Judicial Branch’s new Integrated Colorado Courts E-Filing System (ICCES) will replace LexisNexis File & Serve. As of that date, all electronic filings for civil cases in the district, county, and appellate courts of Colorado will be made through the new ICCES program.

The State Judicial website has videos giving an overview of ICCES and a basic demonstration of filing a new case. Additionally, a new Pricing Model Sheet is available to review.

Pilot: On October 1, 2012, the Colorado Courts will begin the live transition from LexisNexis File & Serve to ICCES. Select judicial districts will pilot ICCES from October 1 through December 31. Pilot courts will require all e-filings be made through the ICCES system during this three-month period. Non-pilot courts will still require that all filings be made through LexisNexis. On January 1, 2013, the pilot will end and all judicial districts will fully transition to ICCES. To learn more about the pilot schedule, click here.

ICCES Account Pre-Registration: Law firms and agencies will need to register their organizations and request user accounts for ICCES. Pre-registration can be completed by clicking here.

Training: The Judicial Branch will begin ICCES training this August. Trainings will also be announced on the Judicial Branch website. To learn more about training opportunities, click here.

Stay informed about the ICCES transition by visiting the Colorado Judicial Branch’s E-Filing website, where regular updates will be posted.

E-mail ICCES-Feedback@judicial.state.co.us for any questions about the transition to ICCES.

Tenth Circuit: Unpublished Opinions, 7/6/12

On Friday, July 6, 2012, the Tenth Circuit Court of Appeals issued no published opinions and nine unpublished opinions.

United States v. Bell

Cabrera v. Trammell

Small v. Milyard

Mitchell v. Medina

United States v. McConnel

Stallings v. Werholtz

Brooks v. Medina

United States v. Loumoli

Perry v. Pacheco

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.