August 19, 2019

Archives for October 17, 2012

Hearsay, the Confrontation Clause, and the Colorado Rules of Evidence

Hearsay is governed by Article VIII of the Colorado and Federal Rules of Evidence. In criminal cases, the use of hearsay by the government against the defendant is also governed by the Confrontation Clause. Colorado Rule of Evidence 802, the hearsay rule, provides that “[h]earsay is not admissible except as provided by these rules or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado.” The general ban on hearsay is premised upon the same beliefs that underlie the Confrontation Clause in the federal and Colorado constitutions, namely, that the reliability of a statement can be most accurately determined when the declarant comes before the fact-finder in person, testifies under oath, and is tested by cross-examination.

Most hearsay testimony is admitted under one of the hearsay exceptions. The exceptions to the general ban are usually premised on a belief that the circumstances surrounding the making of certain types of statements satisfy the reliability concerns that gave rise to the general ban.

CRE 803 enumerates 23 exceptions to the hearsay rule for which the availability of the declarant is immaterial. These include spontaneous present sense impression, excited utterance, recorded recollection, records of regularly conducted activity, public records, and more. Statements can fall under multiple exceptions, such as excited utterance and spontaneous present sense impression.

Rule 804 lists hearsay exceptions that apply when the declarant is unavailable. “Unavailable” is defined and the exceptions are listed, including previous testimony, statements against interest, and statements of personal or family history.

CRE 807 is the “catch-all” or “residual” hearsay exception. It was developed after a 1984 Colorado Supreme Court decision, W.C.L. v. People, 685 P.2d 176 (Colo. 1984), in which the statements of a child victim of sexual assault did not fall into any of the specifically enumerated hearsay exceptions. Rule 807 was carved out of CRE 803(24) and 804(b)(5). The residual exception contained in CRE 807 is an under-utilized tool for admitting hearsay statements that do not fit neatly into any of the specific exceptions set out in the rules of evidence.

It is important for every litigator to know and use the hearsay rules, both as the proponent of the hearsay testimony and in opposition. Visit the CLE offices on Tuesday, October 23, when Pat Furman, law professor at the University of Colorado, will present on “Using, Misusing, and Abusing the Hearsay Rules.”

CLE Program:Using, Misusing, and Abusing the Hearsay Rules

This CLE presentation will take place on Tuesday, October 23, at 12:00 p.m. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Tenth Circuit: In Bankruptcy Case, Debtor Permitted to Grant Security Interest to Creditor in Economic Value of Broadcasting License, Regardless of When Sale of License is Contemplated

The Tenth Circuit Court of Appeals issued its opinion in In re Tracy Broadcasting Corporation on Monday, October 16, 2012.

Tracy Broadcasting filed for bankruptcy under Chapter 11. Its primary creditors were Valley Bank and Spectrum Scan, which was unsecured. The most valuable asset was Tracy’s broadcasting license. The schedules stated that the “proceeds” of the license were secured to Valley Bank. Spectrum Scan brought an action to determine the extent of Valley Bank’s security interest. The bankruptcy court ruled that Valley Bank had no priority in the proceeds of the sale of the license. According to the bankruptcy court, Tracy Broadcasting lacked a sufficient prepetition property interest in the license because the Federal Communications Act (FCA) barred its transfer without FCC permission. The United States District Court for the District of Colorado affirmed.

The Tenth Circuit’s analysis on appeal involved two steps. First, it determined what, if any, interest Tracy Broadcasting could convey in its license before it filed its bankruptcy petition. The Tenth Circuit concluded that Tracy Broadcasting could grant a security interest in its right to the proceeds of the sale of the license. Under the FCA, a licensee has no ownership rights in a radio channel or frequency; the use of the channel is within the regulatory power of the FCC. But the FCA does not prohibit a licensee from making money from its license—say, when a licensee sells a license (albeit only with FCC approval) and realizes a profit because of the value of listener loyalty to the frequency. Accordingly, the Court held that federal law permitted Tracy Broadcasting to grant a security interest in the economic value of its license to Valley Bank.

Second, The Tenth Circuit determined whether such a security interest is a property interest that can attach before a sale of the license is contemplated.  Under the Bankruptcy Code, property-rights issues of this sort are a matter of state law. The Tenth Circuit held that Nebraska law recognizes that a security interest in the proceeds of a license sale attaches when the licensee enters into the security agreement, regardless of whether a sale is contemplated at that time. REVERSED.

Tenth Circuit: Sentence Enhancement Should Not Have Been Applied in Aggravated Sexual Abuse Case Because Restraint of Victim is Element of Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Joe on Monday, October 16, 2012.

These two direct criminal appeals arise from the same incident and have one sentencing issue in common. The crime in which the two Defendants-Appellants participated included a brutal beating and sexual assault. Mr. Joe and Ms. Jones entered guilty pleas to a charge of aggravated sexual abuse. In both cases, the Presentence Report (PSR) recommended that the offense level be increased by four under U.S.S.G. § 2A3.1(b)(1) because the offense involved the use of force against the victim. In the case of Ms. Jones, the PSR also recommended that her offense level be further increased by two under U.S.S.G. § 3A1.3 because the victim had been restrained during the offense. Both Defendants objected to the recommendation to apply both enhancements. The district judge overruled both objections. The district judge sentence Ms. Jones to 140 months’ imprisonment, and Mr. Joe to 100 months’ imprisonment.

On appeal, both Mr. Joe and Ms. Jones contend that the district court erred by applying both the enhancement for the use of force and the enhancement for the restraint of the victim. The Guidelines instruct courts not to apply the restraint-of-the-victim enhancement where the guideline incorporates this factor, or where the restraint of a victim is an element of the offense itself. Accordingly, the Tenth Circuit had to consider whether the restraint-of-the-victim enhancement is incorporated in the use-of-force enhancement or whether physical restraint is an element of the crime of aggravated sexual abuse.  Because restraint of the victim is an element of the offense of sexual abuse, the Tenth Circuit found it to be impossible to commit aggravated sexual abuse without applying force that constitutes physical restraint of the victim. Therefore, the restraint-of-the-victim sentence enhancement should not have been applied. REMANDED for resentencing.

Tenth Circuit: A Reasonable Jury Could Find Defendant Officers’ Conduct to be the Proximate Cause of Plaintiffs’ Prolonged Detention

The Tenth Circuit Court of Appeals issued its opinion in Martinez v. Carson on Wednesday, October 18, 2012.

In these cross-appeals, the parties raise challenges to various rulings made by the district court in a § 1983 action arising out of an allegedly unlawful seizure.

The incident underlying this action began when Defendants Carson and Mangin, employees of the New Mexico Department of Corrections, observed Plaintiffs Martinez and Sarmiento sitting or standing with a third man in a poorly-lit area outside an apartment building in a high-crime neighborhood at night. Defendants, who had been patrolling the area, pulled up to the apartment building in an unmarked police car and turned on the emergency lights. The third man fled into the apartment building when Defendants approached, and Rio Rancho police officer Camacho pursued him. Meanwhile, Defendants forced Plaintiffs to the ground, handcuffed them, drew weapons, and conducted a pat-down search. When additional Rio Rancho officers arrived on the scene a few minutes later, Defendants transferred Plaintiffs into the custody of these officers. The Rio Rancho police officers arrested Plaintiffs, holding Mr. Martinez for twelve hours, and Mr. Sarmiento for five hours before their release.

The pertinent question for the jury to decide was whether Defendants had reasonable suspicion of criminal activity when they detained Plaintiffs—if so, the brief seizure was warranted as an investigative detention responsive to officer safety concerns; if not, it was an illegal seizure. The case proceeded to trial, where the jury found for Plaintiffs on their unlawful seizure claim, finding Defendants lacked reasonable suspicion to justify the initial seizure (not the subsequent seizure by the Rio Rancho officers), and awarded Plaintiffs damages.

Plaintiffs now appeal the district court’s orders limiting Defendants’ liability to the first few minutes of the seizure, as well as a discovery sanction. On cross-appeal, Defendants raise issues regarding the district court’s denial of summary judgment based on qualified immunity, and the district court’s denial of their Rule 50(b) motion for judgment as a matter of law.

Section 1983 imposes liability on a government official who subjects, or causes to be subjected, any citizen to the deprivation of any rights.  Thus, anyone who “causes” any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection is satisfied if Defendants set in motion a series of events that they knew or reasonably should have known would cause others to deprive Plaintiffs of their constitutional rights. The Tenth Circuit concluded that a reasonable jury could find Defendants’ conduct to be the proximate cause of at least some portion of Plaintiffs’ prolonged detention following Defendants’ transfer of custody to the Rio Rancho officers.

The Court next reviewed the district court’s discovery sanction against Plaintiffs. On June 22, 2009, the magistrate judge issued an order staying all discovery pending a ruling on Defendants’ summary judgment motion based on qualified immunity. Counsel did not simply conduct voluntary interviews of the Rio Rancho defendants for investigatory or settlement purposes; rather, counsel conducted a deposition-like proceeding with these defendants, using exhibits and asking extensive questions to obtain evidence against the other defendants whose counsel was not noticed to be present. In light of the magistrate judge’s order staying “all discovery” and stating that Plaintiffs would need to proceed under Rule 56(f) to obtain discovery from the Rio Rancho defendants, the district court concluded that the Stay Order was violated. The district court ordered the parties to proceed with the Rule 56(f) deposition of Lt. Camacho, with Plaintiffs bearing the costs they would already have expended had they complied with the magistrate judge’s order in the first place. The district court also required all parties to re-file any motions that included citations to the stricken interview. The Tenth Circuit saw no abuse of discretion in this discovery sanction.

Because Defendants failed to file a notice of appeal within thirty days following the dismissal of their first post-judgment motion, the Tenth Circuit dismissed the cross-appeal for lack of jurisdiction.

For the foregoing reasons, the Tenth Circuit AFFIRMED the district court’s sanctions order, REVERSED the district court’s summary judgment order limiting Defendants’ liability, and REMANDED to the district court for a new trial limited to the issue of whether and to what extent Defendants reasonably should have known their unlawful seizure of Plaintiffs would result in the prolonged detention and, if so, whether any additional damages are appropriate. Defendants’ cross-appeal was DISMISSED.


Tenth Circuit: Unpublished Opinions, 10/16/12

On Tuesday, October 16, 2012, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Martinez

Maynard v. The Colorado Supreme Court Office of Attorney Regulation Counsel

Aguirre-Onate v. Holder

United States v. Romero

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

Tenth Circuit: Unpublished Opinions, 10/17/12

On Wednesday, October 17, 2012, the Tenth Circuit Court of Appeals issued four published opinions and nine unpublished opinions.

United States v. Varela

Lorentzen v. Omer

Parker v. Citimortgage

Chaundari v. Holder

United States v. Lichfield

United States v. Friedman

United States v. Lopez

Borgsmiller v. Astrue

Musau v. Carlson

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

State Judicial Revises Appellate, Garnishment, and Family Law Forms

The Colorado State Judicial Branch revised several forms in October in the appellate, garnishment, and family law categories. The appellate forms relate to an attorney’s limited appearance pursuant to the revisions to C.A.R. 5.

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.


  • JDF 640 – “Notice of Limited Appearance by Attorney with Consent of Pro Se Party Under C.A.R. 5” (Issued 10/12)
  • JDF 641 – “Consent to Limit Appearance by an Attorney Under C.A.R. 5” (Issued 10/12)
  • JDF 642 – “Notice of Completion of Limited Appearance Under C.A.R. 5” (Issued 10/12)


  • Form 34 “Notice of Levy” (Revised 10/12) 
  • JDF 1338 – “Mandatory Disclosure” (Revised 10/12)

All of State Judicial’s forms may be found here.