August 19, 2019

Archives for January 17, 2013

Bennett S. Aisenberg Honored with Award of Merit at Colorado Bar Foundation Annual Dinner


By Sara Crocker

Colorado Bar Association Award of Merit honoree Bennett Aisenberg is more than a great attorney, according to a colleague; in fact, he’s a skilled horticulturist and his garden always bears quite a bounty – it’s one that people can see in law offices across the state.

“[Aisenberg] has germinated seeds in the hearts and minds of many folks who were in the early days of their learning how to practice law,” Senior Chief Deputy District Attorney Dick Reeve wrote in his letter of support for Aisenberg to receive the Award of Merit, which CBA President Mark Fogg relayed at the Colorado Bar Foundation Annual Dinner on Jan. 11.

“Those seeds have sprouted into individual professionals who today bring balance, ethics, objectivity, professionalism, and their humaneness to their legal work,” Reeves wrote. “Simply put: Ben has found a way over the years, through his various positions of service to the legal community, of connecting with and mentoring, to varying degrees, what I believe to be hundreds of Colorado lawyers.”

Aisenberg, was strongly impacted by the movie “To Kill a Mockingbird,” knew from a young age that he wanted to be a trial attorney. He said that receiving the association’s highest honor had nearly left him without words, but only nearly.

“I love and admire this profession so much that to be honored by its members is one of the greatest gifts an attorney can get,” he said.

The long-time sole practitioner served as a president of the Colorado Trial Lawyers Association from 1984 to 1985, president of the Denver Bar Association from 1991 to 1992 and president of the Colorado Bar Association from 1998 to 1999. In 2003, he received the DBA’s Award of Merit — that association’s highest honor. He also has been honored by the Sam Cary and Asian Pacific American Bar Associations.

Aisenberg has been a long-time supporter of the Colorado Bar Foundation, and in 2004 he donated $10,000 to the foundation, which promotes the advancement of jurisprudence and the fair and equal administration of justice through grants that help educate the public and by providing assistance to Colorado’s legal institutions. In recognition of this generous donation, the foundation board created the Aisenberg Society for fellows who donate $10,000 to the foundation over 10 years or less.

Aisenberg has been a luminary on the CBA’s Ethics Committee, comprised of approximately 90 attorneys who offer ethics advice to colleagues and write formal ethics opinions on general ethical conundrums.

“I have found it one of the most rewarding experiences I have ever had in the legal profession,” he said.

BrownFoggGary L. McPherson Outstanding Young Lawyer of the Year Loren M. Brown also was honored at the dinner.

Brown said after it was announced that he would receive the award he got a flood of emails.

“I think the best one I got said, ‘Congratulations on still being young,’” he said.

The award is given annually to a young lawyer (those under 37 years old or who have been admitted to the bar for less than three years) with an outstanding record of professional success, community service achievements, a strong commitment to civic participation and inspiring others.

Though he is still young, the shareholder with Donelson Ciancio & Grant, P.C. has already accomplished much. He is a former president of the Adams-Broomfield Bar Association, a fellow of the Colorado Bar Foundation, a member of the Colorado Trial Lawyers Association and a graduate and executive committee member of the Colorado Bar Association Leadership Training program, known as COBALT. This year, he was recognized with members of the 17th Judicial District Access to Justice Committee by the Adams-Broomfield Bar Association with its Liberty Bell Award as citizens of the year. In 2011, ABBA awarded him with its Volunteer Attorney of the Year award.

Brown is a part of a local bar association that is on the cutting edge of access to justice in Colorado, Fogg said.

“When I traveled across the state to my local bar associations we talked a lot about access to justice. All of the access to justice committees said we want to be like Adams County. Adams County sets the bar in this state on access to justice programs in this state,” he said.

Brown said he was humbled to receive the award and thanked his mother, who raised him and his sister alone, and his mentor Gene Ciancio.

“I take this as a charge to do more,” Brown said.

Tenth Circuit: Convictions and Sentences Affirmed in Case Arising from Defendants’ Operation of Medical Clinic

The Tenth Circuit published its opinion in United States v. Schneider on Wednesday, January 16, 2013.

Dr. Stephen Schneider was a doctor of osteopathic medicine and his wife, Ms. Schneider, was a licensed nurse (“the Schneiders”). They owned and operated Schneider Medical Clinic in Haysville, Kansas, where they provided pain management treatment, including the prescription of controlled substances. A Kansas grand jury indicted the Schneiders. At trial, they were convicted of several counts of unlawful drug distribution, health care fraud, and money laundering arising from their operation of the Medical Clinic. The district court sentenced Dr. Schneider to 360 months’ imprisonment, and Ms. Schneider to 396 months’ imprisonment. The Schneiders appeal their convictions, alleging that (1) they were denied the right to conflict-free representation; (2) the district court erroneously admitted expert testimony; (3) the district court improperly instructed the jury; and (4) there was insufficient evidence to support the charge of health care fraud resulting in death.

(1) The Schneiders argue they were denied the right to conflict-free representation.

The Tenth Circuit held Dr. and Ms. Schneider waived all potential conflicts voluntarily, knowingly, and intelligently, based on the totality of the circumstances, following two hearings on potential conflicts.

(2) The Schneiders contend the district court erroneously admitted expert testimony.

Dr. Parran, an expert witness for the government, testified “the clinic was at fault” for illegal drug distribution. Dr. Parran also testified that, from his review of the records, the Schneiders ran a “dishonest practice.” Another expert witness for the government, Dr. Jorgensen, opined that the Schneiders’ health care fraud resulted in patients’ deaths, and that he believed the Schneiders filed fraudulent claims. The Schneiders objected to this testimony.

The rules of evidence allow an expert to opine on an “ultimate issue” to be decided by the trier of fact. Fed. R. Evid. 704(a). However, an expert may not simply tell the jury what result it should reach; he or she must explain the basis for any summary opinion. Here, the Tenth Circuit found no error in the admission of Drs. Parran and Jorgensen’s testimony. Neither doctor told the jury to reach a particular verdict, i.e., that Dr. Schneider was guilty. Rather, after explaining at great length their observations from the evidence, they summarized their findings in their testimony.

(3) Defendants allege the district court improperly instructed the jury.

The Tenth Circuit found no abuse of  discretion in the jury instructions objected to at trial, considering de novo the instructions as a whole to determine whether they accurately informed the jury of the governing law. The Tenth Circuit found no plain error in the instructions objected to for the first time on appeal.

(4) The Schneiders argue there was insufficient evidence to support the charge of health care fraud resulting in death.

After viewing the evidence in the light most favorable to the verdict to ascertain whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the Tenth Circuit held sufficient evidence supported the convictions on these counts.


Colorado Court of Appeals: Announcement Sheet, 1/17/13

On Thursday, January 17, 2013, the Colorado Court of Appeals issued 10 published and 40 unpublished opinions.

People v. Fuentes-Espinoza

People v. Fleischacker

People v. Carillo

People v. Corson

People v. Hunsaker

In re Marriage of Krejci

Stan Clauson Associates, Inc. v. Coleman Brothers Construction, LLC

TCF Equipment Finance, Inc. v. Public Trustee for the City and County of Denver

Alpenhof, LLC v. City of Ouray

Averyt v. Wal-Mart Stores, Inc.

The summaries for these 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.

Tenth Circuit: Federal Court Abstains from Interfering in Protracted State Court Litigation

The Tenth Circuit issued its opinion in Osguthorpe v. Ascutah, Inc. on Tuesday, January 15, 2013.

Some time ago, this lawsuit began in Utah state court regarding the development of Wolf Mountain Resorts. Since then, the litigation has not so much developed as it has metastasized: parties have proliferated, claims have collided, and issues have become intimately entangled. Eventually, one of the frustrated suitors looked to the federal courts for relief, asking for a stay of all state-court proceedings and an order compelling arbitration of the state-court claims. The federal district court declined to do so, dismissed the case, and awarded attorney’s fees to the prevailing party.

This appeal asks whether the federal district court correctly determined that the federal court should stay out of the still-unfolding state-court controversy.

The Tenth Circuit concluded that the Supreme Court’s Colorado River doctrine, see Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-21 (1976), was controlling law in this case.  Under the Colorado River doctrine, as a general rule, the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction. But, at times, reasons of wise judicial administration must weigh in favor of permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding. The Tenth Circuit held that Colorado River doctrine wisely counseled its abstention from duplicative interference with the exceptionally protracted state proceedings present here. A federal court should not shy away from contemporaneously exercising concurrent jurisdiction with a state court in the ordinary course of things. But this is no ordinary case. The Utah state court had already overseen years of intensive litigation before the federal court’s jurisdiction was invoked.

On Utah’s motion for attorney’s fees, the Court was concerned about the lack of specific factual findings by the federal district court in support of its decision to award those fees.

Accordingly, the Tenth Circuit AFFIRMED the district court’s dismissal and DISMISSED AS MOOT the interlocutory appeal of the district court’s order denying the motion to compel arbitration and for a stay of the state-court proceedings. In addition, the Court VACATED the district court’s award of attorney’s fees and REMANDED the matter to the district court for detailed findings of fact sufficient to afford meaningful appellate review of its award.

Tenth Circuit: In Case of First Impression, 2005 Amendments to Bankruptcy Code Do Not Exempt Individual Chapter 11 Debtors from the Absolute Priority Rule

The Tenth Circuit issued its opinion in Dill Oil Company, Inc. v. Stephens on Tuesday, January 15, 2013.

Arvin E. Stephens and Karen J. Stephens, f/d/b/a/ Ninnekah Quick Mart, LLC (“Debtors”) owned a chain of convenience stores for which Dill Oil Company, LLC, and Danny and Nancy Dill (“the Dills”) were the primary supplier of gasoline and gas station products. Due to the rising price of gas and a diminishing customer base, Debtors’ stores began operating at a loss. Debtors became liable to the Dills for approximately $1.8 million.

In 2010, Debtors filed for relief under Chapter 11 of the Bankruptcy Code. Pursuant to the plan, the Dills would be paid approximately $15,000 as a secured creditor, but their remaining claim would be considered unsecured. The Debtors would retain possession and control of their property; the Dills would receive a monthly payment for five years, totaling about 1% of their unsecured claim. The Dills objected to confirmation on the ground that the proposed plan violated the absolute priority rule (“APR”), which bars junior claimants, including debtors, from retaining any interest in property when a dissenting class of senior creditors has not been paid in full.  The bankruptcy court entered an order confirming the plan and the Dills appealed.

This appeal presents an issue of first impression for the Tenth Circuit: whether the 2005 amendments to the Bankruptcy Code exempt individual Chapter 11 debtors from the absolute priority rule.

After examining the divergent interpretations among the Circuits of the statutory language and endeavoring to ascertain Congress’s intent, the Tenth Circuit refused to read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure. Here, the statutory language and legislative history lacked any clear indication that Congress intended to erode the absolute priority rule, a pillar of creditor bankruptcy protection.

Accordingly, the Court REVERSED the bankruptcy court’s order confirming the plan and REMANDED for further proceedings.

Tenth Circuit: Unpublished Opinions, 1/16/13

On Wednesday, January 16, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Cano

Tijerina v. Patterson

Beck v. Rudek

Griffin v. Kastner

Gruzinsky v. Martin

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

Colorado Supreme Court: Court Abandons Corpus Delecti Doctrine in Favor of Trustworthiness Standard

The Colorado Supreme Court issued its opinion in People v. LaRosa on Monday, January 14, 2013.

Corpus Delicti Rule—Trustworthiness Standard—Due Process.

The Supreme Court abandoned the corpus delicti rule, which requires the prosecution to prove that a crime occurred using evidence other than a defendant’s confession. In its place, the Court articulated the trustworthiness standard, which requires the prosecution to present evidence that proves that a confession is trustworthy or reliable. To determine whether corroborating evidence proves the trustworthiness or reliability of a confession, the Court held that the trial court must find that corroboration exists from one or more of the following evidentiary sources: facts that corroborate facts contained in the confession; facts that establish the crime that corroborate facts contained in the confession; or facts under which the confession was made that show that the confession is trustworthy or reliable. Because the corpus delicti rule has been consistently applied for more than 100 years, the Court held that applying the trustworthiness standard here would violate LaRosa’s due process rights. Accordingly, the Court affirmed the court of appeals’ decision reversing LaRosa’s convictions under the corpus delicti rule.

Summary and full case available here.

SB 13-008: Eliminating Three-Month Waiting Period for Eligibility for Children’s Basic Health Plan Benefits

On Wednesday, January 9, 2013, Sen. Linda Newell introduced SB 13-008 – Concerning Elimination of the Waiting Period for Children’s Eligibility Under the Children’s Basic Health Plan. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a child is eligible for children’s basic health plan benefits if he or she has not been on a comparable health plan with an employer paying at least 50 percent of the cost for at least three months. The bill eliminates this waiting period. Assigned to the Health and Human Services Committee.

SB 13-007: Eliminating the Repeal Date for the Colorado Commission on Criminal and Juvenile Justice

On Wednesday, January 9, 2013, Sen. John Morse introduced SB 13-007 – Concerning the Repeal Date of the Colorado Commission on Criminal and Juvenile Justice. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill eliminates the repeal date of the Colorado commission on criminal and juvenile justice. Assigned to the Judiciary Committee.

Tenth Circuit: Gender Discrimination Case Will Go Forward on Plaintiff’s Failure to Promote and Disparate Impact Discrimination Claims

The Tenth Circuit published its opinion in Tabor v. Hilti, Inc. on Monday, January 15, 2013.

Plaintiffs Ronica Tabor and Dacia Gray (“Plaintiffs”) worked as inside sales representatives at Hilti, Inc., and Hilti of North America, Inc. (“Hilti”). After being denied promotions to Account Manager, they filed individual claims for gender discrimination under Title VII and moved to certify a class of all female inside sales representatives at Hilti who were denied similar promotions. The district court refused to certify the class and granted summary judgment for Hilti on all claims. Ms. Tabor appealed her individual claims for failure to promote, retaliation, and disparate impact. Ms. Gray appeals her individual claims for failure to promote and disparate impact. Both Plaintiffs appeal denial of class certification.

The Tenth Circuit reversed with respect to  Ms. Tabor’s individual claim for failure to promote, concluding that Ms. Tabor’s claim survived summary judgment under either the direct evidence or McDonnell Douglas standard.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Tabor’s individual claim for retaliation agreeing with the district court that she had met the first part of her prima facie burden to show that she engaged in protected opposition to discrimination, but failed to show that Hilti took adverse action against her because of this opposition.

The Court reversed the district court’s rejection of Ms. Tabor’s individual claim for disparate impact discrimination. Applying Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006), the Tenth Circuit held that Ms. Tabor established a prima facie case of disparate impact discrimination.

Regarding Ms. Gray’s individual claim for failure to promote/deterrence, the Tenth Circuit affirmed the district court’s dismissal of this claim because she did not show she was qualified for a promotion.

The Tenth Circuit also affirmed the district court’s dismissal of Ms. Gray’s disparate impact discrimination claim, because Hilti offered undisputed evidence that multiple managers warned Ms. Gray about performance and disciplinary problems.

Finally, the Tenth Circuit affirmed the district court’s refusal to certify the class. The requirements for class certification are outlined in Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs had not shown “there are questions of law or fact common to the class” as required by Rule 23(a)(2).

AFFIRMED in part and REVERSED in part.

Tenth Circuit: Defendant’s Sentence Not Reduced Because It Was Based on Plea Agreement and Not Guidelines

The Tenth Circuit published its opinion in United States v. Graham on Tuesday, January 15, 2013.

Gregory E. Graham was convicted of distributing crack cocaine and sentenced to 25 years’ incarceration pursuant to a plea agreement. Proceeding pro se, he appealed the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c). Because Graham’s sentence was based solely on the parties’  agreement for a 25-year sentence rather than any Guideline sentencing range, the Tenth Circuit VACATED the order denying the motion and REMANDED for dismissal for lack of jurisdiction. The law of the case doctrine required this conclusion.

Tenth Circuit: Unpublished Opinions, 1/15/13

On Tuesday, January 15, 2013, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

United States v. Nunez

Burnett v. Miller

United States v. Esparza-Moreno

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