July 18, 2019

Archives for January 2013

HB 13-1020: Developing Standards and Protocols for Collection and Processing of Evidence of Sexual Assault

On January 9, 2013, Rep. Frank McNulty and Sen. Ellen Roberts introduced HB 13-1020 – Concerning Evidence Collected in Connection with a Sexual Assault. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the executive director of the department of public safety to adopt rules concerning forensic medical evidence of a sexual assault (forensic evidence) collected by law enforcement agencies. The rules shall include:

  • Standards for when forensic evidence must be submitted by law enforcement agencies to the Colorado bureau of investigation or another accredited crime laboratory (laboratory); and
  • Time frames for when the forensic evidence must be submitted, analyzed, and compared to DNA databases.

The bill requires the consent of the victim prior to the release of forensic evidence following disclosure of the purpose for the release and allows the victim to withdraw consent.

To resolve the backlog of unanalyzed forensic evidence, the bill requires:

  • Law enforcement agencies to submit to the Colorado bureau of investigation (CBI) an inventory of all unanalyzed forensic evidence in active investigations that meets the standard for mandatory submission; and
  • The CBI to submit a plan to analyze all of the forensic evidence inventories by law enforcement agencies.

A law enforcement agency may develop its own plan to analyze forensic evidence if the evidence will be analyzed by June 30, 2014. The bill is assigned to the Judiciary and Appropriations Committees.

Are Lawyers Unhappy? (Part 2)

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This is Part 2 of a series of articles on lawyers and happiness. Click here for Part 1.

Guess what? Happy people make happy workers! That seems intuitive; there’s also research to back it up.

How do lawyers measure up in that regard? Not so well. Research shows that, even though we’re as happy with our work as the next person, we’re generally not happy people. Some people think this is because the personality traits that make good lawyers don’t make happy people.

Happiness research focuses on three key factors: personality traits, personal choices, and circumstances. These weigh in at roughly 50%, 40%, and 10%, respectively, which means that 50% of us just seem blessed with sunnier outlooks on life, while another 40% can get there only by “adaptive behavior” – i.e., cultivating happiness-producing habits and an upbeat attitude.

Neither group is much affected by circumstances – including how much money they make – which factor in at only 10%. Although both groups take a nosedive from major stressors like job loss or relationship breakups, both also tend to recover to predictable “personal happiness set points,” where the 50% find a customary sense of well-being which the other 40% can’t reach without considerable effort.

Some researchers think the percentage of temperamentally unhappy lawyers is higher than 40%, because the very traits that incline us toward unhappiness are the same ones that account for our successes in life and our choice of law as a career. For example, the authors of the book The Happy Lawyer conclude that the practice of law is “disproportionately filled” with people who tend to be less happy than the general populace, citing research that shows we’re more introverted and less socially connected, more doubt-ridden and inclined to consider worst case scenarios, more logical and less in touch with our feelings, as well as being achievement-oriented, aggressive, and competitive to a fault – all factors that weigh against personal happiness. If that’s true, then most lawyers are part of the 40% (or more) whose happiness in the practice of law and in life can swing either way, depending on how well we adapt.

If we’re not part of the naturally sunny 50%, then what can we do? We can start by realizing that, as Einstein said, “We can’t solve problems by using the same kind of thinking we used when we created them.” If we want to get to a newer, happier place in law and in life, we won’t be able to rely on what got us here.

Giving up what’s always worked for us won’t be easy, even if research shows it’s making us miserable. Not easy maybe, but not impossible either.

To be continued.

After 20+ years in private practice, Kevin Rhodes recently gave himself the title “Change Guru” to describe his work helping individuals and organizations to make transformative changes. He leads lead workshops on that topic for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. Check out his website at http://kevin-rhodes.com/.

Finalists Selected for Vacancy on Bent County Court Bench

On Tuesday, January 29, 2013, the Sixteenth Judicial District Nominating Commission announced its selection of three nominees to fill the vacancy on the bench of the Bent County Court. The vacancy is created by the appointment of Hon. Mark A. MacDonnell to the bench of the Sixteenth Judicial District court, effective February 3, 2013.

The three nominees are Marcus Behm of Manzanola, Julie Jones of La Junta, and Samuel Vigil of La Junta. Contact information for the nominees is available on the Judicial Branch website.

Under the Colorado Constitution, the governor has 15 days from January 29, 2013, to appoint one of the nominees to the bench. If the governor does not appoint one of the nominees within the 15 days, then the chief justice of the Colorado Supreme Court must appoint one of the nominees.

Tenth Circuit: Hearsay Evidence at Supervised Release Revocation Hearing Properly Admitted for Sentencing Purposes

The Tenth Circuit published its opinion in United States v. Ruby on Tuesday, January 29, 2013.

Joey Ruby was on supervised release following a conviction for being a felon in possession of a gun. One of the conditions of his supervised release was that Ruby not commit any other crimes. While on supervised release, Ruby was convicted of third-degree assault in Colorado state court. As a result, the district court revoked Ruby’s release and sentenced him to eighteen months’ imprisonment.  He appealed the sentence on the grounds that the district court erred in considering hearsay testimony at sentencing from three witnesses to the assault.

Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that at a revocation hearing, the defendant must have “an opportunity . . . to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” This means that a court at a revocation hearing may consider hearsay evidence as long as it makes the necessary “interest of justice” determination. Ruby argued the court did not comply with Rule 32.1’s procedures and then compounded the mistake by basing his sentence on unreliable hearsay testimony.

Rule 32.1 was enacted to codify due process guarantees that apply to revocation hearings. See Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010). In particular, the rule was designed to ensure at revocation hearings the ability of defendants to an independent judicial officer and the right to adversary proceedings. Unlike at a criminal trial where the Federal Rules of Evidence limit the types of admissible evidence, at a sentencing hearing the court can have access to any relevant information, as long as it adheres to a preponderance of the evidence standard.

Because all the documents at the hearing were based on the post-accident police report, because Ruby did not even raise in the district court any hearsay concerns, and because the corroborating statements of three relatively neutral witnesses helped establish the reliability of the victim’s statement to the police officer, the Tenth Circuit rejected Ruby’s challenge to the evidence offered at sentencing.

The Tenth Circuit concluded the district court did not err in considering the testimony, and AFFIRMED the district court’s sentence.

HB 13-1019: Enactment of the “Regulatory Reform Act of 2013” to Facilitate Compliance with New Rules by Small Businesses

On January 9, 2013, Rep. Libby Szabo and Sen. Lois Tochtrop introduced HB 13-1019 – Concerning State Agency Requirements for the Enforcement of New Regulatory Requirements on Small Businesses, and, in Connection Therewith, Enacting the “Regulatory Reform Act of 2013.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

This bill enacts the “Regulatory Reform Act of 2013.” The bill makes legislative declarations about the importance of businesses with 500 or fewer employees to the Colorado economy and the difficulty these types of businesses have in complying with new administrative rules that are not known or understood by these businesses. The bill defines “new rule” as any regulatory requirement in existence for less than one year prior to an audit or review by a state agency, and “minor violation” as any violation of a new rule by a business of 500 or fewer employees where the violation is minor in nature, involving record-keeping and issues that do not affect the life safety of the public or workers.

For the first minor violation of a new rule by a business of 500 or fewer employees, the bill requires a state agency to issue a written warning and engage the business in educational outreach as to the methods of complying with the new rule. The bill requires state agencies to make information on new rules available and allows this information to be made available in electronic form. Assigned to the State, Veterans, & Military Affairs Appropriations Committee.

HB 13-1017: Requiring Successor Loan Servicers to Honor Modification Terms Offered by Predecessor Loan Servicers

On January 9, 2013, Rep. Steve Lebsock introduced HB 13-1017 – Concerning a Requirement that Successor Servicers of Residential Mortgage Loans Follow Through with Loan Modifications Offered to Borrowers, and, in Connection Therewith, Requiring a Servicer to Inform a Successor Servicer of the Terms of Any Modification Offer Upon Any Transfer of Servicing Rights for the Loan. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill addresses situations in which a homeowner has been offered a modified payment schedule or other loan modifications by one loan servicer, but the loan is then transferred to another loan servicer, which enforces the loan according to its original terms without regard to the modification offer.

The bill requires a loan servicer that has made any such offer to notify a successor loan servicer of the terms of the offer upon transfer of the servicing rights, and states that the successor servicer is subject to, and shall honor the homeowner’s acceptance of, the offer.

The bill adds a violation of these requirements to the existing list of violations for which a homeowner may sue for actual damages plus a $1,000 additional penalty, attorney fees, and costs. On Jan. 24, the bill was amended and approved by the Business, Labor, Economic, & Workforce Development Committee.

Since this summary, the bill passed Second Reading Special Order with amendments and passed Third Reading in the House.

Tenth Circuit: Unpublished Opinions, 1/29/13

On Tuesday, January 29, 2013, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Smith v. McCord

Tenison v. Morgan

Howell v. Centric Group

United States v. White

American Movie Classics v. Rainbow Media Holdings

Santana v. Muscogee (Creek) Nation

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

Tenth Circuit: Unpublished Opinions, 1/28/13

On Monday, January 28, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

United States v. Beadles

Adewuyi v. Holder

Burns v. Jones

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

e-Legislative Report: January 28, 2013

CBA Director of Legislative Relations Michael Valdez discusses Martin Luther King Jr. Day, honoring veterans, and the status of the civil unions bill in this week’s video legislative update.

Senate Judiciary Gives SB 11—Civil Unions Initial Okay

On Wednesday, Jan. 23, after several hours of testimony, the Senate Judiciary Committee approved SB 11 and moved the bill to the Appropriations Committee for consideration of the fiscal implications of the bill. The CBA went on record for the second year to support the legislation. Several substantive sections of the Bar Association have supported the passage of this legislation and are continually reviewing the bill for possible technical corrections amendments. Technical amendments were adopted by the Senate Judiciary Committee to comply with the “Rule of 7” days statutory time calculations.

The House of Representatives Gave Final House Approval of Two Technical “Legal” Bills on Wednesday, Jan. 23:

  1. HB 13–1077. Concerning the enactment of Colorado Revised Statutes 2012 as the positive and statutory law of the state of Colorado was approved on a vote of 63 yes, 0 no and 2 excused; and
  2. HB 13–1029. Concerning the use of authority verbs in the Colorado Revised Statutes was approved on a vote of 63 yes, 0 no and 2 excused.

Friday, Jan. 25—Military Day at the Capitol

The House and Senate paid tribute to veterans during the annual Military Day series of Resolutions:

  • HJR13–1006. Concerning recognition of Military, Veterans, and MIA/POW Appreciation Day.
  • HJR13–1008. Concerning the U.S.S. Pueblo.
  • HJR13–1009. Concerning the designation of the Leopard Creek bridge in Placerville as the “Pfc. Paul L. Haining Memorial Bridge.”
  • HJR13–1012. Concerning the designation of National Guard and Reserve retirees as veterans.
  • HJR13–1010. Concerning recognizing the 60th anniversary of the armistice marking the end of the Korean War.
  • HJR13-1011.Concerning recognition of military personnel from Colorado who have served in Operation New Dawn and Operation Enduring Freedom and in the Global War on Terrorism, and honoring those who have died while serving their country in Iraq, Afghanistan, and elsewhere around the world.

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

At the meeting on Friday, Jan. 25, the LPC voted to take action on several bills at its weekly meeting:

  1. The Committee voted to support HB 13–1016. Concerning the distribution to beneficiaries of amounts in pay-on-death (POD) financial institution accounts pursuant to written designation in the records of the financial institution;
  2. The Committee voted to oppose HB 13–1032. Concerning offenses against an unborn child and HB 13–1033. Concerning a prohibition on abortion.

Stay tuned to CBA-CLE Legal Connection for summaries of ten bills of interest.

Governor Hickenlooper Announces Appointment to Sixteenth Judicial District Nominating Commission

On Monday, January 28, 2013, Governor John Hickenlooper announced an appointment to the Sixteenth Judicial District Nominating Commission. Nathan Shultz of La Junta was appointed to serve as an attorney and a Republican from Otero County. His appointment is effective until December 31, 2018. Mr. Shultz will replace Philip Palmer of La Junta, who resigned.

Each of Colorado’s 22 judicial districts has a nominating commission comprised of seven members who reside in the district. No more than four members can be from the same political party, and each county in the district must have at least one resident representative. In districts in which the population is over 35,000, three of the members of the nominating commission must be attorneys admitted to practice law in Colorado, and the other four may not be admitted to practice law.

 

Tenth Circuit: District Court’s Dismissal of Claims Without Prejudice and Restitution Amount After Real Estate Investor’s Conviction of Fraud Affirmed

The Tenth Circuit published its opinion in United States v. Smith on Thursday, January 24, 2013.

Defendant Derrick Smith was a real estate investor who conspired to defraud mortgage lenders by setting up sales to straw buyers at inflated prices, with the excess loan proceeds being distributed to Defendant and others. When the buyers defaulted on the loans, the lenders were unable to recoup the full loan amounts at foreclosure.

Defendant was indicted and eventually convicted by a jury on one count of conspiracy to commit wire fraud in relation to real estate mortgages. The district court declared a mistrial as to four counts on which the jury could not reach a verdict, later dismissing these counts without prejudice. At sentencing, the district court calculated an advisory sentencing range of 37 to 46 months’ imprisonment. The court then sentenced Defendant to 40 months’ imprisonment and ordered restitution in the amount of $369,455.54.

Defendant raises three issues on appeal. First, he claims the district court abused its discretion by dismissing the mistried counts without prejudice. Second, he contends the court erred in treating the sale of 7300 N.E. 133rd Street as relevant conduct in its sentencing calculation. Third, he argues the court erred in calculating actual loss based on the difference between the outstanding principal balance and the foreclosure sale price.

The Tenth Circuit first considered the district court’s dismissal of the mistried counts. After considering the following factors, the Tenth Circuit concluded that the district court did not abuse its discretion in dismissing the four mistried counts without prejudice: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.”  18 U.S.C. § 3162(a)(1).

The Tenth Circuit turned next to Defendant’s challenges to the district court’s sentencing calculation, starting with his argument that the district court erred in determining the sale of 7300 N.E. 133rd Street should be included as relevant conduct for sentencing purposes. The Court held that the district did not err in considering Defendant’s conduct regarding this residece, as it constituted relevant conduct or a common scheme or plan.

Finally, the Tenth Circuit turned to Defendant’s argument that the district court erred in calculating actual loss, reviewing the court’s loss calculation methodology de novo and its factual findings for clear error. The Court held the district court did not err in applying the general formula and subtracting the foreclosure sales price from the outstanding balance on the loan,  since this actual loss was the reasonably foreseeable pecuniary harm that resulted from the offense.

AFFIRMED.

Tenth Circuit: Unpublished Opinions, 1/25/13

On Friday, January 25, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Sebreros-Castro

United States v. Hall

Bituminous Casualty Corporation v. Pollard

Morrow v. Jones

Colvin v. Medina

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