June 15, 2019

Archives for October 23, 2013

Denver Bar Association Seeks Nominations for 2014 Awards

The Denver Bar Association seeks nominations for the 2014 DBA Awards. Nominations are due January 31, 2014, and encompass several categories:

  • DBA Award of Merit – This award is given to a member of the DBA who provides outstanding service and contributions to the DBA and the legal community. A list of prior recipients may be found here.
  • DBA Judicial Excellence Award – This award honors a DBA member of the judiciary who contributes to the improvement of the legal system or provides exceptional contributions to the judiciary. Click here for prior recipients.
  • DBA Young Lawyer of the Year – This award is given to a DBA member who is younger than 37 or has been in practice less than three years and who provides outstanding service and contributions to the DBA and the legal community. Prior recipients may be found here.
  • DBA Volunteer Lawyer of the Year – This award recognizes pro bono efforts by DBA members. Click here to see a list of prior recipients.
  • DBA Education in the Legal Community Award – This new award was developed to recognize outstanding contributions to legal education and civics by lawyers or schools.
  • DBA Outstanding Programs/Projects – Also new for this year, this award acknowledges the immense efforts of programs that provide legal education, outreach, pro bono services or fundraising.

Nominations may be submitted online using the form found here. Nominations may also be submitted to Heather Clark at the CBA/DBA offices. Contact Heather Clark for more information.

Tenth Circuit: In Tax Evasion Case, Conviction Affirmed, Sentence Reversed

The Tenth Circuit Court of Appeals published its opinion in United States v. Melot on Monday, October 21, 2013.

After a jury trial, appellant Bill Melot was convicted of one count of corruptly endeavoring to impede the administration of the Internal Revenue Code, one count of attempting to evade or defeat tax, six counts of willful failure to file, and seven counts of making false statements to the Department of Agriculture. Melot was sentenced to a term of sixty months’ imprisonment, a significant downward variance from the advisory guidelines range of 210-262 months. He was also ordered to pay $18,493,098.51 in  restitution to the Internal Revenue Service.

On appeal, Melot argued the Government presented insufficient evidence of willfulness to support his convictions and erred in the calculation of the tax loss and the amount of restitution. The Government cross-appealed, arguing the district court committed clear error by applying a two-level reduction to Melot’s offense level for acceptance of responsibility.

Regarding Melot’s conviction, the Tenth Circuit held that the Government’s evidence demonstrated overwhelmingly that Melot engaged in behavior consistent with an individual who had actual knowledge of his obligation to file returns and pay tax. The Government’s evidence showed Melot routinely concealed income and assets from the IRS; used cash extensively, informing others that this was a means to avoid the payment of income taxes; and acted in a manner inconsistent with his asserted belief he was not subject to federal income taxes because he was not a citizen of the United States. All of the Government’s evidence, together with the reasonable inferences that could be drawn from it, was amply sufficient to support the jury’s finding that Melot was aware of his obligation to file returns and pay federal taxes and negated any inference Melot acted in good faith.

On the issue of Melot’s sentence, Melot argued some evaded state fuel excise taxes did not qualify as relevant conduct because they were not groupable with his offenses of conviction. However, the court concluded the offenses of conviction and the evasion of fuel excise taxes were part of a common scheme or plan because both had a common purpose—the defeat of taxes owed.

In its cross-appeal, the Government argued the district court clearly erred in granting Melot a two-level decrease in his offense level for acceptance of responsibility. The Sentencing Guidelines provide that a defendant can meet his burden by showing, inter alia, he truthfully admitted the conduct comprising the offense of conviction or voluntarily paid restitution prior to adjudication of guilt. U.S.S.G. § 3E1.1. A review of the record confirmed Melot did neither of these things, nor did he engage in any other conduct demonstrating an acceptance of responsibility for his offenses. Because the record contained absolutely no evidence supporting the application of the acceptance-of-responsibility reduction but, instead, clearly demonstrated Melot did not accept responsibility for his criminal conduct, the district court’s determination that he was entitled to the § 3E1.1 decrease was clearly erroneous and Melot’s sentence had to be reversed.

The Tenth Circuit AFFIRMED Melot’s convictions and REVERSED his sentence.

Six Candidates Nominated for Two Vacancies on Second Judicial District Court Bench

On Tuesday, October 22, 2013, the Colorado State Judicial Branch announced the nomination of six candidates to fill two vacancies on the Second Judicial District bench. The vacancies will be created on December 31, 2013, by the retirement of Hon. Robert S. Hyatt and Hon. Anne M. Mansfield.

Governor Hickenlooper has 15 days from October 22, 2013, in which to appoint two of the nominees. The appointed judges will serve a two-year term and will then stand for retention in the next general election. Comments regarding any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us.

The six nominees are Ross Buchanan of Denver, Kandace Gerdes of Denver, Andrew McCallin of Denver, Joseph Mellon of Denver, Peter Stapp of Brighton, and Colin Walker of Denver. Contact information for the nominees may be found on the State Judicial website.

Colorado Supreme Court: Issue Preclusion Bars Claims But Incorrect Rule of Civil Procedure Applied in Dismissal

The Colorado Supreme Court issued its opinion in Bristol Bay Productions, LLC v. Lampack on Monday, October 21, 2013.

Issue Preclusion—CRCP 12(b)(5).

The Supreme Court held that the Colorado action brought by Bristol Bay Productions, LLC (Bristol Bay) is barred on issue preclusion grounds, because the identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims. The Court emphasized that Bristol Bay’s Colorado action is based on identical allegations concerning substantially identical misrepresentations to those Bristol Bay alleged in its previous California action.

The Court also held that the trial court erred by dismissing Bristol Bay’s Colorado action under CRCP 12(b)(5) without converting defendants’ motion to dismiss into a motion for summary judgment under CRCP 56. Because CRCP 56 was the appropriate procedure to resolve this case, Bristol Bay is not liable for attorney fees under Colorado’s attorney fee-shifting statute. The judgment was affirmed in part and reversed in part.

Summary and full case available here.