June 17, 2019

Archives for December 19, 2013

Michael H. Berger of Husch Blackwell, LLP, Appointed to Colorado Court of Appeals

6113On Wednesday, December 18, 2013, Governor Hickenlooper’s office announced the appointment of Michael H. Berger to the Colorado Court of Appeals. Judge Berger will replace Judge Russell Carparelli, who retired on December 15, 2013.

Michael Berger currently is a partner at Husch Blackwell, LLP, where his practice consists of civil litigation, legal ethics advice to lawyers, and representation of lawyers in attorney discipline proceedings. He is very active in the legal community, especially regarding legal ethics, and he is a member and past chair of the CBA Ethics Committee. He is also a member of the Colorado Supreme Court Appellate Rules Committee and Committee on the Rules of Professional Conduct. He is a Fellow of the American College of Trial Lawyers. He frequently presents for CBA-CLE on legal ethics topics, and presented at the Ethics 7.0 seminar in November 2013.

Governor Hickenlooper’s office also announced on December 18 the appointment of Emily Anderson as district court judge on the Seventeenth Judicial District bench. Emily Anderson currently serves as a Magistrate for the 17th Judicial District, where she presides over civil, domestic relations, juvenile and criminal matters. Previously, Anderson was a part-time Magistrate for the Denver County Court, president of her own law firm with a focus on family law, civil litigation and mediation, and a senior associate at Bell & Pollock, P.C.

Tenth Circuit: Expert Testimony on Gang Affiliation Properly Admitted

The Tenth Circuit Court of Appeals published its opinion in United States v. Archuleta on Tuesday, December 17, 2013.

Nathan Archuleta was a leader of the Tortilla Flats gang in New Mexico. The Tortilla Flats are an affiliate of the Sureños, a group of gangs with ties to the Mexican Mafia. In June 2009, Archuleta orchestrated a plan to smuggle methamphetamine from Mexico into the United States. The scheme was unsuccessful and Archuleta was arrested and indicted.

Before trial, Archuleta filed a motion to exclude gang-affiliation expert testimony. The district court held two hearings and ruled that Lujan, the government’s gang expert, could testify about the Sureños gang, the significance of its tattoos, structure, activities, and affiliation with the Mexican Mafia. Archuleta objected, and the court overruled his objection.

A jury convicted Archuleta of possession of methamphetamine, possession of methamphetamine with intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and being a felon in possession of a firearm. Archuleta appealed. On appeal, Archuleta contended that admission of a gang expert’s testimony violated Federal Rules of Evidence 403, 702, and 704(b). Of these three evidentiary rules, only Rule 403 was raised by Archuleta before the district court. As a result, the court’s review of his arguments pertaining to Rule 702 and Rule 704(b) was limited to plain error review.

Rule 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. After reviewing the record, the Tenth Circuit was not persuaded that the district court abused its discretion in allowing the government’s gang expert to testify. His testimony was not cumulative, confusing or misleading, or unfairly prejudicial.

Rule 702 requires a district court to satisfy itself that the proposed expert testimony will assist the trier of fact, before permitting a jury to assess such testimony. The court held that Archuleta failed to explain how the relevant evidence regarding gangs, which no other witness covered, was unhelpful to the jury’s understanding of the implications of Archuleta’s membership in the Tortilla Flats gang.

Archuleta’s final argument was that Lujan’s testimony violated Rule 704(b) because it was the functional equivalent of an opinion that Mr. Archuleta in fact had knowledge of the smuggling scheme. Under Rule 704(b), in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. The question was whether he improperly testified about Archuleta’s mental state.  The court admitted that, even if Lujan’s testimony violated Rule 704(b), Archuleta could not demonstrate plain error. This demanding standard required him to show, among other things, that the error must have affected the outcome of the district court’s proceedings. This he did not show.

AFFIRMED.

Tenth Circuit: Statutory Maximum Sentence in Armed Bank Robbery Case Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Warren on Monday, December 16, 2013.

Appellant Steven Carmichael Warren has faced criminal charges for much of his life. In 1998, he committed an armed bank robbery in Missouri and served about twelve years in federal prison. In 2011, only one year after his release, he robbed another bank—this one in Kansas. He pleaded guilty to this second armed bank robbery, and the district court imposed a sentence of 25 years, the statutory maximum, and labeled him a career offender.

On appeal, Warren challenged the procedural reasonableness of his sentence. He contended that he disputed the factual accuracy of statements in the presentence report and that the district court erred by increasing his sentence after assuming the truth of those disputed statements. However, because Warren did not raise this contention in the district court, the court’s review was only for plain error. The Tenth Circuit found no error because Warren did not “dispute” the presentence report so as to prevent the district court from assuming the truth of its contents. Moreover, the district court did not rely on the sections at issue, and instead considered other factors under 18 U.S.C. § 3553 in determining that a higher sentence was appropriate. For example, the court relied primarily on the need to protect the public from Warren, stating that, given Warren’s history, he was likely to commit more crimes unless incarcerated.

AFFIRMED.

 

 

 

 

Tenth Circuit: Unpublished Opinions, 12/17/13

On Tuesday, December 17, 2013, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Pursley

Crownhart v. Fulton

Staker v. Wells Fargo Bank

United States v. Garza

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.