August 24, 2019

Archives for February 10, 2014

e-Legislative Report: February 10, 2014

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, Feb. 7, the CBA LPC:

  • Voted to oppose HB 14-1153. Concerning attorney fees when an action is dismissed prior to trial.

At the Capitol—Week of Feb. 3

A scorecard of the committee and floor work follows.

In the House

Monday, Feb. 3

Passed on 3rd Reading:

  • HB 14-1026. Concerning the authorization of flexible water markets. Vote: 47 yes, 13 no, and 5 excused.

Tuesday, Feb. 4

Passed on 3rd Reading:

  • HB 14-1047. Concerning restrictions on the publishing of basic identification information on commercial web sites. Vote: 45 yes, 19 no, and 1 excused.
  • HB 14-1079. Concerning an increase in the monetary amount allowed for the limited offering registration procedure under the “Colorado Securities Act.” Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1069. Concerning district commissions on judicial performance. Vote: 62 yes, 2 no, and 1 excused.
  • HB 14-1051. Concerning a strategic plan for enrolling all eligible persons with intellectual and developmental disabilities into programs at the time services and supports are needed, and, in connection therewith, requiring the department of health care policy and financing to develop and implement the strategic plan and to report annually on the number of persons waiting for services and supports. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1010. Concerning corrections to statutory provisions relating to the prescribed burning program administered by the division of fire prevention and control in the department of public safety. Vote: 64 yes, 0 no, and 1 excused.

Thursday, Feb. 6

Passed on 3rd Reading:

  • HB 14-1052. Concerning an increase in the enforcement authority of ground water management districts. Vote: 38 yes, 24 no, and 3 excused.
  • HB 14-1146. Concerning a prohibition against greyhound racing in Colorado. Vote: 39 yes, 23 no, and 1 excused.

In the Senate

Monday, Feb. 3

Passed on 3rd Reading:

  • SB 14-84. Concerning the election of a county commissioner in a county with a population of less than seventy thousand by the voters residing in the district from which the commissioner runs for election. Vote: 35 yes and 0 no.
  • SB 14-59. Concerning eliminating the statute of limitations for offenses that accompany sex offenses that are not subject to a statute of limitations. Vote: 30 yes and 5 no.
  • HB 14-1019. Concerning the enactment of Colorado Revised Statutes 2013 as the positive and statutory law of the state of Colorado. Vote: 21 yes and 14 no.
  • SB 14-80. Concerning the elimination of the list of certain additional qualifications that apply to property valuation appeal arbitrators. Vote: 35 yes and 0 no.

Tuesday, Feb. 4

Passed on 3rd Reading:

  • SB 14-63. Concerning the mandatory review of existing executive branch agency rules conducted by each principal department. Vote 33 yes and 2 absent.

Stay tuned for 10 bills of interest.

Colorado Supreme Court: Announcement Sheet, 2/10/14

On Monday, February 10, 2014, the Colorado Supreme Court issued one published opinion.

In the Matter of Rand

The summary for this case is 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.

The Colorado State Judicial Branch issued a press release regarding this opinion. It is available here.

Tenth Circuit: Defendants’ Convictions in Methamphetamine Trafficking Conspiracy Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Serrato on Friday, February 7, 2014.

Eddie Serrato and Sotero Negrete are drug dealers. In this case, they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raised four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines;  and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment.

Mr. Negrete raised arguments one and two above and added that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.

First, both defendants challenged as prosecutorial misconduct two separate remarks made by government counsel during trial—one in the course of making an objection during the defendant’s cross-examination of DEA Special Agent Ryan Cox, and the other in counsel’s rebuttal closing argument. They contended that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.

During cross-examination of Special Agent Cox, defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded “I didn’t prepare it today.” Government counsel objected: “Your Honor,  I’m going to object now. Counsel has every bit of discovery. If counsel wants to play a recording, he can play it. It’s not Mr. Cox’s responsibility to bring the recordings for Mr. Pretty [Defendant Serrato’s attorney]. He’s got them in discovery.”

Mr. Serrato’s attorney then asked for a sidebar and moved for a mistrial on the basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth Amendment right to remain silent. Mr. Negrete’s attorney joined in the motion. The district court denied the motion.

The second challenged remark occurred during the government’s rebuttal closing argument. The defense called into question the veracity of the testimony of a confidential informant. Government counsel stated: “If you remember, these defense counsel had an opportunity to ask Agent Malone whatever they wanted. They never asked him.” Counsel for Mr. Serrato objected. Mr. Negrete’s counsel immediately joined the objection, stating, “That’s prosecutorial—as instructed, no defendant has any obligation to present a single piece of evidence or a single question.” The district court overruled the objection.

The Tenth Circuit assumed without deciding that the government  counsel’s comments were improper. Nevertheless, despite the impropriety, the court did not view the comments in a vacuum. The district court immediately and specifically gave the jury a curative instruction. As for the prosecutor’s comment during his rebuttal argument that the defendants could have asked Agent Malone questions if they had wanted to, the court found that sustaining the objection would have been the better course. However, the Tenth Circuit did not view that manner of responding to the objection as an error of constitutional significance.

Second, Defendants argued that the government failed to prove at trial the existence of one single conspiracy as charged in the indictment, resulting in a fatal variance between the charge and the evidence. A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. A variance is reversible error only if it affects the substantial rights of the accused.

The court concluded that the defendants’ actions, particularly providing assistance to Mr. Negrete in selling methamphetamine provided by Mr. Serrato, were acts in furtherance of the shared objective of distributing drugs received from a common source. The evidence before the jury was substantial enough to allow it to draw the conclusion that there existed an ongoing, facilitative relationship between parties who were aware of the scope of one another’s activities. The Tenth Circuit held that the evidence was sufficient to support the jury’s conviction on the single conspiracy as charged.

Third, Mr. Serrato appealed the district court’s calculation of his offense level under the Federal Sentencing Guidelines, arguing that a two-level increase for offenses involving the importation of methamphetamine should not have been applied. The court concluded that even if the district court erroneously included the importation enhancement in its calculation of the offense level—which the court neither reached nor decided—the error would be harmless.

Fourth, Mr. Serrato challenged the district court’s denial of his motion to suppress evidence obtained from a stop of his vehicle on April 6, 2011. Mr. Serrato argued that the stop was an unreasonable seizure under the Fourth Amendment. The district court found that law enforcement knew from surveillance that cars, particularly out-of-state cars, would come to Mr. Negrete’s house for the purpose of delivering methamphetamine and would park in the garage; and that a delivery of methamphetamine to be later transported to Iowa was scheduled to occur on approximately April 6, 2011. On that date, law enforcement observed a Utah vehicle and an Iowa vehicle at Negrete’s house. They stopped the vehicle with the Utah plates after it left Mr. Negrete’s house to identify the driver whom they suspected of distributing methamphetamine to Mr. Negrete. The stop lasted approximately 10 minutes, and the only information that was obtained was the driver’s (Serrato’s) identification. The district court concluded that these facts established that law enforcement had a reasonable suspicion of Defendant Serrato’s involvement with illegal activity when they stopped him. The Tenth Circuit concluded that these facts gave rise to reasonable and articulable suspicion that Mr. Serrato’s vehicle was involved in drug activity and justified a traffic stop.

Finally, Mr. Negrete was convicted of knowingly using and carrying a firearm during the commission of a drug trafficking crime (namely, conspiracy to possess with intent to distribute and distribution of methamphetamine). Mr. Negrete challenged the sufficiency of evidence, arguing that the government did not place a specific firearm into evidence at trial. Viewing the evidence in the light most favorable to the government, the court held that there was substantial evidence of Mr. Negrete’s guilt. The court did not know why a firearm was not placed in evidence, but the charge was proved by other means. The court was not persuaded that the jury’s determination should be overturned.


Tenth Circuit: Insurance Policy’s Restriction on Assignment Did Not Forbid Assignment of Postloss Claim

The Tenth Circuit Court of Appeals published its opinion in City Center West v. American Modern Home Insurance Company on Thursday, February 6, 2014.

City Center West LP (City Center) owned a commercial property in Greeley, Colorado, subject to a mortgage held by Summit Bank & Trust (Summit Bank). When Summit Bank learned that City Center had failed to insure the property, the bank’s parent company, Heartland Financial USA, Inc. (Heartland Financial), obtained coverage for the property through its blanket insurance policy (the Policy) with American Modern Home Insurance Company (American Modern). The Policy identified Heartland Financial and its branches, including Summit Bank, as the “Named Insured Mortgagee.” It provided that losses be paid to the Named Insured Mortgagee to the extent of its interest and that any benefits payable in excess of that interest “shall be paid to the mortgagor” (which was City Center). Liability was limited to the interest in the property of the mortgagee and the mortgagor. The Policy was excess insurance—that is, it paid out only if there was no other insurance policy that would cover the claim. It included a nonassignment provision that stated: “Assignment of this Policy shall not be valid unless we [American Modern] give our written consent.

On September 23, 2011, the property was damaged by vandalism and a burglary. City Center estimated that the cost of repair would exceed $3.5 million. City Center notified American Modern of the loss and four months later it requested payment. American Modern refused to pay the amount requested, but tendered a $321,069 check to Summit Bank. Heartland Financial and Summit Bank assigned to City Center all their rights with respect to the claim. American Modern never consented to the assignment.

City Center filed its complaint against American Modern in the United States District Court for the District of Colorado. It asserted claims for bad-faith breach of insurance contract, breach of contract, and violations of Colorado insurance statutes. American Modern filed a motion to dismiss on the grounds that the assignment to City Center was prohibited by the Policy’s nonassignment provision and City Center was not a third-party beneficiary. The district court granted the motion. City Center appealed.

The issue on appeal was whether the Policy’s restriction on assignment of this Policy forbade the assignment of a postloss claim under the Policy. The weight of authority is that assignment of a postloss claim under an insurance policy is not an assignment of the policy. The majority of courts adhere to the rule that general stipulations in policies prohibiting assignments of the policy, except with the consent of the insurer, apply only to assignments before loss, and do not prevent an assignment after loss. American Modern’s policy could have barred assignment of postloss claims by simply saying that such assignments were barred. It did not.

The Tenth Circuit REVERSED the judgment of the district court and REMANDED for further proceedings consistent with this opinion.

Tenth Circuit: Unpublished Opinions, 2/7/14

On Friday, February 7, 2014, the Tenth Circuit Court of Appeals issued one published opinion and eleven unpublished opinions.

United States v. Reyes-Soto

United States v. Gomez-Alvarez

United States v. Parada

United States v. Davis

United States v. Bly

United States v. Lane

United States v. McDaniel

United States v. Ugalde-Aguilera

United States v. Rivera

Hernandez v. Jones

United States v. Thomas

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.


2014 Cost of Living Figures for Probate Matters Now Available

The Colorado Department of Revenue has released the cost of living adjustment (COLA) figures for 2014 for probate matters. The cost of living adjustments are required by C.R.S. § 15-10-112. Trust and estate practitioners should be aware of the new figures, which affect decedents’ estates, elective shares, exempt property under C.R.S. § 15-11-403, lump sum distributions of family allowances, and collection of personal property by affidavit.

2014 Probate Cost of Living Adjustment Figures

Tenth Circuit: Unpublished Opinions, 2/6/14

On Thursday, February 6, 2014, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Garcia v. Escalante

United States v. Estrada-Barrios

Barnum v. City of Tulsa

Chapman v. Lampert

United States v. Rojas-Alvarado

Mabie v. Daniels

Winfield v. State of Utah

United States v. Chadwick

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.