July 21, 2018

Archives for March 20, 2014

Glenwood Springs Wins the Colorado Mock Trial Tournament

Students from Glenwood Springs High School took first in state, defeating a team from Denver’s Colorado Academy in the championship round on Saturday night at the Colorado Bar Association State Mock Trial Tournament, which is funded and supported by the CBA Litigation Section and the Colorado Bar Foundation.

Glenwood Springs High School will advance to the National Mock Trial Championship in Madison, Wisconsin, May 8–10. There, they will argue a new case and compete with more than 1,000 students from the United States, U.S. territories, and South Korea.

Most teams participate in mock trial as an extracurricular activity run by teachers and attorney volunteers. This year, 104 teams from around the state competed in the program. The final 24 teams were top placers in nine regional tournaments held around the state in February.

This marks the 29th year of High School Mock Trials. Students have been preparing for the tournament since September—to try the same fictitious case regarding distracted driving involving a vehicle and bicyclist. In each round, students had to be ready to perform either the prosecution or defense side of the case. They were scored by real attorneys and judges.

This year the Colorado Bar Association Mock Trial Program partnered with EndDD.org (End Distracted Driving), which is sponsored by the Casey Feldman Foundation, to launch the campaign for high school mock trial participants by writing a case problem that would compel each participant to make a pledge to end distracted driving. The Colorado Trial Lawyers Association and the Casey Feldman Foundation awarded $500 to both Holy Family High School and Regis Jesuit for best incorporating the safe driving message, as consistent with EndDD.org, into their mock trial presentation.

Alex Martinez, Denver Public Schools General Counsel and former Colorado Supreme Court justice, presided over the championship round, along with Hon. Christine Arguello of the U.S. District Court for the District of Colorado; Hon. David P. Cain, CBA Mock Trial Committee and Colorado Office of Administrative Courts; Hon. Christina Habas, Keating Wagner Polidori Free PC; Emma Pinter, CBA Mock Trial Committee and Westminster City Council; Hon. Gale Miller, Colorado Court of Appeals; Hon. Steven Bernard, Colorado Courts of Appeals; and Teri Vasquez, CBA Mock Trial Committee Chair and Bayer Carey LLC.

Hon. Jack W. Berryhill to Retire from First Judicial District

The Colorado State Judicial Branch announced Tuesday that Hon. Jack W. Berryhill of the First Judicial District will retire, effective July 1, 2014. Judge Berryhill was appointed to the bench in 2000, and he presides over a civil and family law docket. Prior to his appointment to the First Judicial District Court, Judge Berryhill was an attorney in private practice for 25 years, concentrating in civil and business litigation and family law. He received his J.D. from the University of Colorado, his M.A. from Trinity College in Dublin, Ireland, and his B.A. from Colorado College.

Applications are being accepted for the forthcoming judicial vacancy. Eligible applicants must have been licensed to practice law in Colorado for five years and must be qualified electors of the First Judicial District. Application forms are available from the ex officio chair of the First Judicial District Nominating Commission, Justice Allison Eid, or from the State Judicial website. Completed applications must be turned in no later than 4 p.m. on April 21, 2014. Anyone wishing to nominate another person for the vacancy must do so no later than 4 p.m. on April 14, 2014.

Click here for more details about the application process and the vacancy.

Tenth Circuit: Grant of New Trial Reversed Because Undisclosed Evidence Immaterial Under Brady

The Tenth Circuit Court of Appeals published its opinion in United States v. Reese on Wednesday, March 19, 2014.

Rick Reese owned a federally licensed firearms store and ran it with his wife, Terri, and two sons, Ryin and Remington. In August 2012, a jury convicted Rick, Terri, and Ryin under 18 U.S.C. §§ 2 and 924(a)(1)(A) for aiding and abetting straw purchases of firearms from the store. Unbeknownst to them, however, at the time of trial the FBI was investigating one of the government’s witnesses, Deputy Batts, for his alleged involvement in various criminal activities. Arguing that the government’s failure to disclose that information before trial violated Brady v. Maryland, Defendants filed a motion for a new trial. The district court concluded that the government had withheld favorable, material evidence from Defendants and granted their motion. The government appealed.

Before reaching the merits of the appeal, the Tenth Circuit clarified that de novo is the standard of review of a district court’s ruling on a Brady claim asserted in the context of a new-trial motion. It also clarified that the test for materiality of withheld evidence does not change based on whether the government withheld it negligently or intentionally.

The court focused on the materiality element of the Brady claim and concluded that the Deputy Batts investigation was immaterial because there was not a reasonable probability that the outcome of Defendants’ trial would have been different had the government disclosed the investigation. The government’s evidence on the counts of conviction was sufficiently strong that the court was confident in the jury’s verdict. The court rejected Defendants’ arguments that Deputy Batts was a critical witness or that this was a close case and reversed the district court.

Tenth Circuit: Summary Judgment for Junior Mark User Affirmed in Lanham Act Trademark Infringement Case

The Tenth Circuit Court of Appeals published its opinion in Hornady Manufacturing Co., Inc. v. DoubleTap, Inc. on Wednesday, March 19, 2014.

Hornady manufactures and sells firearm ammunition and related products. Hornady has sold various products under the name “TAP,” short for “Tactical Application Police.” In 1999, Hornady acquired trademark registration for the nonstylized word mark, “TAP.” DoubleTap was founded in 2002 by Michael McNett. DoubleTap has been described as a “niche” ammunition manufacturer.

In January 2010, Hornady sent DoubleTap a cease-and-desist letter, demanding that DoubleTap discontinue using the word “Tap” on its products, remove “Tap” from its website, and destroy any materials it created bearing “Tap.” Hornady eventually filed suit, alleging trademark infringement under Sections 32 and 43(a) of the Lanham Act, common law trademark infringement, deceptive trade practices under Utah law, and unjust enrichment. Both parties moved for summary judgment, arguing that they were entitled to judgment as a matter of law on whether DoubleTap infringed on Hornady’s TAP mark. The district court denied Hornady’s motion and granted DoubleTap’s.

In deciding whether summary judgment was properly granted, the Tenth Circuit had to determine if DoubleTap’s mark was likely to cause confusion with Hornady’s mark. The court applied “six nonexhaustive factors to evaluate whether there is a likelihood of confusion: (1) the degree of similarity between the competing marks; (2) the intent of the alleged infringer in adopting the contested mark; (3) evidence of actual confusion; (4) the similarity of the parties’ products and the manner in which the parties market them; (5) the degree of care that consumers are likely to exercise in purchasing the parties’ products; and (6) the strength of the contesting mark.”

After applying the six factors in a detailed opinion, the court held that consumers were unlikely to be confused by the marks and affirmed the award of summary judgment to DoubleTap.

Tenth Circuit: Unpublished Opinions, 3/19/2014

On Wednesday, March 19, 2014, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Shaw

United States v. Ganadonegro

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

SB 14-155: Creating a Grant Fund to Study Health Effects of Medicinal Marijuana

On March 10, 2014, Sen. Pat Steadman and Rep. Jenise May introduced SB 14-155 – Concerning Grant Funding for Medical Marijuana Health Effects Studies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee

The bill creates a health research subaccount (subaccount) in the medical marijuana program cash fund (cash fund). The subaccount provides funding for medical marijuana health research. The department of public health and environment (department) may transfer moneys from the cash fund to the subaccount and has continuous spending authority over the subaccount. No more than $10 million may be transferred to the subaccount.

The bill creates a medical marijuana research grant program (grant program) in the department. The grant program will provide the framework for funding research to ascertain the general medical efficacy, and appropriate administration of marijuana. The state board of health (state board) shall promulgate rules for the administration of the grant program, including:

  • The procedures and timelines for applying for grants;
  • Grant application contents;
  • Criteria for selecting grantees and determining the amount and duration of the grants; and
  • Reporting requirements for grantees.

The bill creates a scientific advisory council (council) to evaluate research proposals seeking a grant from the grant program. The executive director of the department shall appoint the members of the council, and the chief medical officer of the department will also serve on the council and act as chair. The members will serve two-year terms that may be reappointed and will be reimbursed for travel expenses.

The grant recommendations will be submitted to the state board for a final determination.

The grant program shall report annually to the state board on the progress of the medical marijuana studies.

The bill directs the attorney general to seek federal authority to allow Colorado institutions of higher education to cultivate marijuana for research funded by this bill.

The bill is assigned to the Health & Human Services Committee.

SB 14-154: Transferring Funds from Healthy Forests Fund to Wildfire Preparedness Fund

On March 7, 2014, Sen. Kent Lambert and Rep. Cheri Gerou introduced SB 14-154 – Concerning Funds Administered by the Division of Fire Prevention and Control in the Department of Public Safety. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee

The bill:

  • For 3 fiscal years, commencing with the 2014–15 fiscal year, reduces by $95,000 the moneys transferred annually from the operational account of the severance tax trust fund (operational account) to the healthy forests and vibrant communities fund and, correspondingly, transfers $95,000 annually from the operational account to the wildfire preparedness fund (WPF) administered by the division of fire prevention and control (division) in the department of public safety;
  • Directs the state treasurer to make a one-time transfer of $285,000 from the healthy forests and vibrant communities fund to the WPF; and
  • Specifies the purposes for which the division may use all of the above-referenced transferred moneys.

The bill exempts the wildfire emergency response fund and the WPF from the statutory limit on uncommitted cash reserves.

The bill is assigned to the Appropriations Committee.

Finalists Selected for Vacancy on Logan County Court Bench

The Colorado State Judicial Branch announced on Tuesday, March 18, 2014, that finalists have been selected for nomination to the vacancy on the Logan County Court in the Thirteenth Judicial District. This vacancy will be created on April 30, 2014, by the retirement of Hon. Robert B. Smith.

The finalists for the vacancy are Ray Ann Brammer of Sterling, Lori C. Hulbert of Sterling, and Tricia A. Matuszczak of Sterling. Governor Hickenlooper has 15 days from March 18 in which to select one of the three nominees for appointment. If he fails to do so within that time, the Chief Justice of the Colorado Supreme Court may appoint an applicant.

Comments regarding any of the finalists may be submitted to the governor at gov_judicialappointments@state.co.us. Contact information for the three nominees is available on the State Judicial website.