July 20, 2019

Archives for March 17, 2015

Rule of 7, Wind Energy Development, Government Audit, and More Bills Signed by Governor

On Friday, March 13, 2015, Governor Hickenlooper signed 25 bills into law. To date, the governor has signed 49 bills into law during this 2015 legislative session. Some of the bills signed Friday are summarized here.

  • HB 15-1021 – Concerning Statutorily Established Time Periods that are Multiples of Seven Days, by Rep. Yeulin Willett and Sen. Michael Merrifield. The bill continues amending the Colorado Revised Statutes to conform statutorily prescribed time periods to the Rule of 7.
  • HB 15-1023 – Concerning the Age Limitation for Persons Served in a Day Treatment Center, by Rep. Susan Lontine and Sen. Irene Aguilar. The bill changes the age limits for people served by day treatment behavioral health programs to 3 to 21 (previously, the age limits were 5 to 18).
  • HB 15-1039 – Concerning the Donation of Prescription Medications by Licensed Health Care Facilities, by Rep. Max Tyler and Sen. Tim Neville. The bill allows licensed facilities to donate unused medications to other licensed facilities and removes the requirement that the expiration date be more than six months after the donation date.
  • HB 15-1121 – Concerning Agreements Between Landowners and Wind Energy Developers, and, in Connection Therewith, Clarifying the Rights and Duties of Parties to those Agreements and the Effects of Recording an Agreement in County Land Records, by Rep. Jon Becker and Sen. Jerry Sonnenberg. The bill requires wind energy agreements to be recorded in order to be binding on the parties, defines the wind energy developer of record, and imposes time limits for performing wind energy development.
  • SB 15-010 – Concerning Augmentation Requirements for Wells Withdrawing Water from the Dawson Aquifer, by Sen. Mary Hodge and Rep. Diane Mitsch Bush. The bill repeals a requirement that would have been effective July 1, 2015 requiring calculations based on actual depletions and instead continues the current practice of replacing out-of-priority depletions.
  • SB 15-024 – Concerning Updates to the Local Government Audit Law to Maintain Consistency with Audit Standards, by Sens. Jerry Sonnenberg & Cheri Jahn and Rep. Su Ryden. The bill increases the annual fiscal audit exemption amount from $500,000 to $750,000 and updates certain terminology.
  • SB 15-025, -026, -027, and -028 – Establish statutory requirements for statewide Fire and Police Pension Association Plans.
  • SB 15-082 – Concerning the Authority of Counties to Establish a County Workforce Development Program, by Sens. Vicki Marble & Mary Hodge and Reps. Dominick Moreno & Polly Lawrence. The bill allows counties to establish workforce programs to provide grants to high school graduates who pursue higher education.

Several bills were also signed regarding supplemental appropriations and transfers from the General Fund to various programs. For a complete list of legislation signed by Governor Hickenlooper on March 13, 2015, click here. For a list of all of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Judge’s Remarks Do Not Display Deep-Seated or Unequivocal Bias Against Defendant

The Colorado Court of Appeals issued its opinion in People v. Dobler on Thursday, March 12, 2015.

Sentencing Judge—Bias—Plea Agreement.

While on probation for a separate felony conviction, defendant sped through an accident scene, hitting and killing a tow truck driver. Defendant then fled, only to be apprehended by police several blocks away. Defendant pleaded guilty to vehicular homicide and leaving the scene of an accident involving death in exchange for the dismissal of charges of aggravated motor vehicle theft, violation of bail bond conditions, driving under the influence, evading or circumventing an ignition interlock device, reckless driving, and violation of a protective order. The sentencing court sentenced defendant to forty-eight years in the custody of the Department of Corrections (DOC), the maximum sentence available under his plea agreement.

On appeal, defendant argued that his constitutional right to have an impartial judge determine his sentence was violated. Defendant was sentenced to four years in the DOC by the same judge in the earlier felony case. After defendant completed a year in the DOC and successfully completed the DOC’s boot camp program, the court reviewed his sentence and placed him on intensive supervised probation. During a hearing on a related matter and at sentencing for this case, the judge made comments about how he felt guilty because a man was dead after he reconsidered defendant’s sentence. The Court of Appeals rejected defendant’s argument that reversal was required because the judge was biased. First, defendant’s failure to file a motion to disqualify waived his argument that the sentencing judge should have recused himself based on an appearance of partiality. Second, defendant did not establish actual bias requiring disqualification of the sentencing judge.

Defendant further contended that the sentencing court abused its discretion by imposing the maximum aggravated sentence on each count and ordering the sentences to run consecutively. Because the sentence imposed was within the range agreed on by the parties pursuant to a plea agreement, defendant was precluded from challenging the propriety of his sentence on appeal. The sentence was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Self-Employed Director of Private School Not “Public Employee”

The Colorado Court of Appeals issued its opinion in People v. Rediger on Thursday, March 12, 2015.

Public Employee—Public Building—CRS § 18-9-110(1)—Jury Instructions—Waiver.

Believing that Rediger had stolen hay from their property, the victim and her husband asked the district attorney to bring charges against him. While school was in session, Rediger drove to the Rocky Mountain Youth Academy (Academy), where the victim worked as owner–director, to discuss the charges. Redigerwas convicted by a jury of interfering with a public employee in a public building, in violation of CRS § 18-9-110(1), and interfering with staff, faculty, or students of an educational institution, in violation of CRS § 18-9-109(2).

On appeal, Rediger argued that because the victim was not a “public employee” and the Academy was not a “public building,” his conviction cannot stand under CRS § 18-9-110(1). The record does not show that any governmental entity had the right to hire or fire Academy employees. In addition, because the victim testified that she drew her salary from the budget that she controlled, the state did not have any direct control over her salary. Moreover, the record does not contain sufficient evidence for any reasonable juror to conclude that the Academy was a public building. Because these errors were obvious, the trial court erred by not sua sponte dismissing the charge.

Rediger also argued that the prosecution made an improper constructive amendment of the second charge by tendering an elemental instruction under CRS § 18-9-109(1)(b) rather than under CRS §18-9-109(2), as charged in the information. Because Rediger’s trial counsel affirmatively agreed to the jury instructions, he waived any right to appeal the instructions. Accordingly, the judgment of conviction on the § 18-9-110(1) count was reversed, and the judgment of conviction on the § 18-9-109(2) count was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statute with “Other Apparatus” Category Not Unconstitutionally Vague As Applied to Gym Lockers

The Colorado Court of Appeals issued its opinion in People v. Nerud on Thursday, March 12, 2015.

Third-Degree Burglary Statute—Vagueness Challenge—Sufficiency of the Evidence—Jury Instructions—Closing Argument.

Nerud stole money and a backpack from three lockers at a 24 Hour Fitness Center on three occasions. He was apprehended on the third theft and eventually admitted to all three thefts, but denied breaking any locks to enter the lockers. He claimed he rummaged through belongings in unlocked lockers until he found money to take. Nerud was charged with two counts of third-degree burglary related to the first two incidents and three counts of theft. The jury found him guilty on all counts.

On appeal, Nerud argued that the third-degree burglary statute, CRS § 18-4-204(1), is unconstitutionally vague on its face and as applied to him because it prohibits entering or breaking into “other apparatus or equipment.” The Court of Appeals reviewed the case law interpreting the phrase and held the statute is not vague on its face because “other apparatus and equipment” is limited to containers with the same characteristics as the other items listed in the statute (specifically, containers designed and used for the safekeeping of money or valuables). The Court found the lockers were clearly “other apparatus and equipment” because they were used to safeguard personal valuable items while members worked out in the gym and a person of ordinary intelligence would not have to guess at this meaning. Thus, the statute was not unconstitutionally vague as applied.

Nerud argued that the evidence presented was insufficient to prove the lockers were “other apparatus or equipment” that were locked. The Court found copious evidence in the record to support the findings of the jury; the testimony of the victims alone was sufficient.

Nerud argued that the jury instruction on “other apparatus or equipment” was improper. The Court disagreed, finding that the jury instruction correctly defined the phrase.

Nerud argued that the jury instruction on the inference that may be drawn from a defendant’s unexplained, exclusive possession of stolen property was error. The Court found any error harmless; Nerud conceded the theft but only contested whether the lockers he had stolen from were locked.

Nerud further argued that the prosecutor in his closing argument improperly offered personal opinions about witness credibility and drug paraphernalia found in Nerud’s backpack. The Court found no reversible error. It first noted no contemporaneous objection and therefore a plain error standard of review applied, and then reviewed the objected to statements and found no plain error. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Lessee of Oil and Gas Interest Must Incur Post-Production Costs Where Lease is Silent

The Colorado Court of Appeals issued its opinion in Patterson v. BP America Production Co. on Thursday, March 12, 2015.

Class Action—Moratory Interest Request—CRS § 5-12-102(1)(a) and (b)—Fraudulent Concealment and Equitable Tolling—Jury Instructions.

In the early 1970s, named plaintiffs and approximately 4,000 royalty owners (collectively, Royalty Owners) entered into lease agreements with BP America Production Company (BP) to be paid royalties in exchange for natural gas extracted from their wells. The lease agreements provided that BP would pay Royalty Owners “1/8 of the proceeds of the market value of such gas at the mouth of the well; if said gas is sold by [BP], then as royalty 1/8 of the proceeds of the sale thereof at the mouth of the well.” Post-production costs were not expressly authorized as being deductible from royalty payments.

In the 1980s, BP changed how it calculated royalties and started employing a netback methodology whereby BP deducted a proportionate share of the post-production costs. The royalty statements did not disclose these deductions.

In 2003, Royalty Owners sued BP for breach of contract, alleging underpayment of royalties between January 1, 1986 and December 1, 1997. A jury found that BP breached the lease agreements by underpaying royalties and that BP fraudulently concealed the underpayments, thereby tolling the applicable statute of limitations. The jury awarded Royalty Owners $7,941,809.23 in damages. The district court amended the judgment to add $32,273,817 in statutory prejudgment interest, pursuant to CRS § 5-12-102(1)(b).

Royalty Owners appealed the district court’s pretrial grant of BP’s CRCP 56(h) motion and its denial of moratory interest. CRS § 5-12-102(1)(a) codifies the common law concept of moratory interest. Moratory interest is intended to be compensatory, not punitive. To obtain moratory interest, a plaintiff must demonstrate the defendant’s gain or benefit realized on the withheld money by a preponderance of the evidence. The Court of Appeals found no evidence or discernible means to calculate any such gain or benefit by BP on the underpaid royalty money. Therefore, the district court’s grant of the motion denying moratoryinterest was affirmed.

On cross-appeal, BP contended that the district court erred by denying its motions for a directed verdict and judgment notwithstanding the verdict because (1) Royalty Owners could not prove their fraudulent concealment and equitable tolling claims for all class members; and (2) the evidence demonstrated that Royalty Owners’ gas was undisputedly marketable at the well and thus the post-production deductions from royalties were proper. In reviewing the record and the evidence in the light most favorable to Royalty Owners, the Court concluded the evidence was sufficient to send the issue of fraudulent concealment to the jury and that reasonable jurors could find that Royalty Owners were ignorant of BP’s concealed royalty deductions, relied on the concealment, and were unable, using reasonable diligence, to discover the concealment.

Colorado law provides that where, as here, royalty agreements are silent on the allocation of post-production costs, the “implied covenant to market must be considered in determining the rights and obligations of the parties.” This covenant obligates BP, not Royalty Owners, to make the gas marketable, and BP must incur those costs. If, however, the gas is marketable at the wellhead, and post-production costs merely enhance the value of the gas, those costs may be shared. Marketability at the wellhead is a question of fact. The Court concluded that a reasonable person could determine that the wellhead was not the first market for gas extracted from the wells during the time period at issue.

BP also argued that it was error to decline to instruct the jury that “[i]f a person signs a contract without reading it, that person is barred from claiming he or she is not bound by what it says.” The Court disagreed, holding that this instruction would have only confused jurors, incorrectly informed them on the issues in the case, and improperly directed them as to the proper weight to give the contracts.

BP further argued it was error to deny its request to decertify the class. The Court found that the district court rigorously analyzed the evidence and did not abuse its discretion in concluding that the questions of law or fact common to the members of the class predominated over any questions affecting only individual members. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/17/2015

On Tuesday, March 17, 2015, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Taylor v. Tulsa Welding School

Barnett v. Maye

Marjenhoff v. New Mexico State Police

Loggins v. Fisher

United States v. Strahan

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

Frederick Skillern: Real Estate Case Law — Property Taxation and Assessments

Editor’s note: This is Part 15 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Roaring Fork Club, LLC v. Pitkin County Board of Equalization
Colorado Court of Appeals, December 5, 2013
2013 COA 167

Valuation of a private golf club property.

The Pitkin County assessor determined the value of the Roaring Fork Club property for tax year 2011, and The Pitkin County Board of Equalization and the Board of Assessment Appeals agrees with the valuation. On appeal, the club asserts that the assessor should not have included the value of sold club memberships in the assessment of the club’s property. The Court of Appeals agrees and reverses.

The club’s property is open only to its members. Membership rights are retained for life unless sold or relinquished or revoked by the club. The club uses membership deposits to improve the property and maintain the improvements. The deposits are treated as a liability for accounting purposes because all or a part of them are refunded if members maintain their membership for at least thirty years or if they resign earlier and replacement members fill their spots.

The club’s amenities were completed in 1999 and the club had sold about 82% of the memberships by 2011. The club argues that the value of the sold memberships should not be considered in determining the actual value of the club’s property for property tax purposes because they are not interests in the real property. The BOE contends that the membership deposits are akin to prepaid rent on leasehold interests and they would escape taxation if not included in the property value.

On appeal, the club and the BOE agree that the income approach is the proper method to value the club’s property. However, the county argues that the memberships are an interest in land, like a leasehold, and should be included in the value under the “unit assessment rule.” The club contends that memberships are licenses, and are not an interest in land. The court agrees, and holds: (1) the membership agreement is not a lease; (2) memberships are not life estates; (3) the membership agreement does not give members any other taxable interest in the club’s property; (4) the membership agreement establishes that memberships are revocable licenses; (5) the unit assessment rule does not apply to these memberships; and (6) the sold memberships are not usufructuary interests. Accordingly, the Board’s order is reversed and the case is remanded to hold a hearing to determine the actual value of the club’s property without taking into account the value of the sold memberships.


Village at Treehouse, Inc. v. Property Tax Administrator
Colorado Court of Appeals, January 16, 2014
2014 COA 6.

Property tax; unit assessment rule.

Village paid more than $1 million to purchase certain development rights from the Treehouse Condominium Association (HOA). This supposedly gave Village the right to construct up to nineteen condominium units in the complex. The development rights were created by an amendment to the Treehouse declaration in 2006. The rights were assigned to Village in 2008 in a document entitled “Warranty and Assignment of Supplemental Development Rights”. The question is whether this property right is a taxable interest in real property. The Board of Assessment Appeals found that the right to build new condominium units constituted a taxable interest in real property for ad valorem tax purposes.

On appeal, the court of appeals affirms the BAA, and holds that the assignment, in effect, severed the development rights from the common elements owned by the HOA, creating a new taxable property interest. Because the Village acquired an interest in land, taxation of the development rights was required under C.R.S. § 39-1-102(16) and (14)(a).

Because the Assignment evinced the intent to sever title to the development rights from the common elements, taxing the development rights separately from the common elements did not contravene §§39-1-103(10) or 38-33.3-105. This taxation does not violate the unit assessment rule.

The Assignment created separate interests in real estate as between the interests of the individual unit owners in the common elements and those of the developer. The order was affirmed.


Premises Liability, Trespass and Nuisance

S.W. v. Towers Boat Club, Inc.
Colorado Supreme Court, December 23, 2013
2013 CO 72

Attractive nuisance; premises liability statute.

The Supreme Court considers whether, in the context of our premises liability statute, the attractive nuisance doctrine applies to both (a) trespassing children and (b) children who are licensees or invitees. The Court held that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. C.R.S. § 13-21-115. The court therefore reverses the judgment of the court of appeals, which had found that the doctrine only protects trespassing children.


Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: State Court Retains Jurisdiction Where Removal Attempt Without Slightest Color of Merit

The Colorado Court of Appeals issued its opinion in McDonald v. Zions First National Bank, N.A. on Thursday, March 12, 2015.

Construction Loan Agreement Dispute—Partial Summary Judgment—Jurisdiction—Motion for New Trial.

In 2007, plaintiff purchased a parcel of land to construct a building on it. He entered into a loan transaction with defendant Zions First National Bank and signed a construction loan agreement (Agreement).

Plaintiff submitted applications for disbursement of loan funds, some of which defendant paid and some which it rejected. Plaintiff alleged defendant’s refusal to disburse all the loan funds required him to pay certain vendors out of his own pocket. Eventually, plaintiff defaulted on the loan and defendant foreclosed on the property.

Plaintiff sued in 2009, alleging defendant breached the Agreement and an implied covenant of good faith and fair dealing. After discovery, defendant moved for summary judgment. Plaintiff filed an unverified response. The trial court partially granted defendant’s motion, dismissing plaintiff’s two substantive claims, but did not issue judgment on defendant’s counterclaims due to genuine issues of material fact. Defendant filed a motion to dismiss its counterclaims without prejudice. The court granted the motions and vacated the trial date. The court also granted defendant’s request for attorney fees pursuant to the Agreement and entered judgment in favor of defendant in the amount of $102,267.75.

Defendant tried to collect from plaintiff for almost three years, during which time defendant filed a notice of removal of the action in the U.S. District Court for the District of Colorado. There had not been an acceptance of that action or a remand from the federal court. On December 23, 2013, defendant requested the trial court certify its order granting partial summary judgment as final.

The Court of Appeals first analyzed whether the trial court had jurisdiction to certify its order as final under CRCP 54(b) and, if so, whether the Court had jurisdiction to review it. Following analysis of the attempt at removal to the federal court, the Court held in a matter of first impression that where a party’s notice of removal indicates, on its face and as a matter of law, that the attempt to remove the case is without the slightest color of right or merit, jurisdiction in the Colorado courts is not divested. Plaintiff had no ability to remove this case to federal court; therefore, jurisdiction was not divested by the filing of the notice of removal. The Court concluded that because only the grant of partial summary judgment was certified as a final order, only challenges to the propriety of that order were properly before it. This disposed of many of plaintiff’s challenges.

The Court then turned to the breach of contract claim and found that there was no genuine issue of material fact because defendant had submitted evidence showing it did not breach its contractual duties and plaintiff had failed to refute this evidence. Plaintiff’s second claim alleged breach of an implied covenant of good faith and fair dealing. Again, there was no genuine issue of material fact because plaintiff submitted no evidence showing such a breach and defendant’s evidence showed no such breach.

Plaintiff also filed three motions under CRCP 59, one of which was accompanied by an affidavit from his real estate agent. The affidavit was not timely filed. The motion did not attempt to demonstrate any evidence that was newly discovered or could not have previously been discovered by the exercise of reasonable diligence. The Court found no abuse of discretion in denying the motions. The summary judgment and order denying motions for a new trial were affirmed.

Colorado Court of Appeals: ALJs and PALJs Subject to Financial Disclosure Requirements of C.J.C.s so No Equal Protection Violation

The Colorado Court of Appeals issued its opinion in Kilpatrick v. Industrial Claim Appeals Office on Thursday, March 12, 2015.

Workers’ Compensation—Discovery—Maximum Medical Improvement—Petition to Reopen—Evidentiary Rulings.

Claimant sustained an admitted, compensable injury to his left wrist in the course and scope of his employment with Goodwill Industries of Denver (employer). Post-surgery, claimant continued to complain of pain. Following a steroid and lidocaine injection, claimant still had symptoms. Claimant sought additional surgery through his authorized treating physician (ATP). Employer’s insurer (Pinnacol) denied the request.

Soon thereafter, claimant was placed at maximum medical improvement (MMI). The ATP and two other physicians opined that further surgery would not be helpful. Employer filed a final admission of liability.

Claimant was referred to another physician, who recommended further surgery. The ATP signed a statement agreeing with this recommendation and apparently attempting to rescind his previous MMI determination. Claimant petitioned to reopen his claim. The administrative law judge (ALJ) denied the request, and the Industrial Claim Appeals Office (Panel) affirmed.

On appeal, claimant argued the ALJ made errors and abused her discretion in denying a discovery request he made concerning Pinnacol’s financial disclosures. He argued that workers’ compensation litigants are treated inequitably as compared to litigants in district court because they do not have access to the financial disclosures of prehearing administrative law judges (PALJs), ALJs, and Panel members. The Court of Appeals found that the PALJ held a hearing at which the parties presented arguments regarding the discovery request, and held that it was reasonable to find disclosing the financial records of hundreds of Pinnacol employees as overly burdensome and having no direct bearing on claimant’s request to reopen his claim. Therefore, there was no error.

Claimant argued that the denial of the request for Pinnacol’s financial records violated his right to equal protection under the law, noting that district court litigants can obtain a written disclosure of the financial records of each justice or judge of a court of record. Employer argued that ALJs and Panel members are subject to the same financial reporting requirements, and therefore there can be no equal protection violation. The Court of Appeals agreed with employer. The Colorado Code of Judicial Conduct (CJC) applies to all full-time judges, which includes the administrative law judiciary. Moreover, pursuant to CRS § 24-30-1003(4)(a), ALJs are subject to the standards of conduct set forth in the CJC. Finally, the Panel conceded that it was covered by the financial disclosure provisions. Therefore, claimant was not treated differently from other civil litigants.

Claimant argued that the ALJ erred by rejecting the ATP’s apparent retraction of his MMI determination and contended that the ALJ was bound by the retraction. The Court found this was a misreading of the case law and that the ALJ was not so bound. Further, there was substantial evidence supporting the ALJ’s MMI finding and denial of the request to reopen.

Finally, claimant challenged a number of the ALJ’s evidentiary rulings, essentially arguing that employer abused the discovery process by failing to disclose evidence and testimony to be presented. The Court found no basis that there was any abuse of discretion in the ALJ’s evidentiary rulings. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.

Tenth Circuit: Unpublished Opinions, 3/16/2015

On Monday, March 16, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Jones v. McHugh

United States v. Cuevas-Bravo

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