April 20, 2019

Archives for April 9, 2015

Forms for Restricted Account, Sealing Minor In Possession Records, Instructions for Adoptions, and More Amended

In March and April 2015, the Colorado State Judicial Branch amended several forms and instructions in many different categories. Forms are available for download here as PDFs and from the State Judicial website as Word documents and PDFs.

ADOPTION

  • JDF 498 – “Instructions for Kinship Adoption” (revised 03/15)
  • JDF 499 – “Instructions for Custodial Adoption” (revised 03/15)

DOMESTIC RELATIONS

  • JDF 1302 – “Order for Publication of Summons/Service by Certified Mail/Publication by Consolidated Notice” (revised 03/15)

EVICTIONS AND FORECLOSURES

  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 03/15)
  • JDF 140 – “Instructions for Forcible Entry and Detainer (FED)/Eviction for Owner Occupied Mobile Home” (revised 04/15)

GARNISHMENTS AND JUDGMENTS

  • JDF 84 – “Notice to Terminate Income Assignment” (revised 03/15)

MISCELLANEOUS

  • JDF 5“Authorization to Pay a Law Firm for Attorney Appointments” (revised 03/15)
  • JDF 98 – “Affidavit of Service” (revised 03/15)

PROBATE

  • JDF 866 – “Order for Deposit of Funds to Restricted Account and Annual Filing of Restricted Account Report” (revised 04/15)
  • JDF 896 – “Restricted Account Report” (revised 04/15)

SEAL MY CASE

  • JDF 314 – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol by an Underage Person (MIP) Pursuant to § 18-13-122(10), C.R.S.” (revised 03/15)
  • JDF 314 – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP) Pursuant to § 18-13-122(13), C.R.S.” (revised 03/15)

For all of State Judicial’s forms, click here.

11th Judicial District Nominating Commission Appointment Announced

On Thursday, April 9, 2015, Governor Hickenlooper’s office announced his appointment of Jolene Lynn DeVries of Cotopaxi to the Eleventh Judicial District Nominating Commission, to serve as an attorney and a Republican from Fremont County.

Each of Colorado’s 22 judicial districts has a judicial nominating commission that is responsible for interviewing and selecting candidates for judicial vacancies. Judicial nominating commissions are comprised of seven members, three attorneys and four non-attorneys, no more than four of whom can be from the same political party and with at least one representative from each county in the district. There is also a Supreme Court Nominating Commision that selects candidates for vacancies on the Colorado Court of Appeals and Colorado Supreme Court. The Supreme Court Nominating Commission is comprised of two members from each of Colorado’s seven congressional districts, one attorney and one non-attorney from each, plus one at-large member who is not an attorney.

For more information on Governor Hickenlooper’s appointment, click here. For more information on nominating commissions, click here.

Tenth Circuit: Mandatory Victim Restitution Act Requires Verified Proof of Actual Losses

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ferdman on Friday, February 13, 2015.

Joshua Ferdman and three co-conspirators concocted a plan in which they obtained account information for several corporate customers of Sprint. Defendant impersonated account representatives and purchased cell phones from various Sprint stores, charging them to the corporate accounts. After he was caught, he pled guilty to a two-count indictment. He was sentenced to 15 months in prison and ordered to pay $48,715.59 in restitution pursuant to the Mandatory Victims Restitution Act (MVRA). The court calculated the restitution amount based on what Sprint referred to as the “retail unsubsidized price” of 86 stolen phones, plus Sprint’s shipping and investigative costs. Defendant appeals the restitution order, arguing the government’s proof of loss was insufficient to support the award.

The Tenth Circuit first analyzed the MVRA in detail in light of last term’s Supreme Court decision in Paroline. The Tenth Circuit emphasized that restitution is intended to make victims whole, not unjustly enrich them or provide them a windfall. The Tenth Circuit determined the MVRA is intended to compensate for actual losses, not merely speculated losses, but does not preclude a district court’s exercise of discretion in determining actual loss. The government bears the burden of proof to demonstrate the actual amount of loss.

In this case, Sprint’s regional manager of investigations submitted an unverified letter setting forth Sprint’s losses, basing its calculations on the “retail unsubsidized price” of each fraudulently obtained phone, $449 to $549 per phone. The letter also listed estimated shipping costs, travel expenses, investigatory expenses, and GPS activation expenses, listing Sprint’s estimated total loss as $48, 715.59.

Defendant argued the better measure of actual loss was the price he paid per phone, or $149 to $199 per phone, and repeatedly questioned the government’s evidence of actual losses. Defendant pointed out that the government did not present any evidence his crimes caused Sprint to lose retail sales or attendant profits. The district court denied an evidentiary hearing on the restitution amount, and found the MVRA’s “value of the property” language broad enough to cover lost profits.

The Tenth Circuit found that the government’s complete lack of verified evidence precluded a restitution award. Because the MVRA requires proof of actual losses, the Tenth Circuit vacated the district court’s restitution award and remanded for further proceedings.

Tenth Circuit: Reinstatement of Removal Not Final Until Reasonable Fear Proceedings Complete

The Tenth Circuit Court of Appeals issued its opinion in Luna-Garcia v. Holder on Tuesday, February 10, 2015.

Melida Teresa Luna-Garcia is a native of Guatemala whose removal was ordered in 2004. She executed that order in 2007 when she left the United States and returned to Guatemala. She was again discovered in the United States on July 9, 2014, and DHS reinstated the 2004 removal order on July 11, 2014. Luna-Garcia expressed fear of harm if she returned to Guatemala and was referred to an asylum officer. She filed a petition for review with the Tenth Circuit on August 11, 2014, before the asylum officer issued a reasonable fear determination. Later, the asylum officer determined she did not have a reasonable fear, but an immigration judge has since reversed the asylum officer’s finding and Luna-Garcia is now in withholding of removal proceedings before the immigration judge.

Luna-Garcia requested the Tenth Circuit to determine when a reinstatement of removal order is final for purposes of appeal. The Tenth Circuit explained the process of reinstating a removal order and possibilities for review of reinstatement. The INA defines finality in terms of review by the BIA, but reinstatement orders are not appealable to the BIA. The Tenth Circuit examined the meaning of “final” and found that it generally means there is nothing more to do than execute the judgment. In the case where an alien argues fear of harm precludes removal, the reinstatement order is not final until the reasonable fear proceedings are complete.

The Tenth Circuit granted the government’s motion and dismissed the proceedings for lack of jurisdiction.

Colorado Court of Appeals: Announcement Sheet, 4/9/2015

On Thursday, April 9, 2015, the Colorado Court of Appeals issued eight published opinions and 25 unpublished opinions.

People v. Carter

People v. Martinez

People v. Ortega

Oster v. Baack

People v. Montante

People v. Roletto

In re Parental Responsibilities Concerning B.C.B.

Weisfield v. City of Arvada

Summaries of these cases are 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.

Tenth Circuit: Unpublished Opinions, 4/9/15

On Thursday, April 9, 2015, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinions.

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