March 23, 2019

Archives for June 19, 2015

Application Period Open for Rio Grande County Court Vacancy

On Thursday, June 18, 2015, the Colorado State Judicial Branch announced a vacancy on the Rio Grande County Court, occasioned by the appointment of Hon. Patrick H. Hayes, Jr. to the Twelfth Judicial District Court. The vacancy will occur on July 1, 2015.

Eligible applicants must be qualified electors of Rio Grande County and must have graduated from high school or achieved the equivalent of a high school diploma. Application forms are available from the ex officio chair of the Twelfth Judicial District Nominating Commission, Justice Nathan Coats, and also from the State Judicial website. Applications must be received no later than 4 p.m. on July 20, 2015. Anyone wishing to nominate another must do so no later than 4 p.m. on July 13, 2015.

For more information about the vacancy, click here.

Colorado Court of Appeals: Announcement Sheet, 6/18/2015

Tenth Circuit: Buyer-Seller Rule Did Not Preclude Conspiracy Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gallegos on Thursday, April 30, 2015.

A law enforcement investigation of Iran Zamarripa, the regional supervisor of an international methamphetamine ring, led to the arrest and trial of Simona Gallegos. Gallegos was the common law wife of a co-defendant, Pedro Juarez, and she purchased relatively small quantities of meth from Zamarripa on three occasions. Gallegos was tried with three co-defendants and ultimately found guilty of one count of conspiracy to distribute methamphetamine and possession with intent to distribute, two counts of possession with intent to distribute, and one count of use of a communication facility to facilitate the distribution of methamphetamine. Gallegos appealed.

Gallegos’ first argument on appeal was that the district court erred by admitting hearsay statements of her alleged co-conspirators without independent evidence she conspired with them. The Tenth Circuit declined to address the issue, finding Gallegos failed to point to specific statements.

Gallegos next challenged the sufficiency of the evidence supporting all four of her convictions. Gallegos contended the government’s evidence only supported that she obtained methamphetamine for personal use. However, the evidence forming the bases for her convictions showed she purchased the meth for Juarez, and on one occasion because he “ha[d] people[ ] waiting.” Gallegos contended the buyer-seller rule precluded her conviction even if she purchased the meth to distribute, but the Tenth Circuit found that contrary to its own precedent. The Tenth Circuit found the evidence that Gallegos “ha[d] people[ ] waiting” was by itself sufficient to infer an agreement to distribute methamphetamine, and further evidence that meth was delivered to Gallegos and she purchased meth on credit supported her convictions.

The Tenth Circuit also addressed Gallegos’ variance argument. Gallegos argued that the government proved only that she conspired with Juarez, and the evidence created a “spillover effect,” enabling her to be convicted of crimes for which she was not involved. After conducting a plain error review, the Tenth Circuit found little risk of the “spillover,” and certainly not enough to satisfy the third prong of the plain error test. The Tenth Circuit also found Gallegos unable to satisfy the fourth prong of the review.

Gallegos next argued that the district court erred in allowing testimony concerning a co-defendant’s post-arrest request for an attorney. The Tenth Circuit again reviewed for plain error since Gallegos failed to preserve the issue for appeal. Gallegos argued the evidence invited an inference of the co-defendant’s guilt, which was improperly imputed to her. The Tenth Circuit disagreed, finding the prosecution presented distinct evidence as to Gallegos and the other co-defendants.

The district court’s judgment was affirmed.

Tenth Circuit: Inadequate Briefing Warrants Affirmance of Lower Court Opinion

The Tenth Circuit Court of Appeals issued its opinion in Nixon v. City & County of Denver on Thursday, April 30, 2015.

Ricky Nixon was a Denver police officer who was involved in two highly publicized incidents of excessive force. He was cleared of wrongdoing after the first incident, but the Denver manager of safety ordered a 30-day suspension after the second incident and ordered his termination when he was not truthful about the incident. A panel of the Denver Civil Service Commission reversed the termination but ultimately the Colorado Court of Appeals remanded. While the Commission decision was being challenged by the City, Nixon filed a § 1983 suit against the manager of safety, the City, and others in federal district court. The district court dismissed all his claims, but on appeal Nixon challenged the dismissal of only two: (1) the City and manager violated his First Amendment rights by retaliating against him for protected speech, and (2) a Due Process claim based on his protected status as a police officer.

The Tenth Circuit noted that First Amendment claims should be evaluated under the Garcetti/Pickering test, and that to show a due process violation the employee must prove governmental defamation and alteration in legal status. The district court dismissed Nixon’s claims for failure to state a claim for relief.

The Tenth Circuit analyzed Nixon’s opening brief on appeal and found that no pertinent issue was adequately developed. The Tenth Circuit first affirmed the district court’s dismissal of Nixon’s stigma-plus-due process claim because Nixon’s opening brief “contain[ed] nary a word to challenge the basis of the dismissal.” As for Nixon’s claims that his speech was on a matter of public concern, the Tenth Circuit found only general statements about the protected speech and not specific references as required. Addressing the district court’s ruling that Nixon’s 2013 statement before the Civil Service Commission could not have been a motivating factor in his 2011 termination, the Tenth Circuit found that if it sought to make arguments for Nixon it could read one sentence in his brief to state that the retaliation was the City’s decision to seek state court review of the Commission’s ruling in Nixon’s favor. The Tenth Circuit, however, had “no obligation to address the point because the sentence fails to satisfy minimal standards for intelligibility that we must require from lawyers, it is misleadingly placed under a heading for a different issue, and the brief does not even say that the sentence is intended as a response to a ruling by the district court or an argument by the City.”

The Tenth Circuit affirmed the district court judgment.

Tenth Circuit: Unpublished Opinions, 6/18/2015

On Thursday, June 18, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Osborne

Santos-Mendoza v. Lynch

Martinez v. Southwest Cheese Co. LLC

Barnes v. Colvin

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