April 21, 2019

Archives for July 6, 2015

Application Period Open for Colorado Court of Appeals Vacancy

On Wednesday, July 1, 2015, the Colorado State Judicial Branch announced a forthcoming vacancy on the Colorado Court of Appeals, effective September 1, 2015. The vacancy will be created by the appointment of Hon. Richard Gabriel to the Colorado Supreme Court.

Applications are now being accepted for the vacancy. Qualified applicants must be electors of the State of Colorado and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website or the ex officio chair of the Supreme Court Nominating Commission, Chief Justice Nancy Rice. Applications are due no later than 4 p.m. on July 31, 2015, and anyone wishing to nominate another must do so no later than 4 p.m. on July 24, 2015.

For more information about the vacancy, click here.

Colorado Court of Appeals: Announcement Sheet, 7/2/2015

On Thursday, July 2, 2015, the Colorado Court of Appeals issued four published opinions and 25 unpublished opinions.

People v. Vigil

People v. Isom

Hauer v. McMullin

High Plains Library District v. Kirkmeyer

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: No Error in Joint Conspiracy Trial Where Defendant Only Implicated in One Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Friday, May 22, 2015.

Two men robbed an Arvest Bank in Tulsa, Oklahoma in 2011, and a police officer investigating the robbery saw Dejuan Hill driving a car away from the house where the stolen money was found. During Dejuan’s brothers’ trial for the robbery, the police officer recognized Dejuan outside the courtroom. The prosecution changed its theory of the case to include Dejuan as one of the bank robbers, based largely on the officer’s testimony and other circumstantial evidence from cellphone records. Dejuan was indicted, tried, and convicted of both robbing the Arvest Bank and taking part in a larger conspiracy to rob banks, a credit union, and pharmacies in the Tulsa area. Of eight alleged co-conspirators, only three proceeded to a joint trial — Dejuan, his brother Vernon, and Deandre Hopkins. Six robberies were discussed in depth at trial, but Dejuan was only implicated in the robbery of the Arvest Bank. Dejuan appealed his convictions, arguing (1) there was insufficient evidence to convict him of robbing the Arvest Bank, (2) there was a substantially prejudicial variance between the single global conspiracy charged in the indictment and the evidence of individual conspiracies the government produced at trial, (3) the trial court erred by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants, and (4) the trial court erred by denying his motion to exclude gang evidence as unfairly prejudicial under FRE 403.

The Tenth Circuit analyzed the evidence tying Dejuan to the Arvest Bank robbery and found that although it was circumstantial and required the jury to make inferential leaps, it was sufficient to support his conviction. Dejuan was seen leaving the residence where the money was eventually found shortly after the robbery, and someone had used a cellphone right around the time the officer saw Dejuan leaving the house. Further, video footage showed that the robber was approximately the same height as Dejuan and probably had a similar skin tone. The majority of the panel found this evidence sufficient to support his conviction regarding the Arvest Bank robbery.

The Tenth Circuit next addressed Dejuan’s argument regarding the conspiracy charge. Dejuan asserted that at most he could be convicted of a smaller conspiracy to rob the Arvest Bank and the government failed to prove he was part of a larger conspiracy, causing him to be substantially prejudiced. The Tenth Circuit agreed there was a variance, since there was “scant evidence tying Dejuan to any larger conspiracy” other than the Arvest Bank robbery. The evidence presumed to establish Dejuan’s participation in the larger conspiracy was primarily the police department’s certification of his involvement in the Hoover Crips gang, and even the government’s witness was unsure whether Dejuan was a Hoover Crip. The Tenth Circuit next analyzed whether this created a prejudicial spillover, first deciding that the number of conspiracies proved and defendants tried was too small to inherently prejudice Dejuan. The majority panel found that the jury would have no problem distinguishing Dejuan’s conduct from that of his co-defendants. Likewise, the Tenth Circuit found little possibility that the variance would have caused the jury to misuse the evidence, since the evidence was not so intricate the jury could not distinguish Dejuan’s actions. The Tenth Circuit then analyzed the strength of the evidence underlying the conspiracy conviction and found that although it was a close call, the evidence proving Dejuan’s involvement in the smaller conspiracy was strong enough to minimize the danger of prejudicial spillover. The majority found possible benefit to Dejuan of the global conspiracy evidence, since it gave him an avenue to discredit the Arvest Bank evidence.

The Tenth Circuit next addressed Dejuan’s contention that the trial court improperly denied his motion for misjoinder. Dejuan argued the indictment failed to show facts demonstrating a common scheme or involving all of the defendants and all of the charged offenses. Dejuan contended he was prejudiced because the jury heard evidence about robberies in which he was not involved and this led to the possibility of the jury finding his guilt by association. He believes the trial court should have allowed him to have a separate trial to cure the inference of guilt by association. The majority disagreed, finding that Rule 14’s language that the court may provide “any other relief” supported the trial court’s use of limiting instructions. Because Dejuan did not point to any specific instances of prejudice but rather relied on a broad assertion of guilt by association, the court found his assertions insufficient to demonstrate prejudice.

Finally, the Tenth Circuit addressed Dejuan’s argument that the trial court erroneously denied his motion in limine to exclude evidence of his gang affiliation. Because the government introduced no evidence showing his gang membership was relevant to the issues at trial and it was unfairly prejudicial, Dejuan argues the evidence of his gang affiliation should have been excluded. Although the Tenth Circuit acknowledged that the trial evidence established only smaller conspiracies and the only evidence tying Dejuan to the larger conspiracy was his gang affiliation, the Tenth Circuit determined that these two determinations were subject to “hindsight bias” and there was no abuse of discretion at the time the trial court decided to include the evidence.

The majority panel concluded that although Dejuan was correct that a variance existed, it did not prejudice Dejuan so as to necessitate reversal. The district court’s judgment was affirmed in all other respects. Judge McHughs wrote a thoughtful dissent, disagreeing with the majority’s conclusion that the variance did not prejudice Dejuan and noting the weakness of the evidence against him.

Tenth Circuit: Unpublished Opinions, 7/2/2015

On Thursday, July 2, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Parks

Creamer v. City of Phillipsburg

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