July 22, 2019

Archives for October 9, 2015

Congratulations to Colorado’s Newest Attorneys

The Colorado Supreme Court just released the results of the July 2015 bar exam. Congratulations to all the people who passed the bar! Welcome to the Colorado legal community.

Of the 799 test takers, 576 or 72% passed. The University of Colorado had 143 test takers, of whom 126 or 88% passed, and the University of Denver had 225 test takers, of whom 168 or 75% passed. National law schools, including Columbia, Harvard, Stanford, Yale, Duke, Michigan, Chicago, California Berkeley, Virginia, and Texas, were represented by 41 test takers, of whom 37 or 90% passed.

We at Colorado CLE wish you the best as you begin your careers. We invite you to check out our New Lawyer Edge program, where attorneys in their first five years of practice can get discounts on CLE programs and free attendance at all “Build Your Practice” programs. For lawyers who have been in practice five years or more, we have the CLE Pass, also providing discounts and free attendance on certain CLE programs.

Don’t forget: if you haven’t already, you are required to take our Practicing with Professionalism course. This is a mandatory program and is a condition of admission to the Colorado Bar. Click here to find a class.

Tenth Circuit: Gang Can Meet RICO’s Interstate Commerce Element if Larger Encompassing Gang Trafficks Drugs

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia on Tuesday, July 14, 2015.

Defendants Pablo Garcia and Gonzalo Ramirez were members of the Diablos Viejos (DV) subset of the Norteños gang in Dodge City, Kansas. Garcia and Ramirez participated in several instances of gang violence, including a shooting at the Hernandez house involving Defendant Ramirez, a home invasion of a Guatemalan immigrant involving both Garcia and Ramirez, and a shooting of rival Sureños gang members in which Garcia shot and killed one man. Defendants, along with 21 others affiliated with the Norteños, were indicted in the U.S. District Court for the District of Kansas. Defendants were charged with (1) a conspiracy to violate RICO; (2) four VICAR offenses and discharge of a firearm in furtherance of a crime of violence; and (3) two VICAR offenses and brandishing of a firearm in furtherance of a crime of violence. In addition, Ramirez was charged with three VICAR offenses and discharge of a firearm in furtherance of a crime of violence. Twenty of the other defendants pleaded guilty and one was dismissed, leaving Ramirez and Garcia to stand trial. Defendants were found guilty by a jury on all counts. Ramirez was sentenced to life imprisonment plus 57 years, and Garcia was sentenced to live imprisonment plus 32 years.

Defendants appealed, arguing several points of error: (1) a Brady violation due to the government’s failure to disclose promises made to a key cooperating witness; (2) a Napue violation based on the government’s false trial evidence concerning the same promises to the cooperating witness; (3) an incorrect jury instruction on RICO elements; (4) unconstitutional application of VICAR because their crimes did not affect interstate commerce, and (5) a Confrontation Clause violation based on erroneously admitted hearsay testimony by an expert witness.

The Tenth Circuit first addressed Defendants’ claims of a Brady violation. The witness in question, Worthey, was also a DV member who was present during the shooting. The government disclosed several meetings with Worthey but failed to disclose two meetings, during one of which he was told that his cooperation in an unrelated state case would influence the government to recommend a lower sentence in the federal case. The government falsely stated that Worthey received nothing in exchange for his testimony, but later conceded the sentence reduction. The Tenth Circuit noted that the government conceded the first two prongs of a Brady evaluation — that the government suppressed evidence favorable to defendant — but disputed the third prong — the evidence’s materiality. Evaluating Worthey’s testimony and its significance, the Tenth Circuit found that although Worthey was a key witness, Defendants vigorously impeached him, including by admitting evidence of Worthey’s other meetings with the government and his testimony in exchange for sentence reductions. The Tenth Circuit found that although the government’s concealment of the meetings was “at best, . . . the result of gross incompetence,” the nondisclosure was immaterial.

Next, the Tenth Circuit evaluated Defendants’ Napue claim, premised on the same nondisclosure. The Tenth Circuit noted that the standard for a Brady claim is lower than that for Napue, since Napue requires intentional concealment. The Tenth Circuit found that Defendants failed to establish any elements of a Napue claim, finding that the district court could reasonably have accepted that the “imprecise questioning” of defense counsel could have led a police detective to misunderstand the question regarding Worthey’s interviews, and that it was reasonable that Worthey could have forgotten to mention the recorded meetings with the government. The Tenth Circuit found it illogical to presume Worthey would have intentionally failed to disclose two meetings when he disclosed others that were equally damaging to his credibility.

The defendants next argued that jury was improperly instructed on the evidence necessary to meet RICO’s interstate commerce requirement. Defendants argued that more than a minimal effect on interstate commerce was necessary to support the RICO charges, but the Tenth Circuit disagreed, finding plenty of precedent that a minimal effect of interstate commerce is sufficient. Defendants also argued that the DVs did not directly engage in economic activity. The Tenth Circuit, however, found ample evidence that the Norteños engaged in drug trafficking, including sending money to California for drug sales and selling drugs imported from California, so it found no error in the RICO instruction. The VICAR claims were premised on the interstate commerce requirement as well, so the Tenth Circuit rejected them for much the same reason.

Finally, the Tenth Circuit addressed the Confrontation Clause issue. Defendants asserted that the testimony of gang expert Shane Webb improperly “parroted” testimonial hearsay in violation of their Confrontation Clause rights. The Tenth Circuit evaluated Webb’s challenged testimony and agreed that some of the testimony was “quintessential parroting.” However, because the evidence was cumulative, the Tenth Circuit found the testimony harmless beyond a reasonable doubt.

Defendants’ convictions were affirmed.

Tenth Circuit: “Forum Shopping” Does Not Prohibit Filing Identical Claims in Federal and State Court

The Tenth Circuit Court of Appeals issued its opinion in Predator International, Inc. v. Gamo Outdoor USA, Inc. on Tuesday, July 14, 2015.

Tom May and Lee Phillips invented a new type of air gun pellet in January 2000 and filed a provisional patent application. They formed Predator to manufacture, promote, and sell the new product, with May as president and Phillips as vice-president and secretary. In 2002, Phillips resigned from Predator due to a lengthy prison term arising from an unrelated traffic accident, and he sold May “all of [his] capital stock and rights and interests in Predator International, Inc.” The patent application was granted in 2003, and May sold Predator to its current owners in 2007. About two years later, Predator discovered Gamo was marketing an air-gun pellet substantially identical to its own pellet, using virtually the same trade dress, slogan, and advertising copy. May assigned his interest to Predator, and Predator’s attorney, John Cogswell, filed a federal complaint against Gamo asserting claims for trade-dress infringement, slogan infringement, copyright infringement, violation of Colorado’s Consumer Protection Act, unjust enrichment, unfair competition, and patent infringement.

Predator attempted to obtain a written assignment of patent ownership rights from Phillips in February 2010, but Phillips refused to assign his rights, instead asserting a 50% ownership interest in the patent. This jeopardized Predator’s patent infringement claim because a co-owner of a patent lacks standing for an infringement suit unless all other co-owners join the suit. The standing issue did not require dismissal but rather required the ownership issue to be litigated and determined, which could happen in state or federal courts. However, in March 2010, Predator moved to dismiss without prejudice its patent infringement claim pending resolution of the ownership issue in state court. In May, while its motion to dismiss was pending, Predator moved to file a fourth amended complaint excluding the patent infringement claim. The district court granted the motion to amend and denied as moot the motion to dismiss. The May motion to amend stated, “Predator seeks to voluntarily dismiss its patent infringement claims . . . because it has discovered that it cannot prove that it had standing to pursue these claims without a written assignment from Mr. Lee Phillips.” Both Gamo and the district court interpreted this as an admission that Predator lacked standing to bring the claim.

Meanwhile, Predator had filed suit in April 2010 in Colorado state court against Phillips, seeking a determination that Phillips had transferred or must transfer his ownership interest in the patent to May and consequently Predator. In June, Phillips assigned his purported patent interest to Gamo. Predator learned about the assignment no later than September 27, and on November 2 it filed in state court an amended complaint adding new claims against Phillips that his assignment to Gamo breached his duties to Predator and that Predator still owned the patent. Gamo moved to intervene in the state court action. Phillips filed counterclaims against Predator and a third-party complaint against May. Gamo also submitted a proposed answer and six counterclaims against Predator. Predator moved for a separate trial on the ownership issue in December 2010, which the court denied on January 1, 2011, also granting Gamo’s motion to intervene. Later in January, Predator moved to dismiss Gamo’s counterclaims on the grounds of state-federal comity and standing and to dismiss Phillips’ counterclaims on the grounds that Phillips’ assignment and sale to May was valid and Phillips’ claims were barred by laches and statute of limitations. The state court denied Predator’s motions in April 2011.

On July 11, 2011, Predator filed in federal court a motion for leave to file a supplemental complaint asserting a patent ownership claim against Gamo and for leave to amend its complaint to reassert its patent infringement claim. The district court imposed a Rule 11 sanction against Cogswell, finding the motion was unwarranted under three grounds: (1) Predator’s motion was sanctionable “forum shopping,” (2) there was no justification for the delay in filing, since Predator learned of Phillips’ assignment on September 27, 2010 but didn’t file its motion until July 11, 2011, and (3) Predator had no better ground for standing than when it filed its first patent infringement claim. The Tenth Circuit evaluated and rejected each of the district court’s grounds for imposing the sanction.

The Tenth Circuit disagreed that Predator’s decision to litigate the patent ownership issue in state court rather than federal court was “forum shopping.” Predator could not have brought the infringement claim in state court, so there was no forum shopping as to that claim, and the Tenth Circuit found the district court “misconceived” legal doctrine on forum shopping. The Tenth Circuit found there is no impropriety in pursuing the same claim in state and federal courts, and that the general rule is that both courts can proceed with the litigation until one court rules on the issue. The Tenth Circuit noted that the district court was not required to permit amendment of the claim to add a claim already pending in state court, and cited several abstention doctrines. However, the district court did not cite the abstention doctrines in its sanction imposition, and the Tenth Circuit could not say that any abstention doctrine would have made Cogswell’s filings unreasonable. The Tenth Circuit found that Predator’s decision to file its patent ownership claims in federal court was not objectively unreasonable and reversed the sanction award on this ground.

The Tenth Circuit evaluated the district court’s other justifications for imposition of the sanction. As to the delay, the Tenth Circuit noted that if anything Predator’s motion to amend was premature, not late, because the ownership issue was not yet adjudicated in state court. On the standing issue, the Tenth Circuit found that this was not a valid ground for sanctions because Predator was not required to prove ownership at that stage of the litigation. The Tenth Circuit found that Cogswell’s tactical decision to file the ownership and infringement claims in federal court was not objectively unreasonable.

The Tenth Circuit reversed the sanction award and remanded to district court.

Tenth Circuit: Statements Made After Promise of No Jail Time Involuntary; Error Not Harmless

The Tenth Circuit Court of Appeals issued its opinion in Sharp v. Rohling on Wednesday, July 15, 2015.

Kimberly Sharp was homeless and living in a camp with her two children, her boyfriend, and two other men when they were approached by David Owen, an activist who used unconventional methods to get homeless people off the streets. Owen had destroyed several campsites and carried photos of the burned campsites to show other homeless people, and he would frequently hand the homeless people phones and order them to call their families. When Owen approached Sharp’s camp, an altercation ensued and two of the men hog-tied him and dragged him into the woods. His body was found several weeks later and police began investigating the murder by interviewing homeless people camping near where his body was found. When the police approached Sharp, Detective Bryan Wheeles noted she looked scared and took her aside for questioning, eventually transporting her to the Topeka Police Department to be interviewed.

At the police department, Wheeles told Sharp she was under arrest and Mirandized her without specifically telling her why she was being arrested. Sharp told Wheeles she was sitting around a campfire when Owen approached the camp and told the homeless people they should not camp and should call their families. He also said he would have burned their camp if they were not there, upsetting everyone. An altercation ensued, and two of the men knocked Owen to the ground. One man dragged Owen into the woods. Sharp headed into the woods to see what was going on and saw one man over Owen with an axe poised to kill him. She told the man not to kill Owen, and the third man brought a rope which was used to hog-tie Owen. The two men continued to beat him. The third man then burned all Owen’s possessions while the other two dragged Owen into the woods. Sharp never saw him again. Wheeles asked Sharp if she had helped burn Owen’s stuff because she was scared, and she admitted she had, asking if she was going to jail. Wheeles said “no, no, no, no, no, no, no, no, no, no, no,” and continued that Sharp would be a witness unless she did “something dumb and jam[med] [her]self.” Sharp then detailed her role in burning Owen’s phones and notebooks.

When Sharp informed Wheeles that her kids were with another homeless person at another camp, he told her that person was a registered sex offender and they drove together to retrieve her kids. She asked about finding shelter for herself and the children and Wheeles promised he would take care of that. He drove her to the campsite, where Sharp gave a detailed recreation of what happened, including positioning, and informed Wheeles that she told the men not to kill Owen. At that point, he stopped her and asked if she said “don’t kill him” or “don’t kill him here,” to which she replied “don’t kill him here.” Sharp was transported back to the police station, where Wheeles asked her a few more questions before leaving her in the interview room with her kids. She was informed about an hour later that the district attorney had decided to charge her with murder, and she became angry and upset, saying Wheeles had lied to her and tricked her.

Sharp was charged with one count of felony murder and the indictment was later amended to include kidnapping with the intent to injure or terrorize. The state trial court held a hearing on whether to suppress Sharp’s statements as involuntary. Wheeles testified that he never made any promises to Sharp and that the district attorney would make the ultimate charging decision. Sharp did not testify, but her attorney argued the statements were involuntary because they were induced by Wheeles promises to be lenient and to find shelter for her and her children. The trial court reviewed the videos of the interview and reenactment and ruled that Sharp’s statements were admissible because Wheeles did not make any promises and because Sharp’s demeanor suggested she was relaxed and not impaired. The prosecution used Sharp’s reenactment video in its case, relying heavily on her statement “don’t kill him here,” and also relying heavily on her admission that she helped burn Owen’s possessions. She was convicted on both counts and sentenced to life with the possibility of parole after 20 years for the murder count and a concurrent 61 months for the kidnapping count.

Sharp appealed to the Kansas Supreme Court, arguing her statements were inadmissible because they were involuntary due to her reliance on Wheeles’ promises of lenience and shelter. The supreme court affirmed the trial court’s decision not to suppress the statements, finding substantial evidence supported that she was not acting under any promises during the interview. One justice dissented, criticizing the majority for relying on Wheeles’ testimony from the suppression hearing and arguing anyone in Sharp’s position would have interpreted Wheeles’ statements as a promise that she would not go to jail. The dissent also disagreed with the majority’s characterization of the promises concerning Sharp’s children as a “collateral benefit,” finding instead that a promise to help Sharp’s young children was no less compelling than a promise of leniency. Sharp then filed a federal habeas petition in district court. The federal district court denied Sharp’s petition but granted her a COA.

The Tenth Circuit noted that AEDPA precluded habeas relief as to a claim decided on the merits in state court unless (1) the decision was contrary to clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts. The Tenth Circuit found Sharp met her burden based on 28 U.S.C. § 2254(d)(2).

Sharp argued that Wheeles coerced her confession by promising leniency and assistance in finding shelter. The Tenth Circuit found that, on de novo review, Sharp’s statements were involuntary once Wheeles said she would not go to jail and the trial court committed harmful error by allowing the statements. Wheeles said “no” ten times when Sharp asked him if she was going to jail, followed by a statement that she would be a witness unless she incriminated herself. The Kansas Supreme Court found Sharp “was not operating under any promises,” and characterized Wheeles’ behavior as an exhortation to be truthful. The Tenth Circuit found that, after receiving a confession from Sharp, Wheeles immediately and unequivocally reassured Sharp she was not going to jail, which was essentially a promise. The Tenth Circuit found the supreme court’s finding that Wheeles made no promises unreasonable. The supreme court’s alternate theory that he only promised leniency if she did not incriminate herself was also unreasonable, since she already had.

The Tenth Circuit also found that the Kansas Supreme Court unreasonably applied the facts to the promise to find shelter for Sharp and her children. Wheeles used the word “promise” in his assurance that he would help Sharp find shelter, but the trial court and state supreme court both found Sharp was not “operating under a promise.” The Tenth Circuit ruled that this was error.

The Tenth Circuit next concluded that Sharp’s incriminating statements made after the promise of leniency were involuntary. Prior to the detective’s promises, Sharp had only incriminated herself as to burning Owen’s possessions. Trial testimony from the third homeless man at the camp indicated Sharp was angry at Owen and wanted to show him what it was like to have his stuff burned. Her confession to burning Owen’s stuff, admissible because it preceded Wheeles’ promise of no jail, was likely insufficient to support a conviction. The prosecution emphasized Sharp’s statement “don’t kill him here” at trial to implicate her in the killing, and the Tenth Circuit found that this made the error of admitting her involuntary statements not harmless.

The Tenth Circuit reversed the district court and granted Sharp’s petition for a writ of habeas corpus as to her convictions, subject to the state’s right to retry her within a reasonable time.

Tenth Circuit: Unpublished Opinions, 10/8/2015

On Thursday, October 8, 2015, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Brown v. Lowe’s Home Centers

Muathe v. Fifth Third Bank

Marrufo-Morales v. Lynch

Walker v. Hickenlooper

United States v. Martinez-Gutierrez

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