May 19, 2019

Archives for October 12, 2015

Judicial Performance Commission Appointments Announced

On Friday, October 9, 2015, Governor Hickenlooper announced appointments to several Commissions on Judicial Performance. These appointments are effective December 1, 2015, for terms expiring November 30, 2019. The Commissions on Judicial Performance were created by the General Assembly in 1988 in order to provide voters with fair, responsible, and constructive evaluations of judges seeking retention. Each of Colorado’s judicial districts has a Commission and there is one for the state appellate judges. Commissions consist of ten volunteer commissioners — four attorneys and six non-attorneys. Governor Hickenlooper’s appointments are as follows:

  • State Commission on Judicial Performance – Suzanne Jalbert of Fraser was appointed to serve as a non-attorney.
  • Third Judicial District Judicial Performance Commission – Nancy Lake of Weston was appointed to serve as an attorney.
  • Eleventh Judicial District Judicial Performance Commission – Jenna Mazzucca of Salida was appointed to serve as an attorney.
  • Thirteenth Judicial District Judicial Performance Commission – Amy Schmidt of Laird was appointed to serve as an attorney.
  • Fifteenth Judicial District Judicial Performance Commission – Joshua Vogel of Lamar was appointed to serve as an attorney.
  • Seventeenth Judicial District Judicial Performance Commission – Heidi Miller of Commerce City was appointed to serve as an attorney.
  • Eighteenth Judicial District Judicial Performance Commission – Valerie Garcia of Centennial was appointed to serve as an attorney.
  • Nineteenth Judicial District Judicial Performance Commission – Martin Beier of Frederick was appointed to serve as an attorney.

For more information about the commissions on judicial performance, click here. For more information about the appointments, click here.

Tenth Circuit: Witness Improperly Usurped Role of Jury by Opining on Lawfulness of Conduct

The Tenth Circuit Court of Appeals issued its opinion in United States v. Richter on Friday, July 31, 2015.

Brandon Richter and Tor Olson were former CEOs of Executive Recycling, Inc., a waste removal and recycling business in Colorado, Utah, and Nebraska. Executive also offered electronics recycling, promising customers that Executive would domestically recycle or destroy electronics that could not be resold and would do so in an environmentally friendly manner. However, between 2005 and 2008, Executive sold many items to Hong Kong and China for export, including cathode ray tubes (CRTs) that were eventually reused in new monitors or refurbished. One shipment, the GATU shipment, was featured on 60 Minutes because the CRTs were broken and could not be reused. The 60 Minutes episode attracted the attention of the EPA, ICE, and Colorado Attorney General’s Office. An EPA investigator asked Richter to supply records of Executive’s shipments over a three-year period, but Richter produced only four records, including an altered copy of the GATU invoice. A later federal search warrant uncovered many more shipping records and revealed that Richter had destroyed the original GATU invoice.

The government charged Executive, Richter, and Olson in the U.S. District Court for the District of Colorado with 13 counts of mail and wire fraud, one count of exporting hazardous waste in violation of the Resource Conservation and Recovery Act (RCRA), and one count of smuggling hazardous waste. The government contended defendants violated laws concerning hazardous waste when they exported the CRTs overseas, and their actions were contrary to the representations they made to their customers. The government also charged Richter and Olson with obstruction of justice. Before trial, defendants moved to dismiss the wire and mail fraud counts, arguing their customers were not deprived of money because they obtained the benefit they paid for—removal of electronic waste—and they were not deprived of property because the e-waste had no value to the consumers. The district court denied the motions. Defendants also disagreed with the jury instructions regarding “hazardous waste.” At trial, Richter and Olson argued that even if broken CRTs are regulated hazardous waste, they did not know the CRTs were broken. Following the trial, the jury returned verdicts against Richter and Olson on six counts of wire fraud, one count of mail fraud, and one count of smuggling. Richter was also convicted of obstructing justice based on his destruction of the original GATU invoice. Richter was sentenced to 30 months’ imprisonment followed by three years’ supervised release and was ordered to pay $70,144 in restitution. Olson was sentenced to 14 months’ imprisonment with three years’ supervised released and was ordered to pay $17,536 in restitution. They timely appealed.

The Tenth Circuit first evaluated Defendants’ contention that the jury instruction incorrectly defined waste under Colorado law, and that even if the instruction was correct they lacked fair notice that the definition might be criminally enforced against them. Reviewing the strictures of the RCRA, the Tenth Circuit noted that the RCRA makes it a crime to export hazardous waste without filing the proper notice of intent to export with the EPA or without consent of the receiving country. Colorado also has its own regulations, the Colorado Hazardous Waste Management Act, which generally mirrors the RCRA. However, the Colorado Act does not contain rules regarding broken CRTs and instead regulates the disposal of CRTs under its universal waste regulations. Richter and Olson argued that the jury instruction improperly defined hazardous waste by including a requirement that waste must be reused for its original intended purpose to be excluded. The Tenth Circuit ultimately disagreed, finding that since the Colorado statute was ambiguous it must look to legislative intent, which was to comply with the RCRA. The Tenth Circuit rejected Richter’s and Olson’s challenge to the jury instruction.

Defendants next argued that the government did not prove that they committed mail and wire fraud because their customers were not deprived of money or property. Defendants contended that since their customers’ property was relinquished to them for disposal, it was no longer the customers’ concern how the disposal occurred. The Tenth Circuit again disagreed, finding that the customers expected their waste to be disposed of within the United States using environmentally sound practices. Defendants would not have retained their customers if not for their deceptions. The wire and mail fraud convictions were affirmed.

The Tenth Circuit next addressed Defendants’ contention that the testimony of Mr. Smith was improperly admitted as lay witness testimony and exceeded the bounds of permissible testimony by infringing on the province of the jury. The Tenth Circuit examined Mr. Smith’s testimony, which included testimony that CRTs that had been removed from their housings were waste because they could not be used again for their original intended purpose without processing, and found that it was expert testimony. The Tenth Circuit further found that the scope of Mr. Smith’s testimony improperly instructed the jury on how it should rule. Because the Tenth Circuit found that the district court erred in allowing Mr. Smith’s testimony, it evaluated whether the error was harmless and found it was not. The government relied heavily on Mr. Smith’s testimony to prove whether the CRT use was improper, since he testified that CRTs could not be considered recycled if they had been “processed,” and Mr. Smith failed to define processing or explain its significance. The Tenth Circuit reversed the convictions.

Finally, the Tenth Circuit examined Richter’s conviction for obstruction of justice based on his destruction of the GATU invoice. The Tenth Circuit found that Mr. Smith’s testimony did not have a substantial impact on the obstruction of justice charge because there was plenty of evidence beyond Mr. Smith’s testimony.

The Tenth Circuit reversed Defendants’ convictions for smuggling and fraud and remanded for further proceedings. The Tenth Circuit affirmed Richter’s conviction for obstruction of justice.

Tenth Circuit: ACCA Residual Clause Unconstitutional; Case Remanded for Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Monday, July 20, 2015.

John Henry Snyder, II, was driving erratically when an Oklahoma City police officer pulled him over. Upon approaching Snyder’s vehicle, the officer smelled the odor of burnt marijuana. Snyder produced a driver’s license and expired insurance verification and the officer decided to search the vehicle based on the burnt marijuana smell. The officer asked Snyder to exit the vehicle, at which point he attempted to flee and yelled to his passenger to “go with it or leave with it.” Additional officers arrived on scene and searched the vehicle. They found a gun under the driver’s seat, which Snyder admitted was his. Because of his three prior felony convictions, he received the mandatory minimum 15-year sentence required by ACCA.

On appeal, Snyder challenged the district court’s denial of his motion to suppress the firearm, contending the search was illegal. The district court concluded the firearm was admissible because the search fell under the inevitable discovery doctrine—because of his lack of insurance verification and arrest, police would have impounded his vehicle and found the gun on an inventory search. The Tenth Circuit found it did not need to reach the inevitable discovery doctrine because the search was legal based on the marijuana smell alone. The Tenth Circuit noted that it has held repeatedly that marijuana smell is sufficient to establish probable cause, and again held that to be true in this case.

Next, the Tenth Circuit evaluated the reasonableness of Snyder’s sentence under ACCA. Two of his convictions unquestionably fell under ACCA’s strictures since they were serious drug offenses. However, the third conviction for attempted aggravated eluding a police officer fell under ACCA’s residual clause, which the Supreme Court unequivocally held to be unconstitutional in Johnson v. United States, 576 U.S. ___ (2015). The Tenth Circuit remanded for resentencing consistent with Johnson.

The district court’s denial of the motion to suppress was affirmed, but the case was remanded for resentencing.

Tenth Circuit: Incidental Mailings Triggered by Fraud Qualify as Mail Fraud Acts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zander on Friday, July 24, 2015.

Jeffrey Zander began working for the Paiute Indian Tribe in Utah in 1998 as a tribal planner, and he later became the Tribe’s trust resource and economic development director. In 2004 or 2005, he recommended to the Tribe that it seek federal grant money to fund development of an Integrated Resource Management Plan (IRMP) for each of the Tribe’s bands. Between 2005 and 2007, Zander prepared grant proposals to request funding from the Bureau of Indian Affairs (BIA) for the Tribe to develop IRMPs for each of its bands. Each proposal represented most of the grant funds would be used to hire and pay an outside facilitator to assist the Tribe. Each proposal was approved by that band’s council and the Tribal Council, then submitted to the BIA, which approved and awarded five IRMP development grants for a total of $165,000. Instead of hiring an outside consultant, Zander transferred the funds to four fictitious companies he created, then represented to the Tribe that these companies had provided consulting services for the IRMP development. The Tribe then issued checks to the companies, which were either mailed or hand-delivered to Zander. The Tribe then requested reimbursement from the BIA, which it approved, sometimes via fax.

Zander deposited the checks made out to the fictitious companies into his personal checking account and spent all of the $165,000. The Tribe learned of Zander’s scheme when a bank employee contacted it in March 2008 to ask about check made out to one of the fictitious businesses that Zander had tried to deposit in his personal checking account. The Tribe conducted a short investigation and fired Zander. The Tribe thereafter received a notice of collection from the BIA seeking repayment of the grant funds based on the Tribe’s failure to product the IRMPs the grants were intended to fund.

In February 2012, Zander was indicted on several charges, including mail fraud, wire fraud, money laundering, and failure to file tax returns. He was tried before a jury and convicted on all of the counts in the indictment. He was sentenced to 68 months’ imprisonment and ordered to pay $202,543.92 in restitution to the Tribe based on the actual grant funds, attorney fees, unemployment benefits, and Tribal employees’ time and travel costs associated with the case. He appealed, arguing five points of error: (1) insufficient evidence to support his mail fraud convictions; (2) insufficient evidence to support his wire fraud convictions; (3) a conditional challenge to his money laundering conviction; (4) a challenge to the procedural reasonableness of his sentence; and (5) a challenge to the restitution award. The Tenth Circuit addressed each in turn.

The Tenth Circuit meticulously examined Zander’s mail fraud challenge. Zander argued that although the BIA had mailed checks for the proposed IRMP development, those checks would have been mailed regardless of fraudulent intent had the Tribe submitted grant proposals. The Tenth Circuit rejected this argument, finding that although the mailings were an innocent side effect of Zander’s fraud, he set in motion the mechanism that caused the checks to be mailed. The Tenth Circuit compared Zander’s fraud to that of the defendant in Schmuck v. United States, where defendant altered the odometers of used cars and sold them to dealers at inflated prices. There, as in Zander’s case, although the mailings themselves were an innocent by-product of fraud, they would not have occurred but for the defendants’ fraudulent acts. The Tenth Circuit similarly rejected Zander’s wire fraud arguments, concluding that although the faxed themselves were innocuous, they occurred solely because of Zander’s fraudulent acts. Because Zander’s challenge to the money laundering conviction was conditional based on the Tenth Circuit’s findings on the mail and wire fraud counts, the Tenth Circuit affirmed the money laundering conviction.

Next, the Tenth Circuit addressed Zander’s challenges to the procedural reasonableness of his sentence and his restitution award. The Circuit found that the district court incorrectly included costs in the restitution award without requisite findings affirmatively showing that the costs were directly and proximately caused by Defendant’s conduct. These costs raised the base offense level for the conviction, resulting in a higher sentence. The Tenth Circuit reversed and remanded for resenting and recalculation of the restitution award based on the new offense level and based on evidence tying costs directly to Zander’s conduct.

The district court’s conviction was affirmed. The sentence and restitution award were reversed and remanded for recalculation.

Tenth Circuit: Unpublished Opinions, 10/9/2015

On Friday, October 9, 2015, the Tenth Circuit Court of Appeals issued no published opinion and ten unpublished opinions.

United States v. Miller

Winkles v. Rhodes

United States v. McKenzie

United States v. Mobarekeh

Housley v. Spirit Aerosystems, Inc.

United States v. Price

Stine v. Oliver

Sells v. Chrisman

Hodson v. Colorado Mental Health Institute at Pueblo

United States v. Ford

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