July 20, 2019

Archives for October 28, 2015

The Colorado Marijuana Industry—Legal and Accounting Advice and Compliance

Colo_MJ_IndustryTwenty years ago, the idea of legalized marijuana was laughable. Today, there are 23 states that have legalized marijuana for medicinal purposes, and four states (Oregon, Washington, Alaska, and Colorado) along with Washington, DC, that are experimenting with the legalization of recreational marijuana. The marijuana movement appears to be an unstoppable force.

We have witnessed a major shift in how the American public views marijuana. Practically all major national polls now show that a slim majority of respondents are in favor of legalizing marijuana, or share a favorable view of the drug. An even greater percentage of Americans want to see it approved for medical uses. States have also taken a markedly different approach. Once viewed with contempt, marijuana is now looked upon as a fresh tax revenue source. Revenue generated from taxing marijuana is being used to support jobs, maintain in-state infrastructure, and even support education.

The first state to officially begin selling recreation-legal marijuana was Colorado in the beginning of 2014. Colorado hit a marijuana milestone in August 2015. According to the Denver Post, August represented the first month in its short history of recreational marijuana sales that total monthly combined sales of recreational and medical marijuana topped the $100 million mark. In August, $59.2 million was sold in recreational marijuana, and another $41.3 million came from medical marijuana. In Colorado, the three taxes associated with marijuana have raised an impressive $86.7 million through just the first eight months of 2015. With $639.4 million in combined marijuana sales through August in Colorado, and Washington and Oregon both ramping up their sales, the legal marijuana business will likely total more than $1 billion in 2015 for the first time ever.

However, federal law still views marijuana as a Schedule 1 Drug. Therefore, according to federal law, it is still illegal.

This thriving industry, its tax consequences, and the resulting conflict of laws have presented our state with a unique set of challenges, which will be discussed by some of the most influential voices in the Colorado marijuana industry on November 5 at Colorado CLE’s seminar,“The Colorado Marijuana Industry – Legal and Accounting Advice and Compliance.” Barbara Brohl, the Executive Director of Colorado Department of Revenue, will give the regulatory perspective on these complex issues. Professor Sam Kamin, one of the nation’s leading experts on the regulation of marijuana, will analyze the lawsuits that have been brought against Colorado by surrounding states. Mark Mason and Deirdre O’Gorman will be at the seminar to give us the latest information about The Fourth Corner Credit Union, the only credit union constructed to serve the interests of the legalized cannabis and hemp industries and their supporters. John Walsh, the United States Attorney for the District of Colorado, will give us the federal perspective on marijuana enforcement priorities and their interaction with state priorities.

Don’t miss the panel presentation about the challenges and opportunities of owning and operating a marijuana business. Christian Sederberg, a leading practitioner in the industry, has not only represented clients, but he and his firm have helped shape the marijuana and cannabis laws and regulations. Christian will give us an update on the law. Ron Seigneur, the Program Moderator, who has over 25 years of business valuation experience and is known nationally for his expertise, will talk about investing in a cannabis business and attendant ownership and valuation issues.

CLE Program: Colorado Marijuana Industry — Legal and Accounting Advice and Compliance

This CLE presentation will take place Thursday, November 5, 2015, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Colorado Court of Appeals: Evidence of Intent to Distribute Marijuana Sufficient Despite Medical Use

The Colorado Court of Appeals issued its opinion in People v. Douglas on Thursday, October 22, 2015.

Marijuana Possession and Intent to Distribute—Sufficiency of Evidence—Medical Marijuana Affirmative Defense—Expert Testimony From Lay Witnesses.

Common law spouses Crawford and Douglas were the subject of a drug activity investigation. On a tip, officers searched trash from the property and found marijuana leaves. A police SWAT team then executed a search warrant on the home, where they found 28 marijuana plants, a safe with four firearms, $1,000 in cash, drying marijuana and bags with smaller amounts of marijuana, and medical marijuana application forms.

Each spouse was charged with one count of possession with intent to manufacture or distribute less than five pounds of marijuana and one special offender count based on the firearms. They were tried jointly, and each asserted an affirmative defense under sections 14(2)(a) and 14(4)(b) of the Medical Marijuana Amendment. Each was convicted on the possession with intent to manufacture or distribute charge but acquitted of the special offender charge. Douglas was sentenced to two years’ intensive supervision probation.

On appeal, Douglas argued that the evidence was insufficient to prove that she possessed or attempted to possess with intent to manufacture or distribute marijuana. The Court of Appeals disagreed. Prosecution’s theory was that the spouses were fraudulently using their medical marijuana licenses to illegally distribute marijuana. They based the theory on the amount of marijuana found at the residence, the sophistication of the grow operation, and the presence of guns and cash at the residence. Although the evidence was not overwhelming, it was sufficient to support the convictions.

The Court also rejected Douglas’s contention that the prosecution’s evidence was insufficient to disprove her medical marijuana affirmative defense beyond a reasonable doubt. It was uncontested at the time of the offense that defendants possessed more plants than permitted by the terms of their medical certifications.

The Court agreed with Douglas that the trial court erred in admitting, as lay opinion testimony, what was actually expert testimony from two police officers who were not properly qualified under CRE 702. However, because the issues were not properly preserved for appeal, the Court reviewed for plain error, and concluded that the error did not meet this standard. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Retrospective Competency Evaluation Showed Defendant’s Plea Knowing, Intelligent, and Voluntary

The Colorado Court of Appeals issued its opinion in People v. Pendleton on Thursday, October 22, 2015.

Retrospective Competency Determination—Ineffective Assistance of Counsel.

Defendant gave birth in a public restroom and discarded her newborn son in the trash, where he was later found dead. In exchange for accepting a plea to the child abuse charge, the prosecution dismissed the murder charge and agreed to a sentencing range of between 16 and 40 years in prison. The trial court accepted the agreement and sentenced defendant to 40 years in prison. Almost three years later, defendant filed a motion for post-conviction relief under Crim.P.35(c), seeking to withdraw her plea. The motion was denied.

On appeal, defendant claimed that the post-conviction court erred when it retrospectively determined that she was competent at the time she entered her guilty plea. The Court of Appeals disagreed, finding that (1) the nature of defendant’s post-conviction claims made it necessary for the post-conviction court to evaluate defendant’s competency at the time of her plea; (2) the court had enough information to make a retrospective competency determination; and (3) the record supported the finding that defendant was competent. The Court also rejected defendant’s argument that her guilty plea was not knowing, voluntary, and intelligent, because this claim hinged on defendant’s contention that she was not competent when she entered her plea.

Defendant also argued that the post-conviction court erred when it denied her motion for post-conviction relief on the ground that her plea counsel was ineffective. Defendant’s claim failed because she did not show both deficient performance and prejudice. Counsel’s advice to defendant to abandon her insanity defense in favor of the plea offer, as well as decisions counsel made regarding investigation of the case and defenses, did not fall outside the wide range of reasonable professional assistance. Further, counsel argued effectively on defendant’s behalf at the sentencing hearing. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Reasonably Relied on Appellate Ruling in Applying Extraordinary Risk Enhancer

The Colorado Court of Appeals issued its opinion in People v. Baca on Thursday, October 22, 2015.

Reasonable Doubt—Voir Dire—Due Process—Burden of Proof—Admission of Evidence—Extraordinary Risk—Sentencing.

Griego attempted to rob a liquor store at gunpoint. After exchanging gunfire with the store’s clerk, Griego was shot while fleeing the store. He was then transported to the hospital and arrested. Months later, Griego and his attorney met with authorities and told them that defendant had put him up to the robbery as part of a gang initiation. Defendant was convicted of attempted second-degree murder, conspiracy to commit second-degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery for his role in planning and encouraging Griego’s commission of the offense.

On appeal, defendant contended that the court’s reasonable doubt analogy during the court’s voir direviolated his due process rights by lowering the prosecution’s burden of proof and allowing the jury to convict on something less than proof beyond a reasonable doubt. However, the court twice read the proper reasonable doubt instruction to the jury and provided it with a written copy. Even assuming the court committed error in its voir dire, the jury was adequately informed of the law, and it is presumed that the jury followed these instructions. Therefore, the court’s comments on reasonable doubt do not require reversal.

Defendant also contended that the court abused its discretion in refusing to admit the telephone call between Griego and his mother during which Griego admitted that he had “done his dirt” to become a Blood. However, the court never ruled on whether defense counsel could impeach Griego with the recorded call, and defense counsel failed to pursue admission of the evidence. Further, the defense investigator could not present the proper foundation for admission of the call because he was not a party to the call, present during the call, or familiar with the recording process. Therefore, the trial court did not err in excluding this evidence.

Finally, because defendant was not convicted of a crime of violence as defined in CRS § 18-1.3-406, the district court erred in applying the extraordinary risk sentencing provision to defendant’s attempted second-degree murder and conspiracy to commit second-degree murder convictions. However, the error was not obvious. The judgment and sentence were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/27/2015

On Tuesday, October 27, 2015, the Tenth Circuit Court of Appeals issued no published opinion and 12 unpublished opinions.

United States v. Palmer

Peavy v. Labor Source, LLC

United States v. Lopez

United States v. Gray

U.S. Commodity Futures Trading Commission v. U.S. Ventures LC

Todd v. USA

Gross v. Samudio

United States v. Hutchinson

Walker v. White

United States v. Campos

Chen v. Lynch

Cayetano-Castillo v. Lynch

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