April 21, 2019

Archives for December 4, 2015

Colorado Court of Appeals: Announcement Sheet, 12/3/2015

On Thursday, December 3, 2015, the Colorado Court of Appeals issued three published opinions and 25 unpublished opinions.

People v. Komar

People v. Wentling

People v. Marks

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Special Conditions of Release that Affect Employment Require Specific Findings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodebaugh on Tuesday, August 25, 2015.

Dennis Rodebaugh operated a hunting business in Colorado, where he would take mostly out-of-state clients on elk and deer hunting trips through the White River National Forest. Rodebaugh’s business had a high success rate for shooting animals, but at some point officials were tipped off that Rodebaugh was illegally baiting the animals by spreading salt below his deer stands. After a lengthy investigation, he was interviewed by authorities, to whom he eventually confessed that he was baiting the animals and knew it was illegal.

He was indicted on several counts of Lacey Act violations, which Act prohibits selling wildlife taken in violation of state law. Rodebaugh moved to suppress his confession, arguing it was involuntary, but the district court ultimately denied his motion. Rodebaugh also moved to dismiss the indictment, arguing the Colorado regulations against baiting were unconstitutionally vague. The district court denied his motion to dismiss without prejudice but granted leave for Rodebaugh to raise the vagueness issue at trial. During the multi-day trial, Rodebaugh again raised his vagueness argument, but he was ultimately convicted of six Lacey Act violations. The district court applied three sentencing enhancements to arrive at a Guidelines range of 41-51 months. It sentenced him to 41 months imprisonment followed by three years’ supervised release, during which time he could not engage in or accompany others in any hunting or fishing activities. Rodebaugh appealed.

The Tenth Circuit first addressed Rodebaugh’s contention that the district court erred in denying his motion to suppress, arguing that his confession was involuntary and that the district court erred by making him present first at the suppression hearing. The Tenth Circuit examined the circumstances under which Rodebaugh’s confession was obtained and found it fully voluntary. Rodebaugh contended that because he had only slept three hours in the past two days, he should have been allowed to take a nap before talking to the agents, but the Tenth Circuit disagreed, finding record support that it was customary for Rodebaugh to receive little sleep and that he was coherent throughout the interview. The Tenth Circuit also evaluated the circumstances of the interview, including that it lasted only three hours, it was outdoors, and Rodebaugh was free to leave, and found that the circumstances did not support an inference of involuntariness. Next, Rodebaugh urged that his confession was involuntary because an agent told him that if he did not confess they would take his house and all his property away from him. The Tenth Circuit found this statement troubling, but not enough so to render the confession involuntary. The Tenth Circuit affirmed the district court’s denial of Rodebaugh’s motion to suppress. The Tenth Circuit also rejected Rodebaugh’s argument that the district court erred by making him present first at the suppression hearing, finding it well within the district court’s discretion to determine how best to run the courtroom.

The Tenth Circuit next evaluated and rejected Rodebaugh’s argument that the Colorado law prohibiting baiting was unconstitutionally vague, finding no support for either Rodebaugh’s facial or as-applied challenges. The Tenth Circuit also rejected Rodebaugh’s sufficiency of the evidence challenges, finding that Rodebaugh’s confession, specific testimony from an undercover agent and others, and evidence that he had salt in his home supported his convictions. Rodebaugh also challenged the procedural reasonableness of his sentence, but the Tenth Circuit found support for each of the enhancers applied by the district court.

The Tenth Circuit then turned from the majority opinion to Judge Matheson’s dissent regarding Rodebaugh’s appeal of the special condition of supervised release that prohibited him from any hunting or fishing activities. Judge Matheson noted that the district court failed to make any specific findings about imposing a restriction on Rodebaugh’s employment, which it was required to do. Judge Matheson’s dissent was well-reasoned, noting that although Rodebaugh failed to raise the argument in district court, the government failed to object when Rodebaugh raised it again, and therefore there was no prejudice in addressing the argument. Judge Matheson would have remanded to the district court for further findings on the issue of whether the employment restrictions were warranted. However, the majority opinion resumed, and the majority declined to apply the waiver-of-the-waiver argument championed by Judge Matheson. The majority decided that because Rodebaugh’s main argument against the hunting and fishing prohibition is that it deprived him pleasure, there was no need to discuss employment restrictions, and therefore the district court’s order was affirmed.

The Tenth Circuit affirmed the district court on all counts. Judge Matheson wrote a thoughtful dissent regarding the employment restrictions imposed by the district court.

Tenth Circuit: Criminal Impersonation is Categorically a Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Veloz-Luvevano v. Lynch on July 24, 2015, and granted the respondent’s motion to publish on Monday, August 31, 2015.

Manuel Veloz-Luvevano entered the United States with a B-2 visitor visa in February 1998, but did not leave when the 6-month entry period expired. In July 2000, he was arrested by Colorado authorities for possessing a forged social security card and released on bond, but he failed to appear for court proceedings. In September 2009, he was found and re-arrested on the same criminal charges. Three days later, the federal government initiated removal proceedings. In February 2010, while the removal proceedings were pending, he pleaded guilty to the criminal impersonation charges. In December 2010, he conceded removability but applied for cancellation of removal, claiming removal would cause hardship to his wife and children. The government moved to pretermit his application because criminal impersonation is categorically a crime involving moral turpitude (CIMT) since it necessarily involves fraud. As an alternative, the government gave Veloz-Luvevano the opportunity to accept a pre-conclusion voluntary departure if he waived his appeal. He accepted the government’s offer and was given until July 30, 2012, to voluntarily depart from the United States.

In May 2012, through new counsel, Veloz-Luvevano appealed to the BIA, claiming the IJ erred in pretermitting his application. The BIA summarily dismissed the appeal on July 27, 2012. Veloz-Luvevano did not leave the United States, and in November 2012 he filed a motion to reopen the removal proceedings, claiming ineffective assistance of counsel. The IJ denied the motion as untimely, and, alternatively, ruled that Veloz-Luvevano’s Colorado conviction was, in fact, a CIMT, and therefore Veloz-Luvevano was not eligible for cancellation of removal. Veloz-Luvevano again appealed to the BIA, and the BIA decided that criminal impersonation was categorically a CIMT, denying his motion. Veloz-Luvevano appealed to the Tenth Circuit.

The Tenth Circuit, like the BIA and IJ, determined Veloz-Luvevano was not eligible for cancellation of removal because criminal impersonation is categorically a CIMT, since it necessarily involves fraud. Veloz-Luvevano argued that, in his case, there was no fraud because the social security number he was using was not assigned to anyone. The Tenth Circuit rejected his argument, noting first that Veloz-Luvevano failed to produce any supporting evidence for his argument that the social security number was unassigned, and next commenting that regardless of whether the number was assigned, criminal impersonation is categorically a CIMT. The Tenth Circuit found that Veloz-Luvevano’s first counsel was not ineffective for failing to produce documentation to support that the number was unassigned. The Tenth Circuit summarily disposed of Veloz-Luvevano’s remaining arguments as well, finding record support that his waiver of the right to appeal was knowing and voluntary and that neither the IJ nor the BIA was able to review the government’s discretionary decisions.

The BIA’s dismissal was affirmed.

Tenth Circuit: Unpublished Opinions, 12/3/2015

On Thursday, December 3, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

International Union of Operating Engineers v. National Labor Relations Board

United States v. Garcia-Escalera

Plancarte v. Falk

Trujillo v. Archuleta

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