August 20, 2019

Archives for May 10, 2016

The Internet of Things: A Disrupter? Precarious? The Jetsons?

IP_2016By John Ritsick, Esq.

Predictions about how much and how quickly technology will change the world can vary – we all can ask “where’s my flying car” now that the 2015 of “Back to the Future has come and gone and we still don’t have those flying cars. But the impact of The Internet of Things (IoT) will be significant, and the scope and scale can be mind-boggling. The IoT is the network of physical objects—devices, vehicles, buildings, and other items—embedded with electronics, software, sensors, and network connectivity that enables these objects to collect and exchange data. I work in the manufacturing industry and see the changes coming before they are close to the market, and I am constantly blown away by what we know is coming.

Nearly every industry and every type of tangible item is a potential participant in the IoT. The industries affected include automotive, transportation, city infrastructure, homes and household goods, retail stores—virtually all industries can potentially be incorporated into the IoT. Self-driving cars necessarily mean the car is connected to the Internet and is “smart” technology, but a self-driving car also means that other cars and vehicles are connected, that the roads the cars drive on and traffic systems are part of a larger environment, and that our emergency response services are connected as well.

I’ll be moderating a talk on the IoT at the 2016 Rocky Mountain IP & Technology conference in Denver in June. My colleague at Flex, Kenji Takeuchi, leads Products and Technology Management for the Flex’s Connected Living and IoT Software business. He’ll be talking about this subject and other thoughts on where technology is headed—it will be an insightful look into the future!

John Ritsick, Esq., is in-house counsel at Flex, a global leader In the categories of design, manufacturing, distribution, and aftermarket services. Find out more about the 2016 IP & Technology Institute at the links below.


CLE Program — 14th Annual Rocky Mountain Intellectual Property & Technology Institute

This CLE presentation will occur on June 2-3, 2016, at the Westin Westminster Hotel. Register online or call (303) 860-0608.

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

Colorado Court of Appeals: Potential Conflict of Interest Relevant in Determination of Prejudice to Defendant

The Colorado Court of Appeals issued its opinion in People v. Villanueva on Thursday, May 5, 2016.

Benjamin Garcia-Diaz’s wife called the police for a domestic violence incident, and authorized a search of the residence. Police found $30,000 worth of cocaine during the search. Garcia-Diaz retained Charles Elliot to defend the domestic violence charges, and although the prosecution moved to add drug charges, the motion was still pending when Garcia-Diaz disappeared in March 2005. His body was found in September 2005, and Martin Villanueva was arrested for the murder.

Villanueva retained Elliot, who had represented him in the past. Elliot advised Villanueva that the prosecution might seek to disqualify him because of his prior representation with Garcia-Diaz, and later Elliot entered into an agreement with the prosecution where neither party would mention his prior representation of Garcia-Diaz. The trial court was never told about the conflict of interest.

At trial in 2006, the prosecution’s theory of the case was that Garcia-Diaz was about to enter into an agreement with the prosecution and would have laid the blame on Villanueva, his supplier, so Villanueva shot him at a crucial time. In fact, as Elliot knew, Garcia-Diaz had not negotiated at all with the prosecution and was not preparing to blame Villanueva, but because of his agreement Elliot could not rebut the prosecution’s theory.

Villanueva was eventually convicted and sentenced to life in prison without the possibility of parole. His conviction was affirmed on direct appeal. He then filed a Crim. P. 35(c) motion alleging that Elliot’s performance was deficient because he had a conflict of interest that adversely affected his trial performance. The district court denied the postconviction motion.

On appeal, the court of appeals evaluated Villanueva’s claims under the framework set forth in West v. People, 2015 CO 5, which clarified the correct standard for evaluating conflict of interest claims. Under West, to show an adverse effect from a conflict of interest, the defendant must identify a plausible defense or strategy, show that the alternative strategy was objectively reasonable, and establish that counsel’s failure to pursue the alternative strategy was linked to the conflict. Villanueva contended that Elliot was ineffective for failing to rebut the prosecution’s theory of the case. The trial court determined that because Villanueva showed only a potential conflict, not an actual conflict, his argument failed. However, under West, Villanueva needed only to show a potential conflict.

The court of appeals remanded for the district court to consider whether Elliot’s duties to Garcia-Diaz were inherently in conflict with Villanueva’s suggested alternative strategy of rebutting the prosecution’s evidence regarding whether Garcia-Diaz was about to snitch on Villanueva.

Colorado Court of Appeals: Defendant Must Personally Waive Presence During Crucial Times of Trial

The Colorado Court of Appeals issued its opinion in People v. Janis on Thursday, May 5, 2016.

Erin Janis stabbed Farest Logan outside a bar on Colfax. Janis, who was quickly apprehended by police, admitted to stabbing Logan, but asserted she did it in self-defense because he had helped someone else rape her and had assaulted her previously that day. Logan said he was just standing outside the bar when Janis stabbed him. Janis was charged with first degree assault.

At trial, defense counsel approached the bench during Logan’s testimony and informed the court that Janis was suffering ill effects from her psychiatric diagnoses and needed to leave the courtroom. The court granted defense counsel’s request without questioning Janis. She was ultimately convicted and sentenced to 12 years in prison, and appealed her sentence and conviction.

The court of appeals addressed whether a defendant in custody can waive appearance through counsel, and determined that it could not. Janis was in custody during the trial and was available for the court to question her regarding whether waiving her right to confront Logan was voluntary. Because the right to confront adverse witnesses is grounded in the Sixth Amendment and is fundamental, Janis was deprived of her right to a fair trial by not personally waiving her appearance.

The judgment was reversed and the case was remanded for a new trial.

Colorado Court of Appeals: Res Gestae Evidence Appropriate when it Shows Defendant’s Prior Conduct with Victim

The Colorado Court of Appeals issued its opinion in People v. Galang on Thursday, May 5, 2016.

Victim moved to California from the Philippines in 2004, and met Defendant at work that same year. Defendant and Victim maintained a “very close” relationship, and when Victim moved to Colorado and married, she continued to see Defendant when she visited California.

In 2011, Victim began receiving emails from a Yahoo email account under the name “Holycrap Imbatman” (Batman). Batman requested that Victim send photos and videos of herself doing sexual acts, and threatened to tell immigration officials she had “married for papers” or tell her then-boyfriend she was having sex with other men if she did not send the photos and videos.

Victim reported the emails to the Douglas County Sheriff’s Office, and that office continued corresponding with Batman as if it were the victim. The sheriff’s office set up a rendezvous with Batman in California, and defendant showed up. Defendant was arrested and charged with computer crime, extortion, criminal impersonation, stalking, and harassment.

The trial court dismissed the computer crime charge and Defendant was convicted on the other four charges. He appealed, and the People cross-appealed the trial court’s dismissal of the computer crime charge.

The court of appeals disagreed with defendant’s contention that the trial court erred in admitting evidence of his prior requests for naked pictures of Victim. On plain error review, the court of appeals found the evidence was admissible res gestae evidence. The evidence tended to show why defendant would have wanted naked pictures of the victim, because he had asked for such pictures before.

As to the People’s cross-appeal, the court of appeals agreed that the trial court should not have dismissed the computer crime charge, and disapproved of the dismissal. The trial court asserted that the charge was unnecessary because there was not an assigned penalty, but the court of appeals disapproved of this reasoning. The court of appeals noted that the elements of computer crime were met, and although Victim suffered no damages, the court of appeals read the statute as not requiring a showing of damages. The court of appeals disapproved of the trial court’s judgment of acquittal on the computer crime charge.

The judgment of conviction was affirmed and the computer crime acquittal was disapproved.

Tenth Circuit: Mandamus Unavailable when Appeal in Normal Course will Supply Remedy

The Tenth Circuit Court of Appeals issued its opinion in Feinberg v. Commissioner of Internal Revenue on Friday, December 18, 2015.

Petitioners Neil Feinberg, Andrea Feinberg, and Kellie McDonald operate Total Health Concepts, or THC, an authorized Colorado marijuana dispensary. After the Internal Revenue Service (“IRS”) disallowed their business expense deductions and sent them a large bill, on the ground that their conduct violates federal criminal drug laws, the petitioners challenged that ruling in tax court. In the tax court proceedings, the IRS issued discovery requests asking the petitioners about the nature of their business in order to establish that petitioners are indeed trafficking in marijuana. The petitioners resisted these requests by asserting that their Fifth Amendment privilege against self-incrimination relieved them of the duty to respond. In response, the IRS filed with the tax court a motion to compel production of the discovery it sought, arguing because the Department of Justice’s memorandum on the legalization of marijuana by the states generally instruct federal prosecutors not to prosecute cases like this one, the petitioners should be forced to divulge the requested information. The tax court granted the motion to compel and ordered the petitioners to produce the requested discovery. In seeking to overturn this ruling, because the tax court proceedings were ongoing, the petitioners sought a writ of mandamus from the Tenth Circuit Court of Appeals.

The Tenth Circuit ultimately denied the petition for a writ of mandamus made by petitioners. The court based this denial on two independent grounds. First, the court invoked the rule that a writ of mandamus isn’t available when an appeal in the normal course would suffice to supply any necessary remedy, and more specifically, the rule established in Mid-America’s Process Service v Ellison, that any error in a court’s order compelling production of civil discovery that the petitioners believed protected the Fifth Amendment could be satisfactorily redressed in an appeal after final judgment. The court found the rule in Mid-America’s Process Service is controlling and dispositive of the issue.

Alternatively, the Tenth Circuit determined even if Mid-America’s Process Service didn’t control this case at bar, the petitioners offered no persuasive reason for thinking an appeal after final judgment would fail to remedy any wrong they might suffer. The court left open the possibility that a future party in this context may be able to put fourth a convincing argument as to why the immediate remedy of mandamus is necessary to prevent an irreparable injury. However, the petitioners here were unable to do so. And that by itself, the court reasoned, supplies an independent reason – beyond the controlling precedent of Mid-America’s Process Service – to withhold the extraordinary remedy of mandamus in this case.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 5/9/2016

On Monday, May 9, 2016, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Davis v. Brownback

United States v. Handy

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