July 22, 2018

Archives for June 22, 2018

Hon. Thomas R. Ensor to Retire from 17th Judicial District Court

On Tuesday, June 19, 2018, the Colorado State Judicial Branch announced the retirement of Hon. Thomas R. Ensor from the 17th Judicial District Court, effective September 28, 2018. Judge Ensor was appointed to the Adams County Court in the 17th Judicial District in 1978, and was appointed to the district court in 1984. Prior to his appointment to the bench, Judge Ensor was a Deputy District Attorney in the 17th Judicial District. He received his undergraduate degree from Indiana University and his law degree from Indiana University School of Law.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the 17th Judicial District and must have been licensed to practice law in Colorado for five years. Application forms are available on the State Judicial website, or from the ex officio chair of the 17th Judicial District Nominating Commission, Justice Monica Marquez. Applications must be received no later than 4 p.m. on July 17, 2018, in order to be considered; anyone wishing to nominate another must do so no later than July 10, 2018.

For more information on the vacancy, click here.

Colorado Court of Appeals: Promissory Note is a Security, Therefore Conviction for Securities Fraud Appropriate

The Colorado Court of Appeals issued its opinion in People v. Thompson on Thursday, June 14, 2018.

Securities Fraud—Jury Instruction—Double Jeopardy—Propensity Evidence—Theft—Sentencing.

Defendant was the sole member of SGD Timber Canyon LLC (SGD), which held an interest in 63 undeveloped lots in the Timber Ridge subdivision. The lots went into foreclosure, and in February 2010 SGD filed for bankruptcy. Defendant did not disclose these facts to the Witts, who later loaned defendant $200,000 to acquire a lot in Timber Ridge and another $200,000 for construction of a home on the lot, with the understanding that the loans would be repaid with a profit share of as much as $400,000 when the home was sold to a prequalified buyer. Later, at defendant’s urging, the Witts increased the loan to $2.4 million and converted their investment into a “bridge loan” to defendant, who represented that the proceeds would be used for continued development of Timber Ridge. The parties executed a promissory note and guarantee agreement. The promissory note was secured by defendant’s primary and secondary residences with collateral to convert the 24 lots in Timer Ridge upon closing and final purchase of Timber Ridge.

Defendant used the money on items not related to Timber Ridge and never developed the property there. Defendant defaulted on the note. He eventually repaid the Witts $70,000. Ultimately, the Witts sued defendant but did not recover any further monies from him. A jury found defendant guilty of two counts of securities fraud and one count of theft, and he was sentenced to 12 years in the custody of the Department of Corrections for each of the securities counts, to be served concurrently, and 18 years for the theft conviction, to be served consecutively to the other sentences.

On appeal, defendant claimed that the evidence was insufficient to support his securities fraud convictions because the promissory note and guarantee he provided to the Witts did not constitute a security. The “family resemblance test” applies to determine when a note is a security under the Colorado Securities Act (CSA). Under the family resemblance test, a note is presumed to be a security, but that presumption may be rebutted by a showing that the note strongly resembles other financial instruments. Here, the Witts’ investment, memorialized by the promissory note, was a transaction protected by the CSA and did not strongly resemble the family of transactions that are not securities. The evidence was sufficient to support the securities fraud convictions.

Defendant also argued that the trial court erred by tendering an inaccurate jury instruction regarding the definition of a security. Defendant did not object to the definition of security that was given to the jury, nor did he tender an alternative instruction. The law regarding the definition of a security was not well settled at the time of defendant’s trial, and thus any error in the jury instruction would not have been obvious or plain.

Defendant also claimed that his convictions and sentences for securities fraud violated double jeopardy because they are alternative ways of committing the same offense, and therefore the two counts should be merged. Defendant failed to raise this issue before the trial court. Here, defendant was charged with and convicted of multiplicitous counts of securities fraud because the evidence showed a sale of one security to one investor based on one set of false or misleading statements. But the law was not well-settled concerning the proper unit of prosecution, so there was no plain error.

Defendant further contended that there was insufficient evidence to support his theft conviction. Although the funds were supposed to be used to develop Timber Ridge, defendant used the funds to pay his own attorney fees, to improve the house that his wife continued to occupy at the time of trial, and for other personal expenses. Therefore, there was sufficient evidence to support the conclusion that defendant knowingly obtained the Witts’ money by deception and intended to permanently deprive them of it.

Defendant also argued that the court erred by admitting propensity evidence that defendant had previously attempted to sell a lot in Timber Ridge that he did not own. However, the evidence was logically relevant to prove identity, motive, knowledge, and lack of mistake, and the probative value was not substantially outweighed by the danger of unfair prejudice.

Lastly, defendant argued that his sentence for theft must run concurrently with the concurrent sentences for securities fraud because the crimes are based on identical evidence. Here, different evidence supported each offense, so there was no sentencing error.

The judgment and sentence were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Grand Jury Foreman’s Failure to Sign Indictment Did Not Deprive Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Tee on Thursday, June 14, 2018.

Criminal Procedure—Grand Jury—Attempt to Influence a Public Servant—Jury—Predeliberation—Waiver—Evidence.

Tee was convicted of multiple charges, including two counts of attempting to influence a public servant.

On appeal, Tee contended that because the indictment received by the district court did not contain the signature of the grand jury foreperson, it did not confer jurisdiction and all charges must be dismissed. However, the signature of the foreperson need not be provided to the district court, and the court had jurisdiction.

Tee also contended that because two jurors engaged in predeliberation, he is entitled to a new trial. Here, defense counsel waived any error as to predeliberation.

Tee further argued that the two convictions for attempting to influence a public servant must be vacated because there was insufficient evidence supporting the convictions. Here, Tee was convicted of two counts of attempting to influence a public servant based on evidence that he made false reports of car accidents. The evidence was sufficient to support one count of attempting to influence a public servant where Tee provided information in person to a police officer who created a report based on what Tee had told him. However, the evidence was insufficient as to the other count where Tee filled in an accident report form on a computer terminal at a kiosk in the police department, because it did not show that Tee was attempting to influence a public servant.

Lastly, the attorney general conceded that the trial court violated Tee’s double jeopardy rights because it orally announced a 12-year sentence but the mittimus showed an 18-year sentence. The mittimus also incorrectly showed a conviction on a count that was dismissed.

The judgment was vacated as to one count and otherwise affirmed. The case was remanded to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 6/21/2018

On Thursday, June 21, 2018, the Colorado Court of Appeals issued no published opinion and 48 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 6/21/2018

On Thursday, June 21, 2018, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Mosley

Mitchell v. Brennan

Bush v. Allbaugh

United States v. Vann

Dardick v. UNUM Life Insurance Co. of America

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