June 16, 2019

Tenth Circuit: Attorney-Client Privilege Belongs to Party who Hires Attorney, Not its Executives

The Tenth Circuit Court of Appeals issued its opinion in United States v. Merida on Tuesday, July 12, 2016.

Jason Merida was the executive director of construction for the Choctaw Nation. After an investigation revealed he had engaged in several acts of fraud to the detriment of the Nation, he was charged with several counts related to embezzlement, conspiracy, and failing to report income on his tax returns. Prior to trial, Choctaw’s attorney interviewed Merida. At the beginning of the interview, the attorney informed Merida that he was the attorney for the Nation and the interview was covered by the attorney-client privilege.

The Nation allowed portions of the interview to be used at trial to impeach Merida. When the impeachment testimony was admitted, Merida’s counsel objected and requested a bench conference. He moved for a mistrial, arguing the transcript was protected by the attorney-client privilege because the Nation’s attorneys were acting as Merida’s attorneys during the interview. The district court denied the motion, finding that any privilege belonged to the Tribe. The trial proceeded. After several hours of jury deliberations, the jury delivered to the court a note stating, “We can’t agree on a single count. What are your directions?” The court provided a modified Allen instruction and suggested that they adjourn for the evening and reconvene in the morning. The jury requested to be allowed to vote before adjourning, and quickly returned verdicts of guilty on six counts and not guilty on one count. Merida was sentenced accordingly and appealed, contesting only the court’s denial of his motion for mistrial.

The Tenth Circuit found no error in the district court’s determination that any privilege belonged to the Nation, and further found that its precedent required that determination. The Circuit noted that the Nation’s attorney did not aver that he was Merida’s attorney, but rather said that he was representing the Nation and any conversation was covered by the attorney-client privilege. Merida argued he reasonably believed the attorney was working for him, but the Circuit disagreed, noting that the privilege only applies where the client has sought out the attorney’s services. Since Merida was summoned by the Nation and had not requested the attorney’s services, the privilege did not apply to him.

The Tenth Circuit further evaluated any error that may have been caused, and determined it was harmless beyond a reasonable doubt. The evidence of Merida’s guilt was overwhelming, whereas the questioning that provoked Merida’s motion for a mistrial was only a few pages of the 5,000 page transcript. Merida also argues that it was a “close case” based on the jury’s note that it could not agree on a single count, but the Tenth Circuit found that the circumstances of the case strongly supported a reading that the jury had agreed on six of the seven counts but could not agree on the seventh—a “single” count.

The Tenth Circuit affirmed the district court’s denial of a mistrial because the attorney-client privilege belonged to the Nation. Judge Lucero wrote a separate concurrence to emphasize that Merida could not have subjectively believed the attorney-client privilege to apply to him.

Colorado Court of Appeals: Pretrial Motion Insufficient to Preserve Issue for Appellate Review

The Colorado Court of Appeals issued its opinion in People v. Dinapoli on Thursday, February 12, 2015.

Assault—Jury—Modified Allen Instruction—Mistrial—Pretrial Ruling—Contemporaneous Objection.

K.M.’s dog and defendant’s dog “got into a tussle.” After the dogs separated, K.M. and defendant engaged in a physical altercation, during which defendant hit K.M. with a tree branch, dislocating her arm. Defendant claimed it was self-defense. The jury found defendant guilty of one count of second-degree assault.

On appeal, defendant contended that she was entitled to a new trial because the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict. In response to the jury’s concern that they could not reach a verdict on the fourth charge, the court gave the jury a modified Allen instruction and instructed the jury to continue deliberations (Allen v. United States, 164 U.S. 492 (1896)). Trial courts are not required to supplement a modified Allen instruction with a mistrial advisement. Therefore, defendant was not entitled to a new trial on this argument.

Defendant also contended that she was entitled to a new trial because the prosecutor committed misconduct by referring to K.M. as the “victim” during trial. Although defendant obtained a pretrial ruling that precluded the parties from referring to K.M. as the victim, she never sought to enforce that ruling at trial with a contemporaneous objection. Because this error was not obvious and did not constitute plain error, defendant was not entitled to a new trial on this argument. The judgment was affirmed.

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

Colorado Court of Appeals: Absence of Defendant During Allen Instruction May Have Prejudiced Jury

The Colorado Court of Appeals issued its opinion in People v. Payne on Thursday, July 3, 2014.

Allen Instruction—Constitutional Right—Jury Deliberations—Evidence—Theft—Value.

V.V.’s home was burglarized while he and his family were away. A neighbor, who had observed part of the burglary, reported that she had noticed a car parked near V.V.’s house. Four days after the burglary, police officers pulled over defendant and noticed that the vehicle he was driving matched the description the neighbor had given to the police. Defendant was subsequently found guilty of second-degree burglary and theft.

On appeal, defendant contended that his right to be present at his trial was violated when the trial court delivered a “modified Allen instruction” to the jury in his absence during jury deliberations and against his counsel’s objection. Because of the psychological influence his absence or presence may have on the jury, a defendant has a constitutional right to be present when a modified Allen instruction is read to a deadlocked jury. Therefore, the Court determined that defendant’s constitutional right was denied. Because the People failed to carry their burden of proving beyond a reasonable doubt that there was no possibility that defendant was prejudiced by his absence when the court read the instruction, defendant’s convictions were reversed.

Defendant also contended that the evidence was insufficient to support his conviction of theft of property valued between $1,000 and $20,000. V.V.’s testimony that the digital camera and video camera were worth a total of $780 was sufficient evidence of value for those items. However, V.V.’s testimony that the television cost $1,400 could not support an inference that the purchase price of the television was comparable to its fair market value at the time the offense was committed. Accordingly, the evidence was insufficient to sustain a conviction of class 4 felony theft of property valued between $1,000 and $20,000. The judgment was reversed, defendant’s sentence was vacated, and the case was remanded with directions.

Summary and full case available here.

Colorado Supreme Court: Trial Court Not Required to Inform Jury of Mistrial when Giving Modified Allen Instruction

The Colorado Supreme Court issued its opinion in Gibbons v. People on Monday, June 30, 2014.

Modified Allen Jury Instruction.

The Supreme Court overruled People v. Raglin, 21 P.3d 419 (Colo.App. 2000), in which a division of the court of appeals held that a modified Allen instruction [See Allen v. People, 660 P.2d 896, 898 (Colo. 1983).] “must inform the jurors that if it appears to the trial court that a unanimous decision cannot be reached, they will be excused and a mistrial declared.”

The Court held that a trial court is not required to provide a mistrial advisement when giving a modified Alleninstruction. The trial court has discretion to instruct a deadlocked jury about the possibility of a mistrial when, considering the content of the instruction and the context in which it is given, the instruction will not have a coercive effect on the jury. The court should consider exercising its discretion in rare circumstances—for example, when a jury has indicated a mistaken belief in indefinite deliberations. Applying this holding, the Court concluded that the trial court did not err by failing to instruct the jury about the possibility of a mistrial. The judgment was affirmed.

Summary and full case available here.