August 21, 2019

Colorado Supreme Court: Water Court Entitled to Draw Reasonable and Commonsense Inferences from Circumstances Before It

The Colorado Supreme Court issued its opinion in People v. Sease on Tuesday, November 13, 2018.

Contempt—Acts or Conduct Constituting Contempt of Court.

In this direct appeal, the supreme court reviewed the water court’s contempt order, which imposed punitive and remedial sanctions on defendant. The water court determined that defendant was responsible for work performed on his property, the Sease Ranch, which caused out-of-priority depletions of water from Sheep Creek in violation of a court order. In its ruling, the water court inferred from defendant’s ownership of the Sease Ranch that he, not someone else, was responsible for the contemptuous work.

The court concluded that the water court had ample evidence to find that defendant is the owner of the Sease Ranch. Further, the court determined that the water court did not shift the burden of proof to defendant. The water court was entitled to draw reasonable and commonsense inferences from the circumstances before it. Thus, it was appropriate for the water court to consider the lack of evidence, and the corresponding improbability, that someone else entered the Sease Ranch and performed the contemptuous work without defendant’s authorization.

Accordingly, the water court’s judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Attorney’s Failure to Appear at Rescheduled Hearing Justified Finding of Contempt

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Friday, November 14, 2014.

Miguel Ramon Velasco was Adrian Hernandez’s criminal attorney. In the criminal proceeding, Hernandez pleaded guilty to two counts of an indictment charging conspiracy to distribute a controlled substance. On the day before a scheduled hearing to change his client’s plea, Velasco filed a motion for continuance, citing a problem with his computer. The court granted the continuance and the hearing was rescheduled for a date two months later. Again, the day before the hearing, Velasco filed a motion to continue. The court granted the motion but admonished Velasco that no more continuances would be granted. The parties agreed on August 7, 2013, for the hearing date.

Ten days before the third hearing date, Velasco again filed a motion to continue, citing a family vacation that could not be postponed due to his children’s school schedules. Velasco asserted that his client would not agree to substitute counsel. The court did not grant the continuance, and substitute counsel appeared at the hearing, to which Hernandez objected. Substitute counsel made an oral motion for continuance, and the court, recognizing the prejudice to Hernandez if a continuance was not granted, agreed. The court directed Velasco to show cause why he should not be held in contempt of court. At the show cause hearing, the court discovered that Velasco had knowingly made vacation plans after agreeing upon the hearing date. The court held Velasco in contempt and imposed a $2,000 fine. The following day, Velasco filed a motion to reconsider, citing the fact that his client’s brother had agreed to substitute counsel, but not explaining why the brother had any authority to so agree. The court entered an opinion and order reaffirming its finding of contempt, and Velasco appealed.

Velasco asserted five points of error, each generally arguing that the court erred by employing the summary contempt procedures in F.R.C.P. 42(b) for direct contempt rather than the full notice-and-hearing procedures from F.R.C.P. 42(a) for indirect contempt. Velasco contended that review should be conducted for abuse of discretion. However, since he did not properly raise his objections in the lower court, the Tenth Circuit reviewed for plain error and found none. Under a plain error review, the court must find that (1) there was error, (2) that was plain, and (3) the plain error affected his substantial rights. If these three criteria are met, the court may act to correct the error if it seriously affects the fairness or integrity of the proceedings. The Tenth Circuit found that Velasco’s arguments failed at the second step because it is not plain that his contempt was direct. The Tenth Circuit briefly explained the differences between direct contempt and indirect contempt, and found that it was plain to the trial judge and to the Tenth Circuit that his planned vacation was directly subversive of the court’s previous ruling.

The contempt order and fine were affirmed.

Colorado Court of Appeals: Default Judgment Improper Sanction for Nonappearance at Trial Where Attorney Present

The Colorado Court of Appeals issued its opinion in People in Interest of K.J.B. on Thursday, December 4, 2014.

Dependency and Neglect—Right to a Jury Trial—Appearance by Counsel but not Defendant.

The Park County Department of Human Services (department) took the subject child into protective custody, placed the child with her father, and filed a petition in dependency and neglect. Mother denied the allegations in the petition and requested a trial to the court. Shortly thereafter, mother filed two written demands for a jury trial. The court denied mother’s requests.

Until that point in the proceedings, mother had participated by telephone; however, she was ordered to personally appear for the adjudicatory trial. She failed to appear, but her counsel appeared on her behalf. The department requested that a default judgment be entered against mother for failing to personally appear. Without hearing evidence, the court sustained the department’s allegations under multiple provisions of CRS §19-3-102(1) and adjudicated the child dependent and neglected by default judgment. It also adopted a treatment plan for mother. Mother appealed the adjudicatory order.

Nonappearance at trial does not constitute a failure “to plead or otherwise defend,” and is not a reason on which entry of a default can be predicated. The court could have received evidence in mother’s absence and then rendered judgment. Because the trial court did not state the legal authority it relied on to enter default judgment against mother for failing to appear, the Court of Appeals inferred that the judgment was entered as a sanction against mother. Although the court has contempt powers under CRCP 107, the rule does not authorize default judgment as a sanction for contempt. The Court therefore held that the trial court exceeded its authority in entering the default judgment. The order was reversed and the case was remanded for a trial.

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

Tenth Circuit: Sanctions Reversed for Lack of Notice and Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Melot on Friday, September 26, 2014.

Katherine Melot (plaintiff) and her husband Billy owe the government millions of dollars in federal taxes, and Billy is serving a prison sentence for tax crimes. The tax debt led the government to foreclose on the Melots’ properties. The Melots tried to stop the foreclosures using fraudulent methods — namely, by asserting liens on the property in the name of Stephen Byers, an incarcerated and destitute person. The liens and Byers’ motion to intervene in the foreclosure proceedings were signed by Mrs. Melot and they were mailed from the address of a friend of the Melots. The government suspected fraud and, at the hearing on the motion to intervene, presented evidence tending to show the scheme between Melot and Byers.

At the hearing, Mrs. Melot’s counsel requested notice prior to the imposition of any sanctions, and the magistrate noted that the Melots would be noticed on any hearing regarding the contempt. The magistrate certified criminal contempt by the Melots. More than a year later, the district court issued an order addressing the contempt certifications, and, recognizing the costs of prosecuting a criminal contempt matter, declined to order contempt, instead imposing the following sanctions: (1) removal of Mrs. Melot and her children from the property; (2) reimbursement of the government’s costs for the hearing; (3) striking the Melots’ pending motions, responses to motions, and requests for stays; and (4) imposing filing restrictions.

Mrs. Melot appealed the sanctions, arguing the district court violated the Fifth Amendment’s Due Process clause by imposing sanctions without giving the Melots notice and an opportunity to be heard. The Tenth Circuit agreed. Sanctions cannot be imposed without notice that sanctions are being considered by the court and a subsequent opportunity for the defending party to be heard. Although the magistrate had provided notice of the possibility of criminal contempt, there was no notice of the imposition of sanctions. The Tenth Circuit reversed the district court’s sanction order and remanded for further proceedings, noting that the district court was not barred from re-imposing sanctions after proper notice and hearing.

Colorado Court of Appeals: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Colorado Court of Appeals: Trial Court’s Imposition of Fine in Excess of Damages Upheld

The Colorado Court of Appeals issued its opinion in In re Estate of Hossack: Robinson v. Hossack on Thursday, April 25, 2013.

Contempt—Fine as Remedial Sanction for Contempt.

Gladys Robinson appealed the trial court’s order denying her motion to set aside a judgment in favor of decedent’s children and against Robinson in the sum of $231,300. The order was affirmed.

Robinson lived with the decedent, Charles Erroll Hossack, at the time of his death. Following the settlement of his estate, the court ordered her to return specified items of personal property to Lori and Kirk Hossack, decedent’s children. Robinson did not comply.

In a written order issued November 14, 2007, made effective nunc pro tunc August 21, 2007, the court found Robinson in contempt because she did not return the property. Robinson did not timely appeal the contempt order and did not comply with its terms. The fines that were imposed ($100 per day and later $1,000 per day) eventually accumulated to a sum of $231,300.

The decedent’s children moved to reduce this amount to judgment in March 2008. This motion was granted in January 2010, with interest accruing at 8% annually.

Robinson moved under CRCP 60(b)(3) to set aside the judgment. She argued that the amount of the fine should have been limited to any damages the decedent’s children may have suffered. The trial court denied the motion, and Robinson appealed.

CRCP 60(b)(3) allows a court to grant a party relief from a void judgment. Robinson based her argument on cases and language in CRCP 107(d) that limited the amount of a remedial fine to the damages the adverse party suffered. Due to amendments to the rule, effective April 1, 1995, the rule now defines remedial sanctions for contempt to be “[s]anctions imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.” It also empowers the court to continue to fine a contemnor until an act ordered to be performed is performed.

Robinson also argued that any fine could only be payable to the court and not to decedent’s children. The Court found no authority for this argument. Accordingly, the order was affirmed.

Summary and full case available here.

Tenth Circuit: No Appellate Jurisdiction Where Grand Jury Subpoena Complied With

The Tenth Circuit published its opinion in In re Grand Jury Subpoena on Friday, March 1, 2013.

The appellant was the sole member of a limited liability company (LLC) whose federal income taxes were being investigated by a grand jury. The “Custodian of Records” of the LLC was subpoenaed to bring LLC records to the grand jury. As the records custodian, the appellant moved to quash the subpoena duces tecum on the ground that it violated his personal Fifth Amendment privilege against self-incrimination. The district court denied the motion to quash and refused to grant a stay pending appeal. The appellant complied with the district court’s order to produce the records.

A protesting grand jury witness may seek appellate review only after the witness refuses to obey the subpoena and is held in contempt. The appellant argued that he came within the Perlman exception that allows a witness to appeal based on a third party’s intent to produce records. The appellant’s argument that the subpoena was directed to the custodian of records of the LLC and the capacity in which he claimed a privilege—as an individual entitled to the protection of the Fifth Amendment—was distinct from his capacity as the LLC’s records custodian did not qualify as a third-party situation. The Tenth Circuit dismissed the appeal because it lacked jurisdiction.