March 26, 2019

Colorado Court of Appeals: Defense Counsel’s Error in Declining to Object to Inapplicable Jury Instruction Amounted to Forfeiture

The Colorado Court of Appeals issued its opinion in People v. Ramirez on Thursday, February 7, 2019.

Criminal Law—Jury Instructions—Waiver—Forfeiture.

Defendant was convicted in one trial of charges stemming from four consolidated criminal cases. This case was remanded from the Supreme Court to reconsider the disposition of the conviction for first degree assault in light of People v. Rediger, 2018 CO 32.

On remand, Ramirez argued that the trial court’s jury instruction on deadly physical force, which related to the charges of first degree assault, second degree assault, and third degree assault, was improper. It was error for the court to instruct the jury on deadly physical force because defendant was not accused of causing death. By giving an inapplicable instruction and incorporating it into the elemental instruction for first, second, and third degree assault, the court would have caused the jury to have an incorrect understanding of the elements of those charges. The prior court of appeals’ division concluded that Ramirez had waived his contention of instructional error because his defense counsel stated he believed the instruction to be “a correct statement of the law,” and therefore declined to consider it. Defense counsel apparently lacked awareness of the error. Under these circumstances, the court could not conclude that counsel intentionally relinquished a known right on defendant’s behalf. Here, defense counsel’s error in declining to object to the jury instruction amounted to a forfeiture, not a waiver. The trial court committed plain error.

The conviction of first degree assault was reversed and the case was remanded for a new trial solely as to that charge. In all other respects, the judgment was affirmed.

Summary provided courtesy of  Colorado Lawyer.

Tenth Circuit: Allowing Recovery for Lost Horses Would Effectively Nullify State Forfeiture Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Campbell v. City of Spencer on Tuesday, December 16, 2014.

The City of Spencer, Oklahoma, along with the Town of Forest Park and Blaze Equine Rescue seized 44 emaciated and malnourished horses from Ann Campbell’s three properties pursuant to a search warrant issued for one of the properties. The City and Town filed a joint petition in Oklahoma County District Court for forfeiture of the horses as a remedy for animal abuse. During the forfeiture proceeding, Campbell did not raise any argument regarding the scope of the search warrant. The court granted the forfeiture petition, the Oklahoma Court of Civil Appeals affirmed, and the Oklahoma Supreme Court denied certiorari.

Campbell subsequently filed a § 1983 action in the U.S. District Court for the Western District of Oklahoma, claiming that the municipalities and Blaze had violated the Fourth Amendment in two ways: (1) by withholding from the search warrant information about Campbell’s plan to reduce the number of horses, and (2) by searching the two locations not listed on the warrant. The municipalities filed motions to dismiss on preclusion grounds, since Campbell did not raise her arguments in the state forfeiture proceeding. Blaze filed a motion for summary judgment on preclusion grounds. The district court granted the motions. Campbell appealed.

The Tenth Circuit affirmed the district court, finding the exclusionary rule applied in Oklahoma state forfeiture proceedings and Campbell could have raised her claims in that proceeding. Campbell asserted that the state court judge refused to consider the legality of the evidence, but the Tenth Circuit reviewed the record and  found no evidence of such refusal. Campbell also suggested that suppression issues could not be raised in state court proceedings, which was an incorrect understanding of the law. Because of its conclusion that Campbell could have raised her claims in state court, the Tenth Circuit next considered whether allowing her to pursue the claims in federal court would nullify the original proceeding. The Tenth Circuit could not state with certainty whether barring the suppression would nullify the forfeiture proceeding, but found that allowing Campbell to pursue her claims would impermissibly impair the municipalities’ rights as established in the state court. The Tenth Circuit noted that allowing Campbell to recover the value of the lost horses would suggest the invalidity of the state court’s forfeiture order, and declined to allow recovery.

The Tenth Circuit affirmed the district court’s dismissal as to the municipalities and grant of summary judgment as to Blaze.

Colorado Supreme Court: Trial Court Lacked Authority to Order Return of Funds in Forfeiture Case

The Colorado Supreme Court issued its opinion in People v. $11,200.00 U.S. Currency and Strand on Tuesday, November 12, 2013.

Public Nuisance Statute—Civil Forfeiture Proceedings.

The Supreme Court held that CRS § 16-13-307(1.6) of the public nuisance statute, which is a specialized proceeding governing civil forfeiture actions, provides for the dismissal of a forfeiture claim and the return of seized property only when the underlying criminal charge is dismissed by a trial court. It does not apply where the underlying criminal case is dismissed following a reversal of the related criminal conviction on appeal when a judgment of forfeiture has already entered. Here, defendant sought the return of $11,200 that was forfeited, distributed, and spent by the receiving agencies three-and-a-half years before his criminal conviction was dismissed following reversal by the court of appeals. Because CRS § 16-13-307(1.6) did not apply to this case, where the forfeiture claim had ripened into a forfeiture judgment years before defendant’s criminal conviction was dismissed, the court of appeals’ judgment was reversed.

Summary and full case available here.

Tenth Circuit: Securities Fraud Conviction and Sentence Affirmed; Forfeiture Orders Upheld

The Tenth Circuit published its opinion in United States v. Gordon on Friday, March 15, 2013.

Defendant-Appellant George David Gordon is a former securities attorney convicted of multiple criminal charges relating to his alleged participation in a “pump-and-dump” scheme where he, along with others, violated the federal securities laws by artificially inflating the value of various stocks, and then turning around and selling them for a substantial profit. He was sentenced to 188 months in prison and was ordered to pay $6,150,136 in restitution. The government also restrained some of his property before the indictment was handed down and ultimately obtained criminal forfeiture of that property.

Gordon raised numerous arguments on appeal. He argued that the he was deprived of the Sixth Amendment right to counsel because the government placed restraints on various property, including two of his law firm accounts, so he lacked the funds to pay for counsel of his choice. In deciding against Gordon on this issue, the Tenth Circuit refused to consider trial brief arguments he attempted to incorporate into his appellate brief by reference as that is disapproved. After reviewing his appellate arguments, the court agreed with the trial court that Gordon failed to show he was denied access to funds to pay for his defense in any substantial sense. He paid his defense counsel over $900,000 and “counsel remained fully and actively engaged in the case throughout the entire trial court proceedings.”

Next, Gordon challenged the sufficiency of the evidence. In connection with misleading promotional material sent or paid for by the conspirators, Gordon contended that under Rule 10b-5 he had no liability because he had no duty to disclose. Once a party elects to disclose material facts, however, the party has a duty to speak truthfully and correct misstatements. The Tenth Circuit found “substantial evidence that many aspects of the information disseminated in the promotional campaigns were false and misleading, and that misleading statements went uncorrected by numerous material omissions.” The court also found sufficient evidence that Gordon prepared or endorsed false opinion letters and that he violated 18 U.S.C. § 1512(c)(2) when he had a friend sign backdated documents to present to the government in an attempt to prevent the forfeiture of his home.

Gordon complained that the district court erred in permitting the government to insinuate guilt by introducing evidence that infringed upon his Fifth Amendment right to remain silent. At trial, the government offered the testimony of Lindberg to establish that he and Gordon had discussed who should be permitted to testify in the proceedings before the SEC. Two additional witnesses testified that Gordon advised them to take the Fifth Amendment. The testimony was offered to corroborate Lindberg’s testimony that he and Gordon had essentially calculated a cover-up strategy. The Tenth Circuit rejected Gordon’s claim that this tactic tainted the invocation of his own Fifth Amendment right not to testify at trial because it did not refer to his right.

The court rejected Gordon’s argument that the district court erred by excusing a juror without adequate cause. The juror had informed court staff that her continued presence on the jury could affect the outcome of the case. The district court determined the juror had not contaminated the rest of the jury and dismissed her for potential bias. The court did not address whether the trial court abused its discretion because even if it had, the juror’s dismissal did not cause any prejudice to Gordon.

The court also rejected Gordon’s claim that the trial court violated the Speedy Trial Act. The trial court properly identified the complex nature of the case and the voluminous records that would take additional time for the parties to organize and analyze when it granted an ends-of-justice continuance. Gordon’s interlocutory appeal and pending trial court motions created additional periods of delay that were excludable from the Act.

Gordon’s challenges to his sentencing also failed. In fraud cases where loss cannot be accurately calculated, a sentence may be based on gain. The court found no error in the trial court’s calculations, but even if it had, the error would be harmless because of the court’s downward variance from the sentencing guidelines. The court also properly included Gordon’s co-conspirators gains in making sentencing calculations.

Finally, the district court did not err in making its forfeiture orders. The defendant’s conviction and sentence were affirmed.