Summaries of Selected Opinions, 0519 COBJ, Vol. 48, No. 5 Pg. 76

PositionVol. 48, 5 [Page 76]

48 Colo.Law. 76

Summaries of Selected Opinions

Vol. 48, No. 5 [Page 76]

Colorado Lawyer

May, 2019


No. 18-3003. United States v. Orozco. 2/26/2019. D.Kan. Judge Kelly. Prosecutorial Misconduct— Sixth Amendment—Witness Interference—Appropriate Remedy.

Defendant was charged with drug-related crimes. Defendant intended to call a witness (the witness) who would have testified in contradiction to one of the government's witnesses. The witness had a pending federal drug case. The court agreed to allow the prosecutor to interview the witness during a recess before he testified. After the recess, the witness no longer wanted to testify. Defendant alleged that the prosecutor had told the witness's attorney to tell the witness that "if you get in my way, I'm going to get in your way."

The prosecutor denied discussing the effect of the witness's testimony on his pending drug charge, stating she only discussed the possibility of perjury consequences if he lied under oath. The district court proceeded with the trial, but agreed to hold a separate hearing to investigate the allegations against the prosecutor. A jury convicted defendant of drug-related crimes. He filed a motion for a new trial, alleging the government violated the Sixth Amendment by interfering with his right to call a witness. After two hearings, the district court determined that the prosecutor's statements went beyond a simple perjury warning and threatened the witness with possible perjury charges and adverse consequences in his own case if he testified. The district court granted defendant's motion, vacated his convictions, and dismissed the underlying counts of the superseding indictment.

On appeal, the government argued that the district court clearly erred in finding that defendant's right to a defense was violated by the prosecutor's conduct and the witness's subsequent refusal to testify. Here, although the government disputed the occurrence and content of the prosecutor's comments, the district court had considered and expressly rejected the government's position. Moreover, the Sixth Amendment error was not harmless beyond a reasonable doubt. The district court did not clearly err in determining that defendant's Sixth Amendment rights were violated. Further, the district court did not err in vacating defendant's convictions and ordering a new trial.

The government also argued that the district court abused its discretion by dismissing the indictment with prejudice rather than ordering a new trial. Dismissal is an extraordinary remedy to be used only in cases of serious and flagrant prosecutorial misconduct. A court may dismiss an indictment only when the defendant has been prejudiced. Here, the district court had less drastic remedies available to minimize prejudice to defendant, including postponing his trial until after the reluctant witness was sentenced in his own case. Even if it found the prosecutor had acted in bad faith, the district court was required to narrowly tailor its remedy. The district court abused its discretion in dismissing the superseding indictment with prejudice rather than ordering a new trial.

The judgment was affirmed in part and reversed in part, and the case was remanded. No. 18-9005. Feinberg v. Commissioner of Internal Revenue. 2/26/2019. U.S. Tax Court. Judge McHugh Medical Marijuana Dispensary— Business Income and Losses—Fifth Amendment Privilege—Unlawful Trafficking of Controlled Substances.

Feinberg and two others (die taxpayers) were shareholders in Total Health Concepts, LLC (THC), a Colorado company engaged in selling medical marijuana. They claimed THC's income and losses on their tax returns, but die Internal Revenue Service (IRS) disallowed certain deductions as prohibited for businesses engaged in unlawful trafficking of controlled substances, pursuant to 26 U.S.C. § 280E. The tax court affirmed on die basis that the taxpayers had failed to substantiate their business expenses.

On appeal, both parties agreed that...

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