committed a series of theft- and fraud-related crimes. 2 In February 2012, the prosecution filed a second case by The People of the State of Colorado, information that contained numerous similar counts. The prosecution moved to join the two cases. But defendant objected, v. Raymond L. Marshall, and the court denied the prosecution’s motion. 3 A jury acquitted defendant in the first case. He then asked the court to dismiss the second case because the charges in that case

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COLORADO COURT OF APPEALS 2014 COA 42 Court of Appeals No. 12CA1648 El Paso County District Court No. 12CR468 Honorable Barney Iuppa, Judge ¶1 A grand jury indicted Raymond L. Marshall, the defendant here, in November 2009. The indictment alleged that he had committed a series of theft- and fraud-related crimes. ¶2 In February 2012, the prosecution filed a second case by The People of the State of Colorado, information that contained numerous similar counts. The Plaintiff-Appellant, prosecution moved to join the two cases. But defendant objected, v. and the court denied the prosecution s motion. Raymond L. Marshall, ¶3 Defendant-Appellee. JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS Division V Opinion by JUDGE BERNARD Graham and Berger, JJ., concur Announced April 10, 2014 A jury acquitted defendant in the first case. He then asked the court to dismiss the second case because the charges in that case should have been joined with the first case. The court agreed with defendant s argument and granted his request. ¶4 This appeal asks this question: Does defendant s successful objection to the prosecution s motion to join the two cases bar Daniel May, District Attorney, Robyn Cafasso, Chief Deputy District Attorney, Alan Anderson, Deputy District Attorney, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant Haddon, Morgan and Foreman, P.C., Norman R. Mueller, Denver, Colorado, for Defendant-Appellee defendant s subsequent motion to dismiss the second case because it was not joined with the first? We conclude, under the circumstances of this case, that the answer to this question is yes. As a result, we reverse the trial court s judgment dismissing this case, and we remand it to the trial court to reinstate the charges. I. Background 1 ¶5 In the first case, a grand jury indicted defendant for securities would take time to file the new charges because it had to sort fraud, theft, conspiracy, and organized crime. These charges through the records of about 80 limited liability companies (LLCs) involved transactions between defendant and an investor. The trial and 100 bank accounts that defendant controlled. The court court later dismissed the organized crime charges. granted the motion, and it continued the trial to a date in mid- ¶6 In March 2011, while the first case was pending trial, the prosecution received a tip that led it to open a second investigation March 2012. ¶9 The prosecution filed the second case in mid-February 2012, into defendant s business activities. It informed defendant s about one month before the date of the trial in the first case. Five counsel of this investigation in July 2011, stating that it intended to days later, defendant filed a document stating that the charges in file new charges against defendant. the second case involved the same acts as the ones at issue in the ¶7 In September 2011, the prosecution filed a motion to continue first case. As a result, he contended, the mandatory joinder rule defendant s trial. This motion stated that a prosecution expert and found in section 18-1-408, C.R.S. 2013, and double jeopardy one of the prosecutors had encountered serious health problems. principles barred the prosecution of both cases. He further But it also referred to the new investigation, stating that the proposed that, because the prosecution could not proceed with both prosecutors goal was to complete the investigation and make a cases, it should dismiss the first case and proceed on the second. charging decision within ninety days. The motion alleged that, if ¶ 10 The prosecution rejected defendant s proposal at a hearing. the court denied the request for a continuance, the new and (One of the reasons was that, if it dismissed the first case, it would ongoing investigation and any subsequent filing of charges will be lose some of the charges in that case because of the statute of delayed. limitations. ) The trial court responded that, although it was not ¶8 During a hearing on this motion, the prosecution stated that it 2 entering a ruling, the prosecution was playing with fire because 3 the trial of the first case could have dire consequences for the functional amendment of the indictment in the first case, which second case. would violate Crim. P. 6.8; and (3) joining the cases would delay the ¶ 11 A week later, relying on Crim. P. 8(a)(2) (permissive joinder), Crim. P. 13 ( [t]rial [t]ogether of [i]ndictments, [i]nformations ), and trial, and he was ready to go. ¶ 13 The trial court then ruled, stating that it den[ied] the motion Crim. P. 14 ( [r]elief from [p]rejudicial [j]oinder ), the prosecution to join the two cases, and it den[ied] the motion to introduce res filed a motion that asked the court to join the second case with the gestae evidence. It did not explain its reasoning for these first. The motion stated that (1) the two cases were of the same or decisions. similar character ; (2) they were part[] of a larger scheme or plan of ¶ 14 The jury acquitted defendant in the first case. In mid-May action ; (3) defendant used 80 LLCs and 100 bank accounts as a 2012, he filed a motion to dismiss the second case. He relied on mechanism to commit the alleged crimes in both cases; (4) there several contentions, asserting that the second case was barred by were many witnesses who overlap[ped] between the two cases; (1) section 18-1-408(2), the mandatory joinder statute, because the (5) joining the two cases for trial would not prejudice defendant; (6) second case involved the same criminal episode as the first case; joining the two cases would require the court to continue the mid- (2) double jeopardy principles; (3) the doctrines of claim preclusion March 2012 trial; (7) a trial involving both cases would take and issue preclusion; (4) Crim. P. 6.8(a), which prohibits approximately three months ; and, (8) if the court did not join the substantive amendments of indictments; and (5) due process, two cases, the prosecution intended to present evidence from the because the prosecution s conduct, [w]hether through affirmative second case in the trial of the first case as res gestae. misconduct or plain negligence and claim splitting shenanigans ¶ 12 Defendant objected. He argued that (1) the first case had been pending for two-and-one-half years; (2) the second case was a 4 had forced defendant to endure years of unnecessary anxiety, caused his financial ruin, and devast[ated] his personal and 5 ¢ fundamental fairness require[d] that the two cases be tried professional life. ¶ 15 In late May 2012, the prosecution filed an amended information in the second case. Then, in late June 2012, it filed a together because they were inextricably intertwined. ¶ 17 The trial court expressly declined to rule on defendant s due written response to defendant s motion to dismiss the second case. process argument, although the court stated that it had serious The court held a hearing on defendant s motion two days later. reservations about whether there [were] due process violations in ¶ 16 After listening to testimony and argument, the court granted this case. defendant s motion to dismiss the second case. It stated that: ¢ the prosecution did not file the second case until about thirty days before the trial in the first case; ¢ it did not file the motion to join the two cases until nineteen days before the trial in the first case; ¢ the second case was subject to mandatory joinder with the II. Analysis ¶ 18 The prosecution does not challenge the trial court s conclusion that the two cases were subject to mandatory joinder rather than permissive joinder. But it does challenge the court s conclusion that section 18-1-408(2) bars prosecution of the second case. It submits that defendants should not be able to oppose the first case because both cases arose from the same criminal prosecution s effort to join two cases and then later assert that the episode ; prosecution cannot proceed with the second case because the court ¢ the prosecution s joinder motion was ineffective because it moved for joinder under the permissive joinder rule rather than the mandatory joinder rule; ¢ defendant s opposition to the permissive joinder motion did not waive his mandatory joinder rights; and 6 did not join it with the first. We agree. ¶ 19 The issue whether a trial court properly dismissed a criminal case under Crim. P. 8(a)(1) and section 18-1-408(2) is a mixed question of law and fact. See People v. Carey, 198 P.3d 1223, 122730 (Colo. App. 2008)(implicitly recognizing that, in a mandatory 7 joinder analysis, a trial court s factual findings require support in to conserve judicial and legal resources. Jeffrey v. Dist. Court, 626 the record and interpretation of the statute is reviewed de novo). P.2d 631, 637 (Colo. 1981). Thus, we review legal questions de novo and defer to factual ¶ 23 Our supreme court has stated that [i]n the event the accused findings that the record supports. See id.; People v. Arroya, 988 objects to . . . [joinder][,] and the court denies the prosecutor s P.2d 1124, 1129 (Colo. 1999). motion [to join the related cases], section 18-1-408(2) would not bar ¶ 20 Crim. P. 8(a)(2) authorizes permissive joinder. It provides sequential prosecutions. Id. at 638. It explained that, under those that [t]wo or more offenses may be charged in the same indictment circumstances, the failure to join two related cases results from the or information if they are of the same or similar character or accused s opposition to a joint prosecution[,] and not from based on two or more acts or transactions connected together or prosecutorial neglect. Id. constituting parts of a common scheme or plan. (Emphasis added.) ¶ 21 ¶ 24 We recognize that the trial court described this language from Jeffrey as dictum. Assuming, without deciding, that it is dictum, Crim. P. 8(a)(1) and section 18-1-408(2) concern mandatory we nonetheless find it persuasive, particularly because courts in joinder. They require that all offenses based on the same act or other states have reached the same conclusion. See Commonwealth series of acts arising from the same criminal episode that are v. Saunders, 394 A.2d 522, 525 (Pa. 1978)( The defendant, by actually known to the [prosecutor] at the time of commencing the opposing the [prosecution s] motion to [join two cases], has waived prosecution . . . be prosecuted . . . in a single prosecution. any allegations of prejudice or inconvenience resulting from the ¶ 22 The purposes of [mandatory] joinder are to protect the prospect of multiple trials. ); accord Commonwealth v. Stewart, 425 accused against the oppressive effect of sequential prosecutions A.2d 346, 349 (Pa. 1981); Commonwealth v. Failor, 770 A.2d 310, based on conduct occurring during the same criminal episode and 314-15 (Pa. 2001). See also State v. Haga, 735 P.2d 44, 47 (Utah 8 9 1987)(defendant s opposition to the prosecution s joinder motion ¶ 25 Mandatory joinder rules are not a shield . . . from properly waived his joinder rights); State v. Riordan, 519 P.2d 1029, 1030 initiated prosecutions. Commonwealth v. Gimbara, 835 A.2d 371, (N.M. Ct. App. 1974)(defendant s motion for severance waived his 377 (Pa. Super. Ct. 2003)(citing Commonwealth v. Beatty, 455 A.2d right to joinder); II ABA Standards for Criminal Justice, Joinder and 1194, 1198 (Pa. 1983)( It is fundamental that a rule of law should Severance, Standard 13-2.3(c) (2d ed. 1980)( A defendant who has not be applied [in a manner that] fails to serve the purposes for been tried for one offense may thereafter move to dismiss any which it was designed. )). additional offense based upon the . . . same criminal episode, a motion for joinder of these offenses was previously denied. (emphasis added)). Accord Unif. R. Crim. P. 471(c)(1)-(2) ¶ 26 We conclude that defendant waived his joinder rights under Crim. P. 8(a)(1) and section 18-1-408(2) for the following reasons. ¶ 27 First, defendant objected to the prosecution s motion to join (1987)(Court shall dismiss related crime unless . . . defendant the two cases. See Jeffrey, 626 P.2d at 638; Saunders, 394 A.2d at knew [he] was charged with the crime and failed to move for 525; Haga, 735 P.2d at 47; ABA Standard 13-2.3(b), commentary. joinder of the charges; [or] a motion for joinder of the charges was ¶ 28 Second, the trial court denied the prosecution s motion. See previously denied. (emphasis added)). But cf. State v. Shields, 571 Jeffrey, 626 P.2d at 638; ABA Standard 13-2.3(c) ( A defendant who P.2d 892, 895-97 (Or. 1977)(The defendant s opposition to joinder has been tried for one offense may thereafter move to dismiss any motion that was based solely on untimeliness does not waive his additional offense based upon the . . . same criminal episode, right to be free from multiple prosecutions, where prosecution unless a motion for joinder of these offenses was previously denied. moved to join charges on the day of trial and defendant was forced (emphasis added)); Unif. R. Crim. P. 471(c)(1)-(2). to choose between going to trial unprepared on additional charges and waiving his right to be free from multiple prosecutions. ). 10 ¶ 29 Third, the purposes of the joinder rules are not served if defendants can successfully oppose joinder of two cases, and courts 11 subsequently dismiss the second case on the grounds that it should prosecution s joinder motion was untimely. This assertion raises have been joined with the first. See Jeffrey, 626 P.2d at 638 ( [The] due process considerations. Although the trial court stated that it rule [is intended to] protect[] . . . the ethical and diligent prosecutor entertained serious reservations about whether there [were] due from technical, arbitrary bans to subsequent prosecution of process violations in this case, it expressly declined to make any companion offenses discoverable too late to permit findings of fact or reach any conclusions of law concerning consolidation. )(quoting ABA Standard 13-2.3(c), commentary); defendant s due process contention. See People v. McClure, 756 Gimbara, 835 A.2d at 377. P.2d 1008, 1011 (Colo. 1988)( Whether an individual s rights to due ¶ 30 In reaching our conclusion, we reject defendant s contention, process and fundamental fairness have been violated by based on Crim. P. 6.8, that the second case was a functional prosecutorial misconduct to an extent warranting dismissal amendment of the indictment in the first case. Crim. P. 13 clearly depends on the circumstances of each case. ); People v. Schwartz, authorizes a court to join two or more indictments [or] 678 P.2d 1000, 1008 (Colo. 1984)( Although we have held that informations if they could have been joined in a single indictment conduct by a district attorney in retrying or re-filing charges against [or] information[.] (Emphasis added.) See United States v. Bellomo, a defendant may, in unusual circumstances result in a denial of the 954 F. Supp. 630, 651 (S.D.N.Y. 1997)( The [c]ourt has the power, particular defendant s due process right to fundamental fairness, under Fed. R. Crim. P. 13 [which is similar, although not identical, the circumstances of this case do not justify judicial interference to Crim. P. 13] to order that two or more indictments . . . be tried with executive discretion. )(footnote omitted); People v. Aragon, 643 together as long as all of the charges against all of the defendants P.2d 43, 47 (Colo. 1982)( Whether it was through deliberate could have been brought in one indictment. ). prosecutorial misconduct, overreaching, gross negligence, or simply ¶ 31 And we will not consider defendant s assertion that the 12 through ineptitude and delay . . . . [t]he defendant suffered the 13 inequities, indignities and abuse which the constitutional safeguards of due process and fundamental fairness are designed to protect against. ); People v. Abrahamsen, 176 Colo. 52, 58, 489 P.2d 206, 209 (1971)( We conclude that the methods employed by the district attorney to keep the prosecution of defendant alive, although procedurally within the law, in fact violated the due process requirement of fundamental fairness. ). ¶ 32 We reverse the judgment dismissing this case, and we remand the case to the trial court to reinstate the charges against defendant. The court may then, in its discretion, consider and rule on the contentions including the due process contention that defendant raised in his mid-May 2012 motion to dismiss the second case and that the court has not already resolved. JUDGE GRAHAM and JUDGE BERGER concur. 14

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