Month: February 2015

Does a casino’s knowledge of insufficient funds negate the intent to defraud element under NRS 205.130?

Posted on by Jeff Jaeger

Zahavi v. State (Nev. Supreme Ct. – Feb. 26, 2015)

Beginning in the late 1990’s, Zahavi began gambling, obtaining lines of credit, and executing markers at various Las Vegas casinos. In 2008, Zahavi failed to pay $384,000 in markers he took from the Hard Rock Hotel, Caesars Palace, Venetian, and Palazzo. The State filed a four count indictment against Zahavi for writing checks with insufficient bank funds with intent to defraud. A jury found Zahavi guilty on all four counts.

On appeal, Zahavi contended that the casinos had knowledge of his insufficient funds and inability to pay back the 14 gaming markers he obtained. The Nevada Supreme Court analyzed whether the district court should have instructed the jury that a casino’s knowledge of insufficient funds in a casino patron’s bank accounts at the time of the issuance of a marker negates the intent-to-defraud element of NRS 205.130(1)(e).

The Court held that the “intent to defraud” element may be negated by a disclosure of insufficient funds to the payee and that Zahavi was entitled to have the jury so instructed if there was proof in the record supporting the instruction. The Court concluded that because Zahavi failed to make an affirmative disclosure to the casinos and the casinos had no present knowledge of his insufficiency of funds at the time the markers were executed, there was no evidence to negate the intent-to defraud element, and therefore the district court did not abuse its discretion by refusing the instruction.

Zahavi also challenged the constitutionality of NRS 205.130, arguing that it violates the provision in the Nevada Constitution that prohibits imprisonment for failing to pay a debt, except in cases of fraud. Based on prior decisions, and persuasive authority from other jurisdictions with similar constitutional prohibitions, the Court concluded that NRS 205.130 does not violate article 1,section 14 of the Nevada Constitution because Zahavi’s conviction is based on committing a fraudulent act and not on incurring a debt.

What happens when an attorney fails to object to a constitutional error at trial?

Posted on by Jeff Jaeger

Martinorellan v. State (Nev. Supreme Ct. – Feb. 26, 2015)

In this case, the Nevada Supreme Court considered the district court’s failure to instruct a jury to restart deliberations as is required by NRS 175.061(4) after an alternate juror replaced a regular juror.

“Martinorellan entered a smoke shop and stabbed the store’s owner while attempting to commit a robbery. At trial, the jury deliberated for approximately 1 hour and 15 minutes before the district court convened a hearing, dismissed a juror who stated that he knew the victim, and replaced that juror with an alternate juror. The district court did not recall the jury to the courtroom or instruct it to restart deliberations. Martinorellan did not object to the district court’s decision not to recall the jury and instruct it to restart deliberations. The reconstituted jury deliberated for nearly 4 hours and 30 minutes over two days and viewed a playback of testimony before convicting Martinorellan of burglary while in possession of a deadly weapon, attempted robbery with the use of a deadly weapon, and battery with the use of a deadly weapon.”

On appeal, Martinorellan argued that the failure to instruct the jury to restart deliberations after an alternate juror replaced an original juror was an error of constitutional dimension because it interfered with his constitutional right to a trial by a fair and impartial jury. The State argued that this error was not of constitutional dimension because the district court did not prevent the jury from restarting deliberations after the alternate juror was seated.

The Nevada Supreme Court reasoned that the failure to instruct a jury to restart deliberations after an alternate juror replaces an original juror during deliberations can create the risk of the original jurors exerting undue influence on the alternate juror. Since this infringes on a defendant’s right to a trial by an impartial jury, the Court held that the district court’s failure to instruct the jury to restart deliberations was an error of constitutional dimension.

What standard of review for unpreserved constitutional errors?

At trial, Martinorellan did not object to the district court’s decision not to recall the jury.  However, he argued that the standard of review for an unpreserved constitutional error should be the same as that for a preserved constitutional error. Citing Johnson v. United States, 520 U.S. 461, 465-66 (1997), the Court held that all unpreserved errors are to be reviewed for plain error without regard as to whether they are of constitutional dimension.

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Nevada Supreme Court conducts a minimum contacts test

Posted on by Jeff Jaeger

Fulbright & Jaworski v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Feb. 5, 2015)

This case should be of special interest to those of us who did not get enough civ pro in law school.

The issue is whether a Texas-based law firm’s representation of a Nevada client in a Texas matter, by itself, provides a basis for specific personal jurisdiction in Nevada.

After extensive analysis, the Court concluded that an out-of-state law firm that is solicited by a Nevada client to represent the client on an out-of-state matter does not subject itself to personal jurisdiction in Nevada simply by virtue of agreeing to represent the client.

 

Doctor claims venue not appropriate for subpoena contempt petition issued by the Nevada State Board of Medical Examiners

Posted on by Jeff Jaeger

Jones v. State, Bd. of Med. Exam’rs (Nev. Supreme Ct. – Feb. 5, 2015)

On appeal, a doctor argues that the district court failed to consider NRS Chapter 13, including the doctrine of forum non conveniens, in denying her motion to change venue of a subpoena contempt petition arising from her failure to comply with an administrative subpoena issued by the Nevada State Board of Medical Examiners.

“After a preliminary investigation, respondent Nevada State Board of Medical Examiners filed an administrative complaint against appellant Carmen Jones, M.D., alleging among other things that Dr. Jones aided a third party in the unauthorized practice of medicine. In furtherance of the Board’s investigation, it issued a subpoena to Dr. Jones to obtain patient records in accordance with NRS 630.140(1)(b), which authorizes the Board to issue administrative subpoenas to compel the production of documents. When Dr. Jones failed to comply with the subpoena, the Board petitioned the Second Judicial District Court, located in Washoe County, for an order compelling compliance with its administrative subpoena under NRS 630.140 and NRS 630.355.”

Dr. Jones filed a motion to change the venue of the subpoena contempt petition to the Eighth Judicial District Court, which is located in Clark County, arguing that the petition to enforce the subpoena should have been brought in Clark County where she resides and practices medicine.

The district court denied Dr. Jones’s motion for a change of venue finding that under NRS 630.355(1), venue in the Second Judicial District Court was proper.

The Nevada Supreme Court affirmed the district court’s order holding that NRS 630.355(1) means that venue for a contempt proceeding brought by the Board under that statute is proper in the county where the administrative work of the Board is taking place.

In this case, the Board’s administrative work, including its filing of a formal complaint and its previous issuance of an order of summary suspension of Dr. Jones’s license, took place in the Board’s Washoe County office.

Northern Nevada Correctional Center inmate removed from position as law clerk for passing contraband

Posted on by Jeff Jaeger

Abarra v. State of Nevada (Nev. Supreme Ct. – Feb. 5, 2015)

“In February 2011, a correctional officer at Northern Nevada Correctional Center (NNCC) found appellant David Abarra, an NNCC inmate, carrying 21 pills, a contraband pornographic magazine that included a note stating that an unspecified item or service would be “the usual price,” and another inmate’s completed W-2 form. NNCC charged Abarra with, among other things, unauthorized trading or bartering and providing legal services for a fee. Abarra pleaded guilty to bartering but pleaded not guilty to providing legal services for a fee (an “MJ29″ violation).”

“At a disciplinary hearing, Abarra stated that although he was guilty of passing contraband, the “usual price” note was in reference to the magazine itself and that he was returning the W-2 to another prisoner as part of his work as a prison law clerk. The NNCC convicted Abarra of the MJ29 violation and, as punishment, removed him from his position as a law clerk.”

Abarra challenged the MJ29 discipline through an informal grievance, followed by a first-level formal grievance.  Abarra filed a complaint in district court asserting five claims.  The district court dismissed his claims asserting that Abarra failed to exhaust his administrative remedies.  The Nevada Supreme Court reversed in part and affirmed in part.