Colorado § 11-51-603 - Criminal penalties.

§ 11-51-603. Criminal penalties.

(1) Any person who willfully violates the provisions of section 11-51-501 commits a class 3 felony and shall be punished as provided in section 18-1.3-401, C.R.S.

(2) Any person who willfully violates any of the provisions of this article, except section 11-51-501, commits a class 6 felony and shall be punished as provided in section 18-1.3-401, C.R.S.

(3) The securities commissioner may refer such evidence as is available to the securities commissioner under authority of this article concerning any violation which constitutes the commission of any felony or misdemeanor, including any violation of subsection (1) or (2) of this section, to the attorney general or the proper district attorney, who may, with or without such a reference, prosecute the appropriate criminal proceedings under this article or otherwise as authorized by law, or the securities commissioner may refer such evidence to the proper United States attorney.

(4) Nothing in this article limits the power of the state to punish any person for any conduct which constitutes a crime by statute.

(5) No person shall be prosecuted, tried, or punished for any criminal violation of this article unless the indictment, information, complaint, or action for the same is found or instituted within five years after the commission of the offense.

Source: L. 90: Entire article R&RE, p. 731, § 1, effective July 1. L. 2002: (1) and (2) amended, p. 1471, § 42, effective October 1.

Editor's note: This section is similar to former § 11-51-124 as it existed prior to 1990.

Cross references: For the legislative declaration contained in the 2002 act amending subsections (1) and (2), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

The general assembly did not intend to apply the culpable mental state of willfulness to the security element of § 11-51-501. People v. Rivera, 56 P.3d 1155 (Colo. App. 2002); People v. Hoover, 165 P.3d 784 (Colo. App. 2006); People v. Destro, 215 P.3d 1147 (Colo. App. 2008).

Instruction as to "specific intent" insufficient. With regard to securities law violations, the use of the term "specific intent" in jury instructions confuses matters and adds little or nothing productive or illuminating and thus, instructions given under this section are to be phrased only in terms of "knowingly", "willfully", and "aware". People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978); People v. Riley, 708 P.2d 1359 (Colo. 1985).

Because the effect of instructing the jury that good faith is not a defense to a securities fraud prosecution was to create a substantial risk that the jury would find the defendant guilty of violating § 11-51-123 (1)(b) and (1)(c), even if the defendant had acted in good faith, the instruction was thus irreconcilably at odds with the court's prior instruction on the culpability element of willfulness. People v. Riley, 708 P.2d 1359 (Colo. 1985); Thornton v. People, 716 P.2d 1115 (Colo. 1986).