Wake Forest Law Review

Schilling v. Schmidt Baking Company, Inc.

In this civil case, plaintiffs appealed the district court’s dismissal of their claims for overtime wages under the Federal Labor Standards Act (FLSA), the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law.  Under the FLSA, professional motor carriers, like Schmidt Baking Company, are generally exempt from the overtime wages requirement.  However, Congress recently waived this exemption for employees whose work affects the safety of vehicles weighing 10,000 pounds or less.  In concluding that the plaintiffs were protected by the FLSA waiver, the Fourth Circuit reversed the district court’s dismissal of the FLSA claims but affirmed the court’s dismissal of the claims brought under Maryland law.

Juniper v. Zook

In this criminal case, Anthony Juniper appealed the district court’s denial of his request for an evidentiary hearing concerning his claim that prosecutors failed to turn over exculpatory and impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).  The Fourth Circuit vacated the district court’s decision as to Juniper’s Brady claim, concluding that the district court abused its discretion by dismissing the claim without an evidentiary hearing.  The case was remanded to the district court for further proceedings.

Hensley v. Price

In this civil case, Deputies Michael Price and Keith Beasley appealed the district court’s denial of their motion for summary judgment, which asserted federal qualified immunity and related North Carolina state law defenses.  The Fourth Circuit affirmed the district court’s judgment, concluding that the deputies were not entitled to qualified immunity because their use of force was objectively unreasonable under the circumstances described through plaintiffs’ evidence.  In addition, the Fourth Circuit concluded that the deputies’ related state law defenses failed under the evidence taken in the light most favorable to the plaintiffs.         

OpenRisk, LLC v. Microstrategy Services Corp.

In this criminal case, OpenRisk appealed the district court’s grant of summary judgment in favor of Microstrategy, in which the court held that Federal copyright laws preempted OpenRisk’s computer fraud claims. The Fourth Circuit affirmed the district court’s judgment, concluding that the plaintiff’s computer fraud claims were preempted by the federal Copyright Act since the plaintiff’s sought liability based upon claims that, at their “core,” are not “qualitatively different” from the federal claims.

Maguire Financial, et al. v. PowerSecure International, Inc., et al.

In this civil case, Maguire Financial appealed the district court’s dismissal of its amended complaint containing claims of securities fraud. The Fourth Circuit affirmed the district court’s dismissal, concluding that Maguire Financial’s complaint failed to adequately allege scienter since a comprehensive analysis of the facts within the amended complaint did not create a “cogent and compelling” inference of scienter.  

United States v. Banker

In this criminal case, Banker appealed his convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity. The Fourth Circuit affirmed Banker’s convictions, concluding that the district court’s jury instructions did not misstate the law and that there was sufficient evidence concerning the elements that the defendant knew or recklessly disregarded that the minor was underage.

By: Adam McCoy & Shawn Namet

U.S. v. Palin
In this criminal case, the defendants argued the government did not sufficiently prove the materiality requirement of health care fraud to convict for submitting to the insurance company medically unnecessary and more expensive tests to increase profits.  Materiality requires showing the misrepresentation effected the insurance company’s decision to pay the claim.  The Fourth Circuit affirmed the conviction and found there was sufficient evidence of materiality because insurers would not have paid for the more expensive tests submitted by the defendants if they had known the tests were not medically necessarily.

U.S. v. Ali
In this civil case, Melina Ali appealed the district court’s order holding her in contempt after she failed to produce certain documents in response to an administrative summons issued by the IRS, arguing that the Government failed to establish her possession or control of additional responsive documents.  The Fourth Circuit affirmed the district court’s judgment, finding sufficient evidence in the record to establish that Ali’s production was presumptively incomplete, and that the burden shifted to Ali to demonstrate her good faith efforts to produce responsive documents.

Weekly Roundup: 10/23-10/27
By: Hanna Monson and Sarah Spangenburg

United States v. Julian Zuk
In this criminal case, the Government appealed the district court’s sentencing of defendant Julian Zuk as being “substantively unreasonable” after he had pled guilty to possessing child pornography as part of a plea agreement. The Fourth Circuit vacated the sentence and remanded for resentencing, reasoning that the 26 month time served sentence was not sufficient “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment.” 18 U.S.C. § 3553(a)(2)(A).

Campbell McCormick, Inc. v. Clifford Oliver
In this civil case, Campbell McCormick, Inc appealed an order of a federal district court that severed and remanded Oliver’s asbestos exposure claims against it. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction and also held that the elements for jurisdiction under the collateral order doctrine were not met.

SAS Institute, Inc. v. World Programming Limited
In this copyright case, SAS alleged that WPL breached a license agreement for SAS software and violated copyrights on that software. The Fourth Circuit agreed with the district court that the contractual terms at issue were ambiguous and that SAS had shown that WPL violated the terms. However, on the copyright claim, the Fourth Circuit vacated the district court’s judgment and remanded with instructions to dismiss as moot.

United States v. Shawntanna Lemarus Thompson
In this criminal case, Thompson pled guilty to a drug offense and being a felon in possession of a firearm. Thompson appealed his sentence after the district court increased his sentence when it found that Thompson’s previous state conviction for assault inflicting serious bodily harm constituted a “crime of violence” under § 4B1.2 of the U.S. Sentencing Guidelines. The Fourth Circuit affirmed the sentence because the residual clause of § 4B1.2 authorized the district court’s increased sentence.

Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

By Adam McCoy

On Monday, September 25, 2017, the Fourth Circuit issued a published opinion in a criminal case, United States v. Marshall.  Andracos Marshall (“Marshall”) was found guilty of several crimes including conspiracy to commit money laundering.  The Government filed motions for forfeiture and district court entered an order for forfeiture in amount of $51,300,000, including $59,000 in untainted funds in Marshall’s credit union account as substitute assets.  Marshall filed a motion to use the $59,000 in untainted funds to hire appellate counsel.  The Fourth Circuit denied his motion to use forfeited funds to hire appellate counsel.

Facts and Procedural History

In 2014, the Government indicted Marshall for several crimes, including conspiracy to distribute a controlled substance, possession of a controlled substance with intent to distribute, and conspiracy to commit money laundering.  In the indictment, the Government indicated it would seek forfeiture of substitution assets if property from Marshall’s crimes could not be found.  Under 21 U.S.C. § 853(a), the Government may seek forfeiture of tainted property connected to certain felonies, and § 853(p) allows forfeiture of substitute property if the tainted property is not available.  Marshall was eventually convicted on all counts, and the Government sought forfeiture of $108 million of criminally obtained proceeds.  The district court entered an order of forfeiture for $51,300,000.  In a second motion for forfeiture, the Government requested forfeiture of $59,000 in Marshall’s credit union account as substitute assets under § 853(p).  The district court granted the motion, but the Fourth Circuit stayed it until the Court could hear Marshall’s motion to use the untainted $59,000 to hire appellate counsel.

Defendant Does Not Have Right to Forfeited Funds to Pay for Appellate Counsel

Marshall argues he has a Constitutional right to substitute assets forfeited after his conviction if the funds are needed for his appellate representation.  The Fourth Circuit relied on Supreme Court precedent regarding the right to appellate counsel to make its decision in this case.  The right to appellate counsel is statutory, not constitutional. However, courts have held that when right to appellate counsel is granted, counsel must be provided.  The Supreme Court did recognize in United States v. Gonzales-Lopez, 548 U.S. 140, 144 (2006) that defendants who do not require court-appointed counsel have the right to choose who will represent them.  However, the Supreme Court has never recognized a right to choose one’s counsel on appeal.  Even assuming Marshall had the right to choice of counsel on appeal, he still did not have right to use forfeited funds to hire appellate counsel.  In Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989), the Supreme Court held the Sixth Amendment right to counsel does not allow a defendant to use forfeited funds connected to the crimes charged to pay trial counsel’s fees after conviction.  The Court reasoned property connected to a crime that was forfeited became the Government’s property  “at the time of the criminal act giving rise to forfeiture.” Id. at 627.  The Supreme Court did allow access to untainted assets that were frozen pretrial and needed to hire an attorney. Luis v. United States, 136 S. Ct. 1083 (2016).  However, the focus of this decision was on the pretrial nature of the assets and their lack of connection to the crime.  The Court said the defendant still had a clear ownership of the assets because there was no conviction, as opposed to the post-conviction setting when forfeiture gives the Government a clear interest.

The Fourth Circuit used the Supreme Court’s approach to pretrial restrictions of untainted assets in Luis and the approach to post-conviction assets in Caplin & Drysdale to determine that Marshall could not use his forfeited untainted assets to hire appellate counsel.  The ability of defendants to use assets to pay for counsel depends on who clearly owns the property.  According to Luis, if the defendant clearly owns the property he has a right to use it to pay for his counsel of choice. 136 S. Ct. at 1091.  However, the Government takes title to forfeited property, including § 853(p) substitute property, at the time of conviction. 136 S. Ct. at 1101.  The Fourth Circuit applied this to mean Marshall’s substitute property, the $59,000 credit union funds, became the Government’s property when the district court issued the forfeiture order after Marshall’s conviction.  This means Marshall no longer owns the property.  The Fourth Circuit further held that the Government’s ownership of the property was enough to override Marshall’s Sixth Amendment right to use those funds to hire appellate counsel of his choice. 491 U.S. at 631.  Relying primarily on Caplin & Drysdale and Luis, the Fourth Circuit held the $59,000 forfeited untainted assets were the property of the Government, and therefore Marshall had no right to use them to hire his appellate counsel of choice.

Conclusion

The Fourth Circuit denied Marshall’s motion to use his forfeited funds to hire his appellate counsel of choice.

By Ali Fenno

On November 23, 2016, the Fourth Circuit issued a published opinion in the criminal case of Rodriguez v. Bush.  In Rodriguez, the Fourth Circuit addressed whether the failure of Nicanor Perez Rodriguez’s (“Rodriguez”) trial counsel, James Ervin (“Ervin”), to object to a trial judge’s rejection of Rodriguez’s plea agreement constituted “ineffective assistance of counsel” that justified relief under 28 U.S.C. § 2254.  After applying a deferential review standard for ineffective assistance and state-adjudicated § 2254 claims, the Fourth Circuit held that Ervin’s conduct did not constitute “ineffective assistance of counsel” because the alleged omitted objection would have been meritless and thus did not prejudice Rodriguez’s case.  Accordingly, the Fourth Circuit affirmed the trial court’s denial of Rodriguez’s § 2254 petition.

Factual and Procedural Background

In 2006, a South Carolina trial court convicted Rodriguez on multiple counts of drug trafficking and sentenced him to 45 years’ imprisonment.  He had accepted a plea agreement on the first day of trial that recommended a 20-year sentence, but the plea agreement had been rejected by the trial judge without explanation the very same day.

In 2010, Rodriguez filed a motion for post-conviction relief (the “PCR Motion”), alleging that the rejection of the plea agreement constituted a violation of his federal due process rights and that Ervin provided ineffective assistance of counsel by failing to object to the rejection and thus preserve the issue for appeal.  The state court denied the PCR Motion, holding that Rodriguez failed to show that (1) Ervin should have objected to the plea deal, and (2) Ervin’s failure to object prejudiced Ervin’s case.  The Supreme Court of South Carolina affirmed.

Rodriguez then filed this § 2554 petition in the United States District Court for the District of South Carolina.  The district court denied the petition, and Rodriguez appealed.

Issues on Appeal and Standard of Review

In deciding whether Rodriguez’s § 2254 petition should have been granted, the Fourth Circuit first identified a de novo standard of review for § 2554 issues.  But it then noted that § 2254(d) only permits a federal court to grant a § 2254 petition previously adjudicated by a state court on the merits when the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The court then reasoned that because the trial court addressed whether Ervin’s conduct constituted “ineffective assistance of counsel” to deny Rodriguez’s PCR Motion, the § 2254 petition could only be granted if the Fourth Circuit determined that the state court unreasonably applied the “ineffective assistance of counsel” standard.  The Fourth Circuit identified the correct standard as a two-pronged test articulated in Strickland v. Washington, which enables a party to prevail on an ineffective assistance of counsel claim if he or she demonstrates that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.”  Accordingly, the single issue on this appeal was whether any reasonable argument could be made that Ervin satisfied the Strickland test.

Failure to Meet Strickland’s Prejudice Prong

To address this issue, the Fourth Circuit first noted that pursuant to Harrington v. Richter, review of the Strickland test is highly deferential to the state court, and “doubly” deferential when applied in conjunction with § 2554.  The court then looked at the prejudice prong of the Strickland test, reasoning that it did not need to first address the issue of a deficiency because it would be so easy to dispose of the ineffectiveness claim on prejudice grounds.  It articulated that to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  The court further defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome,” and noted that, pursuant to Lockhart v. Fretwell, a petitioner will not show prejudice if the “omitted objection” is “wholly meritless under current governing law.”

In applying these rules to the facts of Rodriguez, the court concluded that the Ervin’s “omitted objection” to the rejection of the plea agreement was “wholly meritless.”  To come to this conclusion, it noted that in Missouri v. Frye, Santobello v. New York, and Lafler v. Cooper the Supreme Court clearly articulated that there is no federal due process right that a plea agreement be accepted by a judge.  Thus, the Fourth Circuit determined that any objection made by Ervin asserting that the plea agreement’s rejection violated Rodriguez’s federal due process rights would have been entirely without merit.  Accordingly, Rodriguez was not prejudiced by Ervin’s failure to make a meritless claim, and Ervin’s omission did not amount to an “ineffective assistance of counsel” justifying relief under § 2254.

Conclusion

Because Ervin’s omitted objection was wholly meritless, the Fourth Circuit determined that it was reasonable for the district court to conclude that Rodriguez did not demonstrate the requisite prejudice for an ineffective assistance of counsel claim.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it denied Rodriguez’s request for relief under 28 U.S.C. §2254.

By Ali Fenno

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case of United States v. Lara.  In Lara, the Fourth Circuit addressed whether the district court violated the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when, during a sentencing hearing, it considered statements the defendant, Juan Lara (“Lara”), made while participating in a compulsory Sex Offender Treatment Program (“Treatment Program”) that had been a condition to his probation. After examining the knowing and voluntary nature of Lara’s consent to his probation terms and the voluntary nature of the statements Lara made during the Treatment Program, the Fourth Circuit concluded that the district court did not err in considering the self-incriminating statements.

Factual and Procedural Background

In February 2008, Lara was convicted for the aggravated sexual battery of a mentally incapacitated victim under Virginia Code Section 18.2-67.3(A)(2) and sentenced to 20 years’ imprisonment with 17 years suspended. In addition, upon his release from confinement, Lara was to serve 20 years’ supervised probation and was required to complete a Treatment Program, allow the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph . . . deemed appropriate by [his] supervising officer.” Lara acknowledged and consented to these conditions before his release by signing a form that listed the conditions.

Lara’s probationary period started immediately upon his release in December 2009. He was referred to a Treatment Program, Flora Counseling Services Corporation (“Flora), and met with one of Flora’s licensed clinical social workers for an interview in April 2010. During the interview, Lara detailed his past sexual conduct with minors, commission of forcible sexual assaults, and involvement in two murders. He later confirmed these incidents in a polygraph examination and signed a written statement describing the incidents. Then, in July 2010, he signed a document entitled “Sex Offender Program Acknowledgment of Confidentiality Waiver” to acknowledge that all information he relayed to Flora’s therapists and group leaders “is not privileged or private” and that Lara “waive[d] any and all such rights of confidentiality which may exist by statute or rule of law.”

Lara successfully completed Flora’s Treatment Program, but in March 2014, in violation of his conditions of probation, he moved from Virginia to Texas without notifying his probation officer or updating his registration with the Virginia State Police’s Sex Offender and Crimes Against Minors Registry. Several months later, he was arrested and indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA).

Lara pleaded guilty to the SORNA violation and filed a motion to exclude from consideration at sentencing the statements he made during Flora’s Treatment Program interview that detailed his past criminal incidents. The district court denied his motion, holding that he had voluntarily waived any psychotherapist-patient privilege and that the Fifth Amendment did not protect him from the government’s use of voluntary disclosures of incriminating information. The court then concluded that Lara more likely than not committed the crimes he admitted to during Flora’s Treatment Program interview, and sentenced him to 120 months’ imprisonment.

Issues on Appeal and Standard of Review

The first issue on appeal was whether Lara knowingly and voluntarily waived the psychotherapist-patient privilege. The second issue was whether the incriminating statements Lara made during his intake interview invoked his Fifth Amendment privilege against self-incrimination.  A district court’s determination of whether a privilege should be recognized is a mixed question of law and fact. Accordingly, the Fourth Circuit reviewed both issues de novo.

Waiver of the Psychotherapist-Patient Privilege

Lara first argued that he did not waive the psychotherapist-patient privilege because he was “compelled to participate” in Flora’s Treatment Program. In rejecting this argument, the Fourth Circuit first noted that the psychotherapist-patient privilege is strictly construed, and a defendant has the burden of showing that he did not waive the privilege by knowingly and voluntarily relinquishing it. The court then recognized that, especially when the probationary period is used as an alternative to incarceration, courts administering probation as a punishment may deprive a criminal offender of certain freedoms. The Fourth Circuit further identified multiple courts that had found a criminal defendant’s consent to court-imposed conditions of release to be voluntary despite the alternative of incarceration.

Here, Lara chose to agree to the terms of his supervised probation as an alternative to incarceration. Those terms explicitly authorized Treatment Program providers to have “unrestricted communication” with the state probation and parole department as an alternative to incarceration. Accordingly, the Fourth Circuit concluded that the alternative of incarceration did not eradicate the voluntary nature of Lara’s consent to the terms of his probation, and held that Lara waived any psychotherapist-patient privileges that may have applied to the incriminating statements he made while participating in Flora’s Treatment Program.

Failure to Invoke Fifth Amendment Privilege

Next, Lara argued that his Fifth Amendment privilege against self-incrimination was violated because the probation conditions required him to disclose incriminating information. The Fourth Circuit rejected this argument as well. It first noted that the Fifth Amendment privilege “generally is not self-executing” and that a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” But it then looked to Minnesota v. Murphy, where the United States Supreme Court recognized that the threat of revocation of probation could “trigger self-executing Fifth Amendment protections.” However, this could only occur when direct evidence indicated that the defendant only confessed because it was nearly certain that his silence would cause probation to be revoked.

The Fourth Circuit then examined the factual record and could not find any direct evidence that Lara made the incriminating statements during Flora’s Treatment Program interview under the threat of revocation of his probation. Indeed, the state court could not have revoked his probation if he had asserted his Fifth Amendment privilege during the interview. Thus, the Fourth Circuit held that the statements were voluntarily made and did not invoke Lara’s Fifth Amendment privilege against self-incrimination.

Conclusion

Because Lara’s incriminating statements were knowingly and voluntarily made, the Fourth Circuit concluded that he waived the psychotherapist-patient privilege and did not invoke the Fifth Amendment privilege against self-incrimination.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it considered at the sentencing hearing the incriminating statements Lara made during Flora’s Treatment Program.

 

By M. Allie Clayton

Today, in the criminal case of United States v. Powell, a published opinion, the Fourth Circuit affirmed the District Court in holding that a juror’s statement of “everything would be alright” and that the father needed to give his son “a good kick in the butt” was too ambiguous to establish actual juror bias.  Because the statement was ambiguous, Powell’s counsel’s response was within the range of competent representation, and thus not a violation of Powell’s Sixth Amendment right.

Facts and Procedural History

In June 2005, Powell was convicted by a jury of numerous drug and firearms charges. The district court sentence of 300 months’ imprisonment was affirmed by the Fourth Circuit on direct appeal. The Supreme Court vacated the judgment and remanded for resentencing due to Kimbrough v. United States. On remand, the District Court resentenced Powell to the same term.  Powell again appealed the judgment, which was affirmed by the Fourth Circuit, and the Supreme Court denied certiorari.

In this case, Powell has filed a 28 U.S.C. § 2255 with 16 different challenges to his conviction and sentence, most of which allege ineffective assistance of counsel. The specific claim as to ineffective assistance of counsel in this case is that his trial counsel’s performance was deficient because she did not bring to the attention of the trial court the fact that a juror approached Powell’s father and told him “everything would be alright” and that “he needed to give his son ‘a good kick in the butt.’” Powell alleged that the statement by the juror demonstrated that the juror was biased against him and if his counsel had brought this to the attention of the court, the court would have inquired about the juror’s prejudgment, and possibly removed the juror and replaced her with an alternate.

The Issue

Is the juror’s statement of “everything would be alright” and that “[Powell’s father] needed to give his son ‘a good kick in the butt’” sufficient to demonstrate a juror’s actual bias—thus requiring Powell’s counsel to bring that to the court’s attention?

Sixth Amendment Right to Effective Assistance of Counsel

Under Strickland v. Washington, there are two requirements for a defendant to prove a violation of the Sixth Amendment right to effective assistance of counsel: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

Under the first prong, the defendant must meet a high bar. The defendant must prove that his counsel’s representation fell below an objective standard of reasonableness, and that counsel’s errors were “so serious that counsel was not functioning as ‘counsel.’” The court is required to give a great amount of deference to the counsel’s decision-making and must be careful to eliminate any hindsight distortion and evaluate the decision from the counsel’s perspective at a time.

Sixth Amendment Right to an Impartial Jury

There is a presumption that jurors are impartial, unless there are indications to the contrary.  To be impartial, under the Sixth Amendment, the jury must be able to decide the case based on the evidence before it.  The question regarding juror impartiality is whether a juror can lay aside her opinion and render a verdict based on the evidence presented in court.

Reasoning

As it relates to this specific case, the “question is whether the juror’s statement to Powell’s father indicated that the juror was biased and unable to decide the case solely on the evidence.” The next question is “whether counsel’s failure to bring the statement to the attention of the court amounted to constitutionally deficient representation.”

In this case, the statement’s meaning is not clear. A reasonable lawyer who was told of the statement could conclude that the juror’s statement was “so ambiguous that it could not be taken as indicating that the jury was actually incapable or unwilling to base a verdict solely on the evidence presented at trial.”  The actions of the lawyer in not bringing the matter up were reasonable not only due to the ambiguous content of the statement, but also the risk of alienating the juror based on the mere act of inquiring about the juror’s bias. A reasonable lawyer could have concluded that the client’s interests were best served by not bringing the statement to the attention of the court.

The record further established that the lawyer was reasonable in not bringing the matter up because of how unsure she was as to the significance, if any, of the statement.  Even Powell and his father only described the statement as “troubling” or “strange.”  Powell and his father never stated that they felt panicked when they realized the person who made the statement was a juror in Powell’s trial. Those facts alone indicate that even Powell and his father did not take the juror’s statement as demonstrating a “clear and unmistakable bias against Powell.”

Disposition

While it might have been more prudential to bring the matter to the attention to the court, the failure to pursue the issue with the court was not so problematic as to make defendant’s counsel’s performance constitutionally deficient.  Therefore, the district court’s order denying Powell’s § 2255 motion is affirmed.

By Kelsey Hyde

Today, the Fourth Circuit issued a published opinion, In re William Robert Gray, Jr., deciding on a motion for authorization to file a second or successive application for a writ of habeas corpus. The movant (“Gray”) had sought the Court’s approval to file a second petition under 28 U.S.C. § 2254, as would be necessary under 28 U.S.C. §2244(b), but the Fourth Circuit held this action was unnecessary based on finding that Gray’s petition was in fact a “first challenge” to a new or intervening judgment. By way of this ruling, the Fourth Circuit joined the Third, Sixth, Ninth, and Eleventh Circuit Courts in their treatment of habeas petitions filed after a new, intervening judgment as not second or successive within the meaning of §2244(b).

Factual Background & Procedural History of Gray’s Claims

            In 1993, Gray was convicted in North Carolina of first-degree murder and sentenced to death. Gray then filed a 28 U.S.C. §2254 petition—an application for a writ of habeas corpus for a person in custody based on the judgement of a State court—in federal district court, which was dismissed. However, the Fourth Circuit reversed in part, finding that Gray’s counsel had been ineffective at his sentencing and ordering the district court to grant the writ of habeas corpus, unless the State were to afford Gary a new sentencing hearing within a reasonable period of time. When resentencing still had not occurred after five years, Gray filed his own pro se motions challenging both this delay and his underlying conviction, which were all denied by the district court and affirmed by the Fourth Circuit. Then, the State decided it would not seek the death penalty and finally resentenced Gray to life in prison. Gray then filed this motion under 28 U.S.C. § 2244(b) for approval to file a second or successive § 2254 petition regarding his underlying criminal conviction.

Gray’s Contentions & Issue Presented to the Fourth Circuit

            Ultimately, Gray contended that the Fourth Circuit’s approval under § 2244(b) was not necessary because his resentencing acted as a new, intervening judgment, and therefore his petition was not “second or successive.” The issue for the Court’s consideration was whether, following a successful habeas petition regarding sentencing, Gray could then challenge his underlying conviction without triggering the “second or successive” requirements, and therefore not requiring court of appeals approval.

“Second and Successive Petitions” for Habeas Relief

            Per 28 U.S.C. §2244 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a petitioner incarcerated based on a State judgment cannot bring “second or successive” motions for habeas relief, and such claims shall be dismissed unless authorized by the appropriate court of appeals. §2244(b)(1), (3). However, authorization to file may be found unnecessary if the court of appeals determines that the petition in question is not in fact second or successive. Thus, a court must first determine whether a petition is second or successive, and only then if it is found to be second or successive should the court review the claim for satisfaction of the §2244(b) requirements. Magwood v. Patterson, 561 U.S. 320, 334-35 (2010). The Supreme Court in Magwood also emphasized that this second or successive distinction must be made with respect to the particular judgment being challenged, and resentencing a defendant is an “intervening judgment” such that a subsequent petition regarding this new sentencing would not be second or successive. Id. at 339, 342. However, the Court in Magwood only decided the issue in regards to another petition following a new sentencing judgment, and did not have occasion to determine whether this result also applied when the subsequent petition went to the defendant’s underlying conviction and adjudication of guilt, rather than sentencing. Id. at 342. The Third, Sixth, Seventh, Ninth, and Eleventh Circuits all had occasion to decide this precise issue, and all but one (the Seventh Circuit) determined that where a defendant received a new judgment as a result of a habeas petition relating to resentencing, a subsequent petition relating to their underlying conviction would not be considered “second-in-time” such that §2244(b) applied and required authorization. The issue presented in Gray’s claim had yet to be addressed by the Fourth Circuit.

Petition Not Considered “Second or Successive” Where Defendant Received Intervening Judgment on Sentencing But Now Seeks to Challenge Conviction

            The Fourth Circuit sided with the majority of the other circuits mentioned, and found that a movant in Gray’s situation—filing a habeas petition relating to underlying conviction after a successful habeas petition relating to sentencing—would not be submitting a second-in-time petition such that § 2244(b) would apply. The Court believed that, in the Magwood ruling, the Supreme Court made clear that an intervening judgment wholly resets the “habeas counter” at zero. Additionally, the Court also found this conclusion fitting in light of other Fourth Circuit precedent. See In re Wright, 826 F.3d 774 (4th Cir. 2016) (finding §2244(b)’s “second and successive” requirements did apply where prisoner’s first §2254 petition was dismissed, there was no intervening judgment, and the subsequent petition was challenging the same judgment yet merely setting forth an argument that had not been included in his original.) Moreover, the Court found this interpretation of Magwood to be consistent with the AEDPA’s goal of limiting the ability to make these successive petitions to these narrowly-defined circumstances, and further emphasized that this ruling in no way inhibits the other procedural safeguards that effectively bar excessive and redundant claims.

Fourth Circuit Orders District Court to Hear Petition as First Challenge, Not Second-in-Time

Because Gray’s §2254 petition was not second or successive, the Fourth Circuit found that review under §2244(b) was unnecessary, and thus directed the district court to hear the petition as a first challenge to this new judgment.

 

By: Kristina Wilson

On Thursday, January 19, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Blankenship. The Fourth Circuit affirmed the defendant’s conviction for federal mine safety laws and regulations and held that the District Court committed no reversible error. The defendant raises four arguments on appeal.

Facts and Procedural History

The defendant owns and operates Upper Big Branch Coal Mine (“The Mine”). The Mine had received repeated citations for violations of the Mine Safety & Health Act of 1977 (the “Mine Safety Act”) and its accompanying regulations. 30 U.S.C. § 801 et seq. Many of these violations related to improper ventilation and the accumulation of combustible materials. The defendant was made aware of these violations on a daily basis through routine reports. In 2015, a jury convicted the defendant of conspiring to violate federal mine safety laws. On appeal, the defendant raised the following four contentions: i) the District Court erroneously concluded that the indictment sufficiently alleged a violation of Section 820(d); ii) the District Court improperly denied the defendant the opportunity for cross examination; iii) the District Court incorrectly instructed the jury regarding the 30 U.S.C. § 820(d); and (iv) the District Court incorrectly instructed the jury as to the state’s burden of proof.

The District Court Did Not Err in Refusing to Dismiss the Indictment

Under the Fifth and Sixth Amendments, an indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense. United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014). An indictment that sets forth the statutory language itself is usually sufficient under this standard, provided that the language sets forth all the elements of the offense without uncertainty or ambiguity. Id. The indictment in question used the language of the 30 U.S.C. § 820(d) , which provides that an operator of a mine may not willfully violate a mandatory mine health or safety standard.

The defendant argued that the indictment was insufficient because it did not cite any specific mine safety laws or regulations that he allegedly conspired to violate. The Fourth Circuit noted that although the indictment itself did not set out the specific citations, the indictment included as an attachment a thirty-page document that detailed the specific laws and regulations violated and how the defendant violated them. Thus, the Fourth Circuit dismissed the defendant’s first contention.

The District Court Did Not Deny the Defendant the Opportunity for Cross Examination

When a new matter is revealed on redirect examination, a defendant is entitled to cross examination concerning the new matter. United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996). A new matter is testimony that raises a subject outside the scope of direct examination or testimony that is materially diffferent from the testimony presented on direct examination. United States v. Jones, 982 F.2d 380, 384 (9th Cir. 1992).

The defendant argued that a witness’s testimony regarding a statement allegedly the defendant allegedly made, as well as made testimony regarding safety violations constituted new matters. However, even if the testimony did constitute new matters, the Fourth Circuit asserted that the District Court could only have committed harmless error. The content in the questioned testimony, according to the fourth Circuit, was sufficiently introduced and examined at various points throughout the trial. Moreover, the defendant cross examined the witness for five full days at trial, which the Fourth Circuit felt was sufficient opportunity. Therefore, the District Court’s holding that the testimony did not constitute a new matter could only have been harmless error.

The District Court Did Not Improperly Instruct the Jury

The defendant argued that the District Court improperly instructed the jury on the meaning of “willfully” in 30 U.S.C. § 820(d). The District Court gave the following four instructions regarding the definition of willfully under the statute: i) knowingly taking actions that cause a mine health or safety standard to be violated, ii) knowingly failing to take an action required to meet mandatory mine health or safety standards and knowingly allowing that omission to continue, iii)knowingly failing to take actions that are necessary to comply with mandatory mine health and safety standards, or iv) or knowingly, purposefully, and voluntarily taking action or failing to take action with reckless disregard for whether that action or failure to act will cause a mandatory safety or health standard violation.

The defendant argued that the fourth definition allowed the jury to impermissibly equate reckless disregard and willfulness. However, the Fourth Circuit noted that both “reckless disregard” and “plain indifference” can generally constitute criminal willfulness. RSM, Inc. v. Herbert, 466 F.3d 316, 320 (4th Cir. 2006). The Fourth Circuit then had to determine whether reckless disregard could constitute criminal willfulness specifically under the statute in question. To answer this question, the Fourth Circuit first examined precedent that held that a defendant violated the Mine Safety Act when intentionally or with reckless disregard disobeyed mandatory safety standards. United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984). The Fourth Circuit also examined the Mine Safety Act’s legislative intent and history and held that Congress enacted the Mine Safety Act to punish habitual offenders against a backdrop of courts construing criminal willfulness to include reckless disregard when defendants continually violate a federal law despite repeated citations. Thus, the District Court did not incorrectly define “willfulness” under the statute.

The District Court’s Use of the Two-Inference Instruction Was Not Reversible Error

The defendant finally argued that the District Court’s use of the two-inference instruction reduced the government’s burden of proof to a preponderance of the evidence. The two-inference instruction tells the jury that if the evidence permits reasonable conclusions of both guilt and innocence, the jury should favor innocence. Although the Fourth Circuit had not yet had the opportunity to evaluate the two-inference instruction, it noted that other circuits generally disapproved of the practice as failing to instruct the jury on how to find if the evidence of guilt is stronger than that of innocence, but not beyond a reasonable doubt. United States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987). The Fourth Circuit agreed that this inference was problematic and prohibited its future use.

However, the Fourth Circuit did not agree that the use of the two-inference instruction was reversible error. It concluded that throughout the trial, the government’s burden was properly stated as beyond a reasonable doubt. Further, the District Court also repeatedly instructed the jury on the presumption of innocence. Therefore, the use of the two-inference instruction did not constitute reversible error.

Conclusion

The Fourth Circuit affirmed the District Court’s conviction of the defendant for health and safety violations under the Mine Safety Act.

 

 

By Kelsey Mellan

On February 23, 2017, the Fourth Circuit issued a published opinion in United States v. Hill, a criminal appeal on behalf of two defendants. Defendant-Appellants Darren Hill (“Hill”) and Lloyd Dodwell (“Dodwell”) appealed the Western District of North Carolina’s denial of their motion to suppress evidence pertaining to an allegedly unconstitutional traffic stop in 2012. The Defendants argue this traffic  stop violated their Fourth Amendment search and seizure rights. The Fourth Circuit affirmed the district court’s denial of the motion to suppress, determining that the stop did not offend its Fourth Amendment jurisprudence at the time it occurred.

 Facts & Procedural History  

On May 2, 2012, Defendants were traveling in an SUV through Henderson County, North Carolina. Deputy David McMurray (“Deputy McMurray”) was patrolling the area when he noticed Defendants’ SUV traveling closely behind another vehicle. Deputy McMurray subsequently pulled over Defendant’s and approached their vehicle. Dodwell was driving and Hill was in the passenger seat. After Deputy McMurray explained the stop, Dodwell admitted to following too closely. Deputy McMurray then asked Dodwell to exit the vehicle and follow him to his patrol car so he could issue a warning ticket. While Deputy McMurray was entering the ticket information, he engaged Dodwell in conversation. Some of Deputy McMurray’s questions pertained to the stop and others ranged to more personal, off-topic questions. Specifically, Deputy McMurray asked Dodwell who owned the vehicle – to which Dodwell answered that he it belonged to either Hill’s girlfriend or sister. Upon questioning, Dodwell also acknowledged that he had previously been arrested for drugs.

Deputy McMurray then returned to the vehicle to speak with Hill to determine who owned the vehicle. While speaking with Deputy McMurray, Hill made numerous statements that conflicted with information Dodwell provided. As he later testified, Deputy McMurray became concerned that some criminal activity was occurring because of Defendants’ contradictory statements and nervous behavior, and the confusion over the owner of the SUV. Moreover, Defendants were traveling from Atlanta which, according to the government, is the “largest source of narcotics on the east coast.” in a type of vehicle commonly used for drug trafficking. After further discussion with each Defendant, Deputy McMurray notified them he was going to call for another deputy so he could run his drug-detection dog around the SUV. He explained that he would only search the vehicle of the drug-detection dog alerted, but would not search if the dog did not alert. Both Defendants consented to this search.

As a result of the search, Deputy McMurray and his team found over $30,000 of bundled U.S. currency, which Deputy McMurray believed to be drug proceeds. During the search, another officer on the scene read Defendants their Miranda rights and each Defendant consented to questioning. The rest of the search revealed no other contraband in the SUV. Ten days later while reviewing the recording of the stop, Deputy McMurray saw that Hill had deposited a bag containing cocaine hydrochloride behind the patrol car’s driver seat.

A grand jury indicted Defendants for possession with intent to distribute at least 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Both Defendants filed a motion to suppress which the magistrate joined for hearing. After the hearing, the magistrate recommended that the district court deny Defendants’ motion. Defendants generally objected to the magistrate’s memorandum and recommendation (“M&R”) on the grounds that the traffic stop violated the Fourth Amendment. The district court accepted the M&R and denied Defendants’ motion to suppress in full because (1) Deputy McMurray did not unreasonably extend the traffic stop prior to issuing the ticket and (2) Deputy McMurray’s post-ticket extension was justified by both reasonable suspicion and Defendants’ consent.

Defendants’ Fourth Amendment Challenge

On appeal, Defendants argue that Deputy McMurray impermissibly extended the traffic stop both before and after issuing a warning ticket, based on Supreme Court precedent from Rodriguez v. United States and Fourth Circuit precedent set in United States v. Williams. The government argues that any de minimis pre-ticket delay was allowed under governing precedent at the time of the stop. Moreover, the government claims Defendants waived their rights to challenge the reasonableness of the post-ticket extension by failing to sufficiently object on that ground.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” According to the Supreme Court in Illinois v. Caballes, a routine traffic stop becomes an unreasonable seizure when law enforcement impermissibly exceeds the stop’s scope or duration. The Supreme Court limited the permissible scope and duration of a traffic stop in Terry v. Ohio. If a traffic stop strays outside the boundaries of its permissible scope or duration, the Fourth Amendment’s exclusionary rule normally prevents the government from using evidence obtained during said search against the victim of the illegal seizure. The Supreme Court explained an exception to this exclusionary rule in Davis v. United States – the good-faith doctrine. This doctrine protects law enforcement action taken in “objectively reasonable reliance on binding appellate precedent” at the time of the search or seizure. The Fourth Circuit determined this doctrine applies in this case.

Yet, Defendants asked the Fourth Circuit to analyze Deputy McMurray’s conduct in 2012 under the standards set out in Rodriguez and Williams – cases that were not decided until 2015. Defendants argued that Deputy McMurray violated their Fourth Amendment rights by asking off-topic questions before writing a ticket. But when this search was conducted in 2012, the Fourth Circuit’s binding precedent set in United States v. Digiovanni held that questioning or other activity unrelated to the initial purposes of the stop only rendered the stop unreasonable if the officer “failed to diligently pursue the purposes of the stop.” In Digiovanni, the Fourth Circuit determined that de minimis delay in issuing a ticket warranted suppression only when an officer did not begin, or completely abandoned, actions related to the cited purpose of the stop.

In this case, the Fourth Circuit decided that the record sufficiently demonstrates that Deputy McMurray’s questions were in continuance of the pursuit of activities related to the initial stop. Moreover, the Deputy continued issuing the warning throughout the pre-ticket process. Although his questions may have been off-topic, Deputy McMurray never strayed from diligently pursuing the purposes of the stop. Moreover, Defendants effectively waived their challenge to any post-ticket extension by failing to specifically object on those grounds before the district court. Therefore, the Fourth Circuit deemed this stop constitutional.

 Disposition

Thus, the Fourth Circuit affirmed the judgment of the district court.

 

By Kelsey Mellan

On February 9, 2017, the Fourth Circuit issued a published opinion in United States v. Spencer, a criminal appeal of an allegedly unreasonable sentence stemming from a “threatening communication” charge. Todd Spencer (“Spencer”) pleaded guilty to sending threatening communication to a federal employee in violation of 18 U.S.C. § 876(c). He was subsequently sentenced to 45 months in prison. Spencer challenged this sentence on both procedural and substantive grounds. The District Court for the Eastern District of Virginia determined this sentence was reasonable and upheld Spencer’s conviction. The Fourth Circuit affirmed, holding the 45-month sentence was both procedurally and substantively reasonable.

Facts & Procedural History

On September 12, 2013, Spencer sent a threatening letter covered in a mysterious white powder to the clerk’s office of the federal courthouse in Norfolk, Virginia. Parts of the letter read, “The very letter you hold may indeed be the last you hold. This letter may contain on it what takes your last breath…Good luck to you.” The clerk who opened the letter was understandably “disconcerted and afraid.” The U.S. Marshals called to the courthouse instructed her to lock herself alone with the letter in the mailroom until inspectors arrived. Inspectors determined the letter was from Spencer, who was currently an inmate at the Chesapeake City Jail. Once questioned, Spencer admitted to sending the letter and explained that the powder was dried toothpaste, which he included “to enhance the effect of the letter in order to put fear into the reader” that it was poison.

On October 2, 2014, Spencer pleaded guilty to sending a threatening communication in violation of § 876(c). His probation officer prepared a pre-sentence report, which yielded an advisory Sentencing Guideline range of 37 to 46 months based on the sentencing enhancement provisions in U.S. Sentencing Guideline Manual § 2A6.1(b)(1). At the actual sentencing hearing on January 13, 2015, the district court overruled Spencer’s objections to the sentencing range based on the “very, very serious” nature of the offense and the “devastating impact” on the victim. On appeal, the Fourth Circuit determined that the district court erred in applying the sentence enhancement because Spencer’s use of harmless toothpaste did not suggest an intent to carry out the threat and/or injure the clerk.

The district court held a resentencing hearing on January 12, 2016 where no sentence enhancements were applied. In order to “afford adequate deterrence” to similarly situated offenders and provide “just punishment” to Spencer, the district court decided to upwardly depart from the advisory Guidelines sentencing range (21 to 27 months) and imposed a sentence of 45 months. This timely appeal followed, in which Spencer argued the 45-month sentence was both procedurally and substantively unreasonable.

Procedural Unreasonableness

Spencer first contended that the district court erred by failing to provide advance notice of its intention to depart from the advisory Guidelines range, in violation of the Federal Rules of Criminal Procedure 32(h). He claimed the district court repeatedly characterized the sentence as an upward “departure,” yet never advised the parties that it was contemplating such an action. Thus, he claims he was deprived of the opportunity to challenge the increased sentence.

Because the circumstances surround threats, like the one made by Spencer, vary substantially, § 2A6.1 of the Sentencing Guidelines gives district courts latitude to depart from the Guidelines. District courts are allowed to apply other generic departures as necessary. At the resentencing hearing, the district court repeatedly stated that it would “upwardly depart” from the Guidelines. Additionally, Spencer should have realized that he would receive a longer sentence then what was originally advised by the Guidelines, based on his earlier sentence for this charge. Therefore, Spencer had every reason to believe that the court might adopt an above-Guidelines sentence.

Spencer also had ample opportunity to address the district court’s concerns about the letter’s effect upon the victim and the record does not indicate that advanced notice of the sentence deviation would have affected the parties’ presentation of the facts in any material way. Thus, the Fourth Circuit determined the 45-month was not procedurally unreasonable.

 Substantive Unreasonableness

Spencer also asserts that his 45-month sentence is substantively unreasonable because it is too long. He insisted that the severity of the sentence rested on improper sentencing factors and unfounded factual findings. According to the Fourth Circuit, the district court based its sentence on the intended effect on the victim, which was entirely proper grounds given the seriously nature of the threat accompanied by ostensible poison. The district court tailed its sentence in light of traditional sentencing factors such as deterrence and punishment. The Fourth Circuit determined the inference drawn by the district court lay within the bounds of its discretion.

However, this court has previously determined that district courts must explain the basis for their sentence. In United States v. Carter, the Fourth Circuit instructed that a district court must “justify its sentence with an individualized rationale.” But still, a balance must be struck between providing justification for a sentence and entitling district court decisions “due deference.” Since the district court in this instance based its decision on the factors of deterrence and punishment, the sentence is adequately justified and warranting due deferencTherefore, the Fourth Circuit held the 45-month sentence was not substantively unreasonably.

Disposition

Thus, the Fourth Circuit affirmed the judgment of the district court.