Wake Forest Law Review

By Samuel D. Gilleran and Nicholas T. Pappayliou

Background

On August 22, 2018, the Fourth Circuit decided United States v. Hodge,[1] clarifying whether the government may ask a district court to designate a conviction as an Armed Career Criminal Act (“ACCA”) predicate conviction, when that conviction was not so designated during the initial sentencing.  In 2011, Garnett Hodge pleaded guilty to possession of crack cocaine with intent to distribute and possession of a firearm as a felon.[2]  Because of his prior convictions, Mr. Hodge was eligible for a “sentence enhancement” under the ACCA.[3]  The ACCA states that a person convicted of possession of a firearm as a felon, who also has three prior “violent felony” or “serious drug offense” convictions, must receive a mandatory minimum of fifteen years in prison.[4]  Mr. Hodge’s Presentence Investigation Report (“PSR”) designated exactly three qualifying, or ACCA predicate, convictions: a July 1992 felony drug possession with intent to distribute, a July 1998 felony drug possession with intent to distribute, and three counts of misdemeanor reckless endangerment in 1998.[5]  The drug possession felonies qualified as “serious drug offense[s],” and – at the time – the misdemeanor reckless endangerment qualified as a “violent felony.”[6]  But another section of Mr. Hodge’s PSR, labeled “criminal history,” enumerated seven additional convictions.[7]  One of those convictions, a March 1992 felony cocaine possession with attempt to distribute, could have been designated in the PSR as an ACCA predicate conviction, as it was identical to the other cocaine possession charges that were so designated.[8]  But, for some reason, the Probation Office that prepared the PSR failed to designate the March 1992 felony as a qualifying predicate conviction, and the Government did not object to the Probation Office’s failure to so designate that conviction.[9]

After his plea, Mr. Hodge was sentenced to 188 months of imprisonment on the cocaine charge and 204 months of imprisonment on the firearm charge, running concurrently.[10]  In 2014, Mr. Hodge filed his first motion to vacate his sentence in district court, but it was dismissed as untimely.[11]  In 2015, however, the United States Supreme Court “substantially narrowed” the ACCA’s definition of a “violent felony” in Johnson v. United States[12] (referred to as Johnson II).[13]  Specifically, Johnson II struck down the ACCA’s “residual clause,” which classified “conduct that presents a serious potential risk of physical injury to another” as a “violent felony” for purposes of sentence enhancement.[14]  The Supreme Court then declared in Welch v. United States[15] that Johnson II would apply “retroactively on collateral review.”[16]  Pursuant to those rulings, the Fourth Circuit gave Mr. Hodge permission to file another motion to vacate his sentence.[17]

The Parties’ Arguments and the District Court’s Ruling

Mr. Hodge asserted that his reckless endangerment conviction was only an ACCA predicate conviction because of the now-unconstitutional residual clause.[18]  Because the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, he only had two predicate convictions and the mandatory minimum of fifteen years did not apply.[19]

The Government agreed with Mr. Hodge that the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, and it initially recommended to the district court that Mr. Hodge be resentenced.[20]  But ten days after filing papers agreeing with Mr. Hodge, the Government evidently discovered the March 1992 drug conviction could have served as a predicate conviction, if it had been so designated.[21] The Government therefore chose to argue that Mr. Hodge had four predicate convictions, and that the failure to designate the March 1992 conviction on the PSR notwithstanding, that conviction could be substituted for the reckless endangerment conviction that no longer qualified as an ACCA predicate.[22]  In order to excuse its failure to object to the Probation Office’s non-designation of the March 1992 conviction, the Government claimed that it would have been superfluous to designate more than three convictions.[23]

The district court sided with the Government and denied Mr. Hodge’s motion, ruling that courts “should ordinarily examine the defendant’s entire criminal record” when evaluating eligibility for ACCA sentence enhancement.[24]  The district court pointed to Mr. Hodge’s three convictions that could have been listed as ACCA predicates, although only two were so listed.[25]  In the district court’s view, because Mr. Hodge had the requisite three predicate convictions, it was of no consequence that the Government had failed to designate one of them in the PSR.[26]  Mr. Hodge then appealed to the Fourth Circuit, asking whether the Government would indeed be permitted to substitute the “potential ACCA predicate conviction that was listed in [Mr. Hodge’s] PSR but never designated nor relied upon as an ACCA predicate.”[27]

The Fourth Circuit’s Holding

Chief Judge Gregory, writing for the court, held that the Government was not permitted to substitute the undesignated potential ACCA predicate conviction for the conviction that no longer qualified.[28]  The Government could not substitute the undesignated conviction because it “failed to provide Hodge with sufficient notice of its intent to use this conviction to support an ACCA enhancement.”[29]  Defendants are entitled to “adequate notice of . . . the convictions that may support [an ACCA] enhancement,”[30] so that they may “contest the validity or applicability of the prior convictions upon which [the] statutory sentencing enhancement is based.”[31]  Applying the canon of expressio unius est exlusio alterius, the Government had indicated “an intentional exclusion” of the March 1992 conviction because the PSR expressly identified the three other convictions as ACCA predicates.[32]  And because the Probation Office did not designate the March 1992 conviction as an ACCA predicate and the Government did not object to that failure, if Mr. Hodge had wanted to challenge “the validity or applicability” of that conviction, he himself would have had to draw attention to it, an anomaly that the court said “would undermine the adversarial process.”[33]

The court rejected the Government’s contention that designating more than three predicate convictions would have been superfluous by noting that “the U.S. Probation Office often designates more than three convictions as ACCA predicates,”[34] and the Government’s inclusion of two convictions for felony possession of cocaine with intent to distribute but exclusion of the third conviction for the same crime militated the conclusion that the “exclusion was deliberate.”[35]

The court also noted that when a defendant fails to timely contest the designation of a crime as an ACCA predicate, the issue is waived on collateral review.[36]  In the court’s view, it is only fair to require the Government to meet the same standard.[37]  Citing a recent case in the First Circuit, the court recognized that “it is unfair to allow parties to surprise one another with new argument that they did not make at the appropriate procedural juncture.”[38]  In Mr. Hodge’s case, “the appropriate procedural juncture” was at sentencing.[39]  If the Government ever wanted to rely on the March 1992 conviction, it should have objected to the PSR “during the sentencing proceedings.”[40]  Because of the unfairness that the opposite rule would work on the defendant, the court held “that the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sentencing.”[41]

This decision comports with the Eleventh Circuit’s holding in Bryant v. Warden, FCC Coleman–Medium.[42]  In that similar situation, a defendant had three designated ACCA predicate convictions, but a change in the law left one of those designations invalid; meanwhile, the Government urged that court to substitute a previously undesignated burglary conviction as the necessary third ACCA predicate conviction.[43]  The Eleventh Circuit refused to do so, relying on the Government’s failure to object to the district court’s non-designation of that conviction as a predicate conviction.[44]  Similarly, in United States v. Petite,[45] the Eleventh Circuit flatly stated, “The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence.  The argument should have been made prior to or during sentencing. . . .”[46]

Conclusion

When the Government fails to designate a potential ACCA predicate conviction as such, it may not then seek it so designated in later proceedings to support an ACCA enhancement.[47]  The Fourth Circuit therefore reversed the district court’s denial of Mr. Hodge’s motion to vacate his sentence and remanded for resentencing.[48]  As of this writing, the resentencing hearing has not yet been scheduled.

[1] 902 F.3d 420 (4th Cir. 2018).

[2] Id. at 423.

[3] Id.

[4] Id. at 423–24.

[5] Id. at 424.

[6] Id.

[7] Id.

[8] Id. at 424–25.

[9] Id. at 426.

[10] Id. at 424.

[11] Id.

[12] 135 S. Ct. 2551 (2015).

[13] Hodge, 902 F.3d at 424–25.

[14] Id. at 425.

[15] 136 S. Ct. 1257 (2016).

[16] Hodge, 902 F.3d at 425.

[17] Id. at 424.

[18] Id. at 425.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at 428 n.4.

[24] Hodge v. United States, No. 1:16-CV-781, 2016 WL 7480397, at *3 (M.D.N.C. Dec. 29, 2016).

[25] Id. at *2.

[26] Id.

[27] Hodge, 902 F.3d at 426.

[28] Id. at 427.

[29] Id.

[30] Id. (quoting United States v. O’Neal, 180 F.3d 115, 125–26 (4th Cir. 1999)).

[31] Id. (quoting United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000)).

[32] Id. at 427–28.

[33] Id. at 428.

[34] Id. at 428 n.4.

[35] Id. at 428.

[36] Id. at 429.

[37] Id.

[38] Id. (quoting United States v. Fernandez-Jorge, 894 F.3d 36, 54 n.16 (1st Cir. 2018)).

[39] Id.

[40] Id.

[41] Id. at 430.

[42] 738 F.3d 1253, 1256–57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017).

[43] Id. at 1279.

[44] Id.

[45] 703 F.3d 1290 (11th Cir. 2013), abrogated on other grounds by Johnson II, 135 S. Ct. 2551.

[46] Id. at 1292 n.2.

[47] Hodge, 902 F.3d at 430.

[48] Id. at 432.

By: Nick McCauslin & Tristan Meagher

Sierra Club v. United States Army Corps of Engineers

In this civil case, the Sierra Club asked the Court to set aside the Army Corps of Engineers’ (“Corps”) verification which allowed for construction of the Mountain Valley Pipeline through West Virginia using the “dry cut” method for the construction of river crossings which would take four to six weeks to complete. West Virginia regulates the construction of river crossings, requiring them to be completed within 72 hours. The Fourth Circuit vacated the Corps’ verification, finding that the Corps did not have the authority to require the use of the “dry cut” method in lieu of West Virginia’s restriction. A more thorough analysis as to why the Corps lacked the authority is expected in a future opinion.

United States v. Gibbs

In this criminal case, Erik Gibbs sought an en banc rehearing of his case after a divided panel of the Court affirmed his twenty-four-month sentence violating the terms of his supervised release. The Court denied the petition. In voting to deny the petition and vacate the panel’s order, Judge Wynn noted that since Gibbs was now released from prison, his case is moot. The court elected to deny the petition prior to the filing of concurring, separate, and dissenting opinions, even though this practice is atypical, in order to avoid unnecessary delay or prejudice to the defendant.

By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.

By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

On February 16, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for U.S. v. Cowden.

I. Facts and Procedural History

This case involves the appeal of Defendant Mark Cowden, who was charged with deprivation of rights under color of law under 18 U.S.C. § 242, and knowingly making a false statement to impede a federal investigation under 18 U.S.C. § 1519.

Michael Hoder, a West Virginia State Police Trooper, initiated a traffic stop of Ryan Hamrick, who was speeding and had a taillight violation. As Hoder attempted to arrest Hamrick, Hamrick engaged in a physical altercation with Hoder. Hoder called for additional law enforcement assistance, which arrived after Hoder had effectively placed Hamrick under arrest. Hamrick was then driven to the HCSO station for processing, without offering further resistance or speaking in any threatening manner to the officers.

Defendant Mark Cowden, an HCSO lieutenant, was waiting to process Hamrick when he learned that Hamrick resisted Hoder’s efforts in arresting him. Officers surrounding Defendant Cowden noticed that he was “unusually hostile” and stating threats against Hamrick for his behavior. When Hamrick arrived at the station, he was restrained in handcuffs securing his hands behind his back, and he was not threatening any officers physically or verbally. Hamrick did display a “loud and drunken demeanor,” but no other officers other than Defendant Cowden perceived him as a threat.

As Hamrick was entering the lobby of the HCSO, he attempted to pull away from Cowden and Sergeant Cline, who were escorting him in the building. Even though no other officers viewed this as a threat, Defendant Cowden “pulled Hamrick toward the elevator and threw him against the wall.” Cowden then slammed Hamrick’s head into the wall and told Hamrick that he was in “our house” and that Hamrick needed to “play by our rules.” Cowden continued to physically abuse Hamrick, until Sergeant Cline intervened and told Cowden to “back off.” After the altercation, Hamrick had injuries around his face and was bleeding from his nose and mouth. He was taken to a hospital to receive additional care, which costed $3,044.

At trial, the district court allowed the jury to hear evidence regarding Defendant Cowden’s previous use of force on two prior occasions during other criminal investigations. The district court instructed the jury that it “may not consider” that evidence “in deciding if the defendant committed the acts charged in the indictment.” Instead, the judge charged the jury that they should only use the evidence to show the state of mind or intent necessary to commit the crime charged in the indictment and to show that it was not due to mistake or accident. Cowden also submitted proposed jury instructions to the district court, which included a generic “Lesser Included Offenses” instruction, showing that a charge of Section 242 can qualify as a lesser offense depending on whether a victim suffered bodily injury. The district court, however, adopted the government’s proposed instructions of Section 242, and Cowden did not object to the court’s decision at the charge conference.

The jury acquitted Cowden of the false statement charge but found Cowden guilty on the deprivation of rights charge. Cowden appealed the decision.

II. Issues Presented

Four issues were presented on this appeal: (1) whether evidence of Cowden’s two prior uses of force were properly admitted by the district court; (2) whether the evidence was sufficient to support his felony conviction; (3) whether the jury was properly instructed on the elements of the Section 242 offense; and (4) whether Cowden was improperly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

III. Holding

The United States Court of Appeals for the Fourth Circuit held in the following manner for each issue on appeal: (1) evidence of Cowden’s two prior uses of force was properly admitted by the district court; (2) the evidence was sufficient to support his felony conviction; (3) Cowden failed to show plain error regarding the denial of a particular jury instruction; and (4) Cowden was properly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

IV. Reasoning 

The court reasoned that evidence of Cowden’s two prior uses of force was properly admitted by the district court because, although potentially constituting prior “bad acts,” the evidence was properly admitted under an exception to Rule 404(b). The evidence was used to help establish the defendant’s state of mind and not simply that he had a propensity for violence. In addition, the court concluded that any possible unfair prejudice did not “substantially outweigh” the probative value of this evidence.

Next, the court concluded that the evidence provided by the government was more than sufficient to support the jury’s determination that Cowden acted willfully. From the evidence presented, the jury could conclude that Cowden, while acting as a law enforcement officer, willfully used unreasonable force against Hamrick.

The court then determined that Cowden failed to show any error, let alone plain error, regarding the court’s denial of his requested jury instruction. The court reasoned that the instructions given by the district court correctly explained the statutory distinctions, permitting the jury to find Cowden guilty of a misdemeanor rather than a felony if the jury determined that Hamrick had not suffered a bodily injury as a result of Cowden’s actions. Thus, although the district court used different words, it instructed the district court as Cowden requested.

Lastly, the court reasoned that the government carried its burden of showing by a preponderance of the evidence “the amount of the loss sustained by a victim as a result of the offense.” Therefore, based on the overwhelming evidence regarding the injuries Hamrick sustained as a result of Cowden’s actions, the court held that the district court acted within its discretion in requiring Cowden to pay the full amount of Hamrick’s medical expenses.

 

 

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

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.