By Matthew Hooker

Spencer v. Virginia State Univ.

            In this civil case, the Fourth Circuit affirmed a grant of summary judgment in favor of Virginia State University concerning the plaintiff’s claim that she was sexually discriminated against with respect to her salary. The plaintiff, a sociology professor, earned a median salary when compared to men who were also full professors in the same department. But the plaintiff argued that the court should compare her pay to that of two former university administrators who earned at least $30,000 more than her. But the Fourth Circuit held that because the plaintiff and these two men did not perform “equal” work requiring “equal skill, effort, and responsibility,” she could not prevail under the Equal Pay Act. “Professors are not interchangeable like widgets.” The two men taught in different departments than the plaintiff, taught at a higher class level, and worked more hours. The Fourth Circuit also held the plaintiff could not prevail under Title VII because the university had explained the pay disparity by showing its practice of paying administrators 9/12ths of their previous salary, which was a nondiscriminatory reason.

United States v. Davis

            In this criminal case, the Fourth Circuit held that the district court did not abuse its discretion in admitting certain pieces of evidence when the defendant was ultimately convicted for distribution of over 50 grams of methamphetamine. The defendant had also objected to the use of coconspirator testimony for sentencing purposes after the jury had acquitted him on a charged conspiracy count.

            The Fourth Circuit first held that the admission of an out-of-court statement of an informant was not an abuse of discretion because the testimony was offered as an explanation or motive for the officers’ use of the informant, so the testimony was not hearsay under Federal Rule of Evidence 801(c). The Fourth Circuit next held that the government properly authenticated certain photos introduced at trial because, even though there was no direct evidence to authenticate, the context was sufficient to authenticate since “the burden to authenticate under Rule 901 is not high.” The Fourth Circuit also held that an officer’s familiarity with the defendant’s voice was enough to authenticate a recording of a telephone conversation since the officer had in-person conversations with the defendant such that the officer would be able to recognize his voice.

            Finally, the Fourth Circuit held that the district court properly explained the sentence imposed, even though the court considered acquitted conduct in establishing the drug amounts. Since it has long been acceptable to consider such conduct, and because the district court did explain its consideration and the defendant’s contrary arguments, the explanation was adequate.

Duncan v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) applied the incorrect standard of review in reviewing an immigration judge’s (“IJ”) determinations. The IJ had concluded that the petitioner was not in his father’s physical custody under the Child Citizenship Act of 2000 (“CCA”), subjecting the petitioner to removal proceedings. In a case of first impression, the Fourth Circuit concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law, requiring a bifurcated approach. The Fourth Circuit held that the application of the facts to the relevant state law in determining whether an individual satisfies the physical custody requirement is a legal judgment subject to de novo review by the BIA. Since the BIA reviewed for clear error, remand of the case was necessary for application of the correct standard.

Vasquez v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) failed to fully consider all relevant evidence in support of the petitioner’s claim for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petitioner had expressed great fear that she and her son would be tortured or even murdered by the 18th Street gang if they were removed and sent back to El Salvador. In reviewing the immigration judge’s (“IJ”) denial of relief, the BIA did not adopt the IJ’s opinion but instead offered its own reasons for denying relief, so the Fourth Circuit reviewed the BIA’s reasons. Although the BIA had considered country condition reports, it had ignored the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. Since the BIA wholly failed to consider this evidence, the Fourth Circuit remanded the case for review of all relevant evidence.

Attkisson v. Holder

            In this civil case, the Fourth Circuit affirmed a dismissal for failure to state a claim where the plaintiffs sued a number of government officials and corporate entities for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance. The Fourth Circuit first held that the plaintiffs failed to state a Bivens claim. Although Bivens itself recognized a remedy for Fourth Amendment violations, the Fourth Circuit viewed the plaintiffs’ claim as presenting a “new Bivens context” because of the rank of the government officials here and the use of electronic surveillance. Since this was a new Bivens context, the Fourth Circuit had to consider whether there were special factors suggesting denying a cause of action. Here, the Fourth Circuit held such factors were present since Congress had already explicitly legislated in this area without authorizing damages for a Fourth Amendment violation.

            The Fourth Circuit next held that the plaintiffs failed to state a claim under the Electronic Communications Privacy Act (“ECPA”) because the defendants in question were entitled to qualified immunity. In doing so, the Fourth Circuit declined to review the district court’s interpretation of the ECPA and instead held that qualified immunity was appropriate since there was a “lack of settled precedent supporting the plaintiffs’ ECPA claim.”

            Finally, the Fourth Circuit upheld dismissal of the complaint against certain Verizon entities and John Doe agents. Because the plaintiffs had failed to identify or serve any of the John Doe agents, had failed to prosecute their claims, and had failed to respect court orders, the Fourth Circuit held there was no abuse of discretion for the district court to dismiss the complaint as to these final parties.

Brundle v. Wilmington Trust, N.A.

            In this civil case, the Fourth Circuit affirmed a judgment finding that an Employee Stock Ownership Plan (“ESOP”) trustee breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Fourth Circuit noted that, under ERISA, there need not be proof that the fiduciary acted in bad faith, but only that the fiduciary failed to act solely in the interest of the ESOP participants. The defendant primarily challenged the district court’s findings of fact during the bench trial, but the Fourth Circuit held that there was no clear error in those findings. The Fourth Circuit also held that there was no clear error in the district court’s damages award.

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.



Weekly Roundup: 2/12-2/16

By: Mary Kate Gladstone & Robert Tucci

U.S. v. Cowden

In this case, the defendant, a former lieutenant with a West Virginia Sheriff’s Office, appealed his conviction for deprivation of rights under the color of law in violation 18 U.S.C. § 242 after he assaulted an arrestee.  On appeal, the defendant argued that the district court erred in admitting evidence of his prior uses of force; that the evidence was insufficient to support his conviction; that the jury was improperly instructed on the elements of the offense; and that he should not have been held liable for injuries to the arrestee when a different officer was the one arresting him, but the Fourth Circuit affirmed on all accounts.

Intl. Refugee Assistance v. Donald J. Trump

This is a consolidated appeal of three separate cases seeking injunctive and declaratory relief, asserting that Proclamation No. 9645, Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, and Executive Order 13,780, Protecting the Nation From Foreign Terrorist Entry into the United States, violate the Immigration and Nationality Act, the Establishment Clause of the First Amendment, the Free Speech and Free Association Clauses of the First Amendment, the equal protection and procedural due process guarantees of the Due Process Clause of the Fifth Amendment, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The Fourth Circuit affirmed the preliminary injunction granted by the district court, noting that the Executive Order and Proclamation were “unconstitutionally tainted with animus toward Islam” based on their contents and the context of official statements made by President Trump.

U.S. v. Smith

In this case, defendant Antoine Smith appealed his enhanced prison sentence under 18 U.S.C. § 924(e)(2)(B)(i), the Armed Career Criminal Act (ACCA), arguing that one of his prior convictions, voluntary manslaughter (a North Carolina crime), is not a violent felony within the meaning of the force clause of the ACCA. The Fourth Circuit disagreed, holding that voluntary manslaughter in North Carolina requires an intentional killing, thus involving “the use, attempted use, or threatened use of physical force against the person of another” as required by the force clause of the ACCA.

Salgado-Sosa v. Sessions

In this case, plaintiff and Honduras citizen Reynaldo Salgado-Sosa petitioned for review of the denial of his asylum application, and requested the court to grant a withholding of removal and protection under the Convention Against Torture. In requesting relief, Salgado-Sosa stated that he feared he would face persecution if he was returned to Honduras, as the gang MS-13 has repeatedly attacked his family for resisting extortion demands. The Fourth Circuit vacated and remanded in part, finding that the Board of Immigration Appeals erroneously rejected Salgado-Sosa’s withholding of removal on the grounds that Salgado-Sosa could not establish a “nexus” between MS-13’s threats and membership in a cognizable “particular social group” – his family – and remanded the asylum claim for consideration of whether the untimely application exception in Zambrano v. Sessions is applicable in Salgado-Sosa’s case. 

E.W. v. Dolgos

Plaintiff E.W., a minor and elementary school student, appealed the district court’s grant of summary judgment for defendant Dolgos, a school resource officer, in E.W.’s 42 U.S.C. § 1983 action, which alleged that Dolgos used excessive force in handcuffing a calm and compliant E.W. for an altercation with another student that occurred several days prior, thus violating the Fourth Amendment and several state law claims. The Fourth Circuit affirmed the district court’s decision, finding that Dolgos was entitled to both federal qualified immunity an state statutory immunity under the Maryland Tort Claims Act.


By Sophia Blair

On October 27th, 2016, the Fourth Circuit reversed and remanded a civil case, Makia Smith v. Baltimore City Police Dep’t, to the District of Maryland after determining that the district court improperly admitted evidence under Federal Rule of Evidence 404(b) and the admittance resulted in reversible error.

Summary of the Facts and District Court Proceedings

On May 8, 2013, appellant Makia Smith (“Smith”) filed this action in the District of Maryland against the Baltimore City Police Department as well as individual officers Campbell, William Pilkerton, and Nathan Ulmer in their official capacity (collectively, “Appellee”). Smith alleged excessive force, deprivation of property without due process, and violations of the First and Fourth Amendments pursuant to 42 U.S.C. § 1983. Smith made additional state claims under Maryland law including intentional inflictions of emotional distress.

Smith claimed that, on March 8, 2012, two police officers observed her filming them as they arrested a juvenile in the middle of a street, and then battered and unlawfully arrested her. In a prior related criminal case, Smith was charged with second-degree assault of an officer, resisting or interfering with arrest, failing to display a license on demand, willfully disobeying a lawful order of the police, and causing a vehicle to obstruct a free vehicle passage of a roadway. The charges were dropped via a nolle prosequi disposition in January 2013.

The arresting officer, Nathan Church (“Church”), and Smith gave conflicting reports of the events that led to Smith’s arrest. Church testified that he received a call for back up at Hartford Road in Baltimore. When he arrived, there were juveniles running through the streets, and another officer, Talmadge Jackson (“Jackson”), was attempting to arrest a juvenile. As Church assisted Jackson in his efforts, he heard tires screech as multiple cars came to a stop. When he looked up, he saw Smith’s car blocking traffic and Smith standing behind her car holding her phone up, as if she was videotaping. Church and Smith’s account of events diverged from here: Church testifying that Smith was verbally aggressive, combative, and non-compliant, and Smith testifying that Church menaced and threatened her because he saw her videotaping.

On March 9, 2015, Smith filed a motion in limine to exclude all evidence of her prior arrests: second degree assault in 2005, fleeing and eluding in 2006, and second degree assault in 2010, none of which resulted in convictions. The district judge granted the motion, however the case was reassigned to a new judge prior to trial.

At trial, Appellee successfully introduced evidence of Smith’s three prior arrests as relevant to her claim for damages. Smith’s mother testified that the March 8, 2012 arrest had a significant emotional impact on Smith, supporting Smith’s claim of intentional infliction of emotional distress. Following the mother’s testimony, Appellee’s counsel argued that she had “opened the door” and gave Appellant’s counsel notice that they might bring the prior arrests in. Calling the mother’s testimony “overemotional” and “tainted with hearsay,” the district judge said he would let the prior arrests in;­ he felt they went to whether this arrest did cause Smith emotional distress.

When Appellee’s counsel introduced the prior arrests at trial, the district court gave limiting instructions and clarified that the prior arrests should only be considered with respect to the amount of damages awarded, not Smith’s credibility. At the conclusion of the trial, the jury returned a verdict in favor of the police officers on all counts.

Abuse of Discretion and Harmless Error

This issue on appeal was whether the district court erred in admitting evidence of Smith’s prior arrests. The Fourth Circuit analyzed whether there was an abuse of discretion and reversible error. An abuse of Discretion occurs where a district court “arbitrarily or irrationally” admits evidence. Additionally, citing United States v. Madden, the test for harmless error is whether “after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” The appeal turned on whether Smith’s prior arrests, which did not involve struggles with police, made it more or less probable that she suffered emotional damage.

Admittance of Prior Acts under FRE 404(b)

Federal Rule of Evidence 404(b)(1) prohibits the admission of evidence of prior arrests to prove a person’s character or to demonstrate that someone acted in accordance with that character on a particular occasion. Prior acts are admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” under Federal Rule of Evidence 404(b)(2). Pursuant to United States v. Garcia-Lagunas, the Fourth Circuit employs a four-part test to determine whether prior-act evidence is admissible: “(1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove an element of the [claim]; (3) it must be reliable; and (4) its probative value must not be substantially outweighed by its prejudicial nature.” In this case, the Fourth circuit limited its analysis to relevance and prejudicial nature because they were the only elements that Smith raised on appeal.

Under FRE 404(b), admission of evidence of prior acts is admissible to help the jury determine the extent of damages as a non-character based purpose, but it must still have probative value on the question of damages. The alleged relevance of the prior arrests to damages in this case is whether those prior arrests were responsible, in whole or in part, for the emotional distress experienced by Smith. The Fourth Circuit stated that, because Smith’s emotional distress claim was based on the specific interactions with officers in this case, and because she testified that she had never had a similar experience with an officer before this case, the prior arrests were not relevant.

Furthermore, because Appellee’s counsel asked Smith if this was her “first rodeo” when introducing the prior arrest evidence, it was clear that the evidence was being offered for character and propensity, and not the extent of damages. Additionally, Appellee’s counsel made no record of the nature of Smith’s prior arrests, none of which included altercations with police officers. Therefore, the Fourth Circuit held that the evidence was barred from admittance by FRE 404(b).

Additionally, the Fourth Circuit held that the evidence of prior arrests here was too prejudicial, noting that this type of evidence “generally impugns character.” The court doubted that the jury drew the distinction between the significance of an arrest and a conviction. While the district court attempted to curtail prejudice by giving limiting instructions, the Fourth Circuit doubted the effectiveness of limiting instructions and the sufficiency with which they were explained to the jury. The district judge gave a limiting instruction when the evidence was admitted, but did not do so prior to jury deliberations. Also, the instructions did not mention “character” or “propensity,” nor did they confine the use of the evidence to damages. As a result, the Fourth Circuit determined that prejudice outweighed any possible probative value.

Harmless Error

The Fourth Circuit found that there was reversible error, as there was no assurance the improperly-admitted evidence did not substantially sway the jury. Because this was a classic “he-said-she-said” case, the jury’s view of the Smith’s credibility and character was central to the verdict. Additionally, because the limiting instructions given by the district court were inadequate, they were not sufficient to cure an error.


Therefore, the Fourth Circuit found abuse of discretion and reversible error, and reversed and remanded to the District Court of Maryland.



By John Van Swearingen

On Wednesday, October 26, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Alvarado. The district court had issued an order precluding the government from calling upon two witnesses to testify about anything discussed during a grand jury proceeding for a post-superseding indictment; the order also excluded those witnesses’ grand jury testimony for all purposes at trial, including impeachment. The government appealed, arguing the district court abused its discretion by excluding this evidence. Further, the government argued that, in the absence of a finding of prosecutorial misconduct, evidentiary exclusion cannot be used as a remedy. The Fourth Circuit vacated the district court’s order, holding that the district court abused its discretion by ordering the exclusion of the evidence for two reasons. First, the district court did not provide any legal justification for determining how the scope of the government’s questions at the grand jury proceeding exceeded permissible grounds. Second, the district court did not explain how delay, cited by the district court as a reason supporting the exclusionary remedy, was appropriately related to the remedy. However, the Fourth Circuit refused to adopt a blanket policy forbidding district courts to enact exclusionary remedies regarding grand jury proceedings in the absence of prosecutorial misconduct.

Facts and Procedural History

On December 4, 2014, Maria Rosalba Alvarado McTague (“Alvarado”) and Felix Chujoy (“Felix”) were indicted by a federal grand jury for visa fraud and immigration charges. More specifically, Alvarado and Felix were accused of smuggling undocumented immigrants into the country to work, in horrendous conditions and for below minimum wage, in their Peruvian restaurant in Virginia. Alvarado and Felix were released on bond. Expecting a superseding indictment, the defendants and the government moved jointly for a continuance. The district court set trial for June 22, 2015.

The grand jury returned a superseding indictment on March 12, 2015. Alvarado and Felix were charged with additional counts of labor trafficking, Gladys Chujoy was added as a defendant, and all three Defendants were charged with witness tampering, conspiracy to witness tamper, and obstruction of justice. Because evidence suggested Alvarado and Felix were using third-parties’ phones to contact witnesses, their bonds were revoked by the magistrate.

The government continued investigating these matters by questioning individuals whose phone numbers appeared in the phone records of witnesses. Carolyn Edlind (“Edlind”) and Sheriff Donald Smith (“Smith”) were interviewed during this investigation in May 2015, and both were subsequently subpoenaed to testify at trial.

On June 21, 2015, the government moved to continue the trial because of a personal emergency. Defendants did not object and explicitly waived any speedy trial objection; however, Alvarado did have to retain new counsel. The district court set trial for October 26, 2015.

In August 2015, counsel for an inmate incarcerated alongside Felix contacted the government with an invitation to interview that inmate. The inmate advised that he and others had provided PINs to Felix in order to facilitate Felix making surreptitious phone calls. After obtaining the recorded conversations, the government discovered evidence that Felix, Edlind, and Smith were potentially engaged in a witness-tampering scheme.

On October 6, 2015, the government subpoenaed Edlind and Smith to testify before the grand jury regarding the post-superseding indictment tampering scheme. This information was disclosed to both the district court and Defendants.

On October 20, 2015, Felix, Edlind, and Smith testified before the grand jury about the scheme, and the grand jury returned a new indictment. Felix and Edlind were charged with new counts of witness tampering, conspiracy to witness tamper, and obstruction of justice. Edlind was also charged with an additional count of obstruction (based on her prior grand jury testimony) and perjury.

Alvarado thereafter filed a motion to continue in order to investigate the possibility of prosecutor misconduct. The court granted the motion, set trial for December 1, 2015, and invited all Defendants to join the investigation regarding prosecutorial misconduct.

On November 13, the Defendants filed a joint motion for dismissal of all indictments, alleging the government used the third grand jury proceeding with the primary intent of uncovering evidence for the charges on the March 12 indictment as well as determining the Defendants’ trial strategy. The district court found no prosecutorial misconduct and denied dismissal of the indictments. However, the district court forbade the government from calling Edlind or Smith to testify about anything covered in their testimony before the October 6 grand jury; the court also excluded that testimony for any use at trial, including impeachment.

The district court stated this exclusionary remedy was appropriate for two reasons. First, the district court stated the government’s questions during the October 6 grand jury proceeding delved too far into the original underlying charges. Second, the court stated, in the interests of fundamental fairness, the delay caused by the government’s June 21 continuance and Alvarado’s later continuance supported exclusion.

The government appealed pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, arguing two points. First, the district court’s exclusionary remedy was an abuse of discretion. Second, an exclusionary remedy could never apply without prosecutorial discretion.

Exclusion of Evidence Based on the Government’s Questioning, Where the Questioning Had the Dominant Purpose of, and in Fact Did, Produce New Indictments, Was an Abuse of Discretion

The Fourth Circuit held the district court abused its discretion in excluding the grand jury evidence. Absent compelling evidence that the grand jury process was abused – for example, finding that the dominant purpose of a grand jury proceeding was building evidence against a defendant already charged – district courts are generally guided to refrain from intervening. See United States v. Moss, 756 F.2d 329, 331­–32 (4th Cir. 1985).

Also, grand jury proceedings have a presumption of regularity that is bolstered when those proceedings result in new indictments. Id. The function of those proceedings, gathering evidence for an indictment, requires broad latitude in questioning witnesses. See id. at 332. Investigating additional crimes, for example, does not require the government to ignore previous ones.

Here, the district court did not find any improper purpose behind the October 6 grand jury proceedings. Additionally, the district court did not explain its legal basis for determining that the government’s lines of questioning in the October 6 proceeding ­– given the regularity of grand jury proceedings and the fact that new indictments were, in fact, issued – merited an exclusionary remedy. Rather, the court based its remedy on incidental benefits to the government’s case as a result of the proceeding, as well as the court’s determination that some questions seemed too far removed from the new allegations. Lacking a finding of bad faith or improper purpose, the district court essentially excluded the government’s evidence as punishment for not being clairvoyant. The Fourth Circuit therefore held the district court abused its discretion by issuing an exclusionary remedy.

Exclusion of Evidence Based on Delay Without a Supporting Legal Basis Was an Abuse of Discretion

The Fourth Circuit also held the district court’s exclusion of evidence based on delay was an abuse of discretion. The district court never explained in its order why the continuances it once granted later justified exclusion of evidence. The district court did not find bad faith on behalf of the government; further, the court did not state that the government did anything other than conduct a good-faith investigation into the new witness tampering and obstruction charges.

If a district court is going to exclude evidence on the basis that the evidence was attained due to a bad-faith continuance, grand jury abuse, or other prosecutorial misconduct, then the court must clearly state so in its order. Failing to do so – yet ordering exclusion of evidence – was an abuse of the district court’s discretion.

Strict Categorical Limitations on District Courts’ Powers to Issue Remedies in Grand Jury Proceedings Rejected

The Fourth Circuit rejected the government’s argument to categorically limit a district court’s available remedies regarding grand jury proceedings. As argued by the government, if a grand jury proceeding is found to have a proper dominant purpose, the district court will be unable to issue any remedies regarding evidence and testimony obtained during that proceeding. Such is the case in the Eleventh Circuit – a district court may only issue an exclusionary remedy if grand jury proceedings were conducted with the improper dominant purpose of obtaining evidence for existing charges. See United States v. US Infrastructure, Inc., 576 F.3d 1195, 1215 (11th Cir. 2009).

The Fourth Circuit did not want to exclude the availability of a remedy for lines of questioning that skirt the limits of permissibility but do not go beyond them. In certain situations, the court held, remedial actions may still be justified despite a proper dominant purpose for grand jury proceedings.

However, the district court here failed to justify its exclusionary remedy. The district court failed to state any findings of bad faith or prosecutorial misconduct in its order. The government’s lines of questioning did not support a finding of improper purpose. The delays were not connected to reasons for the district court’s exclusionary remedy. For those reasons, and not – as the government proposed – due to a blanket prohibition on available district court remedies, the Fourth Circuit vacated the district court’s order.


The Fourth Circuit vacated the district court’s order excluding evidence and testimony from or relating to the October 6 grand jury proceedings. The court remanded the case back to the district court with instructions to either (a) admit the excluded evidence or (b) issue a new order specifically stating how the exclusion of the evidence is narrowly tailored to the court’s concerns regarding the government’s conduct.

By Sarah Saint

On March 4, 2016, the Fourth Circuit issued a publish opinion in Gentry v. East West Partners Club Management Company, Inc., a civil case in which Plaintiff Judith Gentry (“Gentry”) sued her former employer East West Partners Club Management Company, Inc. (“East West”) and manager Jay Manner (“Manner”) for wrongful termination in violation of the Americans with Disability Act (“ADA”) in addition to other state and federal law claims. On appeal, Gentry challenges the district court’s jury instructions and the damages award. The Fourth Circuit found no reversible error, and thus affirmed the district court’s judgment.

Gentry’s Injury and Termination

Prior to termination, Gentry was an executive housekeeper at the Maggie Valley Club and Resort (“the Club”). East West managed the Club through Manner. In July 2007, Gentry fell at work and injured her left foot and ankle. She received treatment and surgery, and eventually returned to work in January 2009, though still experiencing pain. In January 2010, her doctor determined that, under North Carolina workers’ compensation guidelines, Gentry had a 30 percent permanent physical impairment and may need further surgery.

When the Club’s insurance carrier offered to settle Gentry’s workers’ compensation claim, Gentry declined and expressed concerns that she would be terminated if she accepted. According to the insurance adjuster, Manner was surprised to learn of these fears, describing Gentry as a “great worker” who did “a great job,” and that he intended to make layoffs due to financial difficulties. Manner denied making these statements. Manner, on the other hand, stated that the insurance adjuster felt extorted by Gentry and that she expected Gentry to make another claim against the Club. The insurance adjuster also denied these statements. Nevertheless, Manner relayed his version of the conversation to the officers of the Club and East West. Gentry’s workers’ compensation claim was settled at mediation in November 2010.

In December 2010, Gentry was terminated. The Defendants claim that the termination was part of a restructuring plan to consolidate management positions due to financial difficulties. Gentry was fired along with two other department heads. All but three housekeeping employees had been terminated. Gentry, on the other hand, alleged that one of the executives told her Manner terminated Gentry because of the “issues with [her] ankle.” The Equal Employment Opportunity Commission (“EEOC”) investigator also confirmed that the executive thought Manner terminated Gentry due to her disability. The executive denied ever making such statements.

Procedural History

Gentry sued the Club and East West for (1) disability discrimination under the ADA and North Carolina common law; (2) sex discrimination under Title VII and North Carolina common law; and (3) retaliation against Gentry for pursuing a workers’ compensation claim, in violation of North Carolina common law. Gentry also sued East West and Manner for tortiously interfering with her employment contract with the Club. The jury found for Gentry on the workers’ compensation retaliation claim and the tortious interference claim. The jury found for the Defendants on all other claims.

On appeal, first, Gentry argued that the district court incorrectly instructed the jury on the causation standard and the definition of disability under the ADA. Second, she argued that the district court erred in refusing to admit certain evidence. Third, Gentry argued that she is entitled to a new trial on damages for claims on which she prevailed.

Standard of Review for Jury Instructions

Challenges to jury instructions are reviewed for abuse of discretion. Jury instructions are viewed in their totality to determine if they adequately informed the jury without misleading or confusing the jury or prejudicing one of the parties. Whether jury instructions were correct statements of law are reviewed de novo. Jury instructions will not be set aside unless they seriously prejudice the objecting party.

ADA Causation Standard

Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a). The district court instructed that Gentry had to prove that her disability was the but-for cause of her termination. Gentry argued that this was in error and that the district court should have instructed that Gentry had to prove that her disability was a motivating factor for her termination. The Fourth Circuit determined that the ADA’s text requires a “but-for” causation standard, and thus the district court did not err in applying a “but-for” causation standard to Gentry’s ADA claim.

Title VII allows for employees to establish actionable disability discrimination under the motivating factor causation standard. The Fourth Circuit pointed to the 1991 amendment to the Civil Rights Act of 1964 providing for this, codifying the Price Waterhouse v. Hopkins decision that first established the motivating factor standard for Title VII cases. However, in Gross v. FBL Financial Services, Inc., the Supreme Court determined that the motivating factor causation standard does not apply to the Age Discrimination in Employment Act (“ADEA”) because Congress did not amend the ADEA when it amended Title VII. The Fourth Circuit determined that the ADA, too, does not allow employees to establish actionable disability discrimination under the motivating factor causation standard, following the reasoning in Gross and joining the Sixth and Seventh Circuits. The few cross-references in the ADA to Title VII do not incorporate the motivating factor standard, contrary to Gentry’s contentions. Using the legislative history and the plain language of the ADA, the Fourth Circuit determined that the language of the ADA requires that “on the basis of” unequivocally means but-for causation.

ADA Definition of Disability

The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).

The district court instructed the jury that an impairment substantially limits a major life activity “if it prevents or significantly restricts a person from performing the activity.” However, EEOC regulations now provide that an impairment does not need to prevent or significantly restrict a major life activity in order to be substantially limiting.

Because Gentry did not initially object to the district court’s instruction, the standard of review is plain error, which requires Gentry to establish that the district court erred, that the error was plain, and that the error probably affected the outcome of the trial. The Fourth Circuit determined that Gentry failed to establish that the error probably affected the outcome of the trial, and thus affirmed the district court’s definition of disability jury instructions. Gentry could not prove that the jury believed her injury was less severe than the jury instruction required. Instead, there was substantial evidence Gentry was terminated for other reasons. In so concluding, the Fourth Circuit considered that Gentry was terminated more than three years after her injury, that no one complained of her ability to do her job, and that her only evidence that she was terminated due to her disability was the disputed statements of Manner.

The district court also instructed the jury that a “regarded as” disability is actionable if “a perception that [Gentry] was disabled, was the ‘but for’ reason that [Defendants] . . . terminate[d] her employment.” The Fourth Circuit  could not see how Gentry was prejudiced by the jury instruction because the jury would have been instructed to find for Gentry if they believed Manner’s alleged statements. Accordingly, the Fourth Circuit found no abuse of discretion and no serious prejudice to Gentry that would warrant vacating the verdict.

Finally, the district court instructed the jury regarding the “record of” disability, to which Gentry also objected. However, because Gentry did not object to the instructions at trial and did not explain how the language affected her case, the Fourth Circuit could not find that the district court erred or otherwise abused its discretion.

State Law Claims and Damages Awards

For the state law claims, the district court instructed the jury that it could award damages for back pay, front pay, emotional pain and suffering, and nominal damages; and that Gentry had to mitigate her damages by seeking and accepting similar employment and that it could reduce the damages award based on what she could have earned. The jury awarded Gentry $10,000 against East West for workers compensation retaliation and $5,000 against East West and Manner each for tortious interference. Gentry argued on appeal that the trial court erred in denying her motion to introduce evidence of East West’s insurance coverage and indemnification and in denying her motion for a new trial on damages.

Gentry argued that the damages award was minimized by the Defendants’ belaboring of their poor financial conditions and the impression that a large award would be overly burdensome. Further, she argued that she should have been allowed to dispel this impression by presenting evidence of East West’s liability insurance and its indemnification agreement with the Club.

Evidentiary rulings are reviewed for abuse of discretion. Rulings will only be overturned if they are arbitrary and irrational. The Fourth Circuit found no such basis for overturning the district court’s decision.

The Defendants’ evidence of their financial status was relevant in their defense that they did not terminate Gentry because of her disability but rather because of their financial situation. Further, Gentry did not sufficiently show how the evidence of the financial troubles would show that the Defendants could not pay a damages award. Finally, the district court instructed the jury to award Gentry “fair compensation” and did not reference the Defendants’ ability to pay.

Gentry also argued that she is entitled to a new trial on damages because the damage award was inadequate and that the jury found that Gentry failed to mitigate her damages against the clear weight of the evidence.

Motions for new trial are reviewed for abuse of discretion, which is a high standard because the district court is in the position to hear from the witnesses and has a perspective an appellate court can not match. The crucial inquiry is whether an error occurred in the conduct of the trial that was so grievous as to have rendered the trial unfair. Gentry did not meet this substantial burden because she could not assert with certainty the reasons for the jury’s decision on damages. Further, she could not assert that the clear weight of the evidence showed that she properly mitigated her damages. Accordingly, the Fourth Circuit affirmed the district court’s denial of Gentry’s motion for a new trial.


The Fourth Circuit affirmed the judgment of the district court on all the issues Gentry raised on appeal.


By Paige Topper

On December 10, 2015, in the criminal case of United States v. Daniel Blue, a published opinion, the Fourth Circuit reversed Daniel Blue’s (appellant) prior convictions of conspiracy and possession with the intent to distribute heroin due to insufficient evidence.

Surveillance on Blue Leading to His Arrest

Using the cooperation of a fellow heroin distributor, officers set up a controlled heroin buy in the hopes of arresting a known middleman, Keith Townsend. During the staged buy, officers watched Blue interact with their target in what appeared to be a drug deal with Blue giving Townsend heroin folded into a slice of bread. Two weeks later the officers decided to start tracking Blue by placing a hidden GPS on Blue’s vehicle.

In their surveillance of Blue’s whereabouts the officers followed Blue to Fox Hall apartment complex where they watched Blue enter the apartment building empty-handed and return about five minutes later with a cloudy white, plastic container in his hand. The officers then followed Blue to a lake in Baltimore County known for narcotics transactions. Blue entered into a vehicle with another male, Jamar Holt, and drove around the lake in Holt’s car before returning to his own vehicle. The officers followed Holt under the assumption that a drug transaction between Holt and Blue had occurred. Holt ultimately escaped the officers. After this failed attempt, the officers went to the new address that Blue was at, according to the GPS, and arrested Blue upon his departure from a residence on Sinclair Lane. Ultimately, a grand jury convicted Blue of conspiracy to distribute heroin and possession with intent to distribute heroin.

Insufficient Evidence for Possession with Intent to Distribute 

First the Fourth Circuit addressed Blue’s sufficiency of the evidence argument for the possession with intent to distribute 100 grams or more of heroin conviction. This conviction referred to 108.6 grams of heroin located in one of the Fox Hall apartment units hidden in a footstool. The standard of review for this evidence was whether such evidence could support a rational determination of guilt beyond a reasonable doubt. The government argued there was enough evidence because the officers watched Blue enter and leave the Fox Hall apartment building and that Blue lied to the officers about not being at that location.

The Fourth Circuit noted that the two principal issues with this count were (1) whether Blue knew the 108.6 grams of heroin was in the footstool in the front bedroom of the apartment unit and (2) whether Blue had the power to exercise dominion and control over the heroin. Dominion and control cannot be established by mere proximity to the drug, by mere presence on the property where the drug is found, or by mere association with the person who does control the drug.

Although the officer’s observed Blue entering and exiting the apartment building, they did not see Blue enter the specific apartment unit where the heroin was found nor did they see Blue interact with the occupants of the apartment unit in question. Therefore, the Fourth Circuit determined there was insufficient evidence to establish Blue’s possession of the heroin found in the footstool. The  government argued that Blue was using the apartment as a stash house and thus had constructive possession of the heroin. The Fourth Circuit declared that the government did not provide constructive notice of the heroin through proof that Blue resided or leased the apartment, that Blue’s personal possessions were in the apartment, or that Blue was associated with the occupants of the apartment. As a result of the lack of connection between Blue and the occupants of the apartment, the government’s theory of a stash house was found to be unreasonable. The complete lack of connection between Blue and the heroin convinced the Court that the evidence did not support a rational determination of guilt beyond a reasonable doubt.

The Fourth Circuit also rejected the government’s reliance on case law that suggested the holder of a key has constructive possession of the contents in the apartment. In particular, the Court noted that no Fourth Circuit case had ever adopted the overly broad statement of the law derived from the Eighth Circuit. Moreover, the Eighth Circuit itself qualified the statement, which was located in a footnote, by rejecting the government’s argument in that case that the defendant’s possession of a key to the home, by itself, proved the defendant knowingly possessed cocaine found in the home. Here, the fact that Blue had a key to the apartment did not provide sufficient evidence to establish guilt beyond a reasonable doubt.

Insufficient Evidence for Conspiracy to Distribute

Blue’s second challenge was against the sufficiency of the evidence to support the charge for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. The Fourth Circuit again found that the evidence did not support a rational determination that Blue was guilty of conspiring to distribute. To have found Blue guilty for conspiracy for distribution specifically over 100 grams the government had to tie Blue and another person to an agreement to distribute the 108.6 grams of heroin. The government failed to present such evidence.

Fourth Circuit Reversed Both Convictions

As a result of the lack of sufficient evidence linking Blue to the 108.6 grams of heroin in the footstool and linking Blue to an agreement to distribute that amount of heroin, the Fourth Circuit reversed both convictions of conspiracy and possession with intent to distribute heroin.


By Eric Jones

On January 20, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Moore.  Wendy Annette Moore and Christopher Austin Latham appealed their convictions for participating in a murder-for-hire plot, the target of which was Latham’s estranged wife.  Moore and Latham argued on appeal that the district court constructively amended the indictment against them through erroneous jury instructions, and improperly admitted both hearsay and character evidence.  The Fourth Circuit affirmed the convictions.

The Murder-For-Hire Plot

Latham was a banking executive in Charleston, South Carolina, and was dating his assistant Moore.  Moore and Latham allegedly hired Moore’s ex-husband Samuel Yenawine and his cellmate Aaron Wilkinson to murder Latham’s estranged wife Nancy Cannon.  Wilkinson was stopped by police as he drove through Charleston.  Wilkinson quickly revealed that he and Yenawine were involved in the plot, and that the murder had not yet occurred.

Although Wilkinson originally believed that he and Yenawine were setting out to purchase drugs, once on the road to Charleston from Louisville, Kentucky, Yenawine informed Wilkinson that they were in fact on the way to kill Cannon.  Once in Charleston, Yenawine purchased a pay-as-you-go cell phone, which he used to communicate to a then-unnamed woman that would meet them at the hotel.  Moore met the men, rented them a room, and gave the men $5,000 cash.  Yenawine later met with Moore a second time, returning with a manila envelope containing a “hit packet” with information about Cannon and her children, the plot to murder her, printed maps with handwritten notes, Cannon’s schedule and routine, and photographs of Cannon, her residence and her vehicle.  The items in the “hit packet” were linked to Latham and Moore through handwriting analysis.  Investigators also linked several of the items to Latham and Moore’s office computers and individual printers, and to their cell phones.  Cell phone tower evidence and bank records further linked Latham and Moore to the murder plot.

The Jury Instructions

After a jury trial, Latham was convicted of the use of interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958(a).  Moore was convicted of conspiracy to use interstate commerce facilities in the commission of murder for hire, solicitation of murder for hire, the use of interstate commerce facilities in the commission of murder for hire, and illegal firearm possession.  Latham was sentenced to 120 months in prison, and Moore to 180 months.

The federal murder-for-hire statute, 18 U.S.C. § 1958(a), enumerates two distinct and alternative prongs: the “travel prong” and the “facilities prong.”  Under the travel prong, the Fourth Circuit explained, a defendant may be convicted if she “travels in or causes another . . . to travel in interstate or foreign commerce.”  Under the facilities prong, a defendant may be convicted if she “uses or causes another . . . to use the mail or any facility of interstate commerce.”  Moore and Latham were being charged under the travel prong.  In its closing instructions, the district court read the indictment to the jury, advising them that the defendants were only being charged under the travel prong.  As it went on to describe § 1958(a), however, the court made two references to the uncharged facilities prong, indicating that a defendant may also be guilty of that prong.  Latham and Moore both filed post-trial motions arguing that the district court had constructively amended the indictment against them by mentioning the facilities prong.

Constructive Amendment of the Indictment

As the Fourth Circuit explained, a constructive amendment occurs when the government or the court “broadens the possible bases for conviction beyond those presented by the grand jury.”  The Court further explicated that the “key inquiry is whether a defendant has been tried on charges other than those listed in the indictment.”  Rather than rely solely on the jury instructions, however, the Fourth Circuit clarified that a reviewing court should “consider the totality of the circumstances—including not only the instructions and the indictment but also the arguments of the parties and the evidence presented at trial—to determine whether a jury could have ‘reasonably interpreted’ the challenged instructions as ‘license to convict’ on an unindicted charge.”  Although the Court conceded that in some circumstances a reference to the facilities prong could constitute an impermissible constructive amendment, it held that in this case it was not.  First, the bulk of the jury instruction properly tracked the indictment and omitted any mention of the facilities prong.  Additionally, the court’s opening instructions to the jury described only the travel prong.  The court also gave the jurors a copy of the indictment, which included only the travel prong, and expressly cautioned that the defendants were “not on trial for any act or crime not contained in the indictment.”

Furthermore, the entirety of Latham and Moore’s defense, as well as the entirety of the prosecution, focused on the travel prong and neither party mentioned the facilities prong.  The Fourth Circuit also noted that “the term ‘facilities of interstate commerce’ was never defined for the jury, and the government never suggested that . . . was a basis for convicting the [defendants].”  Thus, based on the totality of the circumstances at trial, the Fourth Circuit held that no juror could have reasonably believed that they were free to convict the defendants under the uncharged facilities prong.

The Hearsay and Character Evidence

At trial, the government called Yenawine’s new cellmate to testify that, before committing suicide after arrest, Yenawine told him about the murder-for-hire plot.  The district court allowed these statements to enter under the “statement against interest” exception to hearsay, found in Fed. R. Evid. 804(b)(3).  As Yenawine had no reason to lie to his cellmate, and the defendants could not establish that the district court abused its discretion in finding sufficient corroboration of Yenawine’s statements, the Fourth Circuit affirmed the district court’s decision.

Moore and Latham also argued on appeal that certain character evidence about Yenawine’s prior conviction for arson and his alleged involvement in murder was improperly admitted.  As these objections were not made at trial, however, the Fourth Circuit examined the record only for “plain error” that “seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”  The Court moved quickly past these arguments, stating that “Moore and Latham have not established that any of the testimony to which they object was admitted in ‘error,’ let alone ‘plain error.’”  In fact, as the Court pointed out, “some of the testimony was elicited by the [defendants] themselves.”  Furthermore, “even assuming, arguendo, the existence of plain error, [the Fourth Circuit] could not find the ‘serious[] effect’ on the ‘fairness, integrity, or public reputation’ of judicial proceedings required.”

The Fourth Circuit Affirmed the Convictions

Because the totality of the circumstances of the trial indicated that no reasonable juror could have been confused by the jury instruction, the Fourth Circuit held that no constructive amendment of the indictment had occurred.  Additionally, because the evidentiary objections could be disposed of “briefly,” the Court affirmed Latham’s and Moore’s convictions.


By Malorie Letcavage

On August 18, 2015 the Fourth Circuit Court of Appeals issued its published opinion in the criminal case of United States v. Fuertes. In this case, the Court had to review the conviction of German de Jesus Ventura and Kevin Garcia Fuentes for conspiracy to commit and commission of sex trafficking and related offenses. The Court affirmed Fuertes’ conviction and vacated Ventura’s conviction on Count Seven and remanded for judgment of acquittal.


German de Jesus Ventura was operating brothels in Annapolis, Maryland with the help of Kevin Garcia Fuentes. Ventura threatened any local competitive pimps with violence. A local competing pimp, Ramirez, received threatening phone calls and was subsequently murdered. When Fuertes was arrested for a traffic violation, the phone number he gave matched the one that made the threatening phone calls to Ramirez. Fuertes also had business cards for his prostitution services on him when he was arrested. Fuertes consented to a search of his home and the police found that it was being used as a brothel. The police continued to monitor Fuertes and Ventura because they believed the two had murdered Ramirez. The police discovered that Ventura was also running brothels. Rebeca Duenas Franco testified that she had a violent history with Ventura, and that he forced her to commit sexual acts against her will through violence and threats. She also stated that she witnessed Fuertes and Ventura celebrating Ramirez’s murder.

The police continued surveillance and learned of other brothels the Defendants were running. They had intelligence that the two would be transporting a prostitute across state lines and that another local pimp was assaulted at the behest of Fuertes and Ventura. The Defendants were arrested in 2011 and indicted on seven charges relating to prostitution and sex trafficking. Fuertes and Ventura appealed their guilty charges claiming errors regarding evidentiary rulings, jury instructions and sufficiency of evidence.

Evidence Under 404b

Defendants claimed that the evidence of violent acts and violence against competitors was improperly admitted. The Court disagreed and held it was properly admitted under the Federal Rules of Evidence 404(b). This rule allows evidence of bad acts if they are admitted for a purpose other than to prove character. The evidence must also be necessary to prove an element of the crime, be reliable, and its probative value must not be substantially outweighed by prejudice. The Court found the violent acts relevant because they showed evidence of Defendant’s participation in the sex trafficking business and that they knowingly conspired to participate in that business. Since the jury had to find an overt act in furtherance of the conspiracy, the threat to use violence against competitors went towards that element.

Further, Defendants did not offer evidence that the information was unreliable or unfair. Since there was already substantial evidence about the violence committed against Duenas, the further evidence of violence was no more likely to cause the jury to react with their emotions instead of their intellect than her testimony of Defendants’ violent behavior. The Court held that the admission of the evidence of violence against other pimps was allowed, and not an abuse of discretion.

Expert Testimony Properly Admitted

The Defendants also argued that the testimony of Dr. Baker was improperly allowed because her experience was mostly with juveniles and was only attempting to bolster Duenas’ credibility about the source of her injuries. The Court disagreed based on Rule 702 concerning expert witnesses. It held that the scientific nature of the testimony meant that the district court as the gatekeeper had properly determined that it was relevant and reliable. It found that Dr. Baker had twenty-five years of experience with abuse cases, and had been qualified to testify as an expert in two dozen other cases. The Court found that it did not matter that her experience with abuse focused on juveniles because there is no distinction between adults and children when it comes to abusive injuries and her training would go to weight, not admissibility.

The Court further held that Dr. Baker did not comment on Duenas’ credibility or guess as to who caused her injuries. Just because her testimony corroborated Duenas’ testimony, did not mean it had to be excluded. The Court thus held that the decision to admit Dr. Baker’s testimony was not an abuse of discretion.

Classification as a Violent Crime

Ventura claimed that he should be acquitted for sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a), which was a predicate for his 18 U.S.C. § 924(c) conviction, because it is not categorically a crime of violence. The Court reviewed the district court’s decision for plain error. To prove a conviction under 18 U.S.C. § 1591(a), the government must prove that the Defendant 1) used or carried a firearm and 2) did so during or in relation to a crime of violence. A crime of violence is defined as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To determine whether it is a crime of violence the Court used the categorical approach to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence under the force clause of the § 924(c)(3)(A). Because the definition of the offense allows that it may be committed nonviolently, it does not qualify as a categorical crime of violence under the force clause. The Court also found that it did not qualify as a crime of violence under the residual clause, § 924(c)(3)(B). There was not a substantial risk that the defendant would use physical force against the victim in completing the crime, so sex trafficking could not be categorically considered a crime of violence.

The Court then held that there was clear error when the District Court instructed the jury that sex trafficking by force, fraud or coercion was categorically a violent crime. It held that the error affected Defendant’s substantial rights and the fairness of the judicial proceedings. The Court vacated Ventura’s §924(c) conviction and remanded it for judgment of acquittal.

Evidence was Sufficient

The Defendants argued that there was insufficient evidence that Fuertes knew or recklessly disregarded that Duenas was coerced or forced to engage in commercial sex acts. The Court found that when viewing the facts in the light most favorable to the government, a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court held that a reasonable jury could have found that Fuertes knew or recklessly disregarded that Duenas was forced or coerced to commit commercial sex acts because he witnessed Ventura beat her with a belt and was heavily involved in the prostitution business.


The Court affirmed the district court’s conviction of Fuertes because the evidence of violence was relevant to proving his involvement in sex trafficking and the expert testimony of Dr. Baker was properly admitted because she was a qualified expert. The Court also vacated Ventura’s conviction under 18 U.S.C. §924(c) because sex trafficking is not categorically a violent crime. The Court remanded that count for acquittal.



By George Kennedy

Today, in the criminal case of United States v. Palomino-Coronado, the Fourth Circuit vacated the conviction of Defendant under 18 U.S.C. § 2251(a). Holding that there was insufficient evidence to show that Defendant had engaged in sexual activity with a minor for the purpose of producing a visual depiction, the Fourth Circuit reversed the district court’s ruling and vacated Defendant’s conviction.

Events Leading up to Defendant’s Conviction

Defendant Anthony Palomino-Coronado was convicted under 18 U.S.C. § 2251(a) based upon the testimony of a seven-year-old child, B.H., who claimed that Defendant had sexual intercourse with her. The events leading up to the conviction began on May 3, 2012 in Prince George’s County, Maryland. On that day, police officers were called to a home that had reported B.H. missing. The officers found B.H. at Defendant’s home, and then interviewed B.H. on suspicion that she had been sexually assaulted.

After interviewing B.H., police officers took her to the hospital for a sexual assault forensic exam. The examining nurse found physical evidence that suggested that she had engaged in sexual intercourse. Furthermore, the nurse interviewed B.H., and B.H. told the nurse that she and Defendant had engaged in sexual intercourse. Following the exam, detectives also interviewed B.H., and she again told them that she and Defendant had sex, and also that Defendant had taken pictures of her during the act.

Detectives filed a search warrant and recovered Defendant’s phone. They found several images of B.H. stored on the phone, and one picture of a man penetrating a child that had recently been deleted. During a later interview, B.H. told questioning detectives that the man and child in the picture were indeed her and Defendant.

Defendant’s Conviction Under 18 U.S.C. § 2251(a)

At trial, the jury found Defendant guilty of “knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct in violation of 18 U.S.C. § 2251(a). The court sentenced Defendant to thirty years imprisonment.

Defendant’s Sufficiency of the Evidence Challenge on Appeal

Defendant appealed his conviction based on a sufficiency of the evidence challenge. Defendant argued that there was insufficient evidence to convict him and that the district court improperly denied his judgment for acquittal under Federal Rule of Criminal Procedure 29. The Fourth Circuit agreed with Defendant and vacated his conviction.

In so holding, the Fourth Circuit focused on the elements required for conviction under 18 U.S.C. § 2251(a), specifically the “purpose” element. To be convicted under the statute, a defendant must coerce a minor to engage in sexually explicit conduct “for the purpose of producing any visual depiction of such conduct.” As the Fourth Circuit explained, the statute contains a specific intent element: “the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.” This specific intent may be proved either by direct evidence such as express statements to the fact or by circumstantial evidence. For example, a defendant providing a minor with “specific instructions” regarding her position relative to the camera may be sufficient proof of an intent to produce a visual depiction of the sexual activity. Alternatively, the presence of a large number of sexually explicit recordings can serve as proof that the defendant engaged in sexual activity for the purpose of producing a visual depiction of the sexual conduct.

In this case, however, the Fourth Circuit held that there was neither direct nor circumstantial evidence to support that Defendant engaged in sexual activity with B.H. for the purpose of producing a visual depiction of that activity. The fact that Defendant made no statements evincing an intent to make a visual depiction and the fact that Defendant only had one sexually explicit picture of B.H. on his phone were cited as support for the Fourth Circuit’s holding.

Reversed and Vacated

Accordingly, the Fourth Circuit reversed the judgment of the district court and vacated the conviction of Defendant, holding that there existed insufficient evidence at trial to support a conviction under 18 U.S.C. § 2251(a).


By Daniel Stratton

On July 10, 2015, the Fourth Circuit affirmed the conviction of former Virginia Governor Robert McDonnell on eleven corruption charges stemming from bribes he and his wife, Maureen McDonnell, had accepted from Jonnie Williams, CEO of Star Scientific Inc. The Fourth Circuit provided an explanation for affirming the conviction in a published opinion in the criminal case U.S. v. McDonnell. The appellant, Gov. McDonnell, alleged several errors in the district court. Primarily, Gov. McDonnell challenged the district court’s jury instructions and the sufficiency of the evidence presented at trial. He also argued that the district court erred by refusing to sever his trial from his wife’s, by violating his Sixth Amendment rights in the voir dire process, and by making several erroneous evidentiary rulings. The Fourth Circuit, after reviewing each of Gov. McDonnell’s claims, affirmed his conviction.

Gov. McDonnell and Jonnie Williams Begin a Mutual Quid Pro Quo Relationship

Prior to his election as governor of Virginia in November 2009, Gov. McDonnell had suffered financial setbacks as a result of the economic downtown. Gov. McDonnell and his sister owned and operated Mobo Real Estate Partners LLC, a business that was losing money on a pair of beachfront rental properties. At the time of the 2009 election, Mobo was losing more than $40,000 each year. The Governor and his wife were also accumulating large amounts of credit card debt, which had reached more than $74,000 at the time of his inauguration in January 2010.

Mr. Williams was the founder and CEO of Star Scientific. At the time of Gov. McDonnell’s election, the company was preparing to launch a new dietary supplement called Anatabloc. Star Scientific was in the process of getting Anatabloc classified as a pharmaceutical by the U.S. Food and Drug Administration. To receive a pharmaceutical classification Anatabloc would need to undergo extensive testing and studies, which required funding beyond what Star Scientific means. As a result, the company was looking for outside research and funding.

Gov. McDonnell first met Mr. Williams in December 2009. Mr. Williams had allowed Gov. McDonnell to use his plane throughout his campaign for governor, but the two did not officially met until December, when the Governor-elect had dinner with Mr. Williams to thank him for his support.

In October 2010, the two met again on Mr. Williams’ personal plane during a trip from California back to Virginia. On this flight, Mr. Williams “extolled the virtues of Anatabloc” to Gov. McDonnell and explained that he needed the Governor to help Star Scientific find a place for testing of the product in Virginia. The Governor agreed to introduce Mr. Williams to Virginia’s secretary of health and human resources.

In April 2011, Mr. Williams took Mrs. McDonnell on a shopping spree, which totaled approximately $20,000, while she and the Governor were attending a political rally in New York. Over the next month, Gov. McDonnell and his wife met and communicated with Mr. Williams about Anatabloc. During this time, the Governor reached out to his sister for information on Mobo’s finances and to his daughter to find out how much money the family still owed for her forthcoming wedding.

On May 2, 2011, Mrs. McDonnell met with Mr. Williams and explained her family’s financial troubles. At this meeting, Mrs. McDonnell told Mr. Williams that she had the Governor’s blessing, and that she could help Mr. Williams with securing research for Anatabloc, provided that he helped her with the family’s financial situation. At this meeting, Mr. Williams agreed to loan the McDonnells $50,000 and to provide the remaining $15,000 for their daughter’s wedding. After the meeting, Mr. Williams called Gov. McDonnell to say that he was willing to help with their financial problems and to confirm that the Governor was on board with the plan. Gov. McDonnell replied “Thank you.”

Over the next year, Mr. Williams provided the McDonnell family with expensive vacations, gifts, and additional loans. Mrs. McDonnell twice bought stock in Star Scientific, and unloaded the stocks before they would have to reported on a required financial disclosure form, known as a Statement of Economic Interest.

Throughout this time, Gov. McDonnell and his wife held the Anatabloc launch at the Governor’s Mansion, contacted the state secretary of health and human services about conducting Anatabloc studies at the Medical College of Virginia and the University of Virginia School of Medicine, reached out to the schools when Mr. Williams believed the studies were proceeding too slowly through the school administration, and attempted to persuade the state’s secretary of administration to include Anatabloc in the state employee health plans.

On January 21, 2014, the McDonnells were indicted by a federal grand jury sitting in the Eastern District of Virginia on a fourteen-count indictment. On September 4, 2014, a jury convicted Gov. McDonnell on eleven counts of corruption. Gov. McDonnell was sentenced to two years in prison, followed by two years of supervised release. Gov. McDonnell appealed to the Fourth Circuit, citing a multitude of alleged errors.

The Fourth Circuit Quickly Dispenses with Severance, Voir Dire, and Evidentiary Arguments

While Gov. McDonnell offered a long list of alleged errors at the district court level, the Fourth Circuit quickly disposed of several of the Governor’s allegations before turning to his more substantive challenges. Gov. McDonnell first challenged the district court’s refusal to sever his trial from his wife’s trial. Generally, if multiple defendants are indicted together, courts have held that they should be tried together. In order to have a motion for severance granted, a defendant must show that he has a bona fide need for a co-defendant’s testimony and that co-defendant would waive Fifth Amendment privilege and testify. He must also demonstrate to the court the substance of the testimony and how that testimony would exculpate him.

The Fourth Circuit found this argument to be unpersuasive because Gov. McDonnell offered “only vague and conclusory statements regarding the substance of Mrs. McDonnell’s testimony.” While Gov. McDonnell did offer to share a more detailed description of Mrs. McDonnell’s testimony, it was conditioned on the review of the evidence being ex parte. The lower court found this would violate the concept of due process, because such a review would have prevented the Government from challenging the evidence. The Fourth Circuit found the trial court did not err in that conclusion.

Gov. McDonnell also argued that the district court violated his Sixth Amendment right to an impartial jury because the court polled the potential jurors as a group instead of questioning them individually on whether they could put aside any information they had heard about the case prior to trial. Jury selection remains largely at the discretion of the trial judge and courts generally cannot apply a hard and fast rule for voir dire.

Here, the Fourth Circuit determined that the trial court had correctly proceeded with voir dire. The jury questionnaire used by the court was largely based off of one the parties had jointly submitted. Gov. McDonnell argued that the question asked of the jurors—if they had “expressed” an opinion, instead of formed an opinion—was problematic. However the Fourth Circuit also found that McDonnell bore most of the responsibility for that question, as the version originally proposed by his attorneys invited the potential jurors “to deliberate on [McDonnell’s] guilt or innocence before the case had even started. Additionally, the Fourth Circuit noted that there had been no contention that any actual juror bias had occurred.

As for Gov. McDonnell’s arguments that the district court made multiple erroneous evidentiary errors, the Fourth Circuit found that none of those findings were clearly erroneous. Evidentiary rulings are reviewed for an abuse of discretion, and the circuit court gives significant deference to the district court’s decisions. A district court abuses its discretion “if its conclusion is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Because none of the evidentiary issues raised by Gov. McDonnell demonstrated an erroneous decision by the trial court, the Fourth Circuit concluded that none of the district court’s evidentiary rulings should be overturned.

Jury Instructions and Sufficiency of Evidence in the Fourth Circuit 

Gov. McDonnell’s most substantive arguments on appeal concerned the jury instructions given by the trial court and the sufficiency of the evidence used to support his conviction. Gov. McDonnell argued that the jury instructions defined bribery far too expansively. When reviewing jury instructions, the appellate court looks at the instructions as a whole and decides whether the instructions accurately state the controlling law. Even if the instructions do not correctly state the law, a circuit court can still find the error to be harmless.

The relevant definition of bribery is “corruptly demanding, seeking, or receiving anything of value in return for being influenced in the performance of any official act.” In the context of bribery, an official act is defined as “any decision or action on any [matter] . . . which may at any time be pending . . . before any public official.” The Fourth Circuit has found that the term “official act” however, does not encompass every action taken by a public official in an official capacity.

An “official act” is not required to be an act explicitly conferred upon an official by a statute. In U.S. v. Birdsall, the Supreme Court explained that an action may be classified as “official” even if it is not explicitly prescribed by statute or a written rule so long as it is found in the “established common usage” of the position. While an official act may be an action that a public official customarily performs, this does not mean that every act an official performs “as a matter of custom” is an official act. Job functions of a public official which are completely ceremonial or educational will usually not fall within the definition of an “official act” in the context of the bribery statute.

Gov. McDonnell also argued that the Government’s evidence was insufficient to support his conviction. On appeal, the Fourth Circuit reviews evidence in the light most favorable to the Government, and if there is substantial evidence supporting a jury conviction, it will be affirmed. In order to prove a quid pro quo arrangement, the government must provide evidence that shows a “specific intent to exchange money (or gifts) for specific official action.”

The Fourth Circuit Finds Jury Instructions were Appropriate and that There was Sufficient Evidence to Convict the Governor

The Fourth Circuit found Gov. McDonnell’s arguments unpersuasive. Gov. McDonnell argued that the jury instructions were too broad because of how they defined an official act. The Governor argued that under this definition, almost anything done by a public official could be construed as an official act, including routine functions such as attending a luncheon or organizing a meeting. Gov. McDonnell claimed that such activities can never constitute an official act and thus the district court incorrectly defined that term in its jury instructions.

The Fourth Circuit did not buy this argument, because the meaning of “official act” as used in the definition of bribery is connected to decisions or actions on matters that may come before the government, not simply any customary act. The court pointed out that the bribery statute criminalizes “corruptly demanding, seeking, or receiving anything of value in return for being influenced in the performance of any official act.” By this definition, the crime is completed when the bribe is either solicited or accepted, regardless of whether or not the “official act” is ever completed (or even started). Further, the court observed, the official act can be an act outside of the bribe recipient’s control, thus it does not matter if the bribe recipient has actual authority over the end result being sought. In his role as Governor, McDonnell had power to influence other public officials and obtain the results Mr. Williams was seeking.

The Fourth Circuit also found that the trial court did not err by denying Gov. McDonnell’s proposed jury instructions, which stated that “merely arranging a meeting, attending an event, hosting a reception, or making a speech” could never constitute an official act. The court found that such a broad statement was unsupported by case law and precedent.

Turning to the strength of the Government’s evidence, the Fourth Circuit dismissed Gov. McDonnell’s claims of insufficiency. The Government presented evidence on three specific matters within the Governor’s sphere of influence: (1) whether researchers at Virginia’s universities would initiate a study on Anatabloc; (2) whether the state Tobacco Commission would provide grant money for studying the active ingredients in Anatabloc; and (3) whether the state health insurance plan would include Anatabloc as a covered drug. The Government did not need to show that Gov. McDonnell actually took official action, but only that there was a corrupt agreement with an expectation that some type of official action would be taken. The Fourth Circuit found that the Government exceeded its burden by showing that the Governor actually used his power to influence government decisions.

The Government also succeeded in showing a quid pro quo relationship by demonstrating a close temporal relationship between Mr. Williams’ gifts and Gov. McDonnell’s actions supporting Anatabloc. The Fourth Circuit noted that Williams’ gifts were not gifts from one friend to another by pointing out that Mr. Williams and Gov. McDonnell did not even know each other until after Gov. McDonnell had been elected. The court concluded that the evidence was such that a jury could readily infer that there were multiple quid pro quo payments and that Gov. McDonnell was acting with corrupt intent.

Fourth Circuit Affirms Gov. McDonnell’s Conviction 

The Fourth Circuit affirmed Gov. McDonnell’s conviction on appeal because a review of the record demonstrated that the Governor received a fair trial and was duly convicted by a jury.



By Sarah Saint

On October 23, 2015, in the criminal case of United States v. Dmytro Patiutka, the Fourth Circuit issued a published opinion affirming the district court’s grant of Defendant Dmytro Patiutka’s motion to suppress evidence. In this case, the Fourth Circuit answered the United States of America’s interlocutory appeal to the district court’s ruling arguing in the alternative that the search was either incident to an arrest or fell within the Fourth Amendment’s warrant requirement automobile exception.

State Troopers Searched Patiutka’s Car Without Warrant

A patrol car camera recorded the following stop. Virginia State Trooper G.S. Cox pulled over an SUV with tinted windows and tinted license plate cover when the driver failed to maintain lane on April 27, 2013. Patiutka gave the trooper a license with the name “Roman Pak.” When the trooper asked Patiutka for his birth date, Patiutka told him a date eight years from the date on the license. The trooper testified he thought Patiutka was lying in violation of Virginia law, but the trooper asked Patiutka no more questions about this. The trooper ran the supplied information through police databases, received no results, and told Patiutka he was “free to go.”

Once Patiutka began to walk to his car, the trooper asked if he could search Patiutka’s car, which the trooper believes he received consent for, and signaled to other troopers to begin searching the car. One trooper found a bag containing a credit card reader and a suitcase containing four unopened iPads. Patiutka asked the trooper who had stopped him why his car was being searched. The trooper responded that Patiutka consented. Patiutka asked for them to stop. Then, when another trooper announce Patiutka was under investigative detention, the first trooper put handcuffs on Patiutka and took him back to the patrol car. The troopers then found a credit card embosser, credit card re-encoder, and blank credit cards. At the end of the search, a trooper transported Patiutka to the state police station and read him his Miranda rights. He was questioned at the station and made incriminating statements.

On January 13, 2014, the Government filed a criminal complaint against Patiutka, charging him with access device fraud and aggravated identity theft. On March 20, 2014, a grand jury indicted Patiutka.

Patiutka Moved to Suppress Evidence from Warrantless Search

Patiutka moved to suppress the physical evidence found in his car as well as all statements and evidence that flowed from the warrantless search. The Government claimed that the statements and evidence were admissible under the vehicle exceptions to the Fourth Amendment’s warrant requirement. The district court wholly rejected the Government’s assertions. The Government then filed an interlocutory appeal.

Standard of Review

The Fourth Circuit reviewed the district court’s legal determinations underlying the grant of the motion to suppress evidence de novo and the factual findings for clear error.

Fourth Amendment Prohibits Warrantless Searches Save For Small Exceptions

The Fourth Amendment protects people from unreasonable searches and seizures. Warrantless searchers are presumed unreasonable except in a limited number of cases. The Government argued that the warrantless search was reasonable for two reasons in the alterative: either the search was incident to Patiutka’s arrest or the search fell within the automobile exception.

Incident to Arrest Exception Does Not Apply Here

Officers may search a vehicle if the arrestee is near the car or it is reasonable to believe there is evidence incident to the arrest near the car. If the search begins before arrest, officers must have probable cause to arrest prior to the search. The Government contends that the officers had probable cause because Patiutka gave false identity information, but the Fourth Circuit did not find this persuasive because the district court found the officer did not have cause to arrest Patiutka before the search based on the evidence provided. Because the officers did not have cause to arrest Patiutka for any reason when they continued the search without Patiutka’s consent, the incident to arrest exception cannot apply and the search violated the Fourth Amendment.

Automobile Exception Does Not Apply Here

Officers may search a vehicle if they have probable cause it contains evidence of any criminal activity. The district court found that when the officers only found a credit card reader and suitcase with new iPads, this was not enough to provide a basis for probable cause after Patiutka withdrew consent. The officers should have questioned Patiutka about the contents found during the consensual search. Because the officers had no probable cause to search, the automobile exception cannot apply and the search violated the Fourth Amendment.

Government Tried to Apply the Collective-Knowledge Doctrine

The Government argued that the collective-knowledge doctrine gave the searching officers probable cause to search the car. The collective-knowledge doctrine allows a court to substitute the knowledge of the instructing officer to the acting officer. However, the officers did not communicate with each other, so the doctrine cannot save the search, and no officer had sufficient knowledge to justify a warrantless search.

Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit found neither of the Government’s contentions that a Fourth Amendment exception applied here persuasive. Thus, the Fourth Circuit affirmed the district court’s judgment to grant Patiutka’s motion to suppress evidence.