Wake Forest Law Review

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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.

Disposition

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.

Disposition

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.

Conclusion

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

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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.

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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.

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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.

Background

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.

Conclusion

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.

 

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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).

MONEY CASE 6

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.

 

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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.

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By Paige Topper

On June 25, 2015, in the criminal case of United States v. Parker, a published opinion, the Fourth Circuit vacated the defendants’ convictions of illegal gambling. The Fourth Circuit found that the government failed to disclose material impeachment information relating to a government witness who testified about a fifth participant in the gambling operation.

Fifth Participant Requirement Under 18 U.S.C. § 1955

Jack Parker and Douglas Taylor (“Defendants”) were convicted for conducting an illegal gambling business under 18 U.S.C. § 1955. Section 1955 defines an illegal gambling business in part as a business that involves five or more persons who partake in all or part of the business (“five-participant requirement”). At the trial court level the Defendants stipulated that they operated a sports gambling business together. The government claimed that Defendants were linked to another two-person gambling operation conducted by Brett Parker and Bryan Capnerhurst. The government further argued that because Defendants and the other gambling business shared both clients and the proceeds or losses from those clients, Brett, Bryan, Jack, and Douglas all participated in the same gambling business.

In order to meet the five-participant requirement, the government presented several theories. One of the theories was that Brett’s wife, Tammy Parker, participated in the business by using the gambling income for family expenses and maintaining the financial records. In support of this theory, the government provided testimony from its witness, Ben Staples, who claimed that he assisted Tammy in preparing federal tax returns in which she disclosed the income from the gambling business. The government also presented evidence that Tammy would occasionally accept payments for bets when Brett was not home.

Prior to Defendants’ trial, the government received notice that the Securities and Exchange Commission was investigating Ben Staples for fraud. However, the government did not disclose this information to Defendants’ attorneys. It was only after Defendants were found guilty of illegal gambling that their defense counsel learned of the SEC complaint. Defendants requested a new trial based on the government’s failure to disclose impeachment evidence as required by Brady v. Maryland. The trial court concluded that the government did not violate Brady because the SEC investigation was not material evidence.

Establishing a Brady Violation

The Supreme Court in Brady held that suppression of evidence that favors the defendant violates due process when the evidence is material to guilt or punishment. To establish a Brady violation, a defendant must show (1) that the undisclosed information was favorable, either because it was exculpatory or impeaching, (2) the information was material, and (3) the prosecution knew about the evidence and failed to disclose it.

Defendants Proved All Three Prongs of Brady Violation

First, the Fourth Circuit concluded that the SEC investigation of Ben Staples was favorable because it was impeaching. The Fourth Circuit reasoned that the evidence of the investigation would have demonstrated Staples’ potential desire to receive favorable treatment in his fraud case by testifying as a government witness in this case. Furthermore, the evidence would show Staples’ untruthful character.

Second, the Fourth Circuit found that the SEC investigation was material. At trial the jurors were not asked to specify the identity of the fifth participant in the gambling business and thus the Fourth Circuit could not know whether any juror relied on Tammy’s involvement to satisfy the five-participant requirement. However, the Fourth Circuit determined that, based on the relative strengths of the government’s theories for the five-participant requirement, there was a reasonable probability that at least one juror viewed Tammy as the fifth participant. Thus, the Fourth Circuit looked to whether impeaching Staples’ testimony would have had a reasonable probability to change a single juror’s view of Tammy’s involvement in the gambling business. The Fourth Circuit found that Staples’ testimony is the only evidence that firmly established Tammy’s active management of the gambling proceeds and thus the testimony provided critical evidence to support the government’s theory that Tammy was the fifth participant.

The Fourth Circuit did not explicitly address the third prong of the Brady test, but held that the government violated its obligation under Brady by failing to disclose the evidence of the SEC investigation to defense counsel. The Fourth Circuit was not persuaded by the government’s argument that a Brady violation had not occurred because Defendants were aware of the SEC investigation. While Jack and Brett might have been aware that Ben Staples was involved in a scam, the Fourth Circuit concluded this evidence was not enough to relieve the government from its disclosure obligations under Brady.

Fourth Circuit Vacated Defendants’ Convictions and Remanded

The Fourth Circuit held that the government violated its disclosure obligations under Brady by failing to disclose impeachable evidence relating to Ben Staples, a government witness. In particular, the Fourth Circuit concluded that the SEC investigation was material to the outcome of the case. Therefore, the Fourth Circuit vacated the convictions and remanded. The Fourth Circuit noted that it did not enter judgments of acquittal because, while the evidence is not overwhelming, the government formed a sufficient basis for defendants’ convictions for illegal gambling under § 1955.

DSC_0289

By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

By Taylor Ey

On June 8, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Span.  The United States prosecuted Defendant Gary Span in the United States District Court for the Western District of North Carolina, and Span was sentenced to a mandatory minimum sentence of fifteen years in prison pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).  Span appealed the decision, and the Fourth Circuit vacated and remanded for resentencing.

Facts of the Felony Charge and the Sentencing Hearing

Span was indicted and charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  He pleaded guilty.  At the sentencing hearing, the government argued for enhanced sentencing for this conviction under the ACCA.  According to the government, Span’s criminal record included several previous convictions, all violent felonies committed on separate occasions, and thus enhanced sentencing was warranted.  Span challenged the government’s argument that he was an armed career criminal, stating that the documents upon which the government was relying to show his previous convictions were ambiguous, the ambiguity was to be construed in his favor, and the sentencing enhancement should not be applied.  The district court sided with the government, finding that three of Span’s previous robbery convictions supported the enhancement.  Even though two of the robberies occurred at the same location and involved the same corporate victim, each offense involved a different individual victim who was in danger according to the district court.

Enhanced Sentencing Under the ACCA Requires Three Previous Convictions “Committed on Occasions Different from One Another”

The government must show by preponderant evidence that the defendant committed three previous violent felonies or serious drug offenses on separate occasions for enhanced sentencing of the defendant under the ACCA.

Mixed Question of Law and Fact

The Court reviewed the district court’s legal conclusions de novo and its factual findings for clear error.  The legal conclusions, according to the Court, were whether Span’s qualifying convictions were committed on occasions separate from one another.  The Court looked to the district court’s factual findings that supported its legal conclusions and found that they were in clear error, and thus could not hold, as a matter of law, that the robbery offenses were “committed on occasions different from one another.”

The Judicial Factfinding at Sentencing Was Not Properly Limited in the Sources of Evidence and  Was Clear Error

A sentencing judge may examine a limited number of resources in cases involving prior guilty pleas, including the charging document, plea agreement, and the plea transcript between judge and defendant or comparable document.  In this case, there was a question of when Span’s three previous robberies occurred, and the sentencing judge was limited to the approved documents.  According to the Fourth Circuit, the sentencing judge clearly erred in finding that the documents proved by preponderant evidence that the three offenses were committed on separate dates.

The Previous Crimes Did Not Arise Out of Separate and Distinct Criminal Episodes

The Court looked to the same limited resources for facts applicable to a multi-factor test to determine whether the previous crimes arose out of separate and distinct criminal episodes.  The factors examined by the Court were “(1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense.”  Because the weight of the factors did not demonstrate that Span’s previous robbery convictions were separate and distinct criminal episodes, the district court erred in applying the ACCA enhancement to Span’s sentence.

The Fourth Circuit Vacated and Remanded for Resentencing

Because the United States government failed to prove by preponderant evidence that Span’s prior felonies were separate and distinct episodes for purposes of evoking the mandatory sentencing under the ACCA, the Fourth Circuit vacated the district court decision and remanded the case.

One Judge Dissenting

In this case, the dissenting judge disagreed with the majority, noting that the district court properly found sufficient facts in the evidence presented to it by the United States government.  The district court’s factual findings are afforded great deference under the applicable standard of review, and therefore, according to the dissenter, the district court’s findings must be upheld because they were plainly permissible. While the district court’s findings may admittedly appear unjust, the district court applied the proper standard according to precedent: a preponderance of the evidence. Because the district court was not in clear error when it found that the three prior incidents occurred on separate dates by a preponderance of the evidence, the dissenter could not agree with the majority’s decision.