Wake Forest Law Review

heroin

By Taylor Anderson

On March 7, 2016, the Fourth Circuit issued its published opinion regarding the criminal case United States v. Alvarado. Jean Paul Alvarado (“Appellant”) appealed his conviction of knowingly and intentionally distributing heroin to Eric Thomas (“Thomas”) with Thomas’ death resulting from the use of the heroin so distributed, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On appeal, Appellant contends that the district court erred in three ways during trial. The Fourth Circuit affirmed Appellant’s conviction, holding that the district court did not err in any of the three ways Appellant alleged.

Appellant Convicted of Heroin Distribution

On March 30, 2011, in response to custodial police questioning, Appellant admitted that, on the previous day, March 29, he sold five bags of heroin to Thomas. A grand jury later indicted Alvarado for heroin distribution resulting in death, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

Prior to trial, Appellant filed a motion in limine to exclude evidence of statements made by Thomas, including statements by which Thomas told friends that he bought heroin from a drug dealer named “Fat Boy,” referring to Appellant. The district court deferred resolution of the motion until trial and at that time admitted the statements.

At trial, several pieces of evidence linked Appellant to Thomas, including cell phone records and witness testimony. Also, it was shown that Thomas also used Xanax and Benadryl shortly before his death. Additionally, Virginia’s Assistant Chief Medical Examiner, Dr. Gayle Suzuki (“Suzuki”) testified that Thomas died of “heroin intoxication” and that “without the heroin, [Thomas] doesn’t die.”

The jury retired to deliberation after receiving jury instructions from the district court. Soon thereafter, the jury sent a question to the district judge asking whether the phrase “death resulted from the use of the heroin”—a phrase contained in the jury instructions—meant “solely from the use of the heroin or that the heroin contributed to [Thomas’] death.” In an attempt to prevent the jury from further confusion, counsel for both parties and the district court agreed not to provide any clarifying instructions to the jury. The jury later returned a guilty verdict and Appellant alleges three separate errors on the part of the district court. Each is discussed below.

District Court Did Not Err in Refusing to Clarify Jury Instructions

First, Appellant contended that the district court erred in failing to clarify for the jury the meaning of the “death results from” statutory enhancement element of the offense. The Fourth Circuit pointed out that it reviews the district court’s decision not to give further clarifying instruction for abuse of discretion. Also, when, as in this case, a party fails to object to an instruction or the failure to give an instruction, the Fourth Circuit reviews for “plain error.”

The Fourth Circuit initially pointed out that it was significant that after the court received the jury’s inquiry to clarify “results from,” Appellant’s counsel did not complain that the court’s response was unfair or inaccurate. Additionally, the Fourth Circuit stated that the “results from” language is typical of but-for causation language and the district court properly treated it as such. The Fourth Circuit also stated that but-for causation evidence plagued the record and therefore it could not conclude that the district court committed plain error, or even abused its discretion.

District Court Did Not Err in Refusing to Include Foreseeability of Death Element

Second, Appellant contended that the district court erred in failing to instruct the jury that defendants should only be held liable under this statute for the foreseeable results of their actions. Appellant argued that United States v. Patterson—the controlling law as to this issue—had changed and therefore this issue needed to be resolved once more and in a different manner.

The Fourth Circuit quickly dismissed this alleged error, stating that Patterson remains good law on this issue. Patterson states that the plain language of § 841(b)(1)(C) does not require that, prior to applying the enhanced sentence, the district court find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event. For this reason, the Fourth Circuit concluded that the district court fairly stated the controlling law in refusing to instruct the jury that § 841(b)(1)(C) contains a foreseeability requirement.

District Court Did Not Err in Refusing to Exclude Hearsay Evidence

Finally, Appellant contended that the district court erred in admitting hearsay that Thomas had said that he purchased heroin from “Fat Boy,” a name referring to Appellant. The Fourth Circuit noted that the district court admitted this hearsay under the “statement against interest” exception to hearsay and that exception allows hearsay to be admitted if (1) the declarant is unavailable, (2) the statement is genuinely adverse to the declarant’s penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Appellant only contended prong (2) of this test. Additionally, Appellant contended that his Sixth Amendment Confrontation Clause right was violated.

The Fourth Circuit found that even if there was error in admitting this hearsay evidence under the statement against interest exception, the error was harmless in light of the strength of the other evidence against Appellant. The Fourth Circuit noted that the other evidence all but conclusively confirms that only Appellant sold heroin to Thomas on the day of his death and that Thomas injected that heroin soon thereafter, resulting in his death.

The Fourth Circuit also stated that Appellant’s Confrontation Clause argument was unpersuasive because Thomas’ hearsay statement was not testimonial. This statement was not testimonial because it was made to friends in an informal setting. Because the statement was not testimonial, its admission does not implicate the Confrontation Clause.

Judgment Affirmed

The Fourth Circuit held that the district court did not err in any of the ways Appellant alleged. For this reason, the Fourth Circuit affirmed Appellant’s conviction.

One judge dissented in part, arguing that the jury instructions were not sufficiently clear.

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.

By Marcus Fields

Is a Good Faith Jury Instruction Required if a Court has Already Given an Adequate Specific Intent Instruction?

Today in United States v. McCants, the Fourth Circuit made clear that it is within the discretion of a district court to refuse to give a good faith jury instruction as long as it has given an adequate specific intent instruction. Because the district court did not abuse its discretion, the Fourth Circuit affirmed McCants’ conviction of passing fictitious financial obligations.

Standard of Review for Jury Instructions

When reviewing jury instructions for potential error, the Fourth Circuit focuses on the adequacy of instruction “regarding the elements of the offense and the defendant’s defenses.” It will review the instructions “in their entirety” keeping the trial as a whole in mind. The Fourth Circuit will review de novo whether the court below “has properly instructed a jury on the statutory elements of an offense.” All other jury instruction decisions will be reviewed under an abuse of discretion standard.

When is a Court’s Refusal to Give a Jury Instruction a Reversible Error?

The Fourth Circuit reiterated that the refusal to give a jury instruction is reversible as an abuse of discretion when the proposed instruction meets three factors: (1) The instruction “was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with some point in the trial so important, that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.”

Refusal to Give a Good Faith Jury Instruction was not an Abuse of Discretion.

 The Fourth Circuit concluded “that the district court provided an adequate specific intent instruction to the jury.” Presumably because the good faith instruction was “substantially covered” by the specific intent instruction, the Fourth Circuit held that the district court was “not required to give an additional instruction on good faith.”

 District Court Judgment Affirmed

 The Fourth Circuit affirmed the judgment of the district court. It dispensed with oral arguments determining that they would not help the decisional process.