Wake Forest Law Review
3Nov

Fourth Circuit Affirms District Court’s Dismissal of Indictment

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By Anthony Biraglia

In the criminal case of United States v. Vinson, the Fourth Circuit affirmed a North Carolina district court’s dismissal of Rodney Vinson’s (“Vinson”) indictment for possession of a firearm by a prohibited person under 18 U.S.C. § 922(g)(9). In a published opinion released on November 3, 2015, the Court found that Vinson’s prior misdemeanor conviction in North Carolina did not contain the necessary elements to be considered a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33)(A)(ii). The Court reasoned that because an assault conviction in North Carolina can be sustained when the defendant acts with “culpable negligence,” the elements Vinson’s North Carolina misdemeanor conviction did not match the elements of the federal offense as explained by the Supreme Court in Leocal v. Ashcroft. This issue was dispositive, and thus the Fourth Circuit affirmed the district court’s judgement.

District Court Dismisses, Court of Appeals Reverses & Later Grants Rehearing

After police found a firearm at Vinson’s home, the government charged him with possession of a weapon by a prohibited person because Vinson had previously been convicted of a misdemeanor battery of his wife under N.C. Gen. Stat. § 14-33. Under 18 U.S.C. 922(g)(9), persons convicted of a “misdemeanor crime of domestic violence” (“MCDV”) are prohibited from possessing firearms when the underlying offense has an element that involves the use or attempted use of physical force. To determine whether the underlying offense meets this standard, the Court uses the “categorical approach,” or in this case the “modified categorical approach,” which focuses on the elements of the underlying offense rather than the actual conduct of the defendant that led to the conviction. Courts apply the “modified categorical approach” when the underlying offense is “divisible,” or consists of multiple, alternative elements that create different crimes. In such situations, the reviewing court may examine a limited number of trial court documents to determine if the crime the defendant was convicted of meets the federal requirements of the underlying offense.

The district court originally dismissed the case based a Fourth Circuit definition of “physical force” that the Supreme Court later disagreed with. On appeal, the Court vacated the district court’s judgment based in part on the Supreme Court’s contrary holding. The Court was divided on another issue, however, and Vinson was able to petition for rehearing. In a rather unusual occurrence on rehearing, the Court considered an alternative ground for affirming the district court’s opinion (that was not previously raised by the defendant) that became the sole issue of the appeal; namely whether the culpability level required for a conviction under N.C. Gen. Stat. § 14-33 met the culpability level required for a conviction under 18 U.S.C. 921(a)(33)(A). Because the Court found that one could be convicted under N.C. Gen. Stat. § 14-33 based on a “culpable negligence” standard, Vinson’s misdemeanor conviction could not satisfy the elements of the federal crime, which required “intentional” conduct.

N.C. Gen. Stat. § 14-33’s Elements Do Not Match Those of an MCDV Under 18 U.S.C. 921(a)(33)(A)(ii)

In Leocal v. Ashcroft, the Supreme Court interpreted a similarly worded statute to 18 U.S.C. 921(a)(33)(A)(ii). The Supreme Court explained that the word “use” refers to the intentional, rather than negligent or reckless, availment of physical force by the defendant. Based on this definition, the Fourth Circuit reasoned that Vinson could not be indicted under 18 U.S.C. 922(g)(9) if N.C. Gen. Stat. § 14-33 allows for a conviction based upon negligent or reckless conduct.

Citing North Carolina case law, the Court identified three different types of assault in N.C. Gen. Stat. § 14-33 for which a defendant could be convicted. North Carolina law generally, and these three types of assault in particular, requires that a person act “intentionally” to be convicted of assault, but the required intent can also be established under a “culpable negligence” standard. “Culpable negligence” focuses on “thoughtless disregard,” which the Fourth Circuit had previously determined to be a lesser standard of culpability than recklessness. North Carolina thus allows for an assault conviction when the defendant acts with a significantly lower level of culpability than is required under the federal statute.

Fourth Circuit Affirms

Because none of N.C. Gen. Stat. 14-33’s three categories of assault have elements matching those of an MCDV under 18 U.S.C. § 921(a)(33)(A), the Court affirmed the district court’s order dismissing the indictment.

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2Nov

Fourth Circuit Holds Insurer Has No Duty to Defend Insured’s Allegedly Criminal Acts

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By Blake Stafford

On July 10, 2015, the Fourth Circuit issued its published opinion in Liberty Univ., Inc. v. Citizens Ins. Co. of Am., a civil case on appeal from the District Court for the Western District of Virginia.  In this case, Liberty University, Inc. (“Liberty”) contended that Citizens Insurance Company of America (“Citizens”) breached its duty to defend and indemnify Liberty against claims that Liberty was directly and vicariously liable for participation in conspiracies to commit kidnapping and racketeering.  The district court granted summary judgment in favor of Liberty, holding that Citizens had a duty to defend Liberty in the underlying action.  The Fourth Circuit reversed, holding that the allegations in the underlying action triggered exclusions in the insurance policy; thus, Citizens had no duty to defend.

Underlying Complaint: Jenkins Complaint

The core of the underlying complaint involved a child that was allegedly kidnapped by one of the child’s parents.  Janet Jenkins and Lisa Miller were joined in Vermont in a same-sex civil union and had one child.  Miller was the child’s biological mother, and Jenkins was the child’s legal parent as of 2004.  Miller subsequently converted to Christianity; moved to Virginia; and, believing homosexuality to be sinful, barred Jenkins from having contact with her daughter.  Miller defied court visitation orders for years and, facing the possibility that custody of the child would be transferred to Jenkins, Miller absconded to Nicaragua with the child in 2009.  Jenkins has not seen her daughter since.

Jenkins filed suit in 2012 against Liberty and a student worker at Liberty, among others, alleging that Liberty participated—both directly and vicariously—in the scheme to kidnap Jenkins’s daughter in order to disrupt the parent-child relationship.  In this complaint (“Jenkins Complaint”), Jenkins alleged that Liberty and its agents helped Miller defy court visitation orders and abscond with the child to Nicaragua, all conducted through an alleged pattern of racketeering by Liberty and its agents that included various transportation schemes and guidance by Liberty University School of Law administrators.  Moreover, the Jenkins Complaint alleged that Liberty and its agents enabled Miller to remain outside of the country through fundraising via social media.  Finally, the Jenkins Complaint alleged that Liberty routinely instructed its law students that the correct course of action for a person in Miller’s situation would be to engage in civil disobedience and defy court orders.

Based on these facts, the Jenkins Complaint alleges that Liberty was (1) directly liable for its involvement in the kidnapping scheme, and (2) vicariously liable because it “promoted, condoned, and explicitly ratified its agents’ tortious racketeering activity.”

Insurance Policy Provisions

Coverage Provisions.  The policy at issue contained two coverage forms: (1) Commercial and General Liability coverage (“CGL”) and (2) School and Educators Legal Liability coverage (“SELL”).  The CGL itself had two subsidiary coverage forms: “CGL A” and “CGL B.”

  1. CGL A.  Under CGL A, Citizens was required to defend suits against Liberty seeking damages for “bodily injury” and “property damage” arising from an “occurrence.”  An “occurrence” was defined in the policy as “an incident that was unexpected from the viewpoint of the insured.”  This would necessarily exclude intentional torts from the scope of an “occurrence,” and CGL A specifically excluded injury or damage “expected or intended from the standpoint of the insured.”
  2. CGL B.  Under CGL B, Citizens was required to defend suits against Liberty alleging “personal and advertising injury,” including false arrest, detention, or imprisonment.  CGL B contained two exclusions: (1) a Criminal Acts Exclusion, which excluded any injury arising out of a criminal act committed by or at the direction of the insured; and (2) a Knowing Violation Exclusion, which excluded any injury caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict the personal or advertising injury.
  3. SELL.  Under SELL, Citizens was required to defend suits against Liberty alleging injury arising out of a wrongful act and seeking loss because of such injury.  SELL contained an Intentional and Criminal Acts Exclusion, which excluded coverage for any claim arising out of an intentional, dishonest, fraudulent, criminal, or malicious act or omission or any willful violation of law by the insured.  This exclusion applied regardless of whether the person seeking coverage actually participation in the intentional or criminal acts or omissions.

Separation of Insureds Provision.  The insurance policy also contained a Separation of Insureds provision.  When multiple named insureds claim the right to a defense against the same suit, this provision requires the insurer to evaluate the claims against each insured individually, treating each as if he or she has separate coverage.  Thus, excluded conduct by one insured does not preclude claims brought by other insureds.  In this case, the policy named Liberty’s employees, volunteers, student groups, and officers as additional named insureds.

Procedural History

The district court granted summary judgment in favor of Liberty, finding that a duty to defend existed under all three coverage forms given the Separation of Insureds provision.  The district court reasoned that the separation provision displaced the ordinary respondeat superior rule that imputes an agent’s intent onto the principal.  Thus, while the allegations against the Liberty agents solely consisted of intentional acts, this intent should not be imputed to Liberty for the purposes of determining policy coverage.  The Fourth Circuit held that this interpretation was erroneous and reversed the district court’s grant of summary judgment.

Virginia Insurance Law

This case arises out of diversity jurisdiction, requiring the application of Virginia law and its choice of law rules.  Specifically, to determine an insurer’s duty to defend a lawsuit, Virginia applies the “Eight Corners Rule,” which compares the “four corners” of the underlying complaint with the “four corners” of the policy to determine whether the allegations in the underlying complaint come within the policy’s coverage.

The insured has the initial burden to establish a duty to defend, a duty that arises whenever the underlying complaint alleges facts and circumstances, some of which would, if proved, fall within the risk covered by the policy.  Even if only one of multiple alternative theories falls within the coverage agreement, the insurer has a duty to defend against all claims.  If the insured demonstrates that the complaint alleges a covered injury, the burden shifts to the insurer to show that the policy’s exclusionary language clearly and unambiguously excludes the alleged act or omission from the policy’s coverage.  Any ambiguities in the exclusions are construed against the insurer.

Analysis: No Duty Existed

Applying the above framework, the Fourth Circuit held that the district court erred in determining that a duty existed in this case given the language in the Jenkins Complaint and the various coverage exclusions.

No “Occurrence” for CGL A Coverage.  Contrary to the district court’s assertion, the Fourth Circuit held that, because the Jenkins Complaint only alleged Liberty’s liability for intentional conduct, it did not plead an “occurrence” for coverage under CGL A.  Under Virginia law, an agent’s state of mind is ordinarily imputed to the principal.  Thus, an intentional tort cannot be considered unexpected, even when viewed from the standpoint of the employer, and it does not become an “occurrence” simply by operation of respondeat superior.

The Court noted that the Separation of Insureds provision did not displace Virginia’s rule that an agent’s intentionally tortious act cannot be “unexpected” by the principal who is vicariously liable for the act.  The Court reasoned that, even if the only defendant in the action was Liberty (the principal), the Jenkins Complaint still frames Liberty’s liability in terms of respondeat superior, which requires an imputation of intent from Liberty’s agents.  The separation provision did not affect this imputation.

Moreover, even if the language were ambiguous, Virginia law requires courts to interpret insurance policies consistent with the parties’ intent.  This requires avoiding an absurd result that enlarges the obligations of the insurer in order to create a windfall to the insured.  Here, the Fourth Circuit found that failing to impute the agent’s intent would impose a duty to defend that is enlarged from the parties’ original intent to only defend against claims of unintentional acts, thereby creating a windfall to Liberty by effectively nullifying the exclusion for intentional injuries.   Because the Jenkins Complaint alleged only intentional acts, the Court found that it did not allege any damages that resulted from an “occurrence” as required under CGL A.

Finally, the Court also noted that, when determining whether coverage exists, Virginia courts do not evaluate whether a complaint sufficiently alleges facts to support a claim such that it would survive a motion to dismiss.  Instead, the court should only determine whether the complaint alleges facts that fall within the four corners of the policy; the claim’s probability of success is inconsequential.  Here, the Fourth Circuit found that the Jenkins Complaint alleged facts and circumstances that demonstrate liability for kidnapping and racketeering.  Thus, the Court held that Citizens had no duty to defend Liberty under CGL A.

Excluded from CGL B Coverage.  Coverage under CGL B required “personal and advertising injury.”  The Fourth Circuit held that, even assuming the Jenkins Complaint alleged such an injury, the Criminal Acts Exclusion in CGL B, which excluded injuries “arising out of a criminal act,” clearly applied.  The Court noted that an injury “arises out of” an event when there is a causal connection between the event and the injury.  Here, the Court found that the Jenkins Complaint (1) clearly and unambiguously alleged that Liberty and its agents committed criminal acts, and (2) clearly and unambiguously alleged that Liberty was liable for injuries arising out of those acts.  Thus, a casual connection between the alleged criminal acts and the claimed injuries was sufficiently alleged, and the Court thus held that Citizens had no duty to defend Liberty under CGL B given the Criminal Acts Exclusion.

Excluded from SELL Coverage.  Similar to CGL B, the SELL coverage provision included an Intentional and Criminal Acts Exclusion, which excluded claims “arising out of any intentional, dishonest, fraudulent, criminal, or malicious act or omission or any willful violation of law by the insured.”  As emphasized in the CGL B analysis, the Jenkins Complaint alleged Liberty’s liability for injuries arising from its direct involvement in conspiracies to commit kidnapping and racketeering, all of which carry criminal penalties.  Thus, the Court held that these claims clearly and unambiguously triggered the Intentional and Criminal Acts Exclusion, and Citizens thus had no duty to defend Liberty under SELL.

Reversed, Vacated, and Remanded

In sum, the Fourth Circuit held that Citizens had no duty to defend Liberty against the Jenkins Complaint under any of the coverage provisions.  The judgment of the district court was reversed, the awards of fees and costs vacated, and the case remanded for further proceedings.

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30Oct

Fourth Circuit Remands District Court’s Sentencing Decision

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By Cate Berenato

On October 30, 2015, the Fourth Circuit in the published, criminal case United States v. McLeod, affirmed in-part and remanded in-part a United States District Court for the District of South Carolina’s sentencing decision.

Mr. McLeod’s Conviction and Procedural Posture

Gregory McLeod pleaded guilty to 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon. The District Court sentenced him to 188 months in prison based on a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA requires a 15-year minimum sentence for defendants previously convicted of violent felonies, including burglary. The District Court enhanced Mr. McLeod’s sentence because he had been convicted five times under South Carolina Code § 16-11-312 for second-degree burglary in 1998. Mr. McLeod’s indictment charged him with breaking and entering into a commercial building.

Can the Sentencing Decision Stand?

 There are two issues on appeal. First, Mr. McLeod claims that his conviction under § 922(g)(1) alone is not enough to warrant the sentencing enhancement because his previous convictions under § 16-11-312 were not included in his indictment. Second, Mr. McLeod claims that his 1998 South Carolina convictions did not qualify as violent felonies because the statutory elements of § 16-11-312 and court records did not limit his convictions to generic burglary.

 McLeod’s First Contention Lacked Merit

 Mr. McLeod’s first contention is that the District Court could not enhance his sentence under § 922(g)(1) because his previous convictions under § 16-11-312 were not included in his indictment. However, the Supreme Court in Almendarez-Torres v. United States spoke to this issue and decided that previous convictions do not have to be listed in a current charge’s indictment for purposes of sentencing enhancement. Thus, The Fourth Circuit was bound by Supreme Court precedent to decide on this issue in favor of the government.

McLeod’s 1998 Convictions Were Not Predicate Convictions Under the ACCA

Mr. McLeod’s second contention that his 1998 convictions were not predicate convictions for the purposes of the ACCA because the elements of § 16-11-312 are broader than generic burglary, typically breaking into a building, and prohibits breaking into vehicles, boats, and planes as well as buildings. He states that predicate burglary convictions “must be limited to breaking and entering into a building or structure.” The government, on the other hand, points out that Mr. McLeod’s convictions were for the burglary of a building. However, the Fourth Circuit, using a modified categorical approach to analyze the predicate offense, noted that a sentencing court can look to court documents to “determine whether the defendant was convicted of generic burglary or an alternative form of burglary that would not qualify as a predicate offense.” Here, though Mr. McLeod was charged with entering a building, Mr. McLeod pleaded guilty to and was convicted of “nonviolent” second-degree burglary of a “dwelling” rather than of a “building.” The government did not provide any document proving that Mr. McLeod was convicted of generic burglary.

The Fourth Circuit affirmed Mr. McLeod’s conviction, vacated his sentence, and remanded the case to the District Court for resentencing.

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29Oct

Former Governor Bob McDonnell’s Conviction Affirmed for Role in Bribery Scheme

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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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26Oct

Fourth Circuit Affirms Imposition of Supervised Release on an Alien Who is Likely to be Removed

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By Elizabeth DeFrance

On July 7, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Aplicano-Oyuela. The Appellant, Gerson Arturo Aplicano-Oyuela (“Aplicano”) pled guilty to illegal reentry after his removal following a felony conviction, and received a term of three years supervised release. He appealed the term of supervised release, arguing that it was procedurally and substantively unreasonable, and the sentencing judge failed to advise him on supervised release before accepting Aplicano’s guilty plea in violation of the Federal Rules of Criminal Procedure Rule 11.

Aplicano had a History of Illegal Entry and Criminal Activity

Aplicano is a native citizen of Honduras, and illegally entered the United States in 2002. Between 2006 and 2011 he plead guilty to second-degree assault and driving without a license, and was convicted of criminal mischief. He was removed to Honduras in January 2012, and illegally reentered the United States within the next year. He was arrested several times in 2013, and plead guilty to another second-degree assault charge.

On July 26, 2013, a grand jury indicted Aplicano with illegal reentry by an alien who had previously been removed after a felony conviction. He initially plead not guilty, but later submitted a letter through his attorney stating that he pled guilty “without benefit of a plea agreement,” and acknowledged that the maximum sentence for his offense included a three year term of supervised release.  During the plea hearing, it was established that Aplicano understood he could be sentenced to the maximum penalty, including supervised release.

Aplicano’s presentence report (PSR) indicated that the Guidelines range for his offense level was ten to sixteen months, and indicated a supervised release term of not more than three years could be imposed if required by statute, if the court sentenced the defendant to a term of imprisonment longer than one year. The PSR also indicated that, pursuant to U.S.S.G. § 5D1.1(c), “the Court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” The PSR report recommended a supervised release term of two years due to Aplicano’s criminal history.

Applicano submitted a letter requesting the length of imprisonment be reduced, but did not address the supervised release recommendation or attempt to withdraw his guilty plea. During the sentencing hearing Aplicano urged the court to consider the violent gang attacks his family had suffered in Honduras. The district court did consider § 3553(a) factors, but ultimately found Aplicano’s story unconvincing. The district court focused much attention on Aplicano’s multiple illegal entries and propensity to commit crimes while in the United States.  The district court sentenced Aplicano to sixteen months in prison and a term of three years supervised release.

Alleged Sentencing Errors are Reviewed for Plain Error

Challenges to sentencing not preserved in the lower court are reviewed for plain error, as is a contest to a guilty plea the defendant did not attempt to withdraw. The defendant must prove that the error affects his substantial rights.

Imposition of a term of supervised release is procedurally reasonable if it is within the guidelines. The imposition of supervised release is “not a departure from the Guidelines if the district court finds that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.”

When determining the substantive reasonableness of a sentence, the court must consider the totality of the circumstances, including any variance from the Guidelines. If the sentence is within the Guidelines range, the reviewing court may make a presumption of reasonableness. The defendant may rebut this presumption using the § 3553(a) factors, including the sentencing court’s use of an improper factor not included in § 3553(a).

The Federal Rules of Criminal Procedure 11(b)(1)(H) states, “[b]efore the court accepts a plea of guilty [it] must inform the defendant of, and determine that the defendant understands, … any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fourth Circuit precedent also requires the sentencing judge personally inform the defendant and assure he understands the consequences of his guilty plea.

The Supervised Release Term was Intended as a Deterrent

In determining whether the term of supervised release was procedurally unreasonable, the Court noted that the district court failed to specifically discuss the Guidelines or that expressly state that the imposition of supervised release was intended to deter the defendant and protect the community. However,  the Court followed reasoning from Second Circuit, stating that it is sufficient if the sentencing court “(1) is aware of Guidelines section 5D1.1(c); (2) considers a defendant’s specific circumstances and the § 3553(a) factors; and (3) determines that additional deterrence is needed.” The Court reasoned that the district court was aware of section 5D1.1(c) because it adopted the PSR “without change” which included the recommendations from 5D1.1(c). It Also concluded that the district court adequately considered Aplicano’s specific circumstances because its opinion discussed Aplicano’s description of the violence his family experienced in Honduras, and his criminal history in the United States. Finally, the district court determined additional deterrence was necessary because it stated, “I think you may well try to get back in the country again.” Accordingly, the Court determined that the imposition of supervised release was not procedurally unreasonable.

In his challenge to the substantive reasonableness of the supervised release term, Aplicano argued that the district court’s statement that it would allow the authorities to “get him in jail much faster than if we went through a separate prosecution” indicated the use of an improper factor. However, the Court reasoned that this statement only indicated that the district court intended the term of supervised release to deter and protect the community. Accordingly, the imposition of supervised release was not substantively unreasonable.

In considering whether the district court violated Rule 11, the Court noted that Aplicano was advised during the plea hearing that he could receive the maximum term of three years supervised release. The Court reasoned that even if the district court had erred by failing to properly inform him of the nature of supervised release, a vacatur of his guilty plea was not warranted because the error did not affect his substantial rights. Specifically, Aplicano did not identify anything in the record indicating he would not have plead guilty if the district court had advised him on the nature of supervised release. The Court found it compelling that Aplicano made no effort to withdraw his guilty plea after the term of supervised release was imposed. Therefore, the Court concluded that Aplicano’s substantial rights were not affected.

Judgment of the District Court is Affirmed

The Court held that there was no error because imposition of supervised release was procedurally and substantially reasonable. It also held that Vacatur was unwarranted because the presumed error did not affect Aplicano’s substantial rights.

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23Oct

Fourth Circuit Affirms Motion to Suppress After Warrantless Search

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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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22Oct

Fourth Circuit Found that Police Did Not Have a Reasonable Suspicion Justifying Detention of an Individual

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By Whitney Pakalka

On October 22, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Slocumb. The Fourth Circuit reversed the District Court for the Western District of Virginia’s denial of a motion to suppress evidence. Because there was no particular and objective basis that created a reasonable suspicion for officers to detain Slocumb, the Fourth Circuit reversed the denial of Slocumb’s motion.

Slocumb’s Arrest and Conviction 

On March 18, 2013, Andre Slocumb, his girlfriend, Sierra Lewis, and an infant were in the parking lot of a salvage yard around midnight, transferring a child car seat from one vehicle to another. This same parking lot was chosen by the Culpeper, Virginia Police Department as a staging area prior to executing a search warrant on a nearby home. Approximately ten officers arrived at the parking lot, including Lieutenant Timothy Chilton. Chilton approached Slocumb and Lewis to inquire about their presence because the parking lot was known for criminal activity. Slocumb informed Chilton that he was there to pick up Lewis, whose car had broken down. Officer Chilton though Slocumb began hurrying Lewis, acted evasively, did not make eye contact, and gave mumbled responses to his questions.

When another officer asked Slocumb for identification, Slocumb provided a false name. The name given came back as valid for someone that matched Slocumb’s appearance. One of the officers then asked Lewis for Slocumb’s name, and she identified him as Hakeem Jones, a different name than Slocumb had given. Slocumb was placed under arrest for providing a false name, and officers discovered close to $6,000 on his person. Lewis gave consent for the officers to search the car that Slocumb had arrived in to pick her up. The officers found methamphetamine, cocaine powder, cocaine base, and a small amount of marijuana in the car.

Slocumb was indicted by a federal grand jury on three counts, and filed a motion to suppress the physical evidence seized by officers and incriminating statements he made after his arrest. The District Court denied Slocumb’s motion, finding that the officers had reasonable suspicion to justify Slocumb’s initial detention and had probable cause to arrest him. Slocumb pleaded guilty and was sentenced to ninety-four months on all three counts, to run concurrently. He appealed the denial of his motion to suppress, arguing that his Fourth Amendment right had been violated because he was detained by the police without a reasonable suspicion he had violated the law.

Fourth Amendment Right to be Free from Unreasonable Search and Seizure 

The Fourth Amendment provides the right to be free from unreasonable search and seizure. In considering when a police stop constitutes an unreasonable seizure, The Supreme Court has held that an officer may detain a person to conduct a brief investigation if he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). In order for the police to have a reasonable basis for stopping an individual, “the officer ‘must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion.’” Id. at 21.

The Fourth Circuit applies a totality of the circumstances test in considering whether an officer had a reasonable suspicion of criminal activity justifying a stop. The Court cautioned that the government “must do more than simply label a behavior as ‘suspicious’ to make it so,” but must “articulate why a particular behavior is suspicious . . . given the surrounding circumstances.” United States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011).

The Officers in this Case Did Not Have a Reasonable Basis for Detaining Slocumb

 The Fourth Circuit concluded that the factors considered by the District Court did not satisfy the totality of the circumstances test. The District Court considered, among other things, the lateness of the hour that Slocumb was in the parking lot, the fact that the parking lot belonged to a business that had been closed for several hours, and that it was a high crime area. The Fourth Circuit found that all of these considerations could contribute to a finding of a reasonable suspicion, however these “objective factors ‘do[] little to support the claimed particularized suspicion as to [Slocumb].’” Id. at 488.

The District Court had also considered Slocumb’s particular behavior in hurrying Lewis, avoiding eye contact, and giving mumbled answers. The Fourth Circuit found this behavior to be insufficient to support reasonable suspicion. The Court noted that behavior that has supported a reasonable suspicion included attempts to flee or “more ‘extreme’ or unusual nervousness or acts of evasion.” United States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004). Heavy breathing, sweating, and trembling hands were suggested by the Court as behaviors that may demonstrate an unusual nervousness, and thus support a reasonable suspicion. The Court found that Slocumb did not attempt to evade officers, but instead acknowledged them and answered their questions in a way that was consistent with his behavior. The Court found that the police had “no more reason to suspect that Slocumb was engaged in criminal activity than [they did] to believe his stated purpose and corresponding actions.”

The Fourth Circuit Reversed the District Court’s Denial of Slocumb’s Motion to Suppress

Because the police could not provide a sufficient objective and particular basis to create a reasonable doubt that would justify detaining Slocumb, the Fourth Circuit reversed the District Court’s ruling, vacated Slocumb’s conviction and sentence, and remanded for further proceedings.

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21Oct

Man Declared Not an “Armed Career Criminal” After Ten Years of Appealing Sentence

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By: Mikhail Petrov

On June 30, 2015, in the criminal case of United States v. Newbold, the Fourth Circuit issued a published opinion vacating Joseph K. Newbold’s sentence and remanding the case for proceeding consistent with the Court’s opinion. In this case, the Fourth Circuit examined whether Newbold’s guilty plea from 2005, paired with three preceding convictions from 1980, 1981, and 1984, made him an “armed career criminal.” The Armed Career Criminal Act mandates a fifteen-year mandatory-minimum prison term for anyone who violates 18 U.S.C. § 992(g) (felon in possession of a firearm) and has had three previous “serious drug offense” convictions. The Fourth Circuit found that Newbold does not possess the requisite, predicate “serious drug offenses” to make him an “armed career criminal.”

The Facts

On September 8, 2005, Newbold pleaded guilty to a felon in possession of a firearm count in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). After a three-level reduction for acceptance of responsibility, the Presentence Investigation Report (PSR) calculated an offense level of 31 and a criminal history category of IV. The PSR used the “armed career criminal” guideline over the “career offender” guideline because it resulted in a higher sentence. The PSR cited three North Carolina convictions from 1980, 1981, and 1984 as basis for enhancing the penalties.  Additionally, PSR noted a statutory mandatory-minimum prison term of fifteen years under the Armed Career Criminal Act (ACCA). Although Newbold objected to the ACCA enhancement, the district court overruled. Newbold was sentenced to 18.8 years in prison followed by five years of supervised release.

Newbold appealed the “armed career criminal” designation, arguing that his three convictions from the 1980’s should not count as ACCA predicates because all of them received an imprisonment of less than ten year.  Since the three convictions were for less than ten years, they could not be “serious drug offenses” as defined by the statute.

The Fourth Circuit examined Newbold’s appeal in 2007, and applied United States v. Harp, which stated that “convictions could be considered punishable by ten years if the sentencing law allowed for the possibility of any defendant to be sentenced to ten years’ imprisonment regardless of the maximum punishment applicable to the circumstances of the instant defendant.” Because the maximum that Newbold would have received was ten years, he was indeed convicted of three “serious drug offenses.”

Newbold continued to appeal his conviction in the midst of several changes in Fourth Circuit precedent. In May 2013, the Supreme Court granted Newbold’s certiorari. While the case was pending, the Fourth Circuit decided Miller v. United States, which again undermined the precedent by announcing that United States v. Simmons was retroactively applicable on collateral review, and thus to Newbold’s case. Previously, Simmons overturned Harp by stating that “federal courts should not apply hypothetical sentencing enchantments” and thereby lump all defendants into the same category for sentencing purposes. United States v. Simmons, 649 F.3d 237, 249 (4th Cir. 2011). The Supreme Court then remanded back to the Fourth Circuit for further consideration because Miller made Simmons applicable to Newbold’s case. Due to the lengthy history of Newbold’s case, the Fourth Circuit denied the government’s motion to remand back to district court because everything needed to decide the purely legal question was already available.

The Rule of the Case

Newbold challenges his erroneous designation as an “armed career criminal” under the ACCA. The ACCA designates an “armed career criminal” as anyone with three “serious drug offense” convictions. The ACCA also mandates a fifteen-year mandatory-minimum prison term for an “armed career criminal.” See 18 U.S.C. § 924 (e)(1). A “serious drug offense” is defined in pertinent part as “an offense under State law, involving manufacturing, distribution, or possessing with intent to manufacture or distribute, a controlled substance…for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924 (e)(2)(A)(ii). If Newbold was not designated as an “armed career criminal,” he would have faced a ten-year maximum sentence for his felon in possession conviction.

The Reasoning of the Fourth Circuit

The Fourth Circuit first noted that Newbold may challenge his sentence. A post-conviction change in the law made rendering the defendant’s conduct no longer criminal can be corrected by a 28 U.S.C. § 2255 motion. Citing Welch v. United States, the Fourth Circuit also stated that circumstances where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence has long been cognizable on collateral review. Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010). Therefore, Newbold may challenge his sentence on collateral review.

Newbold challenged only the use of his 1984 conviction as an ACCA predicate. The alleged federal predicate was a possession with intent to sell and deliver a controlled substance (the “PWID” offense). The PWID offense was a class H felony, which carried a presumptive term of three years and a maximum of ten years.  The Fourth Circuit determined that an analysis of the “maximum sentence that a particular defendant could have received” requires an examination of a defendant’s “offense class” and the applicability of the “aggravated sentencing range.” This is in contrast to the Fourth Circuit’s previous reliance on Harp, where the Court looked to “the maximum aggravated sentence that could be imposed for the crime upon a defendant with the worst possible criminal history.” 406 F.3d at 246. Harp has since been overruled by Simmons, which guided the Fourth Circuit opinion in this case. Simmons is applicable to the case at hand through Miller.

There is nothing in the record to indicate that Newbold’s PWID offense could have been punished by the ten year maximum. Simmons instructs that the court look at the conviction itself, and in this case there were no aggravating factors supporting a sentence for the ten year maximum. 694 F.3d at 243.

In contrast, because the state court was not required to record aggravating factors, the government urged the Fourth Circuit to assume their existence. The Fourth Circuit reasoned that such type of speculation would “turn Simmons on its head.” The Fourth Circuit further stated that such an approach would return the inquiry back to the Harp era’s problem of the “worst-case defendant.”

Accordingly, the Fourth Circuit followed Simmons to consider not the hypothetical “worst-case defendant,” but the specific criminal history of Newbold. The Fourth Circuit stated that it is clear that the maximum sentence Newbold faced for the PWID offense was three years. Therefore, the 1984 offense was not a “serious drug offense” because the maximum sentence that Newbold could have received was less than ten years. Because ACCA requires three “serious drug offenses,” and there are at most two here, Newbold cannot be held as an “armed career criminal.”

The Fourth Circuit Vacated Newbold’s Sentence

The Fourth Circuit held that Joseph K. Newbold did not commit a “serious drug offence” in 1984 and therefore cannot be considered an “armed career criminal.” Newbold should not have received the fifteen-year minimum sentence mandated by the ACCA for “armed career criminals.” Therefore, the Fourth Circuit vacated Newbold’s sentence and remanded the case for proceeding consistent with its opinion.

Wake Forest University School of Law’s Appellate Advocacy Clinic, under the guidance of Professor John J. Korzen, argued this case on behalf of Joseph K. Newbold.

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20Oct

Fourth Circuit Lacked Jurisdiction in Capital Murder Appeal

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By Paige Topper

On October 20, 2015, in the criminal case of Porter v. Zook, a published opinion, the Fourth Circuit dismissed Thomas Porter’s appeal for lack of jurisdiction. The Fourth Circuit found that the district court did not issue a final decision on Porter’s actual bias claim against a juror during his trial for capital murder of a police officer.

Porter’s Conviction and Habeas Corpus Claim

In 2005, Porter shot and killed a police officer in Norfolk, Virginia. At the time of the murder Porter fled, resulting in a month-long manhunt. Upon his capture, Porter was indicted in the Circuit Court of the City of Norfolk on multiple charges, including a charge of capital murder. The Norfolk Court granted a motion for a change of venue to the Circuit Court of the County of Arlington due to the community outrage over the officer’s death and Porter’s concerns about an impartial jury. Ultimately, a jury convicted Porter on multiple counts, including capital murder. The jury sentenced Porter to death for capital murder.

Following the Supreme Court of Virginia affirming Porter’s capital conviction and death sentence and later dismissing his petition for habeas corpus, Porter filed a federal habeas corpus petition. David Zook, the Warden of Sussex I State Prison, where Porter is incarcerated, moved to dismiss. The district court granted Zook’s motion and dismissed Porter’s petition. However, the district court issued Porter a certificate of appealability, and Porter timely filed his appeal.

Jurisdiction Limited to Final Decisions of the District Court

The Fourth Circuit noted that while the parties to the appeal did not question its jurisdiction, the Court’s jurisdiction is limited to final decisions of the district courts. The Fourth Circuit further elaborated that a district court’s order is not final until it has resolved all claims as to all parties. This rule holds firm regardless of the label given to the district court decision. Thus, the issuance of a certificate of appealability does not alone establish that the district court resolved all claims between the parties.

District Court Failed to Rule on Porter’s Actual Bias Claim

Porter’s petition raised multiple claims. Among his claims, Porter alleged a violation of the right to trial by an impartial jury. Porter’s claim argued that one of the jurors, Bruce Treakle, was actually biased against Porter because Treakle’s brother was a deputy sheriff in the jurisdiction next to Norfolk, Virginia, at all relevant times to the case. Treakle failed to disclose the information regarding his brother’s profession during voir dire when asked whether he had any members of his close personal family in law enforcement in any capacity as a volunteer or employee.

As a result of Treakle’s relationship to a deputy sheriff, Porter claimed that Treakle was not a fair and impartial juror. To support his claim, Porter pointed to both Treakle’s conduct at voir dire and to Treakle’s admission during an interview with Porter’s counsel that he was emotionally moved by the testimony of the fallen officer’s widow. In addition, the Warden addressed Porter’s actual bias claim separately in his motion to dimiss.

Despite both parties’ focus on the actual bias claim, the district court dismissed Porter’s petition without ruling on this claim. The Fourth Circuit found that the district court did not acknowledge a distinct actual bias claim. Therefore, the Fourth Circuit concluded that, because the district court failed to rule on Porter’s actual bias claim, the district court never issued a final decision on all Porter’s claims. Consequently, the Fourth Circuit lacked jurisdiction over the case.

Fourth Circuit Dismissed and Remanded

The Fourth Circuit dismissed Porter’s appeal for lack of jurisdiction and remanded the case so that the district court could decide Porter’s actual bias claim.

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15Oct

Fourth Circuit Affirms 188 Month Sentence for Cocaine Trafficker

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By Daniel Stratton

Today, the Fourth Circuit affirmed the sentence of an individual convicted of conspiracy and possession with intent to distribute cocaine in a published opinion in the criminal case United States v. McCoy. The appellant, Dilade McCoy, challenged the district court’s decision to impose a 188-month sentence, on the grounds that the sentence was substantively unreasonable. McCoy argued that the district court abused its discretion by imposing a sentence that was above the initial sentencing guidelines range of 135 to 168 months’ imprisonment. The Fourth Circuit, after reviewing McCoy’s arguments, affirmed his sentence, explaining that the upward departure to 188 months was not unreasonable and that the district court had not abused its discretion by departing from the initial Sentencing Guidelines.

McCoy’s Conviction and Sentencing

In 2014, a federal grand jury in the Eastern District of Virginia indicted McCoy on several charges, including possession with intent to distribute and conspiracy to distribute and possess 500 grams or more of cocaine. During the trial, a co-defendant testified that he had purchased cocaine from McCoy in early summer 2013, late summer 2013, and again in November 2013, in amounts ranging from one to three kilograms. The late summer sale was returned to McCoy because of the drug’s poor quality. The jury returned a guilty verdict against McCoy on the drug charges for an amount between five hundred grams and five kilograms.

Following his conviction, the probation office prepared McCoy’s Presentence Investigation Report (“PSR”), which calculated a sentencing range of 135 to 168 months’ imprisonment, pursuant the U.S. Sentencing Commission’s Sentencing Guidelines. The PSR counted all three of the cocaine sales in its analysis and determined the amount of cocaine attributed to McCoy to be seven kilograms, which was above the range found by the jury. The PSR also included a previous 2005 conviction for criminal possession of cocaine with intent to distribute in its analysis.

McCoy argued that the amount of cocaine attributed to him in the report was inaccurate, and that he should be held accountable only for the amount the jury found. This, McCoy argued, would lower his sentencing range under the Sentencing Guidelines to 108 to 120 months.

The government, by contrast, moved for an upward departure of the guidelines, pointing to McCoy’s previous criminal past. McCoy, at the ages of 15 and 17, had committed three felonies, including two armed robberies and assault with intent to cause serious injury with a weapon, in addition to the 2005 criminal possession charge. The PSR did not use the three felonies McCoy committed as a minor, because they had occurred more than 15 years earlier. At sentencing, the government requested that McCoy’s criminal history, including his juvenile felonies, should elevate McCoy to a sentencing range between 168 and 210 months. McCoy objected.

The district court rejected McCoy’s objection to how much cocaine had been attributed to him, and found that McCoy’s criminal history supported an upward departure in his sentencing range. The district court ultimately determined McCoy’s range to be 188 to 235 months’ imprisonment, and sentenced McCoy to serve 188 months. McCoy appealed to the Fourth Circuit on the grounds that his sentence was substantively unreasonable.

How Does the Fourth Circuit Determine When a Sentence is Reasonable?

When reviewing a sentence for its reasonableness, the Fourth Circuit deferentially applies an abuse-of-discretion standard. This standard means that the Circuit will defer to the trial court’s judgment and affirm a reasonable sentence, “even if the sentence would not have been” that court’s choice. When determining if a sentence is reasonable, the Fourth Circuit looks for a “more significant justification than a minor one” where there is a major departure from the advisory guidelines.

The Sentencing Guidelines allow for an upward departure when there is reliable information that the defendant’s criminal history is substantially more serious than the Guideline’s categories may indicate. Prior convictions that are too old to be counted in the Sentencing Guidelines’ calculations may still be considered by a court when determining an appropriate sentence.

Additionally, while district courts are not bound to impose a sentence within a sentence recommended by the prosecution, the prosecution’s recommendation serves an important function in helping avoid unwarranted sentencing disparities.

In the event that there is of a retroactive amendment made to the Sentencing Guidelines, the new amendment does not make a prior sentence unreasonable. Rather, a defendant may make a motion under 18 U.S.C. § 3582(c)(2) to allow the district court to “assess whether and to what extent” the defendant’s sentence is impacted by the new change.

McCoy made four arguments to the Fourth Circuit as to why his sentence was substantively unreasonable, each of which the court determined failed.

McCoy’s Arguments Fail to Persuade Fourth Circuit

First, McCoy argued that the court improperly considered his juvenile felonies. The district court found that the criminal history calculation of McCoy’s PSR was not reflective of McCoy’s actual history and his likelihood for recidivism. While the district court acknowledged the remoteness of his juvenile felonies, it believed the fact that McCoy committed another felony within five years of his initial release justified the inclusion of the juvenile felonies.

McCoy, relying on a recent Fourth Circuit decision in United States v. Howard, argued that the upward departure was unreasonable. In Howard, the district court had imposed a life sentence instead of the suggested 121-month maximum suggested by the Sentencing Guidelines, and the Fourth Circuit held that to be unreasonable. Here, the court explained that Howard was distinguishable because the actual sentence was only twenty months more than the top of the initially suggested range. Because the departure “pale[d] in comparison to” the unreasonable departure in Howard, the Fourth Circuit held that the district court did not abuse its discretion by considering the juvenile felonies.

Second, McCoy argued that his sentence was unreasonable because the district court had put his criminal history in a higher category than the prosecution had recommended. The Court found this argument to be unpersuasive; while the district court had imposed a higher category for McCoy’s criminal history than suggested, the overall 188 month sentence it imposed was lower than the 192 month one sought by the prosecution.

Third, McCoy argued that his sentence overstated the seriousness of his crime. He argued that the November 2013 sell of three kilograms of cocaine merely replaced the bad order that had been purchased in the summer of 2013. Because of this, McCoy argued that his sentence should have been subject to a departure downward, to reflect a smaller amount of cocaine that was actually trafficked. The Fourth Circuit pointed to the fact that McCoy himself conceded that all seven grams of cocaine could be considered in the “technical determination” of how much he had trafficked. The court also noted that the trial record did not support McCoy’s argument.

Fourth, McCoy argued that because a new retroactive amendment to the Sentencing Guidelines, which lowered the base offense levels for drug-related crimes, went into effect soon after he was sentenced, his sentence was substantively unreasonable. The Fourth Circuit explained that the amendment did not change the fact that the district court had correctly applied the Sentencing Guidelines at the time of the sentencing. If McCoy wanted the new amendment applied to his sentence, the Fourth Circuit explained, he would have to submit a motion to the district court, which would assess whether the amendment affected McCoy’s sentence. In a footnote in its opinion, the Fourth Circuit explicitly made clear that its determination here was “rendered without prejudice to McCoy’s right to pursue” relief under the new amendment in the district court.

McCoy’s Sentence is Affirmed

Because the district court did not abuse its discretion in departing from the Sentencing Guidelines to impose a higher sentence on McCoy, the Fourth Circuit affirmed the 188-month sentence.

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14Oct

Fourth Circuit Finds No Plain Error for Criminal Cocaine Charges

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By Malorie Letcavage

Overview

On June 24, 2015 the Fourth Circuit issued its published opinion in the criminal case, U.S. v. Obey. This case was based on Gregory Obey’s claims that the government breached its plea agreement in making its sentencing recommendation and that the district court did not have the authority to order his sentence to run consecutively to any future sentence. The Court held that the prosecutor did not breach the plea agreement and that the district court did not commit plain error in ordering a consecutive sentence to any future state or federal sentence.

Conviction and Remand

Obey was convicted of several counts related to possession and distribution of cocaine and sentenced to 540 months imprisonment. But the government then filed a motion to remand for a new trial, which was granted. On remand, Obey entered a guilty plea to cocaine aiding and abetting. The written plea agreement stated that Obey would waive his right to appeal and the government would recommend an eighteen-year term of imprisonment. At the sentencing hearing, the government did recommend this term and explained that it was the result of negotiations. However, the district court decided that the recommendation lacked merit and instead imposed the maximum sentence of 240 months imprisonment. The district court also directed the sentence to “run consecutive to any other State or Federal sentence, including any unimposed sentence he might receive for the pending state murder charge.”

Obey contended that the government breached the plea agreement and the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation. He further contended that the district court erred in ordering that his sentence run consecutively to any future “State or Federal sentence.” The Court reviewed both contentions under a plain error standard.

Prosecutor Fulfilled the Plea Agreement 

The Court held that the prosecutor upheld the plea agreement because he repeatedly urged the district court to adopt the eighteen-year term of imprisonment. Even though the plea agreement did not require it, the prosecutor explained the term recommendation. Obey claimed that the prosecutor undermined the plea agreement by implying personal reservations about the sentencing recommendation and cited United States v. Brown and United States v. Grandinetti. However, the Court held that those cases did not apply because in Obey’s case the prosecutor did not criticize the terms of the agreement or express doubt about the propriety of the recommended sentence. He simply continued to recommend the eighteen-year term and explained that it was the result of plea negotiations.

No Plain Error In Ordering Consecutive Sentences

The Court then turned to the second argument. The district court relied on Setser v. United States, which held that a district court can impose a sentence consecutive to an anticipated state sentence. However, it did not address whether it could impose a sentence consecutive to an anticipated federal sentence. The Fourth Circuit had previously held in United States v. Smith that a district court lacked authority to order a sentence to run consecutive to any future sentence, but Setser abrogated that in reference to future State sentences. Therefore, the holding in Smith that a district court may not order a sentence consecutive to an anticipated federal sentence is still controlling precedent. The Court found that although the district court’s order was broader than authorized by Setser, it could not find that it was sufficient to meet the plain error standard. The Court had never previously addressed the issue and the holding in Smith was not so clear as to require reversal. Therefore, the district court did not plainly err.

Fourth Court Affirms the Lower Court

The Fourth Circuit affirmed the judgment of the district court. It held that the government did not breach its plea agreement and there was no plain error in recommending the sentence to run consecutive to any future State or Federal sentence.

 

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8Oct

Fourth Circuit Vacates Sentence in Firearm Possession Case

Categories: 4th Cir. Blog
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Prison Image

By George Kennedy

On June 12, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Shell. The Fourth Circuit vacated the sentence imposed by the district court, holding that the district court erred in finding that Defendant’s prior second-degree rape conviction was a crime of violence under the U.S. Sentencing Guidelines. Additionally, the Fourth Circuit remanded the case so that the district court could make a separate factual finding as to whether Defendant was aware that he was fleeing a law enforcement officer.

Defendant’s Firearm Possession Conviction

On December 27, 2012, Defendant Aaron Eugene Shell was driving on Highway 321 in Caldwell County, North Carolina. From the opposite side of the highway, North Carolina State Trooper Christopher Hodges observed that Defendant was speeding, and turned his vehicle around to pursue and arrest Defendant. By the time that Hodges had turned around, Defendant had veered off the road down into an embankment. Hodges soon discovered Defendant, who had fled the scene of the accident. While fleeing, Defendant dropped a small bag behind a tree. Hodges searched the bag and found a semiautomatic pistol.

Defendant was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and pleaded guilty. A presentencing report made recommendations for the appropriate sentence to be imposed upon Defendant. The report recommended raising Defendant’s base offense level from fourteen to twenty under U.S.G.S. § 2K2.1(a)(4)(a) since Defendant’s previous second-degree rape conviction constituted a “crime of violence” under the statute. Additionally, the presentencing report recommended a two-level enhancement for obstruction of justice under U.S.G.S. § 3C1.2 because Defendant’s reckless driving while fleeing from Officer Hodges created a substantial risk of death or bodily injury to another person. The district court adopted the recommendations of the presentencing report and sentenced Defendant to fifty-seven months’ imprisonment. Defendant appealed, challenging the district court’s use of both enhancements to extend the term of his sentence.

Second-Degree Rape as Defined Under North Carolina Law Is Not a “Crime of Violence” Under U.S.S.G. § 2K2.1

The Fourth Circuit first addressed the issue of whether the district court erred by raising Defendant’s base offense level because Defendant’s prior second-degree rape conviction was a crime of violence under U.S.S.G. § 2K2.1. Second-degree rape is defined in North Carolina under N.C. Gen. Stat. § 14-27.3 (West 2004) [“N.C.G.S. § 14-27.3”]. As the Fourth Circuit noted, a person may be convicted of rape in the second degree under the statute either by having intercourse with another person by force, or by having intercourse with someone who is mentally disabled, mentally incapacitated, or otherwise legally unable to give consent. The district court held that, under the U.S. Sentencing Guidelines, second-degree rape under N.C.G.S. § 14-27.3 is a crime of violence, and therefore, Defendant’s sentence was properly extended. The Fourth Circuit, however, disagreed.

First, the Fourth Circuit held that the text of U.S.S.G. § 4B1.2(a) does not support that second-degree rape as defined under N.C.G.S. § 14-27.3 is a crime of violence. The text of U.S.S.G. § 4B1.2(a) defines a crime of violence as one which involves “physical force against the person of another.” However, as the Fourth Circuit noted, a second-degree rape conviction under N.C.G.S. § 14-27.3 is possible without the use of physical force. The Fourth Circuit explained that a person may commit second-degree rape just by having sex with someone whose consent is legally invalid; the use of physical force is not necessary. Since the text of U.S.S.G. § 4B1.2(a) defines a crime of violence as one that involves “physical force,” and second-degree rape does not necessarily involve physical force, the Fourth Circuit reasoned that second-degree rape is not a crime of violence under the statute.

The government countered this argument by pointing to the comments of the statute, U.S.S.G. § 4B1.2 cmt. n. 1., which states that “[crime] of violence” includes . . . forcible sex offenses . . .” The government argued that since forcible sex offenses are listed as crimes of violence under the statute, then second-degree rape under N.C.G.S. § 14-27.3 qualifies as a crime of violence. The Fourth Circuit, however, disagreed. In so holding, the Fourth Circuit cited precedent from the Sixth and Tenth Circuits which had expressly rejected the exact argument that the government was making. Additionally, the Fourth Circuit looked to the intent of the Sentencing Commission, and concluded that sex offenses based on an inability to give legal consent do not fall within the intended meaning of “forcible sex crimes” in this provision of the U.S. Sentencing Guidelines.

The District Court Should Have Clarified That Defendant Knew He Was Being Pursued by Law Enforcement

Lastly, the Fourth Circuit held that the district court erred by failing to make a separate finding as to whether Defendant knew he was being pursued by law enforcement officers. The Fourth Circuit held that it was unclear as to whether the district court had made such a finding. The Fourth Circuit held that such a finding must be made before enhancing a defendant’s sentence under U.S.S.G. § 3C1.2 for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Accordingly, the Fourth Circuit remanded the case for an ultimate determination of this issue.

Vacated and Remanded

The Fourth Circuit held that the district court erred in finding that Defendant’s prior second-degree rape conviction was a crime of violence and in failing to determine whether Defendant knew whether he was being pursued by a law enforcement officer. Accordingly, the Fourth Circuit vacated the sentence from the district court and remanded the case for further proceedings. One judge wrote a dissenting opinion, arguing instead that second-degree rape under N.C.G.S. § 14-27.3 should be considered a crime of violence under the U.S. Sentencing Guidelines.

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