United States v. Jaensch, No. 10-5013

Decided Dec. 29, 2011

Richard Jaensch was convicted of using a false identification that “appear[ed] to be” issued by the United States government, a violation of 18 U.S.C. § 1028(a)(1). Specifically, Jaensch created an ID that declared him to be a diplomat subject to “Absolute Sovereignty” in the United States, including bypassing TSA security checkpoints at airports.

Jaensch appealed his conviction, claiming that the statute criminalizing his behavior was unconstitutionally vague because of the “appears to be” language of the statute. However, the Fourth Circuit rejected this argument because such inquiries are done as “as applied” challenges and given Jaensch’s mens rea in producing and using what he knew to be a false ID, the statute was not unconstitutional as applied to his circumstances. Moreover, the court affirmed the use of the “reasonable person” standard to determine whether the ID “appears to be” issued by the government.

Also, Jaensch appealed the district court’s denial of a Rule 29 Judgment of Acquittal. He argued that after a mistrial the government is not a prevailing party and therefore all evidence should be interpreted in a light most favorable to defendant. In a matter of first impression for the Circuit, the court disagreed and followed the Eleventh Circuit precedent of drawing conclusions in favor of the government for a Rule 29 motion regardless of whether it occurs after a jury conviction or mistrial. The court also disagreed with Jaensch’s arguments that his ID did not appear official, that the proper venue was not the Eastern District of Virginia, or that the government did not sufficiently prove that he was the one that produced it. Finally, the court held, following its own recent precedent, that aiding and abetting liability need not be separately alleged on a criminal complaint. With all of Jaensch’s arguments on appeal defeated, his convictions were affirmed.

Full Opinion

-C. Alexander Cable

United States v. Edwards, No. 10-4256

Decided Dec. 29, 2011

Officers detained Joseph Edwards on a public street when his ex-girlfriend filed a complaint with the police that he had threatened her with a firearm earlier in the evening. Though the encounter was calm and neither party, the officers nor the defendant, seemed to have any reason to fear an altercation, Edwards was placed in handcuffs for the safety of the officers and the police performed a pat-down search of Edwards’ person that yielded no results. Once an arrest warrant for the assault charge had been issued, a police transport arrived to take Edwards into custody. However, officers decided to perform another search. This time, still on a public street, officers removed Edwards’ pants and underwear and noticed a plastic bag filled with white crystals tied around his genitals. Officers then used a knife to cut the baggie off Edwards.

On appeal from Edwards’ conditional plea of guilty, the Fourth Circuit vacated his conviction and remanded the case with orders to suppress the evidence. The court found the search to be a strip search and analyzed it under the factors laid in out Bell v. Wolfish: “1) the place in which the search was conducted; 2) the scope of the particular intrusion; 3) the manner in which the search was conducted; and 4) the justification for initiating the search.” 441 U.S. 520 (1979).

First, the strip search was conducted on a public street. Second, the drugs were removed from Edwards’ body in an unnecessarily dangerous and fearful manner. Finally, though the court recognized that the search inside Edwards’ underwear may have been justified because of the threat of a firearm, once the substance inside the underwear was found—and found not to be a weapon—the officers were not then justified in continuing the search in such a dangerous manner. In order to deter further Fourth Amendment violations, then, the court found that exclusion of the evidence was the best remedy.

Judge Diaz dissented. He recognized that the search was performed in public but disagreed that the manner of retrieving the contraband was unreasonable. Just because Edwards hid the drugs in an unusual and sensitive location, Diaz asserted, does not remove officers of their authority and duty to seize obviously visible contraband during a search incident to a lawful arrest. Also, even if the search were unreasonable, Diaz doubts the deterrent effect of excluding this evidence and suggested that other remedies, perhaps a § 1983 claim, would be more appropriate.

Full Opinion

-C. Alexander Cable

Wye Oak Technology, Inc. v. Republic of Iraq, No. 10-1874

Decided Dec. 29, 2011

Wye Oak entered into a contract with Iraq’s Ministry of Defense (IMOD) for refurbishing, selling, or disposing of used military equipment. After a period of alleged nonpayment, Wye Oak sued the nation of Iraq for breach of contract, claiming roughly $24 million in damages. Iraq moved to dismiss for, inter alia, lack of jurisdiction first under the Foreign Sovereign Immunities Act and later for insufficient pleading—arguing that IMOD was actually a separate legal entity than the Republic of Iraq and that Iraq had no contract with Wye Oak. The district court denied the motion to dismiss and transferred the case to the D.C. Circuit; nonetheless, Iraq filed an interlocutory appeal to the Fourth Circuit that stayed proceedings in that court.

The Fourth Circuit affirmed the denial of dismissal. First, it noted that though Iraqi law treats the Republic and IMOD as separate legal persons, it is the FSIA, not the foreign law that determines whether the Act will apply in U.S. courts. The court then found that IMOD was a political subdivision and not merely an agent or instrumentality of Iraq. Thus, they are “legally one and the same” for purposes of the FSIA. Second, the court held that IMOD, and therefore Iraq, were not protected by the FSIA because of the “commercial activities exception.” Specifically: “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the action is based . . . upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere.” 28 U.S.C. § 1605(a).

Judge Shedd filed a dissenting opinion arguing that the Fourth Circuit should not have jurisdiction to hear the appeal once the case was transferred to another circuit. Indeed, the general rule is that once a case is transferred, the circuit court loses jurisdiction to hear appeals from the court below absent the exception found in TechnoSteel, LLC v. Beers Const. Co., 271 F.3d 151 (4th Cir. 2001). Here, Judge Shedd argued that TechnoSteel was inapplicable because since each court has a duty to assess its own subject matter jurisdiction of any pending action before it, it was not necessary for the Fourth Circuit to decide the interlocutory appeal determination of jurisdiction before allowing the D.C. court to take up the matter.

Full Opinion

-C. Alexander Cable

Kunda v. C.R. Bard, Inc., No. 09-1809

Decided Dec. 23, 2011

Hillary Kunda brought suit against her former employer, C.R. Bard, Inc., alleging that Bard violated Maryland law when, at the time of her termination, it failed to pay her for unvested shares earned through the company’s long-term profit sharing plan. She argued that despite a New Jersey choice-of-law provision in the plan agreement, Maryland law applies to the contract because the Maryland Wage Payment and Collection Law (“MWPCL”) constitutes a fundamental Maryland public policy. The Fourth Circuit Court of Appeals affirmed dismissal of Kunda’s claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted. The court held that MWPCL is not a fundamental public policy of Maryland and that therefore, New Jersey law applies, and under New Jersey law the unvested shares are not wages. Furthermore, even if Maryland law did apply, the unvested shares are not wages under the MWPCL and thus were never owed to Kunda.

Full Opinion

-Sara I. Salehi

Rivers v. Wachovia Corp., No. 10-2222

Decided Dec. 22, 2011

Appellant John M. Rivers, Jr., a former shareholder in Wachovia Corporation, sought to recover personally for the decline in value of his approximately 100,000 shares of Wachovia stock during the recent financial crisis. The Fourth Circuit Court of Appeals affirmed dismissal of Rivers’ suit against Wachovia and four of its senior executives because Rivers’s complaint stated a claim of derivative injury to the corporation, and therefore he was barred from bringing a direct or individual cause of action against the defendants. Under both North Carolina and South Carolina law, shareholders cannot pursue individual causes of action against third parties for wrongs or injuries to the corporation that result in the diminution of value of their stock. Shareholders may pursue such claims as a derivative suit on behalf of the corporation. Rivers’s allegations in his complaint describe an injury inflicted on the corporation and losses common to all Wachovia shareholders during the financial crisis; therefore, Rivers’s claim is derivative. However, Rivers claimed that the suit fell within two of the exceptions to the general rule. Rivers alleged that there was a special duty between the wrongdoer and himself, and that he suffered an injury separate and distinct from that suffered by other shareholders. However, the court held that it was clear that neither the special duty nor the special injury exceptions applied to Rivers’s claim. Absent a separate contract between Rivers and the defendants creating distinct duties personal to him, or individual subjection to misleading inducements outside of the officer-shareholder relationship, there is no special duty in North Carolina or South Carolina. Furthermore, the decline in the corporation’s share value did not inflict any special injury on Rivers such that his claim fell within the special injury exception.

Full Opinion

-Sara I. Salehi

United States v. Bell, No. 10-4644

Decided Dec. 21, 2011

Appellants Nancy Bell and Iris Gibson, Bell’s daughter, pled guilty to several counts arising out of a conspiracy to distribute oxycodone pills. On appeal, they challenge the drug quantities from which the district court calculated their base offense levels under the Sentencing Guidelines, primarily because (1) Bell obtained the pills with a valid prescription and consumed some of the pills herself, and (2) the evidence of actual drug trafficking consisted of co-conspirator testimony of uncertain reliability. The Fourth Circuit Court of Appeals vacated the judgments and remanded for resentencing because the district court failed to explain adequately its methodology for calculating the drug quantity or otherwise to make findings sufficient to permit appellate review of the sentences for procedural reasonableness.

Full Opinion

-Sara I. Salehi

United States v. McKenzie-Gude, No. 10-4119

Decided Dec. 16, 2011

Collin McKenzie-Gude was convicted of possession of a firearm that was not registered to him. He entered a conditional plea of guilty, reserving his right to appeal the district court’s decision not to suppress evidence gained from his home or the basis of the warrant that allowed the search.

The warrant was obtained by a police detective and a Fire Marshall based, apart from both men’s training and experience, primarily on testimony by Ludmila Yevsukov that the defendant brought an AK-47 to her premises and often discussed dangerous and explosive chemicals with her nephew, Patrick. The affidavit to secure the warrant, however, did not state that the defendant lived at the address to be searched.

At a motions hearing, the district judge denied McKenzie-Gude’s motions to suppress the evidence obtained from the search and for a hearing to determine the veracity of the warrant solely because of the fact that the affiants did not link him to the address to be searched when obtaining the warrant. The district court denied both motions.

McKenzie-Gude appealed both the evidence and the sentence imposed after his conditional plea of guilty. The court determined his sentencing range as 78–97 months, but imposed a below-Guidelines sentence of 61 months.

The government conceded that the warrant application did not establish the proper nexus between the defendant and the searched residence. Nonetheless, it argued that per United States v. Leon, 468 U.S. 897 (1984) the court here should evaluate the officers’ good faith basis for obtaining and executing the warrant. The Fourth Circuit agreed and held that the officers acted with “objective reasonableness” in seeking the warrant and the omission of the nexus was inadvertent.

The court also affirmed the denial of a Franks hearing to determine the veracity of the warrant. McKenzie-Gude noted that the offers misrepresented that Yevsukov had personally observed the alleged acts leading to the probable cause determination and that they omitted a statement by Patrick that the defendant had never brought a gun to Yevsukov’s home. However, even if these assertions by the defendant were true, he made no showing that they were material to the judge’s probable cause determination whether to issue the search warrant.

Finally, the court held that McKenzie-Gude’s sentence was proper. The defendant was not entitled to a range reduction for “accepting responsibility” because he made no showing that he had done so. Pleading guilty does not mean one truly accepts responsibility for his or her actions. Furthermore, the district court’s decision to enhance McKenzie-Gude’s sentencing range was not clear error based on the facts and evidence available when making the determination.

Full Opinion

-C. Alexander Cable

United States v. Summers, No. 06-5009

Decided Dec. 16, 2011

Kevin Summers fled from police after being questioned about a shooting close to where he was standing at the time of the officers’ arrival on the scene. During the chase, Summers dropped his black jacket. Once in custody, however, police recovered the jacket along with the gun, ammunition, and crack cocaine inside.

At trial, the government called police witnesses to verify that the jacket belonged to Summers and was recovered at the scene. The prosecution also called Brendan Shea, the investigator responsible for performing and evaluating DNA tests on the jacket. Though the jacket had been processed through the “standard routing and inventory process,” there was uncertainty in the tracking of the jacket between the time Summers was arrested, Shea’s staff performed the tests, and trial. Summers introduced an internal log documenting who had accessed the jacket and called attention to the fact that others besides Shea had worked on it. Indeed, Shea could not testify with certainty that the jacket he tested and that was admitted into evidence was the jacket police took from Summers. Despite this, a jury convicted Summers for being a felon in possession of a firearm and possession with intent to distribute crack cocaine.

Summers appealed, claiming that his Confrontation Clause rights had been infringed because he was not able to cross-examine the lab technicians that handled and processed the jacket. However, following Crawford and subsequent precedent from both the Circuit and Supreme Court, the Fourth Circuit held that though the government may be required to produce live witnesses to establish a chain of custody, this requirement is nullified if the defense presents such evidence itself.

Moreover, where Shea explained and drew conclusions based on the work of subordinates and evaluated both the process and results of tests performed, he qualified as an expert to testify to a reasonable degree of scientific certainty that the jacket belonged to Summers. Also, where there is an issue of mishandling evidence or problems with equipment, it may be incumbent upon the defense to advise the prosecution of the need to secure necessary witnesses; otherwise, bringing the claim first on appeal may appear to be gamesmanship and not a legitimate argument. Finally, introducing the forensic examiner’s report itself may be error, but it was harmless in this case because the report was almost “wholly cumulative” of the examiner’s testimony in court.

Judge Floyd concurred in the judgment of the court but noted that the principle of constitutional avoidance should have precluded the court from reaching the merits of the Confrontation Clause argument where there are independent grounds upon which to base its judgment.

Full Citation

-C. Alexander Cable

Watkins v. SunTrust Mortg., Inc., No. 10-1915

Decided Dec. 14, 2011

When Edward and Danielle Watkins refinanced their home loan with SunTrust Mortgage, they were given a notice of a right to rescind. This notice substantially complied with Model Form H–8 (in accordance with 12 C.F.R. pt. 226) rather than Model Form H–9. H–9 applied specifically to rescissions of refinancing agreements while H–8 dealt with rescissions generally.

Eighteen months later, Watkins had fallen behind on paying the loan and SunTrust informed him of its intent to foreclose. Watkins responded by demanding a rescission of transaction because the form used was improper. When SunTrust refused to rescind, Watkins filed an action for declaratory judgment of his right to rescind and for statutory damages of $2,000. The district court, however, dismissed the action for failure to state a claim upon which relief could be granted.

Watkins appealed, relying heavily on precedent from the Seventh Circuit that found a TILA violation where a lender provided both H–8 and H–9 information because “hypertechnicality reigns in TILA cases.” The Fourth Circuit disagreed. The court held that the language of H–8 and H–9 were nearly identical and that both complied with the mandates of Regulation Z, where rescission information requirements are laid out.

Judge Wynn dissented. He pointed to Congressional intent and even prior Fourth Circuit precedent to argue that “to insure that the consumer is protected, as Congress envisioned requires that the provisions of the Act and the regulations implementing it be absolutely complied with and strictly enforced.” Because SunTrust unequivocally agreed that it used the wrong form, and because TILA is to be “strictly enforced,” Judge Wynn would have found a violation and reversed the lower court.

Full Opinion

-C. Alexander Cable

F.C. Wheat Maritime Corp. v. United States, No. 10-1906

Decided: Dec. 14, 2011

This case involved an allision (an admiralty term wherein a moving vessel collides with a stationary one) between an Army Corp of Engineers vessel and a private yacht owned by Wheat Maritime, the Marquessa. The Army vessel collided with the docked Marquessa when the moving vessel’s captain fell asleep at the helm.

The United States stipulated to liability and the parties proceeded to a bench trial on damages. The district judge sided with the United States’ experts, concluded the value of the yacht was $440,000 at the time of the allision, and entered judgment in that amount. Upon motion by the government, however, the amount was amended to allow no recovery because of a previous insurance subrogation. Wheat Maritime appealed.

The district judge used the doctrine of constructive total loss to determine damages. Using this analysis, “if the cost of repairing the vessel exceeds her pre-casualty fair market value, the limit of compensation is the vessel’s fair market value at the time of the casualty.” Wheat Maritime, however, argued that this formula was not proper because the Marquessa had been made unique and was therefore entitled to the cost of replacement. The Fourth Circuit considered this argument but held that the standard was based on the use of the vessel and not the cosmetic improvements or add-ons applied to the boat. Because the purpose of the boat was merely as a yacht and had no idiosyncratic use that justified calling it “unique,” the court affirmed the lower court’s finding of a constructive total loss.

The court also affirmed the lower court’s findings of fact that the United States’ experts were more credible than Wheat International’s and that the “special value” of the yacht to the owner, while relevant, only applied when it was not possible to establish a fair market value for the vessel. Next, the court affirmed the denial of damages for certain items on the boat including antennae and laptop computers because of a lack of evidence establishing the amount of loss with certainty. Finally, the court affirmed the amended judgment amount because requiring the Army Corp to pay Wheat Maritime would result in a double recovery for the vessel since the government had settled with the insurance company, who had already paid out over $600,000 for its loss.

Full Opinion

-C. Alexander Cable

United States v. Glover, No. 10-4462

Decided: Dec. 12, 2011

The Fourth Circuit Court of Appeals affirmed the district court’s denial of Paul Glover’s motion to suppress evidence obtained during a stop-and-frisk in a deserted gas station parking lot in the early hours of the morning. The court held that the police officers had a reasonable suspicion that Glover was planning to commit an armed robbery. There was a high degree of crime in the area and it was at a late hour. The gas station itself was the particular target of criminal activity. Glover was clearly not buying gas or anything else from the gas station and exhibited nervous, evasive behavior; especially after seeing the police officers. Therefore, this was sufficient reasonable suspicion and did not violate Glover’s Fourth Amendment rights. The court thus affirmed the judgment.

Full Opinion

-Sara I. Salehi

Behrmann v. National Heritage Foundation, Inc., No. 10-2015

Decided Dec. 12, 2011

The Fourth Circuit Court of Appeals held that a bankruptcy court may approve non-debtor release, injunction, and exculpation provisions as part of a final plan of reorganization under Chapter 11 of the Bankruptcy Code in certain circumstances. However, a bankruptcy court must find facts sufficient to supports its legal conclusion that a particular debtor’s circumstances entitle it to such relief. The bankruptcy court in this case did not make findings of fact sufficient to support that the debtor was entitled to equitable relief of this type. Therefore, the court vacated the judgment of the district court and remanded for further proceedings.

Full Opinion

-Sara I. Salehi

Creekmore v. Maryview Hospital, No. 10-1183

Decided Dec 8, 2011

Plaintiff Latarsha Creekmore sued Defendant Maryview Hospital for medical malpractice, alleging that its negligent care following the Caesarian section delivery of her baby injured her. Maryview appealed the judgment in favor of Creekmore, arguing that the district court abused its discretion by allowing an obstetrician-gynecologist to testify as an expert regarding the standard of care for a nurse’s postpartum monitoring of a high-risk patient with preeclampsia because the testimony did not meet the expert testimony requirements under the Virginia Code. The Fourth Circuit Court of Appeals held that nothing precluded the expert testimony in question and affirmed. The court held that even though Dr. Stokes did not have an active clinical practice in nursing, Dr. Stokes regularly performed the procedure at issue, fulfilling the purpose of the active clinical practice requirement in Virginia state law and therefore, Dr. Stokes’ testimony was proper.

Full Opinion

Sara I. Salehi

CGM, LLC v. BellSouth Telecommunications, Inc. No. 10-1693

Decided: Dec. 8, 2011

CGM, LLC, a billing agent for competitive local exchange carriers, brought a declaratory judgment action against BellSouth Telecommunications, Inc., an incumbent local exchange carrier. CGM claimed that BellSouth offered long-term promotional discounts to its own customers but it failed, in violation of the Telecommunications Act of 1996 and rules implementing it, to pass the full value of those discounts on to CGM’s client competitive local exchange carriers. The Fourth Circuit Court of Appeals affirmed dismissal of the case on the grounds that CGM has no statutory standing under the 1996 Act or an inapplicable statute from the Federal Telecommunications Act of 1934. Statutory standing is essentially a question of statutory construction. The court held that because the statute’s resale duties exist only as embodied in interconnection agreements, and because CGM has no interconnection agreement with BellSouth and did not bring the suit pursuant to any interconnection agreement, CGM has no rights and BellSouth has no duties under the statute. Further, the Declaratory Judgments Act is remedial only and therefore does not extend federal courts’ jurisdiction or confer standing on CGM.

Full Opinion

-Sara I. Salehi

United States v. Dimache, No. 11-4090

Decided: December 7, 2011

Elianer Dimache’s sentence for bank robbery was enhanced under the Robbery Guidelines providing for a two-level enhancement “if any person was physically restrained to facilitate the commission of the offense or to facilitate escape.” Dimache challenged application of the enhancement, and the Fourth Circuit Court of Appeals affirmed. The court held that physical restraint does not require more than pointing a gun at a person, ordering them to the floor, and telling them not to move. Therefore, Dimache physically restrained the two bank tellers by ordering them to the floor at gunpoint, and application of sentencing enhancement was appropriate.

Full Opinion

-Sara I. Salehi

West Virginia CWP Fund v. Stacy, No. 11-1020

Decided Dec. 7, 2011

The Black Lung Benefits Act (“BLBA”) as amended by the Patient Protection and Affordable Care Act provides that an eligible survivor of a miner who was receiving benefits at the time of his death is automatically entitled to survivors’ benefits without having to establish that the miner’s death was due to pneumoconiosis. The Benefits Review Board (“BRB”) ruled that under the BLBA, Respondent Elsie Stacy, a widow of a miner, was entitled to survivors’ benefits. Petitioner West Virginia Coal Workers’ Pneumoconiosis Fund challenges the PPACA’s restoration of this provision.

The Fourth Circuit Court of Appeals found no merit in Petitioner’s arguments, and affirmed. Petitioner first contended that retroactive application of the automatic survivorship provision to claims filed after January 1, 2005 violates substantive due process because Congress did not provide any legitimate purpose for making the legislative retroactive and arbitrarily chose January 1, 2005 as the operative filing date. The court noted that a conclusion that retroactive application of the BLBA provision violates substantive due process would invite the invalidation of all retroactive acts and therefore rejected this claim. Petitioner also argued that the retroactive application of the BLBA provision constitutes an unlawful taking of its property under the Fifth Amendment. However, the BLBA merely requires Petitioner to pay money and does not infringe any specific, identifiable property interest, therefore the takings clause is inapplicable. Petitioner further asserted that the reinstatement of the BLBA provision should not apply to Respondent’s claim because the operative filing date for determining eligibility is the date the miner’s claim was filed, not the date the survivor’s claim was filed. However, the court deferred to the Director of the BRB’s interpretation of the provision, noting that this interpretation was supported by the plain language of the statute and, unlike Petitioner’s interpretation, maintained consistency with the rest of the statute. Petitioner’s final argument was that the reinstated provision in the BLBA conflicted with other provisions in the statute. However, because the reinstated provision is the most recent amendment to the BLBA, it overrides any conflicting language in the statute. Therefore, the court affirmed judgment of the BRB for Respondent.

Full Opinion

-Sara I. Salehi

United States v. Wellman, No. 10-4689

Decided: Dec. 7, 2011

John Wellman was convicted of three offenses related to his possession of child pornography. He challenges his conviction on the grounds that the search warrant that led to his arrest was invalid, that a jury instruction was erroneous because it lacked a knowledge requirement, and that his sentence was imposed in violation of the Eighth Amendment prohibition against cruel and unusual punishment. The Fourth Circuit Court of Appeals affirmed Wellman’s convictions and sentences. The court declined to impose a requirement that a search warrant application involving child pornography include an image of the alleged pornography. Furthermore, the jury instruction was not erroneous for failure to include a knowledge requirement because the jury was not required to find that Wellman knew that the images at issue were obscene. Finally, the court held that the ten-year sentence did not constitute a de facto life sentence given Wellman’s age of 68 years and was not a violation of the Eighth Amendment.

Full Opinion

-Sara I. Salehi

United States v. Offill, No. 10-4490

Decided: Dec. 6, 2011

Phillip Offill was convicted on one count of conspiracy to commit securities registration violations, securities fraud, and wire fraud, and nine counts of wire fraud. Offill appealed, claiming that the district court erred by admitting opinion testimony of two experts and two lay witnesses for the government; denying his request for a multiple conspiracy instruction; and admitting evidence of subsequent acts not charged in the indictment. Offill also challenged the reasonableness of his sentence. The Fourth Circuit Court of Appeals affirmed. Offill claimed that the expert witnesses’ testimony included inadmissible legal conclusions and improperly addressed Offill’s intent. However, the Court found that the witnesses testified hypothetically and did not address Offill himself. Offill further contended that two lay witnesses also included inadmissible legal conclusions in their testimony and additionally, impermissibly testified as to the legality of Offill’s conduct. The Court again held that the admission of this testimony was well within the district court’s broad discretion. Offill’s next two challenges, to the admission of subsequent acts concerning Offill’s involvement in a transaction and the jury instruction, were both meritless. Offill’s final challenge was that his sentence was unreasonable, which the Court found unpersuasive. Therefore, Offill’s conviction and sentence were affirmed.

Full Opinion

-Sara I. Salehi

United States v. Hackley, No. 10-4069

Decided: Dec. 6, 2011

James Richard Hackley was convicted of several offenses related to his sale of cocaine base to a government informant and subsequent efforts to have that informant murdered. Hackley challenged his convictions, the joinder of the charges into a single trial, the court’s refusal to grant him new counsel, and his sentence. The Fourth Circuit Court of Appeals, noting that the facts of the case were “perilously close to the lower boundary of what we will accept as substantive evidence of a conspiracy to distribute drugs,” affirmed. The Court noted that the evidence of substantial quantities of drugs is, on its own, too thin to support an inference of conspiracy. However, taken together, the testimony of a government informant and one of Hackley’s girlfriends could lead the jury to find beyond a reasonable doubt that Hackley had a continuous buy-sell relationship with Maryland suppliers of crack. Letters written by Hackley to his many girlfriends seeking help in his murder for hire scheme were sufficient evidence of Hackley soliciting someone to murder the government informant. Although Hackley did not like the style of his counsel, there was no suggestion that her representation was inadequate. The Court was not persuaded by any of Hackley’s other arguments. Therefore, the judgment was affirmed.

Full Opinion

-Sara I. Salehi

United States v. Staten, No. 10-5318

Decided Dec. 5, 2011

Mark Staten challenged his conviction under section 922(g)(9) of the United States Code, which prohibits a person who has been convicted of a misdemeanor crime of domestic violence from possessing, shipping, or receiving a firearm in or affecting interstate commerce, as violating the Second Amendment as applied to him. The Fourth Circuit Court of Appeals affirmed the district court’s judgment, holding that the government carried its burden under the intermediate scrutiny standard required to uphold the statute. The objective of reducing gun domestic violence is reasonably related to the text of the statute. Therefore, section 922(g)(9) survives the intermediate scrutiny standard and the district court’s judgment was affirmed.

Full Opinion

-Sara I. Salehi

United States v. Montieth, No. 10-4264

Decided Dec. 5, 2011

Appellant Kwan Montieth was convicted of using and carrying a firearm in relation to a drug trafficking crime. Montieth appeals from the district court’s denial of his motion to suppress physical evidence recovered in the search of his residence and statements he made to the police. The Fourth Circuit affirmed the district court’s judgment. The Court found that the search warrant was issued based on probable cause supplied by the warrant affidavit. The affidavit stated that a trash pull at Montieth’s revealed extensive evidence of marijuana trafficking and bills addressed to Montieth, corroborating that the trash belonged to him. The affidavit also described with particularity the residence to be searched and the items expected to be seized. The Court also was unpersuaded by Montieth’s claims that the traffic stop and detention violated the Fourth Amendment, and found that it was a valid Terry stop. Further, Montieth’s admission that he had marijuana at his house before he was told his Miranda rights was admissible under Rhode Island v. Innis.

Full Opinion

-Sara I. Salehi

Djadjou v. Holder, No. 10-1889

Decided Dec 5, 2011

Pulcherie Tekeu Djadjou, a native and citizen of Cameroon, applied for asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT). The Immigration Judge denied all forms of relief and the Board of Immigration Appeals affirmed. Djadjou asserts that the agency erred in making an adverse credibility determination and alternatively, independent evidence exists to establish past persecution. The Fourth Circuit Court of Appeals upheld the adverse credibility determination based on inconsistencies and deficiencies in Djadjou’s evidence and agreed that Djadjou failed to provide sufficient independent evidence establishing past persecution, and denied Djadjou’s petition for review. Judge Wynn dissented on the grounds that the Immigration Judge rejected independent, documentary evidence that established past persecution without specific, cogent reasons for the rejection as required by Kourouma v. Holder.

Full Opinion

-Sara I. Salehi

Meyer v. Astrue, No. 10-1581

Decided Dec. 2, 2011

Maurice Eugene Meyer fell twenty five feet from a deer stand while hunting, resulting in “significant injuries.” After several surgeries and months of extensive rehabilitation, Meyer filed for Social Security disability benefits. The benefits were denied by an Administrative Law Judge (ALJ), detailing its analysis and findings of fact per the “customary five-step sequential analysis.”

Meyer appealed to the Appeals Council (Council) and submitted new evidence not available during the earlier hearing that tended to support his claim of disability. The Council denied Meyer’s request for review. Though the Council noted that the new evidence was added to the record, it stated that there was no reason to change the ALJ’s judgment without giving any details for its decision. The district court affirmed this decision.

On appeal, Meyer argued that the Council erred by not giving specific findings of fact as to why it denied review. The Council will grant review of an ALJ’s determination if: “(1) There appears to be an abuse of discretion by the [ALJ]; (2) There is an error of law; (3) The action, findings, or conclusions of the [ALJ] are not supported by substantial evidence; or (4) There is a broad policy or procedural issue that may affect the general public interest.” If upon review of the record the Council finds that the evidence is not contrary to the weight of evidence, it may deny review of the decision and nothing in the Social Security Act requires the Council to give its reasons.

Nonetheless, the court remanded the case in light of the new evidence presented to the council. The ALJ’s analysis implied that its decision was based on a lack of contrary evidence. Such evidence became available after the hearing, but since the Council summarily denied review, no finder of fact has reconciled the competing evidence regarding Meyer’s disability claims. Thus, the ALJ needs to reevaluate the claim in light of all the evidence and enter a new decision.

Full Opinion

-C. Alexander Cable

Qingyun Li v. Holder, No. 10-2333

Decided: Dec. 2, 2011

Qingyun Li, a native of China, illegally entered the county in 1998 and remained until she was served with a Notice to Appear by the Department of Homeland Security (DHS). She had applied for an adjustment of status, but both the DHS and Immigration Judge (IJ) denied the request. The IJ ordered Li to voluntarily vacate the country or be removed. On appeal to the Board of Immigration Appeals, the decision to reject the adjustment of status was affirmed but the remanded the case to have the IJ give advisals to Li and grant a new period of voluntary departure.

Li south judicial review of the Board’s decision by the Fourth Circuit. Though the court held it had jurisdiction to hear such matters, it dismissed the petition for “prudential reasons.” First, the court held that the recent Supreme Court decision in Dada v. Mukasey, 554 U.S. 1 (2008) did not specifically reject the reasoning of prior circuit precedent finding that orders like the one in the present case were final decision subject to immediate appeal. However, the court followed the lead of the First and Sixth Circuits (declining to follow the Ninth) finding that exercising jurisdiction in this case “would be inconsistent with scheme envisioned in Dada.” The court therefore dismissed Li’s petitions without prejudice so the IJ could set a voluntary departure date. At that point, Li would be able to decide whether to comply or seek judicial review.

Full Opinion

-C. Alexander Cable

In re Liotti, No. 10-9504

Decided Dec. 2, 2011

Thomas Liotti had several charges for professional misconduct levied against him for his involvement in a in an appeal from a criminal conviction of his client before the District of South Carolina. Mr. Liotti rearranged a number of quotes in his Reply Brief in such a way as to misrepresent that the statements were sequential and went to show that the prosecution did not prove its case. In fact, they were separated and involved different subjects altogether. Mr. Liotti alleged in his Opening Brief that the trial court “sat on” evidence that tended to call the government’s informant into question. In reality, the court did not receive this evidence until after the trial was over. Mr. Liotti also alleged in his Opening Brief that the government overestimated how long the trial would last (saying it would take about two weeks) in an attempt to defeat a motion for a change of venue. Actually, it was Mr. Liotti himself that overestimated the trial length by guessing two weeks; the government disagreed on record and suggested it would last three or four days. Additionally, Mr. Liotti initially argued before the trial court that his client engaged in an internet conversation that proved his innocence. Though he later admitted the conversation was a fake, he reasserted the argument on appeal. Finally, Mr. Liotti alleged in his Reply Brief that two of the Secret Service agents responsible for the case against his client were subsequently discharged for misconduct. There was no evidence of the agents being terminated and when pressed to present some during oral argument, Mr. Liotti backed away from the assertion.

The New York Rules of Professional Conduct—Liotti’s office is located in New York—prohibit, among other things, conduct involving “dishonesty, fraud, deceit or misrepresentation,” making false statements or “fail[ing] to correct a false statement of material fact,” offering evidence “that the lawyer knows to be false,” or making false statements questioning the integrity of a judge.

When presented with the violations, Mr. Liotti essentially admitted to the substance but maintained that his actions were a mistake and not the result of intentional misconduct. He maintained that his poor judgment was inappropriate but not subject to disciplinary procedures (or, at most, a private admonishment).

The Fourth Circuit found that public admonishment was the appropriate sanction. Recognizing that the proper standard for attorney sanctions—following the ABA guidelines—is “clear and convincing evidence,” the court found that Mr. Liotti’s conduct amounted to clear misrepresentations in violation of the New York Rules and therefore the Fourth Circuit’s Local Rules App. P. 46(g)(1)(c) allowing the court to discipline attorneys for violations of the professional conduct rules where the attorney maintains his or her primary office.

Full Opinion

-C. Alexander Cable

Plasterer’s Local Union No. 96 Pension Plan v. Pepper, No. 10-1364

Decided: Dec. 1, 2011

Current Trustees of a retirement plan sued the Former Trustees for mismanaging Plan funds by failing to research alternative investment strategies or review the current strategy to ensure it was the best method to meet the needs of the Plan and its members. The Current Trustees put up an expert witness who testified that had the funds been invested a different way, the Plan could have netted nearly $500,000 more than it did in reality. The Former Trustees’ expert contended that the market is unpredictable and the strategy was reasonable given the Trustees’ goals. At the end of a three-day bench trial, the district judge granted judgment for the Current Trustees, observing that the Plan’s investment strategy had essentially been in place since 1991 with little or no effort to seek alternative investment approaches or diversification. Having determined liability, the judge then awarded damages based on the Current Trustees’ model but only using years 2003-2005 to accumulate losses.

The Fourth Circuit vacated. First, the court noted that a finding of breach of fiduciary duty also requires an independent showing that the alleged misconduct (e.g. failing to investigate alternative investment opportunities or diversify the portfolio) caused an actual loss to the Plan. Imprudent decisions that would have been made by prudent investors will not lead to personal liability for the Trustees. Next, if upon remand the district court once again finds liability, that court must reconsider and give reasons for its measure of damages as opposed to picking three years from 2003-2005 seemingly “out of the air.”

Finally, because the circuit court had vacated liability and damages, it necessarily vacated the award of attorneys’ fees. The court adopted a two-staged determination of attorneys’ fees. The court held that the decision as to whether the prevailing party is eligible for attorneys’ fees should be evaluated under the recent Supreme Court decision in Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010) but that the decision whether to thereafter make an award should continue to use the five factors laid out in Quesinberry v. Life Ins. Co. of N. Am., 987 F. 2d 1017, 1029 (4th Cir. 2003) (en banc) (listing the factors as “(1) degree of opposing parties’ culpability or bad faith; (2) ability of opposing parties to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of a plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.”).

Full Opinion

-C. Alexander Cable

United States v. Martin, Nos. 10-5301, 10-5304, & 10-5306

Decided: Nov. 30, 2011

Several defendants were arrested for their alleged involvement with a large drug trafficking operation in and around the Washington, D.C. area. Shortly after arrest, the government seized some the defendants’ property supposedly involved with the drug operation pursuant to a civil forfeiture warrant. The government also handed down a grand jury indictment that included criminal forfeiture allegations.

The next month, the defendants contested the civil forfeiture under the Civil Asset Forfeiture Reform Act. Because the government did not respond to the defendants’ complaints within the proscribed ninety days, the defendants moved to have their seized property returned. In response, the government issued several criminal forfeiture warrants pursuant to the previous grand jury indictment. The district court then denied the defendant’s motion to return the property, holding that it was untimely and that the criminal forfeiture warrants mooted the claim anyway.

After being convicted by a jury for their involvement with the drug ring, the district court held a post-trial forfeiture hearing prior to sentencing the defendants. The court decided that forfeiture was warranted and decided to adopt the government’s proposed order, subject to a minor change in joint and severable liability that both parties had agreed to. Thereafter, the district court sentenced the defendants without any mention of the criminal forfeiture of assets. Some three years later, the defendants moved to vacate the forfeiture order for not being entered within the time limits designated by the Rules of Criminal Procedure. The district court denied the motion and altered its judgments to include the forfeiture.

The Fourth Circuit affirmed. A united panel first held that even if the government’s seizure of the defendants’ property was illegal because of its failure to respond to the civil forfeiture challenge, the remedy for illegally seized property is not to return it if the property is subject to forfeiture by a showing of independence evidence. Since the defendants did not challenge the independent evidence the government put forward to sustain the criminal forfeiture, the challenge was rejected.

Then, a divided panel also affirmed the court’s ability to order forfeiture of the property despite its omission from the sentencing order. The majority agreed that the district court violated Rule 32.2 (as it existed at the time of the defendants’ trial) by not making the forfeiture order final and including it in the sentence as part of the final judgment. Nonetheless, since the rule did not set out a remedy in the event that the rule is violated, the court turned to the recent United States Supreme Court decision in Dolan v. United States, 130 S. Ct. 2533 (2010).
The Court in Dolan set forth three categories to analyze rules or statutes under when no consequence is given for missing a deadline. First, “jurisdictional conditions” removes the court’s jurisdiction to take any action in line with what the statute proscribes. The second, a “claims-processing rule” merely limits a party’s ability to bring motions or claims before the court after a given deadline. Finally, a “time-related directive” is a very forgiving category that “is legally enforceable but does not deprive a judge or other public official of the power to take the action to which the deadline applies if the deadline is missed.” The Fourth Circuit held that Rule 32.2 was a “time-related directive” and that this, coupled with the fact that the defendants were undoubtedly on notice that the court would be issuing a forfeiture order as soon as the agreed upon changes were completed, meant a loss of jurisdiction was inappropriate and the court’s forfeiture order stands.

Judge Gregory dissented, finding Dolan distinguishable from the present case. Dolan, says Gregory, was narrowly limited to cases of restitution—not forfeiture—and dealt with situations where the amount of the restitution was left blank, not entirely missing from the judgment. Since Dolan was inapplicable, Judge Gregory would hold that the district court did not follow the Rules of Criminal Procedure and therefore quite simply did not have the authority to issue the order or to amend its judgment to include one.

Full Opinion

-C. Alexander Cable

United States v. Foster, No. 10-5028

Decided Nov. 30, 2011

John Joel Foster was convicted as a felon in possession of a firearm. During his pre-sentencing investigation, the prosecution noted that Foster was subject to a mandatory fifteen-year sentence under the Armed Career Criminal Act (“ACCA”). This statute imposes a mandatory sentence for criminals that have at least three prior convictions for violent crimes or serious drug offenses. Foster’s three priors were for burglary.

The United States Supreme Court has held that burglary can qualify as a violent crime if the offense adheres to the Court’s definition of a “generic burglary” that has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). Since Foster’s prior convictions were for the “Corner Market,” “Sunrise—Sunset Restaurant,” and a “blacksmith shop,” the district court found that all but the one using the term “shop” could not be certainly identified as buildings or structures and thus imposed sentence without applying the ACCA.

On appeal, a divided Fourth Circuit vacated and remanded the case for resentencing in line with the ACCA. The court held that Virginia used a “non-generic” definition of burglary in its statute, but that according to Taylor, the offense could still be a violent crime if the offender violated a portion of the statute in question that would otherwise comport with the “generic” definition. The majority held that logic dictated that the Corner Market and Sunset—Sunrise Restaurant were an “office, shop … storehouse, warehouse, banking house, or other house” according to the Virginia burglary statute and that this category consisted of “buildings or structures” in line with the generic definition. Senior Judge Hamilton joined the majority and also separately concurred to advocate for the use of common sense in ACCA cases just as “courts routinely employ in determining the meaning of a state or federal statute.”

Finally, Judge Wynn dissented. While agreeing that common sense pointed toward a showing that the Corner Market and Sunrise—Sunset Restaurant were buildings or structures, he noted that the statute and Supreme Court demand the government present evidence that “a prior conviction ‘necessarily ’ involved . . . facts equating to generic burglary,” citing Shepard v. United States, 544 U.S. 13, 24 (2005). Logic and common sense, then, will not be enough to apply the ACCA. The majority’s approach, says Wynn, has the appellate court using “evidence” not on the record and effectively shifts the burden of proof from the government to the defendant—after the government shows the ACCA may apply (by logic or common sense) the defendant is then tasked with showing that it actually does not. This approach, the judge argues, is improper and cannot be used to apply a mandatory fifteen-year sentence.

Full Opinion

-C. Alexander Cable

McDow v. Dudley, No. 10-1732

Decided Nov. 30, 2011

David and Anne Dudley filed for Chapter 13 bankruptcy. Upon motion by the trustee, however, it was converted to a Chapter 7. The trustee later moved to the dismiss the action as abusive under 11 U.S.C. § 707(b), citing that after removing the amounts necessary for living expenses, the Dudley’s had enough money to make payments to creditors each month. The Dudley’s moved for summary judgment arguing that this provision did not apply since the action was initially filed under Chapter 13. The bankruptcy court agreed and refused to dismiss the action. The trustee appealed to the district court, but that court dismissed for lack of subject matter. It held that the bankruptcy judge’s decision was a “final order” within the meaning of 28 U.S.C. § 158(a)(1).

The Fourth Circuit disagreed. The court noted that appealability of bankruptcy decisions was based more on pragmatism than technicalities due to the nature of bankruptcy with prolonged proceedings often involving many parties. Citing the Congress’s desire to root out abusive bankruptcies and promote a policy toward repaying debts, along with the Judiciary’s desire to maintain judicial economy, the court held that an order denying a 707(b) motion was a final order on a discreet issue and therefore subject to immediate appeal to the district court.

Full Opinion

-C. Alexander Cable

United States v. Higgs No 10-0007

Decided: Nov. 23, 2011

Petitioner Dustin John Higgs was convicted of three counts of first-degree premeditated murder, first-degree murder committed in the perpetration or attempted perpetration of a kidnapping, and kidnapping resulting in death arising out of the January 27, 1996 murders of three women in the Patuxent National Wildlife Refuge. He received nine death sentences. Higgs brought a motion for relief under 28 U.S.C. § 2255, claiming that his constitutional rights to due process of law and effective assistance of counsel were violated by the introduction of Comparative Bullet Lead Analysis (CBLA) evidence at trial. The district court denied this motion, and the Fourth Circuit Court of Appeals affirmed. The government presented CBLA evidence through the testimony of Kathleen Lundy, an examiner with the Elemental Analysis Group of the FBI laboratory who compared the elemental composition of the .38 caliber bullets recovered from the three crime scenes and from Higgs’s apartment. According to Lundy, the lead composition of the .38 caliber bullet recovered from two different shootings that Higgs was allegedly involved in matched the lead composition of eighteen of the .38 caliber bullets found at Higgs’s apartment and at the murder scene. Higgs contended that his due process rights under Brady v. Maryland were violated by the government’s failure to produce two reports that he asserted could have been used to either exclude or further impeach the CBLA evidence presented by Lundy. Alternatively, Higgs contended that his trial counsel were constitutionally ineffective under Strickland v. Washington because they failed to discover the reports on their own or present comparable and available expert testimony to challenge the CBLA evidence.

The Fourth Circuit held that the government did not violate its Brady obligation by failing to produce the two reports to Higgs’s counsel, and that the performance of Higgs’s counsel was not constitutionally deficient, and in any case, Higgs was not entitled to relief because he failed to demonstrate that he was prejudiced by the government’s failure to disclose the reports to him prior to trial or by the admission of the CBLA at trial. Higgs further contended that his post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of newly discovered studies on CBLA evidence. The Court again held that Higgs failed to demonstrate that counsel was constitutionally deficient and even if they had been, Higgs was not prejudiced as a result.

Full Opinion

-Sara I. Salehi

Elmore v. Ozmint, No. 07-14

Decided: Nov. 22, 2011

Edward Lee Elmore filed a petition pursuant to 28 U.S.C. § 2254, seeking habeas corpus relief after the South Carolina supreme court denied his state postconviction relief (PCR) application.  Though Elmore’s petition asserted various claims, the Fourth Circuit addressed whether Elmore was entitled to habeas relief and found that Elmore’s trial attorneys provided ineffective assistance of counsel in violation of the Sixth Amendment, and thus awarded habeas relief.

Elmore was twice convicted of murder and sentenced to death, but the Supreme Court ultimately vacated the judgment and remanded for further consideration. During a subsequent trial limited to sentencing, Elmore again received a death sentence, which the state supreme court affirmed. The Supreme Court denied certiorari, prompting Elmore to file a state PCR application that was denied in its entirety. While Elmore’s appeal was pending, the prosecution revealed that it had found previously “missing” physical evidence; the evidence included “Item T,” an unmatched Caucasian hair found on the victim’s body, which could potentially exculpate the African American defendant. The state supreme court remanded for further proceedings, but the state PCR court denied relief. In 2005, Elmore filed a § 2254 petition asserting various claims, including an unexhausted mental retardation claim pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). The district court denied relief on the basis that the state PCR court’s conclusion that the suppression of the missing physical evidence by the prosecution during the 1984 trial “was immaterial to the … verdict.” Elmore appealed to the Fourth Circuit, which stayed proceedings pending the exhaustion of the mental retardation claim. In 2010, the state PCR court held that Elmore was mentally retarded, and thus could not be executed pursuant to Atkins. The prosecution did not appeal this finding and the court converted Elmore’s death sentence to a term of life imprisonment. Resolution of the Atkins issue dispensed with several of Elmore’s claims, but the Fourth Circuit still faced issues regarding Elmore’s entitlement to habeas relief.

The Fourth Circuit reviewed de novo the district court’s denial of habeas relief based only on the information contained in the state court record, pursuant to Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). Furthermore, AEDPA required the Fourth Circuit to assess whether the state PCR court’s decisions were based on “an objectively unreasonable factual determination in view of the evidence before it, bearing in mind that factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.”  Baum v. Rushton, 572 F.3d 198, 210 (4th Cir. 2009).

Despite giving deference to the state court’s findings, the Fourth Circuit held that the state PCR court incorrectly applied and acted contrary to the Strickland standard for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Strickland imposes a duty to conduct an investigation into potential legal choices, measured against the investigation which a reasonable attorney would make. The state PCR court ruled that the attorneys’ “faith in the integrity and infallibility of the police” justified their failure to investigate the prosecution’s forensic evidence during the 1984 trial, and thus deemed the attorneys’ conduct reasonable. The Fourth Circuit, in contrast, found that the defense attorneys’ failure to conduct a reasonable investigation into the forensic evidence—an integral part of the prosecution’s case—constituted patent ineffective assistance of counsel. Furthermore, Strickland imposes a “contemporary assessment rule,” as acknowledged by the state PCR court, which prohibits the use of hindsight in assessing the reasonableness of an attorney’s performance. The Fourth Circuit emphasized that the state PCR court improperly relied on facts developed after the 1982 and 1984 trials to retroactively justify defense counsel’s performance—specifically, the decision against investigating the forensic evidence. Because of the egregious nature of defense counsel’s failure to investigate, “no amount of deference could compel any fair conclusion other than that Elmore has satisfied his burden under Strickland’s performance prong.”

As to the prejudice prong, the state PCR court stated that “a reviewing court…must look only at whether the error alleged resulted in a proceeding which was ‘fundamentally unfair or unreliable.’” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). The Supreme Court previously rejected this interpretation and instead emphasized that courts must “‘consider the totality of the evidence before the … jury’ in determining whether there was a reasonable probability that, but for counsel’s errors, a different verdict would have been returned.” Strickland, 466 U.S. at 695. Thus, the state PCR court should have considered all of the evidence presented during trial and the PCR proceedings and impermissibly departed from the Strickland standard in considering “less than the totality of the evidence” and by “unduly minimizing its import and evaluating it piecemeal.” The Fourth Circuit proceeded to apply the totality-of-the-evidence standard and concluded that “there is a reasonable probability…that, but for his lawyers’ failure to investigate the State’s forensic evidence, Elmore would have been acquitted” in 1984, thus satisfying Strickland’s prejudice prong. Accordingly, the Fourth Circuit reversed the district court’s judgment and remanded to award Elmore a writ of habeas corpus.

Circuit Judge Wilkinson dissented on the basis that the majority’s decision “cannot be squared with the deferential standards required under AEDPA, the facts of [the] case, or Supreme Court precedent.” Judge Wilkinson stated that, “whatever defense counsel’s alleged failings, the outcome of Elmore’s 1984 trial would almost certainly have been the same,” thus Elmore failed to satisfy Strickland’s prejudice prong and counsel’s performance did not violate the Sixth Amendment. In arguing that the majority’s decision went too far, Judge Wilkinson emphasized that “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011). Furthermore, appellate judges are in “the worst possible position” to evaluate the credibility of the witnesses presented during trial and the PCR proceedings, thus the Fourth Circuit should be extremely deferential to state court determination. Judge Wilkinson also argues a policy point in that allowing Elmore to go free is a disservice to the victim of the heinous murder, because the evidence so overwhelmingly suggests Elmore’s guilt.

Full Opinion

-Michelle Theret

United States v. Spence, No. 10-4184

Decided: Nov. 21, 2011

The Fourth Circuit affirmed Troy Spence’s sentence for possession of child pornography, enhanced based on his prior conviction under South Carolina common law for assault and battery of a high and aggravated nature (ABHAN). The ABHAN enhancement applies when a defendant has been convicted under a state law relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor. At the sentencing hearing, the district court agreed that Spence’s prior ABHAN conviction did not necessarily relate to aggravated sexual abuse, sexual abuse, or abusive sexual conduct with a minor, so the district court reviewed the indictment charging Spence with a violation of ABHAN. Because the indictment “specifically state[d]” that the “offense involved the sexual assault of a female,” that, therefore, the ABHAN conviction qualified as a predicate offense under the sexual abuse enhancement.

The Fourth Circuit held the modified categorical approach was appropriate in this situation, and that the indictment charging Spence with ABHAN was a reliable document to consider in determining the nature of his conviction. Therefore, the Court held that Spence’s ABHAN conviction qualified as a predicate offense under the sentencing enhancement statute and that Spence was subject to the minimum statutory sentence of ten years’ imprisonment under the sexual abuse enhancement, and affirmed the district court’s judgment.

Full Opinion

-Sara I. Salehi

United States v. Powell, No. 08-4696

Decided: Nov. 14, 2011

Obie Lee Powell was Terry frisked by an officer during a routine traffic stop of a vehicle in which he was a passenger. During the patdown, officers found crack cocaine and a firearm on his person. He was charged with possession with intent to distribute crack cocaine, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. Powell moved to suppress the evidence of the search as the product of an illegal search in violation of the Fourth Amendment. The district court denied the motion and Powell was convicted of simple possession of crack cocaine by a jury.

On the night of the incident, Powell was riding in the back seat of the pulled-over car. The officers were running the license and registration of the driver and discovered the driver’s license was suspended. Officers asked the other passengers, including Powell, if they had licenses—ostensibly so that someone else could drive the car once the traffic stop was over. When officers ran Powell’s license they saw that it was also suspended and that Powell had “priors” for armed robbery. The system did not inform officers whether the “priors” were recent or fifteen years old; nor did the system state whether the “priors” were convictions or mere arrests that ended in exoneration. Nonetheless, Powell was removed from the car and patted down. At this point, he became very nervous and attempted to flee but was captured.

The Fourth Circuit vacated the conviction. It found that the “caution data” informing the officers of Powell’s “priors” was relevant, but not dispositive, to establishing the reasonable suspicion necessary to Terry frisk a person. Based on the information given to the officers, they could conceivably stop and search any person who had ever been charged (much less convicted) of a crime at any point in the past without any further justification. Moreover, Powell’s supposed misrepresentation to officers that his license was valid when it was in fact suspended gave no weight to officers’ assertion that Powell may have been armed and dangerous. Indeed, the stop had been amicable and uneventful at all times before the patdown began. The officers, then, had no reasonable suspicion that Powell was armed and dangerous or presented any threat to their safety.

Full Opinion

-C. Alexander Cable

United States v. Guijon-Ortiz, No. 10-4518

Decided Nov. 10, 2011

Saul Guijon-Ortiz appealed his conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1336(a), (b)(2). When the car defendant was riding in was stopped during a routine traffic stop, the officer asked him for identification. The officer called the local office of the Bureau of Immigration and Customs Enforcement (ICE) and learned that the ID card defendant gave to him was invalid. Defendant argues that he was subjected to an unconstitutional seizure, unreasonably prolonged by the time it took to call ICE. Therefore, defendant contended that the fingerprints obtained when he was later transported to an ICE office and questioned should have been suppressed. The Fourth Circuit determined that the call to ICE did not unreasonably prolong the seizure and affirmed.

Full Opinion

-Sara I. Salehi

United States v. Cabrera-Beltran No. 10-4084

Decided: Nov. 10, 2011

Leopoldo Cabrera-Beltran was convicted of conspiracy to import and distribute cocaine and heroin. Defendant appealed on multiple grounds, and the Fourth Circuit affirmed. First, defendant contended that his rights under the Sixth and Fourteenth Amendments were violated when the district court struck three Spanish-speaking prospective jurors during voir dire. The three prospective jurors indicated an ability to understand Spanish language, and an unwillingness to accept the English translations of the Spanish testimony and documents. The Fourth Circuit held that this was not an abuse of discretion. Next, defendant contended that the admission of Treasury Enforcement Communication System records to show that the defendant and other co-conspirators crossed the border on certain dates and in certain vehicles violated his Sixth Amendment Confrontation Clause right to cross-examine the border patrol personnel who produced the information and statements contained in those records. The Fourth Circuit held that Treasury Enforcement Communication System records are not testimonial and rejected defendants’ argument. The defendant’s third argument was that because the jury found defendant guilty of the cocaine offenses in an amount less than that alleged in the indictment, this amounted to a variance that required reversal. The court concluded there was no variance, explaining that a defendant charged with conspiracy to import or distribute an amount of a controlled substance can be convicted of one of the lesser included offenses based on a smaller amount of the substance. The defendant alleged that the indictment was defective, but this allegation was waived because defendant failed to provide a showing of good cause. Defendant argued that the testimony of witnesses was vague, however there was no error here. Further, the Fourth Circuit held that the testimony of a witness who bought heroin from the defendant was admissible under FRE 404(b) as relevant to prove knowledge and intent. Finally, the defendant argued that calculation of drug quantity was incorrect and the sentencing enhancement for defendant’s “aggravating role” in the conspiracy should not have been applied. The court said that any error in calculation was harmless and that the sentencing enhancement was properly applied.

Full Opinion

-Sara I. Salehi

Preston v. Leake, No. 10-2294

Decided Nov. 7, 2011

Sarah Preston, a North Carolina registered lobbyist, commenced this action under 42 U.S.C. § 1983 against the North Carolina State Board of Elections, challenging the constitutionally, facially and as applied, of North Carolina’s “Campaign Contributions Prohibition.” The statute prohibits any registered lobbyist from contributing to the campaign of any candidate for the North Carolina General Assembly or the Council of State. Preston alleged that this statute violates her rights to freedom of speech and freedom of association guaranteed by the First and Fourteenth Amendments.

The Fourth Circuit affirmed the district court’s finding that the statute is constitutional both facially and as applied to Preston, as a valid exercise of North Carolina’s legislative prerogative to address potential corruption and the appearance of corruption in the State. The statute did not prohibit a substantial amount of protected conduct in relation to its plainly legitimate sweep and therefore is closely related to North Carolina’s expressed interest of preventing corruption and the appearance of corruption from lobbyists’ contributions.

Full Opinion

-Sara I. Salehi

Tassi v. Holder, No. 10-2194

Decided: Nov. 7, 2011

The Immigration Judge denied Tassi’s asylum application due to numerous internal inconsistencies that cast doubt on her overall credibility. The Board of Immigration Appeals affirmed. The Fourth Circuit vacated and remanded, noting that the Immigration Judge made several errors. First, the Immigration Judge discredited some of Tassi’s corroborative evidence because it did not adhere to the rules of evidence; however, the Federal Rules of Evidence do not apply in immigration proceedings. Moreover, the Immigration Judge incorrectly suggested that corroborative evidence requires further corroboration. Furthermore, the Immigration Judge incorrectly rejected a letter and an affidavit relevant to Tassi’s objective fear of persecution. Finally, the Immigration Judge engaged in speculation and assumption in making the adverse credibility finding against Tassi. Accordingly, the Fourth Circuit vacated the Board of Immigration Appeals Order, and remanded for further proceedings.

Full Citation

-Sara I. Salehi

United States v. Medford, No. 08-5030

Decided Nov. 7, 2011

Bobby Lee Medford, a former Sheriff of Buncombe County, NC, was convicted of eleven counts of conspiracy relating to his receipt of bribes in connection with the illegal operation of video poker machines. On appeal, Medford challenged the admission of a recording; the denial of his motion to sever his trial from a co-defendant’s; the sufficiency of the evidence for violation of the Hobbs Act; the Honest Services Fraud statute as unconstitutionally vague; and also asserted that he was deprived of a fair trial.

The Fourth Circuit concluded that any error as to admission of the recording was harmless; Medford did not meet the Parodi factors required to sever a trial; there was no plain error as to his conviction under the Hobbs Act; and that Medford was not deprived of a fair trial. Furthermore, Medford’s contention that the Honest Services Fraud statute is unconstitutionally vague was foreclosed by the Supreme Court’s majority opinion in Skilling. Therefore, the district’s court judgment was affirmed.

Full Opinion

-Sara I. Salehi

United States v. Perez, No. 09-4150

Decided Nov. 2, 2011

Jose Perez was convicted of the manufacture, distribution, and possession with intent to distribute cocaine. After his conviction, but prior to his sentencing hearing, Perez moved to have new counsel appointed due to alleged lack of preparation and communication. After inquiry at the sentencing hearing the district court denied the motion. At the same hearing, the Government successfully moved to have Perez’s sentence enhanced for obstruction of justice. The court found that Perez’s testimony was sufficiently false and misleading to be perjurious.

The Fourth Circuit affirmed the denial of new representation. The court weighs three factors (“timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it resulted in a total lack of communication preventing an adequate defense”) against the trial court’s inherent authority to engage in the “orderly administration of justice.” Finding that the three factors did not weigh in Perez’s favor, the court found that the trial judge did not abuse his discretion by denying the motion.

To impose a two-level sentence enhancement for obstruction based on perjury, the court must find “(1) . . . false testimony; (2) concerning a material matter; (3) with willful intent to deceive . . . .” The United States Supreme Court has held that the trial court must make independent findings of facts regarding each of these elements. U.S. v. Dunnigan, 507 U.S. 87 (1993). Noting that the Fourth Circuit has not provided clear guidance to district courts to date as to the level of specificity of these findings, the court here held that “[i]f a district court does not make a specific finding as to each element of perjury, it must provide a finding that clearly establishes each of the three elements” (emphasis provided). Finding that the trial judge did not make these specific findings or demonstrate that all the elements were clearly met, the court reversed the obstruction charge and remanded for new sentencing.

Full Opinion

-C. Alexander Cable

Ramos v. Holder, No 08-1271

Decided Oct. 27, 2011

The Fourth Circuit denied this petition for review from the Immigration Judge and the Board of Immigration Appeals. Ricardo Paz Ramos and his wife, Berta illegally entered the United States from Guatemala. Ricardo and Berta sent money to each of their four children at a hotel in Mexico, and each child arrived illegally in the United States shortly after. The Immigration Judge and Board of Immigration Appeals both determined that this monetary assistance amounted to “alien smuggling” under section 212(a)(6)(E) of the INA and that Ricardo and Berta thus lacked the “good moral character” necessary for cancellation of removal. The Nicaraguan Adjustment and Central American Relief Act permits aliens who satisfy specific criteria, including Ricardo, to apply for cancellation of removal. However, a person is per se ineligible to be a person of “good moral character” if that person is an alien “smuggler.” Section 212(a)(6)(E) of the INA, entitled “Smugglers,” applies to “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” Due to the obvious pattern of financial aid resulting in the children’s arrival in the United States, coupled with Ricardo and Berta’s own testimony admitting their intent to bring their children across the border, the Court of Appeals agreed with the findings below and denied the petition for review.

Full Citation

-Sara I. Salehi

United States v. Donnell, No. 09-4851

Decided Oct. 27, 2011

Donnell pled guilty to being a felon in possession of a firearm and the district court sentenced him to 78 months imprisonment based on its finding that Donnell had at least two prior felony convictions for crimes of violence. Donnell appealed his sentence. Donnell argued that the district court erred by relying on the facts in an unincorporated “statement of probable cause” to determine that the second conviction, a Maryland second-degree assault conviction, involved violence, and therefore his sentence should not have been enhanced based on this conviction.

The Fourth Circuit vacated and remanded for resentencing. Under Shephard and Simms, a statement of probable cause is appropriately considered only if the document is expressly incorporated into the charging document. An external document contains uncertainties that make reliance on such a document questionable without express incorporation to assure that the defendant actually admitted to the facts contained in the external document.

Full Citation

-Sara I. Salehi

United States v. Taylor, Nos. 09-5152 & 10-4054

Decided Oct 24, 2011

Taylor and Thompson were convicted of violating 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing a firearm. Taylor’s sentence was enhanced because the handgun was stolen and because of his criminal history. Taylor objected to the enhancement, specifically because he did not know that the handgun was stolen. The district court rejected Taylor’s contentions and imposed a ninety-six month sentence.

On appeal, the Fourth Circuit affirmed, noting that the sentencing enhancement “applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen.” The Court of Appeals refused to invalidate the stolen firearm enhancement, despite the absence of a mens rea element. Both Taylor and Thompson’s sentences were affirmed.

Full Citation

-Sara I. Salehi

United States v. Weaver, No. 10-4885

Decided: Oct 24, 2011

Defendants were alleged members of the Pagans Motorcycle Club (the “PMC”), a gang located primarily across the East Coast. Floyd Moore was the national vice president of the PMC and a convicted felon prohibited from possessing a firearm. Moore instructed other members of the PMC, including defendants, to carry firearms to protect him. Consequently, defendants were charged with violating 18 U.S.C. § 922(h) for possessing firearms while being employed for a convicted felon. Defendants moved to dismiss the charges on the grounds that the words “employed for” and “employment” used in the statute required the government to prove that the defendants were employed for wages. The district court granted the defendants’ motions to dismiss the § 922(h) charges.

On appeal, the Fourth Circuit reversed. The plain language of § 922(h) contains no explicit requirement that the defendant be hired for tangible compensation. Congress did not use any language that referred to monetary value in § 922(h), nor did it use the language “employee of,” as it had done elsewhere in Title 18 to refer to employment for wages. Furthermore, the district court’s interpretation of the statute would frustrate its purpose, which is to prevent felons who may not possess a firearm under § 922(g) from circumventing the prohibition by hiring armed bodyguards. Compensation has never been conclusive to a determination of an employer-employee relationship. Therefore, the Court of Appeals reversed and remanded for further proceedings to determine whether defendants were employed by Moore.

Full Citation

-Sara I. Salehi

5k Logistics, Inc. v. Daily Express, Inc., No. 10-1907

Decided: Oct. 21, 2011

When Dominion Resources Services (DRS) contracted with 5k Logistics to transport “tube bundles” from Pennsylvania to Maryland, 5k subcontracted the work to Daily Express Inc. (DXI) to serve as the actual carrier of the goods. According to the bill of lading, DXI acted as carrier with DRS listed as shipper and 5k acted merely as a broker. The bill provided that all claims for damages that may befall the goods be made within nine months and any actions be brought within two years of a denial of a claim.

Of course, one of the tube bundles was damaged in transport; two years and nine months later DRS sued 5k for damages to the tubes. 5k was found liable to DRS but later won its indemnity claim against DXI. The district court found that 5k could not file a claim against DXI until its liability to DRS had been decided so the time limitations did not apply to its claim.

The Fourth Circuit reversed, holding that 5k’s separate contract subjecting it to potential liability with DRS did not affect its agreement with DXI. The Carmack Amendment to the Interstate Commerce Act allows shippers and carriers to make agreements about time limits to bring claims. Moreover, while the Amendment allows indemnity claims from carriers, brokers are not subject to the time limitations exception. The court reasoned that the Carmack Amendment sufficiently protected both carriers and shippers and that allowing a broker to bring a stale claim against a carrier, even when the damage was the fault of the carrier, would “blow a hole in the balance struck by the Carmack Amendment.”

Full Opinion

-C. Alexander Cable

Capital One Financial Corp. v. C.I.R., No. 10-17887

Decided: Oct. 21, 2011

Capital One sought to retroactively amend its tax obligations for credit card late fees and air miles under the Taxpayer Relief Act of 1997 (Act). The tax court denied Capital One’s requests and granted summary judgment for the IRS. First, it held that changing accounting methods retroactively for the late fees required prior permission from the Secretary which was not given in this case. Also, the court rejected Capital One’s attempt to deduct the miles costs from its tax obligation because the program served as a loan, not a sale as required by the Act.

The Fourth Circuit affirmed. The court noted that even in light of the “automatic consent” provision of the Act, necessary filing procedures must still be followed to take advantage of the Act. Moreover, trying to redefine these miles loans as a sale of credit for the purpose of accelerating a deduction would lead to uncertainty and inconsistency in contravention of the Code’s goals.

Full Opinion

-C. Alexander Cable

United States v. Vann, No. 09-4298

Decided Oct. 11, 2011

Torrell Vann was arrested in possession of a handgun following a domestic altercation. Vann was charged with violating 18 U.S.C. §§ 922(g)(1) and 924. Section 922(g)(1) typically carries a statutory maximum sentence of ten years in prison. However, if Vann had three or more previous convictions for ACCA violent felonies, he would be subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment. Vann had three previous convictions for violating North Carolina General Statute section 14-202.1 (the “Indecent Liberties Statute”). The Indecent Liberties Statute prohibits a person over the age of sixteen and at least five years older than a child from taking indecent liberties with that child. The statute prohibits under subsection (a)(1), any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire or, under subsection (a)(2), willfully committing or attempting to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years. Vann argued that his convictions under the Indecent Liberties Statute were not violent felonies making him subject to the ACCA sentencing enhancements. The district court disagreed, and sentenced Vann to fifteen years in prison. A divided panel of the Fourth Circuit affirmed. The Fourth Circuit granted Vann’s petition for rehearing en banc, and vacated the panel opinion.

The Fourth Circuit found that Vann’s previous violations of the Indecent Liberties Statute would not qualify as ACCA violent felonies unless the convictions were of subsection (a)(2). The charging documents against Vann allege a violation of the Statute without specifying either subsection thereof. The charging documents merely recite the language of the Indecent Liberties Statute, provide the dates of the alleged offenses and identities of Vann and the minor, and aver that the age requirements were met. Therefore, the court held that they could not determine that Vann was convicted of violating subsection (a)(2) of the Statute. Consequently, Vann’s indecent liberties offenses were not ACCA violent felonies.

Full Opinion

-Sara I. Salehi

United States v. Blair, No. 10-4478

Decided: Sept. 21, 2011

Walter Blair, an attorney in Maryland, laundered money for his client, Elizabeth Nicely Simpson, who had taken possession of substantial sums of drug proceeds originally belonging to dealer and distributor Anthony Rankine. Blair funneled the money through various real estate investments and legal fees for himself and other attorneys for Nicely and her associates. Blair also sought and received pro hac vice admission for the Eastern District of Virginia to defend one of Nicely’s associates by asserting he had no disciplinary actions or reprimands against him; this turned out to be untrue. He was convicted by the District of Maryland for money laundering, witness tampering, obstructing justice, making a false statement, and failure to file tax returns. He appealed his convictions for laundering and obstruction of justice, claiming insufficient evidence to sustain the convictions.

Blair’s conviction for money laundering under was affirmed. The charge requires a showing that “(1) the defendant conducted a financial transaction affecting interstate commerce; (2) ‘the transaction involved the proceeds of specified unlawful activity’; (3) the defendant knew that the property involved was derived from unlawful activity; and (4) ‘the defendant knew that the transaction was designed in whole or part, to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of the unlawful activity.’” The court found that Blair engaged in a financial transaction with the intent to conceal the true nature of the proceeds. Also, his convictions for aiding and abetting Nicely were affirmed because his assistance with the withdrawal and investment of laundered funds satisfied the statutory requirements of a “transaction.”

The obstruction claim was reversed, however, because the state did not show a nexus between Blair’s false statements to the Virginia bar and an impediment to justice in the trial of Nicely’s associate.

Blair also appealed the district court’s failure to sever his charges for failure to file tax returns and hold a separate trial for them. Blair failed to file returns for 2003 and 2002. The court found that there was a sufficient connection between the 2003 return and the money laundering charges (the acts of which occurred in 2003) and that, even if joining the 2002 claims with the trial was error, the error was harmless because the court provided a sufficient mitigating instruction to the jury, reminding it to evaluate each charge based on the evidence.

Finally, Blair appealed his conviction under 18 U.S.C. § 1957 for engaging in a monetary transaction with illegally derived property greater than $10,000. Blair argued that he should have fallen under an exception to the statute because the money was used to secure legal counsel for Nicely and her associates. The court rejected the argument and affirmed the conviction because the exception is tied to the Sixth Amendment, a personal right, which does not encapsulate spending someone else’s money—the drug money was forfeitable to the government—to provide counsel for someone else. The court did not want to invite the possibility of crime lords using criminal funds to provide counsel for their underlings.

Chief Judge Traxler dissented only as to Section IV of the opinion (the § 1957 conviction). The statute, Judge Traxler argued, protects the Sixth Amendment right to secure counsel; nowhere does it say that it must be for that person’s own counsel. Also, while the Supreme Court has held that criminally-obtained funds are subject to forfeiture, there is no reason to assume that it is in itself illegal to use those funds to obtain criminal defense counsel—such was the holding of the Eleventh Circuit when analyzing this same exception. In sum, the exception to “monetary transaction” under § 1957 that excludes “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution,” centers on the constitutional right to representation, not constitutionally-protected transactions. The right to counsel, not the source of the money, is the key portion of the exception and therefore Blair did not violate the statute by using Nicely’s criminal proceeds to secure legal representation.

Full Opinion

-C. Alexander Cable

Taylor v. Kellogg Brown & Root Services, Inc., No. 10-1543

Decided: Sept. 21, 2011

Peter Taylor, a United States Marine stationed in Iraq, was injured when attempting to repair a vehicle “tank ramp” at his base near Fallujah. The main generator for the tank ramp had malfunctioned so Taylor and fellow Marines disabled the primary generator while installing a secondary power source. Meanwhile, Kellogg Brown & Root (KBR) technicians, having been informed that several Marines were working on the gearbox, turned the power back on to the main generator causing severe injuries to Taylor from electrocution. Taylor subsequently sued for negligence. After moving to dismiss for lack of subject matter jurisdiction under the political question doctrine and the “combat activities” exception to the Federal Tort Claims Act (FTCA), KBR informed the district court it would raise a defense of contributory negligence. After limited jurisdictional discovery, the district court granted KBR’s motion to dismiss on both grounds. The district court found that litigating the contributory negligence defense would require the court to decide whether the Marines’ actions were reasonable, venturing into political questions reserved for other branches of government.

The Fourth Circuit affirmed the dismissal under the political question doctrine, citing several factors from Baker v. Carr, 369 U.S. 186, 217 (1962) (“First, an assessment of whether there has been ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department’; [s]econd, whether there is ‘a lack of judicially discoverable and manageable standards for resolving [the question]’; and [f]ourth, whether there is an apparent impossibility of a court’s independent resolution of the question ‘without expressing lack of the respect due to coordinate branches of government.’”). The court held that litigating the contributory negligence defense would inevitably cause the court to question military decisions regarding the base’s tank ramp and the power sources provided for it. These questions are command decisions reserved for the military and not subject to scrutiny by civilian courts. Thus, dismissal was necessary under the political question doctrine.

Finally, because the court dismissed the claim as a nonjusticiable political question, the district court’s ruling that the “combat activities” exception of the FTCA applied was rendered moot as “little more than an advisory opinion on a constitutional question.”

Judge Niemeyer concurred and wrote separately to agree with Judge Shedd’s concurring opinion. Judge Niemeyer agreed that the political question doctrine applied to dismiss the case, but that the claim was also federally preempted.

Judge Shedd concurred in the judgment but was not convinced that the case would “inevitably be drawn into a reconsideration of military decisions.” He therefore did not think the political question doctrine applied. However, citing Al Shimari and Al-Quraishi decided the same day, he argued the “combat activities” exception to the FTCA applied and the action was preempted and subject to dismissal on those grounds because the tort claim infringed on uniquely federal interests.

Full Opinion

-C.Alexander Cable

Al-Quraishi v. L-3 Services, Inc., No. 10-1981

Decided: Sept. 21, 2011

Seventy-two Iraqis imprisoned in various locations throughout Iraq brought suit against L-3 Services claiming the tactics used during interrogations amounted to torture. L-3 moved to dismiss under law of war immunity, federal preemption, derivative immunity, and political question doctrine. When the motion was denied by the district court, L-3 filed an interlocutory appeal to the Fourth Circuit who reversed and remanded with orders to dismiss for the same reasoning applied in the companion case Al Shimari. The primary issue in this opinion was whether the court had jurisdiction to hear the appeal.

The court held that the district court’s order denying dismissal was immediately appealable under the collateral order doctrine. While appeals generally may only come from final decisions, the court may hear appeals when a decision below “(1) conclusively determines a disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) would be effectively unreviewable on appeal from a final judgment.” The court held that the decision below satisfied all three elements. First, the district court did effectively decide the issue of whether arguments relating to preemption, derivative immunity, law of war immunity, and political questions applied in the case. Second, all those questions are collateral to the action and do not address the merits of L-3’s liability. Finally, bringing these matters into court and addressing military functions and procedures that would otherwise be unquestioned by civilian courts could not be remedied after a final resolution of the case. Federal preemption of these causes of action, the majority notes, is similar to a granting of immunity from having to defend the suit and that privilege would be irreparably lost absent an interlocutory appeal. With all the elements met, the court found jurisdiction to hear the appeal and remanded with instructions to dismiss.

Judge King dissented because the dismissal of the case was based on preemption, a substantive defense, rather than a claim of immunity. The third element of collateral order interlocutory appeals, the inability to remedy the decision on appeal, applies primarily to cases of immunity, i.e. the freedom from having to stand trial. Judge King would follow decisions from the Ninth and Fifth Circuits, finding preemption is not a grant of immunity. A finding that liability is proper or improper based on federal preemption of the tort claim is easily addressable by appellate review after a final disposition. Also, trying this case against L-3, a private contractor, would not necessarily require civilian courts to comment on the wisdom or correctness of military procedures—only whether they were followed by the defendant. Indeed, even if there were fear of stepping into military decision-making, the district court has the ability to stifle such concerns; it may limit discovery, quash subpoenas, or perform any acts necessary to protect military interests while still litigating the tort claims against L-3. Finally, Judge King would be willing to entertain an interlocutory appeal from a denial of L-3’s immunity claims, but the district court reserved on deciding the issue until the contract between L-3 and the government had been produced. Thus, without a final decision on the issue, there could be no appeal and the court was bereft of jurisdiction.

Full Opinion

-C. Alexander Cable

Al Shimari v. CACI International Inc., No. 09-1335

Decided: Sept. 21, 2011

Suhail Najim Abdullha Al Shimari was one of many Iraqis detained in the infamous Abu Gahrib prison outside Baghdad. He and three other prisoners brought suit against CACI International, a private contractor tasked by the U.S. military with assisting in translation and interrogation of prisoners, under the Federal Tort Claims Act and the Alien Tort Statute alleging that CACI’s employees subjected the four to various acts of torture while they were imprisoned. The complaint alleged that the contractor acted in concert with the government to torture the prisoners and that the contractor exceeded the Department of Defense interrogation policies and procedures. CACI moved to dismiss alleging, inter alia, federal preemption of the tort claims, political question doctrine, and derivative sovereign immunity. The district court denied this motion and CACI filed an interlocutory appeal.

The Fourth Circuit reversed and remanded with instructions to dismiss. Judge Niemeyer wrote for the majority and following Boyle v. United Technologies Corp., 487 U.S. 5002 (1988) and Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert. denied, __ U.S. __, No. 09–1313 (June 27, 2011) found that the state tort claims were preempted by the “uniquely federal interests” they infringed. Boyle used the “discretionary functions” exception to the FTCA but Saleh, a case with strikingly similar facts to the present one, used the “combat activities exception.” 28 U.S.C. § 2680(j). Accordingly, the court found the prisoner’s claims were prempted, holding that CACI was under broad military control and state tort claims were incompatible with the primary functions of war and the decisions made during war.

Judge Niemeyer then wrote separately, stating that had the issues not been mooted by a dismissal under federal preemption he would have also dismissed the matter under the political question doctrine and derivative absolute immunity. First, Niemeyer used Justice Powell’s three considerations of political questions from Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J., concurring in the judgment) (“(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?”) (based upon Baker v. Carr, 369 U.S. 186 (1962)) to find that the case was a nonjusticiable political question. Also, Niemeyer would also dismiss the case under derivative absolute immunity, stating that sovereign immunity is designed to protect a government function rather than a government actor necessarily and that the benefits of extending immunity to CACI in this case outweighed potential costs,.

Judge King dissented. First, he noted that the court should not have jurisdiction hear the appeal—citing the reasoning in his dissent from the companion case Al-Quraishi v. L-3 Services, Inc., No. 10-1981 (4th Cir., Sept. 21, 2011). Second, Judge King said that were he to reach the merits of the appeal, he would find the case was not preempted because there was no conflict between the state claims and federal interests. CACI, though working with the government, is a private company in control of its own employees and contracted only for “general services.” Moreover, even if CACI was under the direction of the military for interrogation procedures, CACI allegedly exceeded its authority and utilized torturous techniques against prisoners in violation of military and DOD procedures; only by denying dismissal and allowing discovery to proceed could the court identify whether CACI was acting within the scope of its derivative military authority. Finally, Judge King notes that the FTCA exceptions are designed to eliminate tort liability for government battlefield actions carried out by federal agencies, but that “the term ‘Federal agency’ … does not include any contractor with the United States.” 28 U.S.C. § 2671.

Full Opinion

-C.Alexander Cable

Aziz v. Alcolac, Inc., No. 10-1908

Decided: Sept. 19, 2011

Alcolac, a corporation in the business of manufacturing and selling thiodyglicol (TDG), sold the chemical to various companies, including known “shell corporations,” that eventually sold the TDG to Saddam Hussein and the Iraqi government. At the time, Iraq was at war with Iran and used the TDG to create deadly mustard gas for use against the Iranian people and the Kurdish ethnic group in the northern region of Iraq. A class action suit was brought by the Kurdish victims of the attacks against both Aloclac and the Republic of Iraq; Class A, citizens and permanent residents of the United States, sued under the Torture Victim Protection Act (TVPA) while Class B, foreign nationals, sued under the Alien Tort Statute (ATS). The district court dismissed the claims against Alcolac for failure to state a claim upon which relief can be granted and the plaintiffs appealed.

The TVPA provides for liability against “any individual who . . . subjects an individual to torture . . . [or] subjects and individual to extrajudicial killing.” 28 U.S.C. § 1350. The district court held that the term “individual” did not apply to corporations and made them immune to suit under the statute. Recognizing that the Circuits have split on the issue—the Second Circuit rejecting liability for corporations and the Eleventh Circuit allowing it—the court analyzed the statute and held that “individual” means a natural person absent contrary evidence of Congressional intent. Unlike the broader term “person” that Congress has explicitly defined to include corporations, “individual” does not. Therefore, the court affirmed the dismissal of Class A’s TVPA action against Alcolac.

The district court found that the Class B plaintiffs likely had a valid ATS claim against Iraq but dismissed the aiding and abetting claims against Alcolac for failure to plead the requisite mens rea against the company. The district court applied a specific intent mens rea rather than the more lenient knowledge standard, following Second Circuit precedent. The Second Circuit looked to the Rome Statute—responsible for the creation of the International Criminal Court—for its rule that aiding and abetting claims must show “the purpose of facilitating the commission of [a] crime.” The D.C. Circuit, however, rejected the Rome Statute because, like all international agreements, it only binds the states that have ratified it, and the United States has not. That court found that customary international law should govern the mens rea standard for ATS claims and that decision of several international tribunals showed a propensity for using the knowledge standard.

The Fourth Circuit elected to follow the Second and adopt the heightened specific intent mens rea. It held that statutes and treaties were preferable to customary law because they gave definite standards to follow, while customary law, “a general and consistent practice of states followed by them from a sense of legal obligation,” was too indeterminate to inspire confidence in any particular standard. Because the plaintiffs’ complaint only alleged legal conclusions about Alcolac’s intent to supply Iraq with mustard gas without any corroborating facts, it failed the pleading requirements of Twombly and Iqbal and was not “entitled to the assumption of truth.” Therefore, the plaintiffs’ insufficient complaint was subject to dismissal and the district court’s decision was affirmed.

Full Opinion

-C. Alexander Cable

Kennedy v. St. Joseph’s Ministries, Inc., No. 10-1792

Decided: Sept. 14, 2011

Villa St. Catherine, Inc., a tax-exempt religious organization, operates a nursing-care facility in Emmitsburg, Maryland. St. Catherine is maintained in accordance with the principles of the Roman Catholic Church. St. Catherine employed Lori Kennedy, a member of the Church of the Brethren, from 1994 to 2007 as a geriatric nursing assistant. As a matter of religious principle, Kennedy wears modest attire that includes long dresses and skirts, and a cover for her hair. During Kennedy’s employment, the Assistant Director of Nursing Services informed Kennedy that her attire was inappropriate for a Catholic facility and that it made residents and their family members feel uncomfortable. Kennedy responded that her clothing was a function of her religious beliefs and that she would not change it. Kennedy was terminated in May 2007.

Kennedy filed a complaint under Title VII against St. Catherine, alleging that it engaged in religious discrimination and retaliation against her. St. Catherine moved for summary judgment, contending it was exempt from Title VII’s reach as to claims of religious discrimination under the plain language of 42 U.S.C. § 2000e-1(a), the religious organization exemption. The district court agreed that Kennedy’s discriminatory discharge claim was barred, but concluded that her religious harassment and retaliation claims were cognizable under Title VII. Noting the potential broad-reaching effect of the district court’s ruling, St. Catherine filed a request for an interlocutory appeal, which the district court granted. The Fourth Circuit agreed with St. Catherine that the plain language of § 2000e-1(a) makes clear that Title VII does not apply to claims for religious harassment and retaliation against religious organizations, and reversed the district court’s decision.

The Fourth Circuit interpreted the language of the religious organization exemption to bar claims against religious organizations for discharge, harassment, and retaliation, by noting that Congress exempted religious organizations from the entire subchapter of Title VII with respect to “employment” of persons of a “particular religion.” The exemption reflected a policy decision by Congress that the rights of religious organizations to be free from government intervention outweigh the government interest in eliminating religious discrimination by religious organizations.

The court also noted that it had authority to hear the interlocutory appeal because the district court’s order “involves a controlling question of law as to which there is a substantial ground for difference of opinion” and “immediate appeal . . . may materially advance the ultimate termination of litigation,” as required in 42 U.S.C. § 1292(b). Further, the facts of the case are undisputed, and remanding a case that lacks any substantial merit for further proceedings would waste judicial resources.

Full Opinion

-Sara I. Salehi

Liberty University, Inc. v. Geithner, No. 10-2347

Decided: Sept. 8, 2011

The plaintiffs, Liberty University and two individuals, brought suit seeking to enjoin the Secretary of the Treasury from enforcing the “individual” and “employer mandates” in the recently passed Patient Protection and Affordable Care Act (“Act”), also known as “Obamacare,” that require purchasing healthcare coverage. The individuals argued that they had made a conscious choice not to purchase healthcare and the mandate to do so was an unconstitutional penalty couched as a tax. Liberty argued that several of its employees would be eligible for tax credits or cost-sharing reductions under the Act which would subject the employer to “assessable payments” and cause undue financial hardship for the University by means of improper and unconstitutional taxation. The district court held that the exactions were not taxes; it also held that the Act was a valid exercise of Congress’s Commerce Clause powers and dismissed the action.

The Fourth Circuit vacated and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction. Foregoing a Commerce Clause analysis, the majority found that the Act should be evaluated under Congress’s taxing power. The Anti-Injunction Act (“AIA”) states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” I.R.C. § 7421(a). Where applicable, this statute strips the Circuit court of subject-matter jurisdiction. Indeed, the courts have applied the AIA even in cases where the supposed tax was alleged to be something other than a traditional “tax” as provided by the Constitution.

In concurrence, Judge Wynn wrote that on the merits the law should be upheld as constitutional under Congress’s plenary taxing power. Taxes must possess three characteristics in order to be constitutional: they must bear some reasonable relation to raising revenue, must be imposed for the general welfare, and must not infringe on other constitutional rights. Finding these conditions met, Wynn would uphold the constitutionality of the Act. However, concluding the taxes are valid requires a finding that the exactions are in fact taxes and therefore subject to the AIA’s jurisdiction-stripping provision.

Judge Davis dissented. He followed the holdings of the Sixth and Eleventh Circuits, finding that the AIA was inapplicable under a “labeling” theory of statutory interpretation; specifically, the AIA applies to taxes while the Affordable Care Act assesses penalties. Since Judge Davis believed the AIA should not apply to strip the court of jurisdiction, he felt free to reach the merits of the Act and felt it should be evaluated under a Commerce Clause analysis. Judge Davis would uphold the Act, finding uninsured healthcare costs have a substantial effect on commerce and finding no merit to the distinction between regulation of economic “activity” vs. “inactivity.”. Finally, he found no merit to the First Amendment objections to the Act, declaring it a neutral law of general applicability.

Full Opinion

-C. Alexander Cable

Virginia ex rel Cuccinelli v. Sebelius, No. 11-1057

Decided Sept. 8, 2011

When President Obama signed the Patient Protection and Affordable Care Act (“Act”), also known as “Obamacare,” into law, the state of Virginia responded by passing the Virginia Health Care Freedom Act (“VHCFA”) stating that, with exceptions, no resident of Virginia would be required to maintain individual health insurance. Though the contested portion of the federal Act, the so-called “individual mandate,” only applied to persons and did not directly affect the state of Virginia, Attorney General Cuccinelli argued the state nonetheless had standing to sue based on the incongruity between state and federal laws, arguing that the Act infringed on Virginia’s sovereign power. The district court agreed, finding standing and declaring the individual mandate unconstitutional.

The Fourth Circuit vacated without reaching the merits of the Act itself because it held that Virginia did not have standing to challenge the law. In order to demonstrate standing, a party must show “(1) it has ‘suffered an injury in fact’; (2) there exists a ‘causal connection between the injury and the conduct complained of’; and (3) a favorable judicial ruling will ‘likely’ redress that injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The court held that Virginia suffered no injury because the VHCFA was not an exercise of sovereign power, only a declaration serving as an attempt to immunize its citizens from what it viewed as an unfavorable federal law. Adopting Virginia’s view of standing, the court noted, would allow states to sue the federal government anytime a disagreeable law is passed merely by passing its own contrary state law. As such, the case was vacated with instructions for the district court to dismiss for lack of standing.

Full Opinion

-C. Alexander Cable

Bryan Bros., Inc. v. Continental Casualty Co., No. 10-1439

Decided Mar. 24, 2011 – NOTE: This case was originally decided in March of 2011 by an unpublished opinion, but upon motion by the defendant was published September 6, 2011.

The accounting firm Bryan Brothers hired Continental to cover the firm against potential professional liability claims for July 2008–2009. One term of the agreement stipulated that no one at Bryan Brothers could have prior knowledge of an act that might be the basis of a claim. In February of 2009, it was discovered that one of the employees had been stealing money from clients account since 2002. When Bryan Brothers filed for coverage of the customers’ tort claims Continental denied the coverage based on the prior knowledge provision. Bryan Brothers argued that the employee’s crimes were a “bad act” but that the firm itself should still be covered by the innocent insured’s provision. The district court, however, agreed with Continental that the prior knowledge clause was a condition precedent to coverage and granted summary judgment in its favor.

The Fourth Circuit affirmed on appeal, finding that the “provided that” language in the prior knowledge provision showed unambiguously that it was a condition precedent that “precludes coverage if unsatisfied.” Because an insured employee of Bryan Brothers had prior knowledge of acts that gave rise to a claim before the policy came into effect, the insurer was able not only to deny coverage for the specific claims, but to avoid the policy completely.

Full Opinion

-C. Alexander Cable

Tang v. Synutra Int’l, Inc., No. 10-1487

Decided: Sept. 6, 2011

On September 16, 2008, Synutra issued a recall of its U-Smart infant formula. The formula, produced and consumed exclusively in China, was contaminated with melamine and potentially harmful to children in utero. The Chinese government set up a compensation fund for the children and families affected by the contaminated formula but some families chose to forgo this remedy and sue directly in Chinese courts. As time passed, and though the Supreme People’s Court expressed its readiness to handle the claims, reports mounted that local and provincial authorities were thwarting the suits, seeking to suppress what they saw as a movement toward “social unrest.” Eventually, several plaintiffs decided to sue Synutra in the District of Maryland, the defendant’s principal place of business. Finding China an adequate and available forum, the district court dismissed the complaint for forum non conveniens.

A dismissal for forum non conveniens is evaluated on an abuse of discretion standard. However, the Supreme Court in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) laid down three factors when deciding the motion: (1) the alternative forum’s availability, (2) adequacy, and (3) convenience in light of public and private interests. The burden is on the party seeking dismissal to show another forum is more appropriate. Synutra satisfied the first element, availability, by demonstrating that the plaintiffs had not run afoul any statutes of limitation and that the company would not contest service of process in China. The remedies available in China were held adequate because the judicial courts had shown an ability to handle contaminated formula cases, even if they discouraged them. Also, the plaintiffs were still able to access the compensation fund. Remedies in other forums do not have to be judicial, nor must they be as beneficial as what may be available to plaintiffs in United States courts. Finally, the Fourth Circuit held that the primary consideration in a forum non conveniens analysis is convenience. As such, the availability of evidence and witnesses in the locus of injury were more important to achieving judicial public and private interests than where corporate decisions were ultimately made. Since all three factors pointed toward China being the proper forum for recourse, the court affirmed dismissal based on forum non conveniens.

Full Opinion

-C. Alexander Cable

Ceres Marine Terminals, Inc. v. Green, No. 10-1122

Decided: Sept. 6, 2011

Robert Green, a twenty-three year member of the International Longshoremen’s Association, worked for Ceres installing and removing “shoes” that fasten large containers together on cargo ships. Upon suggestion from family members, Green visited Mr. Joseph Gillespie, a board-certified audiologist, complaining of hearing loss. Mr. Gillespie performed a full evaluation and found that Green had suffered extensive hearing loss in both ears and recommended Widex Inteo hearing aids. When Green filed a Longshore and Harbor Worker’s Compensation (LHWCA) disability claim with Ceres, blaming the loud and frequent noise associated with his position, his employer sent him to another audiologist, Stuart Cohen, for a second opinion. Cohen found no significant hearing loss, though he did suggest Green purchase a less expensive hearing aid for his left ear. The Administrative Law Judge (ALJ) that heard the claim found both tests to be equally probative and decided to “average” the amount of hearing loss found by the two audiologists (3.75 and 0% binaural hearing loss respectively, averaged to 1.875%), citing Steevens v. Umpqua River Navigation, 35 Ben. Rev. Bd. Serv. (MB) 129, 133 (2001). The ALJ decision was affirmed by Benefits Review Board.

On appeal, the Fourth Circuit reversed. The court explicitly noted an ALJ’s ability to average conflicting though equally probative evidence in some instances. However, citing the Supreme Court decision in Dir., Office of Workers’ Comp. Programs, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267 (1994), the court found that when evidence is directly conflicting as to whether disability even exists, the plaintiff has not met its burden of proof; specifically, one cannot average 3.75% with 0%.

Full Opinion

-C. Alexander Cable