Fourth Circuit Survey

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Week of July 29, 2019 through August 2, 2019

United States v. Galecki (Agee 7/29/19):  The Fourth Circuit affirmed in part, reversed in part, and remanded a criminal conviction related to conspiracy to distribute controlled substance analogues for a new trial, holding the district court erred in refusing to compel testimony from a DEA employee and disallowing testimony from two defense witnesses. Full Opinion

United States v. Locke (Wilkinson; Berger, U.S. District Judge for Southern District of West Virginia, sitting by designation, dissenting 7/30/19):  The Fourth Circuit held that defendant, with representation of counsel, admitted to committing a predicate offense in a forum with no right to a jury trial for the predicate offense and affirmed defendant’s conviction of firearms charge under 18 U.S.C. § 921 predicated on defendant’s conviction of a misdemeanor crime of domestic violence. Full Opinion

United States v. Moody (Richardson 7/29/19): The Fourth Circuit held that criminal defendant failed to meet requirements necessary to challenge a facially valid warrant and affirmed the district court’s decision rejecting defendant’s motion for Franks hearing. Full Opinion

United States v. Mathis (Keenan 7/31/19): The Fourth Circuit held Virginia’s kidnapping law, VA Code § 18.2-47, was not a “crime of violence” that would serve as a predicate act to create liability under the violent crimes in aid of racketeering activity (VICAR) statute, 18 U.S.C. § 1959.  The Court affirmed the district court as to all other charges, vacated with respect to VICAR convictions predicated on Virginia’s kidnapping statute, and remanded for resentencing. Full Opinion

United States v. Cornette (Floyd 7/30/19): The Fourth Circuit held that, in light of the Supreme Court’s holdings in Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016), defendant’s prior convictions for burglary under Georgia law and controlled substance violations under North Carolina law no longer qualified as predicate offenses and, therefore, defendant did not have the requisite number of predicate offenses to be considered an armed career criminal under 18 U.S.C. § 924(e) (Armed Career Criminal Act or “ACCA”).  The Court reversed and remanded for resentencing without ACCA sentence enhancements. Full Opinion

United States v. Oloyede (Niemeyer 7/31/19): The Fourth Circuit, in a consolidated appeal, affirmed four criminal convictions of conspiracy to commit wire fraud and other related offenses.  First, the Court affirmed the district court’s finding that a defendant’s Fifth Amendment rights were not violated when, absent Miranda warnings, an officer asked her to unlock and turn over her cellular phone and she complied.  Second, the court held that while admission of charts depicting bank deposits as evidence should not have been admitted under Rule 1006, substantially the same could have been admitted under Rule 611(a) and therefore the error did not affect defendant’s rights.  Third, the Court held that the district court did not err in denying two defendant’s motion for severance.   The Court further held that the district court did not err regarding various evidentiary holdings, jury instructions, or in its sentencing. Full Opinion

United States v. Bosyk (Diaz; Wynn dissenting 8/1/19): The Fourth Circuit held that evidence of an IP address linked to the defendant’s house accessing a child pornography site created sufficient probable cause to issue a search warrant for defendant’s home and affirmed his child pornography conviction. Full Opinion

Pennsylvania National Mutual Casualty Insurance Company v. Beach Mart (Wynn 8/1/19). The Fourth Circuit held that under North Carolina law, and construing evidence in the light most favorable to the plaintiff, insurance policy’s prior publication exclusion was not triggered and, therefore, the district court erred in finding appellee insurer had no duty to defend and dismissing the appellant insured’s counterclaims. Full Opinion


Highlight Case

Gilliam v. Sealy

Decided July 30, 2019

In Gilliam, the Fourth Circuit affirmed the district court’s denial of defendants’ motion for summary judgment on the basis of qualified immunity.

Appellees Henry McCollum and Leon Brown were wrongfully convicted of the rape and murder of an 11-year-old girl in 1983 and spent 31 years in prison before DNA evidence exonerated them. McCollum and Brown, both of whom are intellectually disabled, were arrested after signing confessions implicating themselves during police interrogation.  The confessions contained inconsistencies and factual details that were later proven to be false.  For example the confessions claimed three other boys were involved but all three had alibis, the confessions described the victim’s undergarments as pink and claimed that the victim was stabbed; the autopsy report showed the undergarments were, in fact, white, and the victim did not have any stab wounds.  Both tried to have the confessions excluded as evidence, the trial court found the each had voluntarily gone to the police station, knowingly and intelligently waived his rights, and made their confessions freely, voluntarily, and knowingly and therefore denied their motions to suppress. McCollum and Brown were both sentenced to death.  On appeal, the North Carolina Supreme Court reversed and remanded for a new trial based on error in the jury instructions.  The second trials were held separately, but again the trial court denied motions to suppress the confessions after reaching the same conclusions as the first trial court.  Brown’s second trial resulted in a conviction for first-degree rape and a life sentence. McCollum’s second trial resulted in a conviction for first-degree murder and first-degree rape; he was again sentenced to death.  

In 2009 the North Carolina Innocence Inquiry Commission (NCIIC) accepted both cases.  After finding DNA evidence on a cigarette butt from the scene that linked another person to the crime and noting that there was no DNA evidence linking either Brown or McCollum to the crime, both filed motions for appropriate relief.  Finding that the DNA evidence and results of NCIIC’s investigation “tend[ed] to establish Henry McCollum’s and Leon Brown’s innocence of [the] crime for which they were convicted and sentenced” the court vacated their convictions and sentences and on June 15, 2015 the Governor of North Carolina issues full pardons of innocence to both.      

After their release and pardon, McCollum and Brown brought a claim under 42 U.S.C. § 1983 alleging state and county law enforcement officers violated their Fourth Amendment and due process rights by coercing and fabricating their confessions and withholding exculpatory evidence.  The officers moved for summary judgment, claiming qualified immunity shielded them from suit.  The district court denied the motion, and the officers appealed.  

Citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) the Court stated that “qualified immunity protects government officials from liability for violations as long as they could reasonably believe their conduct did not violate clearly established law” and is not a defense to liability but is immunity from suit.  As such, where denial of summary judgment based on qualified immunity turned on an issue of law it is immediately appealable but, where the decision hinges on a finding of fact, the court “lack[s] jurisdiction to re-weigh the evidence in the record to determine whether material factual disputes preclude summary disposition.”  Therefore, the Court opines, the question before it was if, taking all the facts as presented by the district court and viewing them most favorable to Brown and McCollum, the appellants are still entitled to qualified immunity. 

The Appellants raised three main challenges to the district court’s holding: first that the district court misapplied the summary judgment standard by failing to determine their liability individually; second that the district court erred in denying their qualified immunity claims regarding Brown and McCollum’s false arrest and malicious prosecution allegations; and third that the district court erred in denying their claims of qualified immunity as to Brown and McCollum’s due process claims.

Addressing whether the district court misapplied the summary judgment standard by failing to adjudicate their qualified immunity claims independently, the Court first noted that the Appellants did not assert individual qualified immunity but had asserted the right collectively.  The Court went on to hold that it would be “counterproductive” for the district court to determine individual liability where individual immunity had not been asserted, there has not been a resolution of the facts, and where the Appellees allege that the Appellants had acted in concert to violate their rights.  Accordingly, the Court held the district court did not improperly apply the test for qualified immunity.

The Court next addressed Appellant’s assertion that the district court erred in denying their qualified immunity claims as to the Appellee’s false arrest and malicious prosecution allegations.  The Court found sufficient evidence had been adduced to create a question of material fact as to whether Appellants had violated Brown and McCollum’s constitutional rights by fabricating or coercing their confessions. The Court further found that the constitutional rights in question had been clearly established at the time of the arrest.  

Similarly, the Court found that Brown and McCollum introduced sufficient evidence to create multiple issues of material fact as to whether the Appellants violated their due process rights.  The Court went on to hold that “[i]t was beyond debate at the time of the events in this case that Appellees’ constitutional rights not to be imprisoned and convicted based on coerced, falsified, and fabricated evidence or confessions, or to have material exculpatory evidence suppressed, were clearly established.”  Because Brown and McCollum introduced sufficient evidence to create questions of material fact as to their false arrest, malicious prosecution, and due process claims and the implicated rights were clearly established at the time the alleged violations occurred, the Court affirmed the district court’s denial of appellant’s motion for summary judgment based on qualified immunity.  

Judge Richardson, in a separate opinion, concurred that Brown and McCollum’s Fourth Amendment claims should go to trial but dissented as to the due process claims.  The dissent would hold that Brown and McCollum failed to articulate the violation of a constitutional right and, even if they had, the alleged due process rights were not clearly established at the time of their arrest.

Full Opinion

Michael Stover