Week 31 (2017)
Week of July 31, 2017 through August 4, 2017
US v. Charise Stone (Agee 8/2/2017): The Fourth Circuit held that a district court judge does not have to recuse himself where any interest that the judge may have is so remote as to be practically non-existent. The defendant was indicted for orchestrating a scheme to defraud mortgage companies, and the judge owned stock in a victim lender’s company. However, the defendant failed to produce any evidence showing the amount of stock that the district court judge owned. The Fourth Circuit also upheld the district court restitution calculation after finding no plain error and upheld the district court’s determination of loss for purposes of sentencing. Full Opinion
US v. Donald Maclaren (Diaz 8/2/2017): The Fourth Circuit held that a successful motion for a discharge hearing under the Adam Walsh Act must only plausibly allege that the detainee is entitled to discharge. For a detainee to obtain a discharge hearing, the district court required that a discharge request state with particularity the extent that the detainee’s psychological condition has improved and state what the detainee has done to meet his or her conditions of release. However, the Fourth Circuit held that this was the incorrect standard and required the district court to accept all well-pleaded facts within the motion as true and to construe all facts in a light most favorable to the detainee. Full Opinion
Gavin Grimm v. Gloucester County School Board (Niemeyer 8/2/2017): The Fourth Circuit remanded the case to the district court to factually develop the record as to whether the case had become moot. The plaintiff, a transgender student, alleged that the defendant school board’s policy of assigning students to restrooms based on biological sex violated Title IX and the Equal Protection Clause. The school board argued that the case was now moot because the plaintiff graduated from high school, but the court determined that the mootness issue had not been factually developed and remanded to the district court. Full Opinion
Maria Velasquez v. Jefferson Sessions III (Agee 7/31/2017): The Fourth Circuit held that, in an asylum case, a personal dispute involving the petitioner does not constitute persecution because of the petitioner’s membership in a particular social group. Here, the petitioner was involved in a custody dispute over a child with the child’s mother, and the dispute eventually led to a member of the mother’s family killing a member of the petitioner’s family. The petitioner then attempted to illegally enter the United States and sought asylum. While the petitioner’s membership in a “nuclear family” could be considered membership in a social group that could satisfy grounds for asylum, the court determined that any persecution of the petitioner was related to a personal dispute rather than the petitioner’s family ties and denied the petitioner’s petition for asylum. Full Opinion
US v. David Diaz (Floyd 7/31/2017): The Fourth Circuit held that interference with a flight crew is not categorically a crime of violence as defined by 18 U.S.C. § 16. The defendant pled guilty to interfering with flight crew members, and the district court needed to determine if restitution was appropriate. In making its restitution decision, the offense either fell within the scope of the Mandatory Victims Restitution Act (“MVRA”)—which required the defendant to pay full restitution—or the Victim and Witness Protection Act (“VWPA”)—which gave the district court discretion in deciding whether to impose restitution. Because the court determined that interference with a flight crew is not categorically a crime of violence, the VWPA applied rather than the MVRA. Full Opinion
US ex rel. Benjamin Carter v. Halliburton Co. (Floyd 7/31/2017): The Fourth Circuit held that, in determining whether an action is barred under the first-to-file rule of the False Claims Act (“FCA”), courts must investigate whether there were related cases pending when the relator filed the action. The FCA empowers private individuals to bring civil actions against those who defraud the government, and the FCA contains a first-to-file provision which bars suits by private individuals while related actions are pending. Here, related actions were pending at the time of filing, so the court determined that the first-to-file rule mandated dismissal of the case even though the related actions were subsequently dismissed. Full Opinion
US v. David Diaz, No. 16-4226
Decided: July 26, 2017
Amended: July 31, 2017
The Fourth Circuit held that interference with a flight crew is not categorically a crime of violence as defined by 18 U.S.C. § 16. Accordingly, the district court improperly used the Mandatory Victims Restitution Act (“MVRA”) to determine whether restitution was appropriate, so the Fourth Circuit vacated the district court’s order of restitution. The Fourth Circuit stated that the Victim and Witness Protection Act (“VWPA”), which makes the district court decision a discretionary decision rather than a mandatory one, was the appropriate statute to use in determining whether restitution was appropriate.
Before the flight on which the incident occurred, the defendant boarded his plane twice, but left before takeoff due to anxiety. On his third attempt, the defendant remained on the plane, but he self-medicated his anxiety with alcohol and was very intoxicated. Roughly forty-five seconds after takeoff, the defendant rushed towards the cockpit, yelling that the plane was going down and shooting flames. Other passengers quickly tackled the defendant, and the plane returned to the original airport roughly thirteen minutes after takeoff. The defendant could not remember the incident. The flight was then cancelled, causing the airliner to suffer a loss of $22,151.77. The district court provided restitution to the airliner for its losses, and the appeal here revolves around whether the district court used the appropriate statute in determining whether restitution was appropriate.
Under the VWPA, a restitution decision is discretionary with the court, and in making its decision, the court is to consider factors such as the defendant’s poor financial condition. Alternatively, the MVRA requires mandatory restitution if certain conditions are met. An offense properly falls within the scope of the MVRA if the offense (1) has an identifiable victim who has suffered a physical injury or pecuniary loss and (2) is a crime of violence. The district court improperly read the statute as requiring either an identifiable victim or a crime of violence. Because an identifiable victim clearly suffered a pecuniary loss, the district court did not determine whether the defendant’s actions constituted a crime of violence. However, the Fourth Circuit determined that the statute required both elements (1) and (2). Accordingly, for the MVRA to apply, the defendant must have committed a crime of violence.
Under 18 U.S.C. § 16, a crime of violence is defined as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Section 16(a) is known as the force clause, and section 16(b) is known as the residual clause. Because the government failed to make an adequate argument under the residual clause, the Fourth Circuit concluded that the government waived any argument on the residual clause. Thus, the court focused its attention on whether the assault qualified as a crime of violence under the force clause.
Before reaching the issue of whether the defendant’s crime satisfied the force clause, the court determined that the statute was indivisible and that a modified categorical approach was appropriate. While the statute covering flight crew interference required as an element “assaulting or intimidating” a flight crew member, the court noted that the use of the word ‘or’ in the definition of a crime does not automatically render the crime divisible. Based on the plain meaning of the statute, case law, and secondary sources, the court determined that assaulting and intimidating were alternative means of committing the same crime rather than multiple versions of a crime. Therefore, the court concluded that the statute was indivisible and that a modified categorical approach was appropriate.
Because a modified categorical approach was used, the court looked only to the statutory elements of the defendant’s crime rather than any particular facts of the crime. Here, the crime in question was assault. Thus, for the MVRA to apply, the crime of assault must categorically be considered a crime of violence under the force clause. The Supreme Court previously defined “physical force” to mean violent force or force that is capable of causing physical pain or injury to another person. After determining that the crime of assault only required “forcible touching” that need not rise to the level of violent force, the court concluded that the crime of assault did not categorically qualify as a violent crime.
Accordingly, the VWPA was the appropriate statute for determining whether restitution was appropriate; thus, the Fourth Circuit vacated the restitution order and remanded the case back to the district court so that the issue of restitution could be determined using the correct statute. In determining the appropriate statute, the court also clarified that an award of partial restitution is not permitted under the VWPA.
Jonathan D. Todd