Week 50 (2017)
Week of December 11, 2017 through December 15, 2017
Adam Darrick Toghill v. Harold W. Clarke (Traxler 12/15/2017): The Fourth Circuit held that Virginia’s anti-sodomy statute, as authoritatively construed by the Supreme Court of Virginia, does not criminalize conduct that the U.S. Supreme Court declared in Lawrence v. Texas to be protected by the liberty interests guaranteed by the Due Process Clause, and, therefore, the statute is not facially unconstitutional. The court reasoned that the Supreme Court of Virginia’s narrow construction of the anti-sodomy statute, which recognized that Lawrence permitted the statute to regulate sodomy involving children but not between consenting adults, was a proper application of applicable Virginia Supreme Court precedent. Accordingly, the Fourth Circuit affirmed the district court’s denial of the petitioner’s habeas petition wherein he challenged his state court conviction for computer solicitation of acts of sodomy from a minor under the age of 15. Full Opinion
United States of America v. Dean Paul Stitz (Thacker 12/14/2017): The Fourth Circuit held that the use of a peer-to-peer file-sharing system to share child pornography constitutes “distribution” of child pornography under 18 U.S.C. § 2252A(a)(2)(A). Furthermore, the court held that the defendant in this case possessed the “knowing” mens rea required by the statute because he was aware his child pornography files were being shared, and he was an expert in the field of information technology. Applying a plain error standard, the court affirmed the district court’s determination that a factual basis existed for the defendant’s plea of guilty to distribution of child pornography. Full Opinion
Albert Anderson v. Deputy M. Kingsley (Niemeyer 12/14/17): The Fourth Circuit held that a district court may instruct a jury on the correct definition of “deliberate indifference” as required for proving that prison officials are liable under the Eighth Amendment for failing to protect an inmate from a fellow inmate’s assault. Specifically, the court held that the district court’s jury instruction, which incorporated the criminal recklessness standard and the requirement that the prison official knew the inmate faced a substantial risk of harm but responded by consciously disregarding that known risk, adequately and fairly stated the controlling law. Accordingly, the Fourth Circuit affirmed the judgment entered by the district court in favor of the defendants. Full Opinion
Edwin Alexander Romero Zambrano v. Jefferson B. Sessions III (Gibney 12/14/17): The Fourth Circuit held that new facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance under the “changed circumstances” exception to the one-year filing deadline for asylum. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. Accordingly, because the BIA erred when it categorically held that additional proof of an additional claim does not establish changed circumstances, the court granted the appellant’s petition for review, vacated the BIA’s order, and remanded the case to the BIA for further consideration. Full Opinion
Simply Wireless, Inc. v. T-Mobile US, Inc. (Wynn 12/13/17): The Fourth Circuit held that, in the context of a commercial contract between sophisticated parties, the explicit incorporation of JAMS Comprehensive Rules and Procedures serves as clear and unmistakable evidence of the parties’ intent to let an arbitrator determine the scope of arbitrability. Thus, because the mandatory arbitration clause in the arbitration agreement that governed the parties’ business relationship incorporated the JAMS Rules and thereby delegated arbitrability questions to the arbitrator, the district court erred in deciding whether the plaintiff’s claims fell within the scope of the agreement. Nevertheless, the Fourth Circuit affirmed the district court’s dismissal of the complaint on the alternate grounds of allowing the arbitrator to resolve all arbitrability disputes. Full Opinion
David Richard Sizemore v. Nancy A. Berryhill (Niemeyer 12/1/17): The Fourth Circuit held that an Administrative Law Judge (“ALJ”) may properly deny an application for Social Security benefits when substantial evidence demonstrates the applicant is not disabled, such as alcoholism and non-compliance with diabetic treatment. Accordingly, the court affirmed the ALJ’s decision to deny the plaintiff’s application for Social Security benefits based on its determination that the plaintiff was not disabled. Full Opinion
United States of America v. Dean Paul Stitz, No. 16-4813
Decided: December 14, 2017
The Fourth Circuit held that the use of a peer-to-peer file-sharing system to share child pornography constitutes “distribution” of child pornography under 18 U.S.C. § 2252A(a)(2)(A). Furthermore, the court held that the defendant in this case possessed the “knowing” mens rea required by the statute because he was aware his child pornography files were being shared, and he was an expert in the field of information technology. Applying a plain error standard, the court affirmed the district court’s determination that a factual basis existed for the defendant’s plea of guilty to distribution of child pornography.
On April 7, 2016, the federal government filed a single-count information charging the defendant Dean Paul Stitz (the “Defendant”) with distribution of child pornography by computer in violation of 18 U.S.C. § 2252A(a)(2)(A). A few days prior, the Defendant and the government had entered into a plea agreement wherein the Defendant stipulated there was a factual basis for the plea. The stipulated factual basis stated that on three occasions FBI investigators used the ARES file-sharing network to connect with the defendant’s IP address and download child pornography files. ARES is a peer-to-peer file sharing program available for download on the internet that allows users to access and download files from other users’ shared folders. Once a file is downloaded in ARES, the file is automatically shared on the network. The Defendant admitted in the Stipulation that during his interview with the FBI, he acknowledged he was aware his computer was sharing child pornography files on the ARES network.
The district court conducted a sentencing hearing during which it accepted the Stipulation and found a sufficient factual basis to support the guilty plea as required by Federal Rule of Criminal Procedure 11(b)(3). Ultimately, the district court sentenced the defendant to 121 months of imprisonment. The defendant timely appealed and contended that the district court erred in finding a factual basis for his plea because there was no published law in the Fourth Circuit concluding that use of a peer-to-peer file sharing program constitutes a conviction under the statute. The federal child pornography statute prohibits the (1) knowing (2) distribution of child pornography (3) using any means in or affecting interstate or foreign commerce. At issue in the Defendant’s appeal were the “knowing” and “distribution” elements.
Before reaching the merits of these substantive issues, the court first had to decide what standard of review – abuse of discretion or plain error – was applicable. Because the mens rea necessary for a conviction under the statute is “knowing,” which does not require specific intent to distribute, any intimation that the Defendant did not act with the specific intent to distribute did not negate his mens rea and was not enough to raise a challenge to the factual basis for his plea. Thus, because the Defendant did not raise a proper challenge in the district court, a plain error standard was applicable.
As to the “knowing” element of the statute and the Defendant’s possession of the requisite mens rea, the court focused on the Defendant’s repeated admissions that he was aware his child pornography files were being shared on the peer-to-peer file-sharing network he was using. These admissions were bolstered by the Defendant’s background in information technology; he worked for 17 years as a technology manager for Wells Fargo National Bank. Given the Defendant’s admissions, his understanding of how peer-to-peer file-sharing networks work, and his extensive background in information technology, the Fourth Circuit held that there was sufficient evidence for the district court to conclude that a factual basis existed as to the “knowing” element and, therefore, the Defendant possessed the requisite mens rea.
As to the “distribution” element of the statute and whether use of a peer-to-peer file-sharing program constitutes “distribution” under § 2252A, the court first noted that this specific issue was one of first impression. As such, the court surveyed other circuits to see how they have addressed the issue. The Tenth Circuit provided the landmark holding on the issue when it faced a near identical factual situation that included the same argument being made by the Defendant in this case: in both cases, the defendants claimed that they did not “distribute” child pornography because they acted passively in the transfer of the images. The Tenth Circuit swiftly rejected this argument and determined the defendant, who admitted to knowing others downloaded images from his shared folder given the peer-to-peer file-sharing network being used, had distributed child pornography in the sense of having delivered, transferred, dispersed, or dispensed it to others. To better illustrate its holding, the court analogized such a situation to an owner of a self-service gas station making gasoline available to passing motorists.
The Fourth Circuit joined many of its sister circuits and adopted the central holding of the Tenth Circuit, concluding that where files have been downloaded from a defendant’s shared folder, use of a peer-to-peer file-sharing program constitutes “distribution” pursuant to § 2252A. Applying this holding to the facts of the case, the court noted that FBI agents downloaded child pornography from the Defendant’s shared folder, and the Defendant admitted in the Stipulation and on the record that he knew his files were being shared. As such, it was clear that the Defendant “distributed” child pornography within the meaning of the statute.
Accordingly, the Fourth Circuit affirmed the district court’s determination that a factual basis existed for the Defendant’s plea of guilty to distribution of child pornography.
Raymond J. Prince