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Week 22 (2019)

Week of May 27, 2019 through May 31, 2019

J.D. v. Colonial Williamsburg Found. (Diaz 5/31/2019): The Fourth Circuit held that there was a genuine dispute of material fact as to: a) whether an eleven year old child that possibly had either celiac disease or non-celiac gluten sensitivity was disabled within the meaning of the Americans with Disabilities Act, and b) whether Colonial Williamsburg discriminated against the child because of his disability. Circuit Judge Wilkinson dissented, arguing the majority’s rule would force restaurants to either “allow [a] patron[] to consume food prepared outside their premises,” or “justify their refusal [to serve the patron] at a costly trial.” Ultimately, the court vacated the District Court of Virginia’s (Smith) order granting summary judgment in favor of Colonial Williamsburg and remanded the case for further proceedings. Full Opinion

Thomas Krakauer v. Dish Network (Wilkinson 5/30/2019): The Fourth Circuit held that: a) class members had standing to sue under the Telephone Consumer Protection Act because the members received two calls within one year to a number that was listed on the Do-Not-Call registry, and that injury was sufficient to support federal jurisdiction because “thatharm [was] both particular to each person and impose[d] a concrete burden on his privacy,” b) the class certified met the requirements of Fed. R. Civ. P. 23 because the members were ascertainable, and the issues common to the plaintiffs clearly predominated over individual ones, and c) the jury properly found that Dish was liable for calls made on its behalf by its agent, and treble damages against Dish were warranted because Dish was aware of its agent’s noncompliance and “did nothing to monitor, much less enforce” the applicable telemarketing laws. Accordingly, the Court affirmed the judgment for the plaintiff. Full Opinion

United States v. Delfino Natalio De Leon-Ramirez (Diaz 5/29/2019): The Fourth Circuit held that the District Court conducted the requisite de novo review of the Magistrate Judge’s report and recommendation even though the parties’ plea agreement required the District Judge to accept the Magistrate Judge’s report. The Court found the review was sufficient because the District Court told counsel it reviewed the report’s findings and conclusions de novo, and the District Court’s order reflected that it had conducted a de novo review of the findings despite simply accepting the Magistrate Judge’s report. The Fourth Circuit also held that the indictment of the defendant was not untimely because the defendant “sought to withhold his true identity from law enforcement,” failed to appear for court dates, and failed to maintain contact with his defense counsel and was therefore a “fugitive from justice,” tolling the statute of limitations on the criminal charge. Accordingly, the court affirmed the District Court’s finding the indictment was timely. Full Opinion

Highlight Case

United States v. Ezekiel Dennison

Decided: May 29, 2019

The Fourth Circuit held that the District Court erred by entering an order revoking the Defendant’s supervised release because there was insufficient evidence “to support a finding of guilt for possession with intent to distribute crack cocaine.” However, the Fourth Circuit determined this error was plain because there was ample evidence the Defendant possessed powder cocaine with intent to distribute, which meant the District Court would be required to enter the same order to revoke the Defendant’s supervised release. The Court concluded that whether the Defendant possessed powder cocaine or crack cocaine was irrelevant because possession of either drug led to the same result, revocation of the supervised release; therefore, the error was plain.  

The Defendant in this case was on supervised release from an earlier narcotics charge when members of the Myrtle Beach Police Department received information from informants that the Defendant was a “drug supplier in the Myrtle Beach area.” The police conducted a trash pull of the Defendant’s residence and subsequently executed a search warrant which turned up quantities of what police thought was crackcocaine, which is what the warrant was for. However, lab analysis showed that the drugs were in fact powdercocaine, not crack cocaine.

The Defendant argued that because the District Court determined he possessed “cocaine” with intent to distribute and because the District Court entered a “criminal judgment showing a violation involving crackcocaine,” the order revoking his supervised release should be vacated. The Fourth Circuit disagreed however because both possession with intent to distribute powdercocaine and possession with intent to distribute crackcocaine are bothGrade A violations of supervised release conditions. Grade A violations requirea District Court to enter an order revoking a Defendant’s supervised release. 

The Court found that there was substantial evidence the Defendant possessed powder cocaine with intent to distribute based on evidence obtained during the search of his trash and residence. Therefore, the Court determined that it did not matter whether the Defendant was found to have possessed with intent to distribute crack cocaine or powder cocaine, because the result, revocation of supervised release, would have been the same. Because the District Court’s error did not affect the outcome of the case, and the error did not affect any of the Defendant’s substantial rights, the error was plain.

Accordingly, the Fourth Circuit affirmed the District Court’s order revoking the Defendant’s supervised release.

Full Opinion

William S. Anderson