April 23, 2014 4th Circuit published opinions

United States v Umana

Umana was convicted of murder, racketeering and other crimes and sentenced to death. The panel, 2-1, affirmed his convictions and sentence. The majority held that venue was proper in the eastern district of North Carolina even thought the murders took place in the middle district because 18 USC 1962 requires an objective act connecting the accused with an ongoing criminal enterprise. Here, Umana was sent to Charlotte to straighten out the M-13 gangs there and returned after the murders to boast about them. Thus, venue was proper. The majority rejected Umana’s commerce clause challenge to his 18 USC 1959 convictions holding Congress could reasonably believe that prohibiting intrastate violence connected to criminal reputation in a criminal enterprise could held thwart the spread of the enterprise and1959 has an explicit commerce clause jurisdictional requirement. The majority rejected a challenge to a seated juror whose brother had been a victim of violent crime 30 years ago as the juror answered she could be fair in this proceeding and there was no basis to conclude the events of 30 years ago impliedly caused her to be biased towards Umana. The majority rejected a challenge to a different juror holding that despite her initial ambivalence about considering a life sentence, she ultimately assure the district court that she would give consideration to both life and death sentences. The majority affirmed the admission of an interview transcript between Umana and Los Angeles detectives as he waived his Miranda rights and totality of the transcript demonstrated his will was not overborne. The majority affirmed the admission of hearsay statements by M-13 members at eh eligibility hearing noting the confrontation clause does not apply in sentencing phases and, given the forensic and eyewitness testimony independently connecting Umana to the Los Angeles murders described in the statements, the district court acted within its discretion to admit the statements. The majority also held that there was no vouching of the M-13 witnesses’ veracity and Umana was able to bring in evidence of other M-13 violence during trial and thus was not harmed by the denial of an opportunity to do so at sentencing. The majority rejected Umana’s challenge to statements by the prosecutor during argument as either isolated, fair comments on the evidence or harmless given Umana’s behavior at trial including throwing gang signs, threatening witnesses an trying to smuggle a weapon into the courtroom. The majority held that future dangerousness is a proper aggravating factor and the form used in his case did not create a presumption of dangerousness. The majority held that premedication or deliberation is not required under the 8th Amendment as a variety of aggravating circumstances are used by the states and approved by the Supreme Court. Finally, the majority held that the district court did not error in placing the burden of proof on Umana to prove mental retardation as Umana so argued below and that is the law. The dissent argued that the confrontation clause should apply at sentencing hearings in death cases as the need for reliable determinations is great and allowing accusations of wrongdoing without the opportunity for cross examination allows dubious devastating charges to come in.

United States v McVey

McVey challenged the distribution enhancement to0 his child pornography sentence. The panel affirmed. It first held that whether the enhancement applied was subject to clear error review as the basis for applying the enhancement were factual determinations. Applying clear error review, the panel held that there was no error here as McVey admitted distributing child pornography for 10 years and his seven acts of distribution were closely connected to his possession of the images distributed.

 

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April 23, 2014 South Carolina Court of Appeals published opinions

Digital Ally, Inc. v Light-N-Up, LLC

Ally obtained a default judgment against Light-N-Up in Missouri and moved to enforce it in South Carolina. The circuit court entered an order allowing enforcement. The panel affirmed. It held that Missouri had jurisdiction over Light-N-Up because it entered into contracts in Missouri, mailed payments to ma Missouri address and took possession of the goods involved in Missouri.

State v Battle

At Battle’s murder trial, he moved for a jury instruction on involuntary manslaughter. The trial judge refused and Battle was convicted of murder. The panel reversed and remanded for a new trial. It held that Battle’s testimony that he struggled with eh victim over a firearm and may have touched the trigger was some evidence supporting involuntary manslaughter and thus an instruction was required. The panel held the error was not harmless as the jury could have convicted on involuntary manslaughter instead of murder if the testimony was believed.

Roberts v State

At Roberts drug trafficking trial, he moved for a directed verdict (which was denied) and objected to the jury verdict on the grounds that the indictment had been altered and different weights appeared in different parts of the indictment and verdict form. His objections were overruled and the verdict was accepted. The panel reversed and remanded. It held the directed verdict issue was not preserved. However, it held that because the indictment was altered in an untimely manner and the jury afifiemd when polled both guilt as to less than 200 grams and more than 200 grams, the verdict was ambiguous and this error was not harmless as Roberts has the right to have a jury, not a judge, determine what if anything he is guilty of.

State v Robinson

Robinson moved to suppress drugs and other evidence seized form his home arguing the warrant was obtained using an affidavit which omitted material facts and lacked facts demonstrating reliability. The motion was denied and Robinson was convicted of drug trafficking. The panel reversed. It held that the issuing judge clearly erred in finding no falsehoods in the affidavit submitted to support of eh warrant as it implied that the confidential informant rather than another person actually made drug purchases. While that would not require suppression, the panel held the affidavit contained no facts form which an inference of reliability could be drawn. As the good faith exception is not available when reliability facts are omitted form the application, the drugs and other evidence must be suppressed. The case was remanded for further proceedings.

State v Hendricks

Hendricks objected to the admission of a recorded 911 call containing statements made by the victim and victim’s mother. His objection was overruled and he was convicted of rape and kidnaping. The panel affirmed. It held the statements by victim were admissible as excited utterances as there was evidence she was stressed by the rape and made statements about the event under the influence of that stress. The panel held it was error to allow mother’s statements in as she was calm and did not observe the rape and thus had no present sense impression to convey. However, the panel held this error was harmless as mother was allowed to testify about the same maters in live testimony without objection.

State v Gordon

Gordon moved to dismiss his DUI charge arguing his field sobriety tests did not appear on the recovering of his testing and arrest. The magistrate denied his motion and he was convicted of DUI. The circuit court reversed ruling Gordon’s head was not visible and thus the test was not recorded. The panel affirmed in part, vacated in part and remanded. It held that under the current version of South Carolina Code 56-5-2953(A), all field sobriety tests must be recorded. However, whether the recording here meets the requirement is a matter for the magistrate as fact finder. Thus, the case was remanded to review Gordon’s motion under the correct standard.

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April 23, 2013 South Carolina Supreme Court published opinion

Johnson v Lloyd

Johnson sought a declaratory judgment that the sex offender registration statute was unconstitutional. The circuit court denied that request, but, granted equitable relief. The South Carolina Court of Appeals reversed. The Court unanimously reversed holding the state failed to preserve the issue of whether Johnson was entitled to equitable relief and appellate review was thus unavailable.

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April 23, 2014 United States Supreme Court opinions

Paroline v United States

Paroline pled guilty to child pornography offenses. The government sought full damages suffered by the minor depicted in the images he downloaded under 18 USC 2259. The district Court denied the request. The 5th Circuit ordered full restitution. Resolving a split among the circuits on the proper causal basis for restitution in child pornography cases, the Court, 5-4 (with two dissenting opinions) reversed. The majority held that 2259 required both but for causation and proximate causation because the text refers to proximate cause and proximate cause is generally a requirement in both criminal and tort proceedings. It also held that strict but for causation in cases where thousands of people view images would undermine the goals of Congress in enacting 2259 while allowing full restitution would be unfair and possibly unconstitutional under the 8th Amendment. The majority thus adopted the government’s alternate suggestion that in these cases reasonable restitution be assessed based on a view of totality of the circumstances including number of images viewed, whether the defendant participated in creating the images and the number of known an anticipated future offenders. The case was remanded for further proceedings under the new rule. Chief Justice Roberts, joined by Scalia and Thomas, dissented arguing that 2259 by adopting the general restitution standard basically makes restitution in cases like this unavailable as the amount to award will always be unknowable as it is impossible to calculate the portion of the victim’s injury Paroline’s possession of 2 images is. This dissent also argued that the approach taken by the majority was not adopted by Congress and will end up with small awards which will keep the victim in this case litigating the issue for years. Justice Sotomayor dissented arguing the 5th Circuit correctly decided the case because 2259 mandates restitution in the full amount of harm suffered, aggregate liability is an appropriate model for causation here and the majority’s concerns about the desperate impact between wealthy and poor offenders is offset by the ability of sentencing courts to order periodic payments.

White v Woodall

Woodall pled guilty to murder and was sentenced to death. At his penalty phase, the trial court refused to give an instruction prohibiting inferences form Woodall’s failure to testify. His sentence was upheld by the Kentucky Supreme Court, but, federal habeas relief was granted based on the failure to charge. The Court, 6-3, reversed. The majority held that under 28 USC 2254(b), only unreasonable applications of actual Supreme Court holdings can provide a basis for relief. Here, there is no precedent which expressly held that inference instructions must be given at sentencing hearings. Additionally, whether lack of remorse can be inferred from a failure to testify may be an inference allowed under Court precedent and thus the Kentucky Supreme Court did not act unreasonably in rejecting Woodall’s claim. The dissent argued that Court precedent when put together in the only reasonable way clearly required the instruction here and habeas relief was proper.

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April 22, 2014 United States Supreme Court opinions

Navarrete v California

Acting on a 911 call accusing the driver of the truck Navarrete was a passenger in of running another driver off the road, California officers pulled the truck over and discovered marijuana. Navarrete’s motion to suppress was denied and the denial was affirmed on appeal. The Court, 5-4, affirmed. The majority held that while it was a close case, the totality of the circumstances-eyewitness informant, contemporaneous report and use of the 911 system which subjected the informant to criminal liability for false reporting-supported a finding of reliability. The majority also held that running a car off the road supported reasonable suspicion of drunk driving and thus the stop was valid. The dissent argued that the tip was completely uncorroborated, only reported a discrete completed violation and the possibility of drunk driving was disproved by the five minutes of impeccable driving observed by the officers before the stop was effectuated. The dissent lamented the loss of freedom this decision will impose by allowing malicious 911 class to authorize unreasonable stops on innocents drivers.

Schuette v Coalition to Defend Affirmative Action

Michigan voters adopted a state constitutional amendment prohibiting the consideration of race in college admissions decisions. Coalition sued seeking a declaration the amendment was unconstitutional. Their claim was denied by the district court, but, granted by a divided 6th Circuit sitting en banc on the ground that policies which serve the interests of minorities could not be removed from the universities to the people. The Court, 6 (a three justice plurality, Justice Scalia joined by Thomas concurring in judgment and Justice Breyer concurring in judgment) to 2 with Justice Kegan recused, reversed. The plurality argued that the precedents relied upon by the 6th Circuit majority all dealt with factual settings where racial animus or the strong likelihood of invidious discrimination were present. Here, the voters acted in their sovereign capacity to decide whether race should be considered and there is no basis for federal intervention to overturn that decision as the rule adopted by the 6th Circuit would wrongly allow federal courts to substitute their views of the interests of minority groups (which is prohibited in under the Court’s equal protection jurisprudence) and interfere with the fundamental right of the public to debate issues and adopt law to resolve those issues. Chief Justice Roberts added a concurrence arguing that eh dissent was wrong to attack the candor of opponents of race conscious admissions programs. Justice Scalia concurred in judgment arguing that the cases relied upon by the 6th Circuit majority were wrongly decided and should be overruled because the 14th Amendment protects individuals, not groups, states have the right to organize their distributions of powers any way they want so long as it does not violate federal law and in adopting the color blind admissions policy the people of Michigan merely adopted the federal standard and cannot violate the constitution by adopting its provisions into their state constitution. Justice Breyer concurred in judgment arguing that race conscious admissions policies are permitted but not required by the Constitution and the cases relied upon by the 6th circuit majority do not apply here as the race conscious policies were adopted by an administrative body not a political body and the removal of decision-making from administrative to political decision-making is not unconstitutional. The dissent argued that the 6th Circuit got the case right as Michigan voters removed race conscious admissions policy from the university boards of regents (where it was vested by the state constitution) and transferred it to the people, this transfer made it more difficult for minority voters to pursue their policy objective on race conscious admissions and race conscious admission policies are racial issues. It argued that the precedent recognizing the right of racial minorities to have meaningful access to the political process prohibits rearrangements of power like the one here as it burdens racial minorities in ways that majority interests do not face. It also argued that as a matter of first principle the 14th Amendment removed the power of states to place procedural burdens on the right of racial minorities to participate and this is consistent with the precedent in other areas such as voting rights and legislative gerrymandering. Noting that the amendment and similar bans in California have decimated minority enrollment, the dissent concluded this decision effectively guts protections form racially impactful political restructuring thereby depriving these individuals and groups of the protection afforded by the 14th Amendment.

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April 17, 2014 4th Circuit published opinion

Anderson v Architectural Glass Construction Inc. (in re Pfister)

Anderson, trustee in Pfister’s bankruptcy case, sued to have the transfer of real property to Construction set aside as constructively fraudulent. The bankruptcy court granted the relief, but, the district court reversed finding there was a resulting trust in favor of Construction. The panel, 2-1, reversed and remanded. The majority held that, under South Carolina law because Construction did not commit to pay for the property at the time of the first mortgage and intended to lease the land at that time, there was no trust on the property. The case was remanded to consider other issued raised in the appeal from the bankruptcy court. The dissent argued that Pfister always intended to have construction own the land and Construction evidenced its intent to have equitable title by paying the mortgage and building buildings on the site.

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April 16, 2014 4th Circuit published opinions

Company Doe v Public Citizen

Public filed an objection to Company’s motion to file its lawsuit under seal and to use a false name. The district court ultimately granted the motion and, after Public filed its notice of appeal, denied Public’s motion to intervene. The panel, with one judge concurring in judgment, vacated in part, reversed in part and remanded. The majority held that the district court lacked jurisdiction to rule on the intervention motion because the notice of appeal deprived it of jurisdiction. It next held that Public had nonparty appellate standing because it participated in the proceedings below and had an interest in access to information. The majority ruled the 1st amendment and common law rights to accessing information provided Article III standing as well given Supreme Court precedent that information deprivation can support such standing. The majority held that there is constitutionally protected access rights to docket sheets, pleadings and motions for summary judgment as well opinions on those motions to allow the public to check on the work of the judiciary and allows the judiciary to retain legitimacy. The majority held Company’s interest in preventing financial and reputational harm and keeping the false claim its product contributed to child’s death out of the public’s and media’s knowledge did not overcome the right to access. Thus, the case was remanded for the unsealing of the entire docket. The majority finally held that allowing the use of a false name here was error as the interests cited by company were not the sort of extraordinary circumstances which justify the sue of false names in federal litigation. The concurrence argued that the sealing order had to be reversed only because Company failed to submit sufficient proof that financial harm would result from not proceeding under seal.

In re Under Seal (United States v Lavabit, LLC)

Lavabit was held in contempt for failing to capture metadata of a criminal target’s email on its system and failing to provide the encryption keys to the government as subpoenaed. The panel affirmed. It held that Lavabit had waived review of its challenges to the metadata order because it did not raise the issues presented on appeal before the district court. Applying plain error review, the panel held that all review of the metadata order was waived as Lavabit did not challenge the legal basis of the underlying order and thus no review was need as to the subpoena.

 

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