July 26, 2012 4th Circuit published opinions

United States v Mouzone

Mouzone and a codefendant were convicted of racketeering and drug charges. On appeal, they challenged several evidentiary rulings. The panel rejected them and affirmed. It held that the testifying analyst had performed an independent analysis of the crack admitted into evidence and was subjected to cross examination thus satisfying the Confrontation Clause. It held three admitted 911 call transcripts were not testimonial as they were reports of an ongoing emergency after a shooting. The panel held the admission of a police expert on firearms that two weapons were used to commit murders was harmless as the testimony did not connect the defendants to the murders and the jury found murder was not one of the aims of the racketeering conspiracy. Holding that managing or directing is not an element in a RICO conspiracy charge, the panel rejected a claim that the trail judge should have charged the jury that is was an element. It rejected a claim of improper joinder as the drug trafficking charge had a logical connection to the RICO charge and there was no prejudice form the joinder. It finally rejected sentencing arguments holding that sufficient evidence was n the record to support a finding of participation in murder, that a prior drug offense with an Alford plea was properly found to raise the mandatory minimum sentence for the drug charges and the Fair Sentencing Act did not apply due to the timing of the offenses and sentencing.

WEC Carolina Energy Solutions, LLC v Miller

Miller allegedly emailed and otherwise saved confidential documents while working at WEC and later used these documents to make business presentations for a competing firm. WEC sued under the Computer Fraud and Abuse Act. The trial court dismissed holding the alleged violation of WEC’s use policy was not unauthorized access or access outside the scope of permissible access. The panel affirmed. Noting a split in circuit authority, the panel adopted the narrow view that authority to access means authority to access not duty to loyalty based on the plain, common understanding of authority as sanction and access as admission. It also adopted this definition as matter of policy noting that lenity requires criminal statutes to be narrowly construed when two plausible interpretations exist. It also rejected the 7th Circuit’s rule that violation of policy ends the agency as this would make checking Facebook without permission a crime which the panel held was not the result Congress intended. As Miller had authority to view the information, mere impermissible use could not form the basis for liability under CFFA.

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