June 20, 2013 4th Circuit published opinions

United States v Hager

Hager was convicted of killing a woman while engaging in a drug conspiracy and sentenced to death. The panel, 2-1 affirmed his conviction and sentence. The majority first held that 18 usc 848(e)(1)(A) does not require that the prohibited killing take place while the perpetrators are actually dealing drugs. Instead, if engaged in a drug conspiracy, that is enough both because 4th Circuit precedent so holds and here, the killing was done to protect Hager from discovery by a rival gang and to tie his fellow perpetrators more tightly to the conspiracy. The majority held the statutes plain meaning is not vague. The majority rejected a jury instruction claim as Hager’s proposed instruction was incorrect as to the law and the instruction given properly used “meaningful connection” to describe the nexus to be proved. The majority also held that even if the instruction was error there was no prejudice given the strength of the government case. The majority upheld the use of an anonymous jury given Hager’s past obstruction of justice conviction, the fact the case was a death case and that the trial judge used neutral explanations for the anonymity coupled with instructions not to allow the anonymity change the presumption of innocence. The majority upheld the seating of a particular juror as the trail court obtained a firm assurance from the juror that he could presume Hager innocent and follow the court’s instructions. The majority upheld the exclusion of evidence of the impact of his execution on his daughters as it was not relevant to Hager’s character, background or the offense. The majority noted that people can love someone who does not have redeeming qualities. The majority held that the trial court did not err when it refused to offer two witness’s expectation of a reduced sentence as a mitigating factor given the testimony of those witnesses and the argument of counsel put the issue before the jury and there was no guarantee the reduction would happen. The majority rejected Hager’s challenge to the future dangerousness aggravator as the United States Supreme Court has approved its use and held there was no plain error in the admission of evidence about this aggravator as Hager admitted participating in fights while jailed, his witness brought up the name of his prison gang and the trial court corrected any misunderstanding of the jury about the killing of a federal judge which came up through a curative instruction. The majority reviewed argument about the lack of remorse for harmless error. It concluded that the statement about remorse in the aggravating circumstances was not erroneous and there was sufficient evidence that Hager bragged about the killing and praised his confederates that the decision of the jury would have been the same if the government had not commented on Hager’s failure to express remorse. Finally, the majority held that the trial court did not err by refusing to instruct the jury aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt as there is no legal requirement for that standard to be met. The dissent argued that the trial court erred in its instruction on “meaningful connection” as that makes Hager liable for murder on a lesser showing that that required to convict henchmen of a drug kingpin. This would render parts of 848(e) superfluous, raise constitutional issues and deprive states of primary authority over violent drug crime. Thus, the dissent would reverse and remand with an order to dismiss the case.

Clodfelter v Republic of Sudan

Survivors of the victims of the bombing of the USS Cole obtained judgment against Sudan in a default judgment proceeding on a maritime law theory. Congress changed the statute on foreign sovereign immunity to allow direct suit by victims of terrorism and Coldfelter, the other plaintiffs in the original case and four additional plaintiffs field a direct suit. The trial judge sua sponte denied the motion for default judgment on statute of limitations and res judicata grounds. The panel reversed. It held the statute of limitations relied upon by the trial court did not apply as the suit in question was filed after the statute came into effect and the limitation only applied to cases field before it came into effect. The panel adopted an abuse of discretion standard of review for the sua sponte issue and held no abuse was shown here given the lengthy litigation, prior trial and hearings and opinions plus the absent foreign sovereign defendant all join to create special circumstances justifying the sua sponte denial.  Turn to the merits, the panel held that res judicata did nto apply as the new cause of action was created by a statute, Sudan has no reliance interests in the prior judgment and allowing res judicata here would undermine he policy of holding state sponsors of terrorism to account.

United States v Ashford

Ashford pled guilty to felon in possession of a firearm after being arrested for shooting at two people hitting one. The district court applied an attempted murder cross reference to set a guideline range and sentenced Ashford to 120 months. The panel affirmed. It first rejected the government’s attempt to raise waiver through a supplemental authorities letter holding that the government waived its own argument by engaging in procedural sandbagging. As to the merits, it held that the cross reference guideline while connected by “and” is disjunctive as the first and second provisions are mutually exclusive as the first applies to offenses committed during the relevant conduct and the second applies to offenses in the same course of conduct. The panel relied on the plain language of the guideline, its purpose, the commentary to the guidelines and the holdings of other appellate courts. Thus, the district court did not error in applying the attempted murder cross reference under the first provision. The panel also held that Ashford was the aggressor, testified he was nto angry and declared and intent to kill, thus rendering the voluntary manslaughter cross reference inapplicable.

Doe v Virginia Department of State Police

Doe challenged restrictions on her entering school property anonymously. Her challenged was dismissed for lack of standing. She moved for panel rehearing which was denied 2-1 and for en banc rehearing which was denied 8-5. Judge Duncan field a concurrence noting that the original panel decision was solely based on Doe’s inability to prove redressability as granting her request relief would not allow her to go on school property anonymously without a state court order. And her injury was thus not traceable to the law she was challenging. Judge King, joined by Judge Floyd dissented arguing that the panel decision effectively shields unconstitutional stat action form federal review by allowing states to require all claimants to go through multiple levels of review until all but the most tenacious are worn down. He lamented that the 4ht Circuit is now out harmony with all other jurisdictions and predicted the panel opinion will one day need to be overruled.

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