January 24, 2014 4th Circuit published opinions

North Carolina Utilities Commission v Federal Energy Regulatory Commission

Commission filed an opposition with the FERC seeking disallowance of five incentive payments to an applicant. After FERC denied their opposition, Commission moved for rehearing. Before FERC decided the motion, it changed the basic rule to determine if an incentive request should be granted from aggregate review to individual project review. FERC ultimately declined to apply the new rule and denied rehearing. The panel affirmed. It held that the court had jurisdiction because the Commission had no notice that FERC would change the rule during the pendency of the motion for rehearing. Thus Commission was not required to raise issue in their motion for rehearing to obtain appellate review. The panel held the decision to not apply the new rule was reasonable given the interests of the applicant. Applying a deferential standard of review, the panel affirmed as to all five challenged incentives noting that each met the original criteria of being part of regional planning process facing local opposition and increasing the reliability of the electric grid. It finally held that FERC permissibly found that one project would increase reliability because replacing transformers now would limit delays in restoring service as compared to merely having replacements on hand.

United States v Zayyad

Zayyad was accused of trafficking counterfeit prescription drugs. At his trial, the district court prohibited cross examination about gray market goods and denied Zayyad’s motion for acquittal. The panel affirmed. Applying an abuse of discretion standard, the panel held that, because Zayyad never presented evidence that he thought the drugs he sold were gray market goods, any cross examination would have introduced irrelevant facts into evidence and confused the jury. The panel also noted that Zayyad was allowed to present gray market evidence through his testimony, but, chose not to testify and cannot know complain that gray market evidence didn’t come before the jury. As tot eh motion to acquit, the panel held that the facts presented-the drugs were not in normal packaging, were hidden in a van, other drugs were destroyed after his arrest, there were hundreds of pills and eth price was well below market rates- supported a guilty verdict either on actual knowledge or willful blindness grounds.


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