June 23, 2014 4th Circuit published opinions

United States v Adepoju

Adepoju was convicted of bank fraud and identity theft. He challenged his convictions and the application of the sophisticated means enhancement to his sentence. The panel affirmed in part vacated in part and remanded. It affirmed Adepoju’s convictions holding the testimony of a confidential informant and the bank demonstrated a scheme to defraud a federally insured or chartered bank, he delivered forged check to a confidential informant to carry out the scheme and he admitted that he knew he was using a real person’s identification to carry out eh scheme. The panel vacated Adepoju’s sentence holding that the district court improperly shifted the burden of proof to Adepoju and there was no evidence of anything beyond the fraud itself in record which is per se insufficient. The panel finally rejected a due process argument holding the jury returned a verdict which authorized the mandatory minimum sentence imposed for the identity theft.

Sartin v McNair Law Firm PA

Sartin sued Firm alleging malpractice in filing a late notice of appeal. The district court granted summary judgment to Firm ruling the 4th Circuit would have affirmed a rule of Civil Procedure 60(a) order directing Sartin to pay all of a sanctions award. The penal affirmed. It held that rule 60(a) orders are not limited to clerical errors but can change a judgment or order to clarify the court’s intent. Here, the district court judge who granted the Rule 60(a) motion stated it meant to have Satin pay all of the sanction award and the evidence from the original hearing demonstrated this was correct as the focus was on Sartin’s misbehavior at depositions.

United States ex rel. Ahumada v NISH

Ahumada sued NISH and others under the False Claims Act. After two defendants settled, the district court granted summary judgment to NISH and the remaining defendants. The panel affirmed. It held that as to all but one defendant, Ahumada based his allegations on newspaper articles or trial testimony and these claims were thus not allowed under the public discourse bar. As to the one defendant Ahumada may be an original source, his offered amended complaint failed to meet the pleading requirements of rule 9 as there was no factual allegations supporting an inference of fraud or conspiracy to commit fraud.

In re Norfolk Southern Railway Company

An employee sued Railway under the Federal employers’ Liability Act in state court. Railway removed the case to federal court and moved to dismiss arguing the employees injuries were covered by a federal workers compensation program. The district court remanded to state court based on 28 USC 1445(a) which bars removal of Liability Act cases filed in state court. Railway appealed and petitioned for mandamus relief. The panel dismissed. It held that a remand order under 1445(a) is one based on a defect raised within 30 days and the 4th Circuit thus lacked jurisdiction over the appeal under 28 USC 1447(d). Mandamus was inappropriate here as the district court did not rule on railway’s defense and it was not clear that the district court should have ruled on it.

United States v Louthian

Louthian was convicted of health care fraud and perjury. He challenged his convictions and sentence. The panel affirmed. It held there was sufficient evidence that Louthian knew that the patients in question could walk and do other physical activities yet lied about their condition in order to obtain Medicare reimbursement and the ambulance transportation provided was not medically necessary given the ability of the patients to drive themselves and do yard work. The perjury conviction was affirmed as it was up to the jury to determine if Louthian understood the question before the grand jury and lied under oath or merely misunderstood the potentially ambiguous question. The panel also held that the possibly inconsistent verdicts of convicting Louthian and acquitting the corporation Louthian was an officer at did not entitle him to relief as inconsistent verdicts are not a ground for a new trial. The panel affirmed Louthian’s sentence holding the failure to depart downward was unreviewable as the district court knew it could depart and in any event the sentence was a downward variance less than half the low end of Louthian’s guideline range. The panel finally affirmed the forfeiture order against Louthian holding the government was required to bring the forfeiture proceeding and all appropriate procedures were followed.

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