Fourth Circuit distinguishes physical restriant from force in Guidelines case

In United States v. Johnson, Rodney K. Johnson, Jr. pled guilty to two counts of aggravated sexual abuse after he raped and assisted another man in raping a woman. On appeal, Johnson argued that he should not have received a two-level enhancement for physical restraint of the victim under the Guidelines, § 3A1.3. He argued that the physical restraint factor was taken into account through his offense guideline, § 2A3.1, which required a four-level enhancement for forcible rape. The panel disagreed, holding that physical restraint is not the same thing as force. In other words, forcible rape may be committed without resort to physical restraint, as defined in the guidelines.

Under this definition the force element in § 2241(a)(1) may be satisfied without evidence of physical restraint similar to the examples (being tied, bound, or locked up) in the guidelines’ definition of physical restraint. In other words, the "use of force does not necessarily entail physical restraint." Arcoren, 929 F.2d at 1248. For example, a rapist could inflict blows upon his victim until she submits to a sexual act without restraining her in the manner contemplated by the physical restraint guideline, § 3A1.3. See United States v. Myers, 733F.Supp. 1307, 1309 (D. Minn. 1990). Similarly, an application of force to open the victim’s legs for intercourse has been deemed sufficient to satisfy § 2241(a)(1)’s force element, see United States v.
Williams,89 F.3d 165, 166, 168 (4th Cir. 1996), but this force would not constrain the victim’s movement in the manner contemplated by the physical restraint guideline.

McCain-Feingold takes a hit from SCOTUS

In FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO LIFE, INC., SCOTUS held that McCain-Feingold's ban on pre-election ads mentioning candidates by name and are paid for directly by corporations and unions was unconstitutional as it was applied to the advertisements at issue. The Court announced a new rule that would allow such ads to be banned only if the ad is "susceptible of no other interpretation than as an appeal to vote for or against a specific candidate." In other words, the corporation could run an ad criticizing policies, but not urging that the electorate vote against the candidate. Seems like the courts will be very busy deciding whether ads fall into the former or latter categories. In my opinion, political speech fully protected under the First Amendment and McCain-Feingold is an affront to the Constitution.

SCOTUS holds student could be suspended for "Bong Hits" banner

In Morse v. Frederick, students were released from Juneau-Douglas High School to watch the Olympic torch pass by. Frederick, who had not attended school that day, joined some friends on the sidewalk across from the high school (off school grounds). Frederick and his friends waited for the television cameras so they could unfurl a banner reading "Bong Hits 4 Jesus." When they displayed the banner, then-principal Deborah Morse ran across the street and seized it. Morse initially suspended Joseph Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to 10 days after he refused to give the names of his fellow participants. The Ninth Circuit held that the Principal's action violated Frederick's rights under the First Amendment. The question presented is whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty supervised events.

To my surprise, SCOTUS held that because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.

In dissent, Justice Stephens would have held that there was no First Amendment violation, but would have granted Morse qualified immunity.

In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.

SCOTUS holds there is no taxpayer standing under Establishment Clause to challenge executive branch actions

In Hein v. Freedom From Religion, SCOTUS considered whether a taxpayer has standing to sue under the Establishment Clause for alleged Executive Branch violations. The President, by executive orders, created a White House office and several centers within federal agencies to ensure that faith-based community groups are eligible to compete for federal financial support. Congress never authorized these entities. The directors of these federal agencies were sued under the Establishment Clause.

In a splintered decision, the Court held there was no standing. The Court narrowly read Flast v. Cohen, 392 U. S. 83 (1968), in which it recognized an exception to the general rule against federal taxpayer standing. Under Flast, a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. Because Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches--they were paid for out of general Executive Branch appropriations--Flast did not confer standing.

What's happening with Fourth Circuit nominations??

In the National Law Journal, Carl Tobias argues that Dubya best get moving on Fourth Circuit appointments.

Active judgeships are premised on conservative case- and workload estimates. A court might briefly operate well absent a third of its members, but five openings will exact a toll. The pressure will intensify on the judges to resolve promptly, economically and fairly 5,300 annual filings. Indeed, the 4th Circuit now grants published opinions at the smallest rate (8%) and oral arguments at the next lowest (12%), which are crucial measures of appellate justice, although it continues to decide cases as fast as the 11 other tribunals, requiring only an average of 9.5 months. However, the court will reach a tipping point and find that the quality of justice is declining.

Some firms move to two tier pay scales for associates

Interesting article at Law.com on how some firms are addressing work-life balance issues. Some firms are creating a two-tier compensation structure that pays associates that work 2,000 hours a year on an X scale, while associates who work less will remain on a Y scale.
Twice a year associates can, based on their last 12 months of work, move into the 2,000-hour tier. Once a year, associates can move back into the less-than-2,000-hour option.

SCOTUS holds that courts may presume sentence imposed with the Guidelines is reasonable

In Rita v. United States, SCOTUS held that when the federal courts of appeals review federal sentences for reasonableness, the courts may presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence.

the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one.

SCOTUS clarifies pleading requirements under PSLRA

Under the Private Securities Litigation Reform Act (“PSLRA”), Congress imposed a heightened pleading standard on plaintiffs and required them to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” In interpreting "strong inference," SCOTUS held (TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD.) that a trial court

must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant’s conduct. To qualify as “strong”within the intendment of §21D(b)(2), we hold, an inference of scienter must be more than merely plausible or reasonable--it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.

Fourth Circuit affirms district court's jurisdiction to uphold arbitration award under jurisdictional amount

In CHOICE HOTELS INT’L v. SHIV HOSPITALITY, Choice Hotel filed a complaint in federal district court seeking seeking $116,432.28 . The arbitrator ultimately awarded $59,208.75. When Choice moved to confirm the award in the district court, Shiv argued that because the award was less than the $75,000 jurisdictional amount for diversity cases, the district court did not have jurisdiction. The Fourth Circuit disagreed:

Choice Hotels demanded well over $75,000 in its complaint, and there is no allegation that claim was not in good faith. That Choice Hotels did not win a judgment in arbitration for that amount is irrelevant in this context. "Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction." St. Paul Mercury Indem. Co. v. Red Cab Co.,303 U.S. 283, 289-90 (1938); see Hood v. Bell, 84 F.2d 136, 137 (4thCir. 1936) (holding that a court does not lose diversity jurisdiction"because of a subsequent change in the conditions upon which jurisdiction was originally based"). Because the district court simply stayed this action, and then reopened it to confirm the award, we must determine the amount in controversy from the complaint itself. We therefore hold that the district court had subject matter jurisdiction under § 1332 because the good faith amount in controversy contained in Choice Hotels’ complaint well exceeded the $75,000 threshold.

S.C. Court of Appeals issues hand of one opinion

In State v. Thompson, Thompson challenged the hand of one charge which led to his conviction. Testimony in this case established that the codefendant, Sturkey, entered the apartment without permission, during the nighttime, with a gun, and intended to commit the crime of armed robbery. Thompson was implicated in the common plan or scheme because there was evidence that Thompson asked a co-defendant if she knew of a "lick" (i.e., someone to rob), then later spoke to her on the phone about a possible lick. The evidence further established Thompson then showed up with Sturkey at the apartment complex where Harris informed him there was a possible lick, and Thompson was present in the vicinity while Harris and Sturkey planned the robbery.

Thus, under the hand of one is the hand of all theory of accomplice liability, acts committed by Sturkey were imputed to Thompson making him guilty of any acts done incidental to the execution of the common design or scheme of the crime.

SCOTUS refuses to apply anti-trust laws to securities case

In CREDIT SUISSE SECURITIES (USA) LLC v. BILLING, buyers of securities brought an antitrust action against underwriting firms that market and distribute those issues. The buyers claimed that the underwriters unlawfully agreed with one another that they would not sell shares of a popular new issue to a buyer unless that buyer committed (1) to buy additional shares of that security later at escalating prices (a practice called “laddering”), (2) to pay unusually high commissions on subsequent security purchases from the underwriters, or (3) to purchase from the underwriters other less desirable securities (a practice called “tying”). SCOTUS held that the issues were governed bu the federal securities laws and not federal anti-trust statutes. In support of its decision, SCOTUS cited (1) the existence of regulatory authority under the securities law to supervise the activities in question; (2) evidence that the responsible regulatory entities exercise that authority; and (3) a resulting risk that the securities and antitrust laws, if both applicable, would produce conflicting guidance, requirements, duties, privileges, or standards of conduct.

SCOTUS holds that a passanger is siezed under the Fourth Amendment when the police stop the driver's automobile

In BRENDLIN v. CALIFORNIA, officers stopped a car to check its registration without reason to believe it was being operated unlawful. One of the cops recognized Brendlin as a parole violator. The cops arrested him, searched the car and the driver. The police found methamphetamine paraphernalia and charged Brendlin with possession and manufacture. Brendlin moved to suppress the evidence obtained in searching his person and the car, arguing that the officer slacked probable cause or reasonable suspicion to make the traffics top, which was an unconstitutional seizure of his person. The State Supreme Court held that suppression was unwarranted because a passenger is not seized as a constitutional matter absent additional circumstances that would indicate to a reasonable person that he was the subject of the officer’s investigation or show of authority.

The United States Supreme Court reversed. According to the Court:

We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra,at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.

Agreed. When the police stop a car, no one believes he is at liberty to simply exit the vehicle and walk away. SCOTUS got this one right.

S.C. Court of Appeals limits release of parties in a settlement agreement

In Ecclesiastes Production Ministries v. Outparcel, the Court of Appeals narrowly interpreted a settlement agreement containing the following language: "and any other persons, firms, or corporations who are or may be liable, now or in the future, from any and all claims...." A third party attempted to take advantage of this language in moving for a directed verdict. The trial court granted the motion, but the Court of appeals reversed. The Court of Appeals held that the Settlement Agreement was exclusively between the two signatories. Despite the third party’s urging to the contrary, the release of “any other persons, firms, or corporations" etc., was interpreted to only include those persons and entities involved in the claims directly between the two signatories.

S.C. Supreme Court reverses conviction on chain of custody grounds

In State v. Sweet, a jury found Sweet guilty for offenses related to the distribution and possession of crack cocaine within the proximity of a school. On appeal, Sweet argued that the trial court erred in admitting evidence with a defective chain of custody. The Supreme Court reversed the distribution convictions on chain of custody grounds. No witness saw Sweet give drugs to the confidential informant and the informant was not called at trial. Without the testimony of the confidential informant, the State’s proof failed to establish a complete chain of custody for the drugs. According to the court:

None of the chain of custody witnesses testified to seeing inside the motel room in order to establish who was in the room making the alleged transaction. Additionally, none of the witnesses who heard only “one other voice” over the informant’s body wire could affirmatively identify this voice as being that of Appellant. Although Greenville police officers testified to a brief search of the informant both before and after the incident, and that they observed no other individuals enter or exit the room during their surveillance, this circumstantial evidence does not show how the informant came into possession of the drug evidence and in what condition he received it. Because the officers’ testimony does not fill the gap in the chain of custody left by the unavailable informant, the trial court erred in admitting the drug evidence received by the confidential informant.

Fourth Circuit issues enemy combatant opinion

In ALI SALEH KAHLAH AL-MARRI v. WRIGHT, the Fourth Circuit considered enemy combatants and the war on terror. Marri has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, attacks to study for a master's degree at Bradley University. Federal investigators found credit-card numbers on Marri's laptop and charged him with credit-card fraud. Upon further investigation, the government said, agents found evidence that he had links to al-Qaeda terrorists and was a national security threat. Authorities shifted his case from the criminal system and moved him to indefinite military detention. The Government has never claimed that he is a member of any nation’s military, has fought along side any nation’s armed forces, or has borne arms against the United States any where in the world. The Government defended the detention on the grounds that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.”

The divided panel held that the "President lacks power to order the military to seize and indefinitely detain al -Marri. If the Government accurately describes al-Marri’ s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian." Hence, the panel suggested that the government try him in the civil justice system rather than holding him indefinitely.

District Judge Hudson, sitting by designation, dissented:

I believe the district court correctly concluded President had the authority to detain al-Marri as combatant or belligerent. Although al-Marri was not engaged in armed conflict with U.S. forces, he is stealth warrior used by al Qaeda to perpetrate terrorist against the United States. Al-Marri’s detention is under the AUMF “to prevent any future acts of international terrorism against the United States.” AUMF § 2(a). setting aside the amorphous distinction between combatant” and an “enemy belligerent,” there is little evidence that al-Marri was present in the United States and further the hostile and subversive activities organization responsible for the terrorist attacks that September 11, 2001.

I'll bet anyone $100 that this case will be en banced. At least the old Fourth Circuit would have. Considering that Dubya has five vacant seats he has not filled--who knows for sure. However, I'd guess that Judges Wilkins, Wilkinson, Niemeyer, Weidner, Traxler, Williams, Shedd and maybe Duncan will want to take a second look at this. The panel opinion was written by Judge Motz and joined by Judge Gregory--the Court's two most liberal members. This opinion is also Motz' audtion for the Supreme Court in case Hillary or a Democrat wins the White House.

That's not to say Judge Motz got this one wrong. In Hamdi, the Supreme Court addressed "whether the Executive has the authority to detain citizens who qualify as 'enemy combatants'" (i.e., individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States in Afghanistan). It answered the question in the affirmative. The purpose of the detention of enemy combatants, it has always been argued, is to prevent their return to the battlefield. The government has obviously widened (or has it?) its definition of battlefield and asserts that terrorists captured within the U.S. (citizen or not) can be held indefinitely as enemy combatants. This invests the Executive with a massive amount of power and should give us pause so long as the civilian court system is operational and capable of hearing evidence against the alleged terrorists.

Al-Marri has never been on a battlefield and perhaps should be tried in the Court system.

S.C. Supreme Court makes it easier for alcohol evidence to be admitted at trial

In Lee v. Bunch, an automobile accident case, the Court of Appeals found that the probative value of Lee’s alcohol consumption prior to the accent was at best, slight. The court focused on the fact that Lee’s blood alcohol level was under the legal limit pursuant to the driving under the influence (DUI) statute.

The State Supreme Court reversed. The Court noted that although Lee’s blood alcohol level did not implicate a criminal DUI offense, testimony of Bunch’s experts constituted probative evidence of Lee’s impairment that arguably contributed to the accident. Bunch’s experts, relying on the blood alcohol level of 0.036% taken several hours after the accident occurred, estimated that Lee’s blood alcohol level at the time of the collision was closer to 0.066% or 0.096%. At that level, according to Bunch’s experts, Lee’s alcohol consumption would have negatively affected Lee’s judgment and his ability to multi-task, thus impairing his motorcycle driving skills. The Court also took into account evidence from other witnesses that Lee was speeding and that the impact occurred across the center line. Thus, the alcohol consumption prior to the accident was not inadmissible under Rule 403.

South Carolina Supreme Court rejects Zoloft Defense in Pittman case

Well, the Christopher Pittman case has made its way through the state appellate court system and the conviction was affirmed. Pittman was arrested and charged with double homicide in connection with the deaths of his paternal grandparents. Pittman was twelve years old at the time of the incident. Pittman was tried as an adult and the jury convicted him of both murders and the trial judge sentenced Pittman to two concurrent terms of thirty years imprisonment.

The case gained much notoriety in connection with the Zoloft defense, by which counsel argued that trial court erred in failing to charge the jury on the lesser included offenses of involuntary and voluntary manslaughter. In South Carolina, involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.

Pittman argues that he was entitled to an involuntary manslaughter charge because the killing of his grandparents was unintentional and reckless. Pittman claimed that taking Zoloft was a “lawful activity” because he was taking medicine prescribed to him by his doctor, and while under the influence of the legally ingested Zoloft, he killed his grandparents “unintentionally.” The trial court expressed reservation in accepting defense counsel’s argument that the ingestion of Zoloft satisfied the lawful act component required for an involuntary manslaughter charge. The trial court also found there was “no evidence under the law that this conduct was reckless conduct.”

The Supreme Court concluded that Pittman's conduct extended far beyond recklessness:

The record reflects that after a confrontation with his grandfather, Appellant deliberately waited until his grandparents retired to bed, retrieved his shotgun, loaded the shotgun, entered their bedroom, and intentionally shot his grandparents. Although Appellant argues that the shootings were unintentional and reckless, he submitted no evidence to support that finding. Like the trial court, we find the defense’s argument that the ingestion of Zoloft qualifies as a lawful act in the context of an involuntary manslaughter charge to be unconvincing. Accordingly, we conclude that the record contains no evidence upon which a jury could find that these killings were unintentional and a result of recklessness. Therefore, the trial court did not err in failing to charge the jury regarding involuntary manslaughter.

Christopher Pittman's Conviction is affirmed

Christopher Pittman, who gained much notoriety after killing his grandparents and raising the use of Zoloft as part of his defense, had his conviction affirmed by the state Supreme Court. The opinion can be found here.

CNN has this story.

I'll post more on the case later today or in the morning.

Studies show the death penalty deters murder

From the AP:

What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument — whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

SCOTUS to decide whether words "natural family" are hate speech

In essence, the City of Oakland allowed a homosexual group access to the City's e-mail to announce National Coming Out Day, but refused similar access to a Christian group to promote the traditional family. The Washington Times has this report.

Axing the Billable Hour

From Law.com:

A group of Heller Ehrman lawyers is making bold recommendations -- including doing away with the billable hour -- to keep women from leaving their law firm careers.

Countering what has become known as the "opt-out revolution," in which women ditch corporate America mid-career to be homemakers, the attorneys created what they call the opt-in project.

Don't get me wrong--I'm all for women having careers and doing well. But, how about axing the billable hour because it would make all our lives better? Man, woman, child, client, associate, etc?

South Carolina Attorney General Prepares to Sue North Carolina over Water

From the Daily Comet:

Attorney General Henry McMaster, worried about North Carolina plans to transfer millions of gallons of water from rivers flowing into South Carolina, has said for months he plans to sue the neighboring state.His office said Tuesday it plans a "major announcement in the state's water war with North Carolina," but McMaster, contacted by The Associated Press, did not say exactly what he planned to say on Thursday.

"The plan, of course, has always been to go to the Supreme Court," he said. "That is what we have planned from the very beginning."South Carolina opposes plans by the cities of Concord and Kannapolis to pump up to 10 million gallons a day from both the Catawba and Yadkin river basins, both of which cross the state line.

Both McMaster and Gov. Mark Sanford oppose the water transfer.McMaster wrote North Carolina Attorney General Roy Cooper in December, saying residents who live near the Catawba and Wateree rivers in South Carolina have urged him to "take whatever legal action is necessary to protect South Carolina's interests and rights. We are preparing to do so."

S.C. Supreme Court holds that probation may not be revoked for breach of agreement with DPPS

In State v. Stevens, Stevens was on probation following 2002 convictions for stalking and domestic violence of a high and aggravated nature. While on probation in 2005, DPPPS--not the Court-- entered an agreement with Stevens that he would be electronically monitored and would also to avoid certain “exclusion zones” areas near the former girlfriend’s home and work. He entered an exclusion zone and DPPPS issued a probation revocation warrant. His probation was revoked.

The state Supreme Court held that statutory law permits DPPPS to impose “conditions of supervision” which “enhance…court imposed conditions” of probation. Enhancing Court conditions does not equate with the power to set its own conditions. Where monitoring is imposed by the court, DPPPS may require the probationer to participate in the GPS program as a condition of supervision under § 24-21-430 because this program would “enhance…court-imposed conditions.” Here, however, DPPPS could not unilaterally impose GPS monitoring on Stevens and thus his probation could not be revoked for violating the agreement between him and DPPS.

Former SC elementary school teacher pleads gulty to have sex with 11-year-old student

USA Today has this story.

Conrad out for Fourth Circuit Post

From the Charlotte News & Observer:

A North Carolina federal judge says he was told by the White House that he no longer is being considered for a seat on the U.S. 4th Circuit Court of Appeals in Richmond, Va.

U.S. District Court Judge Bob Conrad, 49, of Charlotte, said he received a telephone call in the past few weeks that he wasn't in line for an appeals court nomination by President Bush.

"I don't know why," Conrad said Thursday. "They didn't tell me. They didn't give me a reason."
Conrad was named by Bush as a U.S. attorney in 2001 and two years later was nominated for the judgeship.

There are three vacancies on the 15-member appeals court that hears appeals in Virginia, North and South Carolina, West Virginia and Maryland. Currently, the only North Carolina-based appeals court member is Judge Allyson Duncan of Raleigh.

Conrad said he was disappointed but is satisfied with his current job.

Senator Graham says he's fine with either Kittredge or Matthews

From the Greenville News:

U.S. Sen. Lindsey Graham said Thursday he has recommended the White House fill an impending vacancy on the 4th U.S. Circuit Court of Appeals with a state appellate judge from Greenville or a Columbia lawyer.

They are John W. Kittredge, 52, of Greenville, a South Carolina Court of Appeals judge since 2003, and Steve A. Matthews, 51, managing director of the Haynsworth Sinkler Boyd law firm.