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Posts Tagged ‘Floyd’

The Fourth Circuit today unanimously affirmed the piracy and piracy-related convictions of Mohammad Shibin, a negotiator for Somali pirates in connection with the seizure of the American sailing ship Quest and the German merchant ship Marida Marguerite. Judge Niemeyer wrote the opinion in United States v. Shibin, in which Judge Motz and Judge Floyd joined. (For news coverage of the oral argument, see here.)

This summary begins the opinion:

On May 8, 2010, Somali pirates seized the German merchant ship the Marida Marguerite on the high seas, took hostages, pillaged the ship, looted and tortured its crew, and extorted a $5-million ransom from its owners. Mohammad Saaili Shibin, while not among the pirates who attacked the ship, boarded it after it was taken into Somali waters and conducted the negotiations for the ransom and participated in the torture of the merchant ship’s crew as part of the process.

On February 18, 2011, Somali pirates seized the American sailing ship the Quest on the high seas. A U.S. Navy ship communicated with the pirates on board in an effort to negotiate the rescue of the ship and its crew of four Americans, but the pirates referred the Navy personnel to Shibin as their negotiator. When the Navy ship thereafter sought to bar the pirates from taking the Quest into Somali waters, the pirates killed the four Americans.

Shibin was later located and arrested in Somalia and turned over to the FBI, which flew him to Virginia to stand trial for his participation in the two piracies. A jury convicted him on 15 counts, and he was sentenced to multiple terms of life imprisonment.

On appeal, Shibin contends that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction over those charges; (2) to dismiss all counts for lack of personal jurisdiction because Shibin was forcibly seized in Somalia and involuntarily removed to the United States; (3) to dismiss the non-piracy counts involving the Marida Marguerite because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made to him by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

We conclude that the district court did not err in refusing to dismiss the various counts of the indictment and did not abuse its discretion in admitting Agent Coughlin’s testimony. Accordingly, we affirm.

In the course of explaining why jurisdiction was proper over the non-piracy counts regardless of the presence or absence of universal jurisdiction, the Court explains that “Shibin was involved in hostage taking on the Marida Marguerite and was later found in Virginia, where he was prosecuted.” This is something of an understatement in normal parlance, but makes sense in legal parlance. As the court explains earlier in its opinion, Shibin’s presence in the United States satisfies the “found in” requirement even though that presence was involuntary on his part.

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The Fourth Circuit last week unanimously affirmed the dismissal of a Free Speech and related civil contempt claim brought by a Confederate veterans’ group who wish to fly the Confederate flag on city-owned flag standards in Lexington, Virginia during the group’s Lee-Jackson Day parade. Judge King wrote the opinion for the court in Sons of Confederate Veterans, Virginia Division v. Lexington, in which Judge Diaz and Judge Floyd joined. (For prior coverage, including links to early news stories, see How Appealing.)

Based on the facts described in the opinion, the Fourth Circuit’s decision seems to reach the right outcome on the First Amendment and civil contempt claims (although it would have been helpful to know a little bit more about the wording of the earlier consent decree). 

The interesting First Amendment issue raised by the case is the extent to which government motive matters when the government converts a designated public forum to a nonpublic forum. The relevance of legislative motivation is one of the most vexing issues in constitutional law, but the panel opinion does not provide too much discussion of this issue. 

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The Fourth Circuit issued a published opinion in two argued cases today. The result in each case was to vacate and remand a decision out of the Eastern District of Virginia. That may be all that the decisions have in common, however. The first decision left the central issue open for resolution on remand after articulating the legal test for the district court to apply, while the second decision resolved the central issue while seemingly adopting a newly constrictive test.

In Oberg v. Kentucky Higher Education Student Loan Corporation, the court addressed whether corporations organized by Kentucky, Pennsylvania, Vermont and Arkansas were “persons” subject to suit under the False Claims Act, or instead “state agencies” not subject to suit under the False Claims Act as interpreted in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787-88 (2000). The appeals court held that the district court applied the wrong legal test in deciding that the corporations were not subject to suit. The Fourth Circuit vacated and remanded for district court application of the test developed under the test that is also used for the “arm of the state” prong of sovereign immunity analysis. Judge Motz wrote the opinion for the court, in which Chief Judge Traxler and Judge Keenan joined.

In Friends of Back Bay v. U.S. Army Corps of Engineers, the court held that the Army Corps of Engineers improperly issued a permit without completing an EIS under NEPA. Among other things, the court near the end of its opinion aligned the Fourth Circuit with the Second Circuit in stating that “the policy goals underlying NEPA are best served if agencies err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.” I am not a NEPA expert, but the appellate court’s application of the various EIS factors and its adoption of the Second Circuit’s “substantial possibility” test seemed somewhat casual. Judge King wrote the opinion for the court, in which Judge Gregory and Judge Floyd joined.

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Federal law authorizes immigration authorities to detain a criminal alien without a bond hearing “when the alien is released” from some other custody, such as state imprisonment. See 8 U.S.C. 1226(c)(1). The Board of Immigration Appeals has held that this statute authorizes mandatory detention even if the immigration authorities arrest and detain the individual well after his state custody has ended. The Fourth Circuit held today in Hosh v. Lucero that the BIA’s determination was entitled to Chevron deference and that the immigration-law version of the rule of lenity did not require an alternative outcome. Senior Judge Moon (WDVA) wrote the opinion for the court, in which Judge Keenan and Judge Floyd concurred.

Several district courts have been on both sides of the issue resolved by the Fourth Circuit in this case, although the Fourth Circuit’s decision appears to be the first circuit-level decision on this issue.

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T-Mobile won yesterday in the Fourth Circuit, while New Cingular Wireless lost last week in the same court. Both cases involved challenges to the denial of applications to erect cell towers in localities. Both appeals resulted in affirmances of the relevant district court decision, supporting the appellate court’s description of these kinds of cases as fact-intensive.

Judge Diaz wrote yesterday’s opinion for the court in T-Mobile Northeast LLC v. Newport News, in which Judge King and Judge Gergel (DSC) joined.

Judge Agee wrote the opinion for the court in New Cingular Wireless, PCS, LLC v. Fairfax County Board of Supervisors, in which Judge Davis and Judge Floyd joined.

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The Fourth Circuit decided today in Ignacio v. United States that the Federal Tort Claims Act waives the immunity of the United States for intentional torts committed by law enforcement officials, regardless of whether the official was engaged in a law enforcement activity when he committed the intentional tort. Judge Floyd wrote the opinion for the court, which was joined in by Judge Shedd and Judge Diaz. Judge Diaz also authored a separate concurrent. According to the opinions, the decision creates a circuit split with the Third and Ninth Circuits. See Orsay v. United States, 289 F.3d 1125, 1134 (9th Cir. 2002); Pooler v.  United States, 787 F.2d 868, 871-72 (3d Cir. 1986).

The case arises out of a dispute on December 2, 2009 between a Pentagon police officer (Lane) and a contract security officer (Ignacio) who were assigned together to the same security checkpoint for Pentagon employees. The two disagreed over the caliber of an M-16 round. “Initially, their disagreement led only to a bet. It escalated, however, on December 15, when they were again stationed at a security checkpoint for Pentagon employees. Lane allegedly told Ignacio that he would ‘hurt him after work’ and then pretended to punch him in the face.” This led to workplace discipline and, eventually, a lawsuit. The United States sought summary judgment on the basis of an exception from the FTCA’s waiver of sovereign immunity.

The FTCA (i) waives the sovereign immunity of the United States for certain torts committed by federal employees, (ii) excepts certain intentional torts from this waiver, and (iii) then excepts from this exception intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. 2680(h). This exception from an exception from the waiver of sovereign immunity is known as the “law enforcement proviso.” Other circuits interpreting this proviso have limited its application to torts committed by investigative or law enforcement officers in the course of investigative or law enforcement efforts. Applying that interpretation, the district court (Judge O’Grady, EDVA) granted summary judgment to the United States.

In reversing and remanding, the Fourth Circuit faulted the other circuits for “relent[ing] to secondary modes of interpretation without first establishing the ambiguity of the statutory text.”  According to Judge Floyd, the text of the proviso is clear and contains no limitation of the sort read in by the other circuits.

In his separate concurrence, Judge Diaz acknowledges that the interpretation adopted by the court “leads to the anomalous situation in which the federal government could be liable for the actions of a law enforcement officer but would be immune from liability for the same conduct committed by another federal employee under the same circumstances.” This result “can be criticized as inconsistent and unreasonable,” but it is not  “so absurd as to allow us to alter the meaning–as other courts have–of an otherwise unambiguous statute.”

In light of the result and apparent circuit split, the United States may be interested in seeking additional review. Given the panel composition and outcome, the likelihood of obtaining a different ruling en banc is very low. If the Department of Justice determines that the issue is sufficiently important to seek certiorari, this case very well could end up before the Supreme Court. There are unresolved factual disputes about whether the Pentagon police officer was acting within the scope of his employment under Virginia law (a necessary predicate to liability under the FTCA), which could counsel against a grant of certiorari. Because sovereign immunity protects not simply against liability but also against having to answer in court at all, however, that consideration may carry less weight in this case.

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A split panel of the Fourth Circuit today affirmed the conviction of William White, the white supremacist “Commander” of the American National Socialist Workers’ Party, for threatening to injure or intimidate in violation of federal law. Judge Niemeyer wrote the opinion for the court in United States v. White. Judge Duncan joined in Judge Niemeyer’s opinion for the court and also authored a separate concurrence. Judge Floyd dissented.

The principal issue in the appeal is the appropriate mens rea for a “true threat” not entitled to First Amendment protection. White urged the Fourth Circuit to follow the Ninth Circuit’s decision in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005), by adopting a specific-intent-to-threaten requirement. The Fourth Circuit held that prior circuit precedent foreclosed that approach, and the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), was not a superseding contrary decision that required reexamination of circuit precedent.

The opinions feature extensive First Amendment analysis and include citations not only Supreme Court and Circuit Court of Appeals decisions, but also a student law review note, an article by Eugene Volokh, and an article by Frederick Schauer, among other authorities.

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