CA4: Anti-MLS Complaints State a Claim Under Section 1 of the Sherman Act

The Fourth Circuit held today in Robertson v. Sea Pines Real Estate that putative class actions challenging two MLS services in South Carolina under Section 1 of the Sherman Act could go forward. On interlocutory appeal, the appeals court affirmed denial of the defendants’ motion to dismiss. Judge Wilkinson wrote the opinion for the Court, in which Judge King and Judge Agee joined. The decision is notable not only for its discussion of Section 1 caselaw, but also for its application of Twiqbal.

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Profit margin on cocaine resale

The Fourth Circuit yesterday released an unpublished per curiam opinion in United States v. Stallworth affirming the life sentences of two individuals convicted of participating in a drug-trafficking conspiracy after having two prior felony drug convictions. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Agee.

According to the opinion, the conspiracy “would purchase a kilogram of cocaine for around $25,000 and then would cook it into crack cocaine, which members were able to sell for between $36,000 and $42,000.” If these numbers are accurate, they are surprising. For an activity that carries such serious consequences, one would expect the profit margin to be higher.

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Everything but footnote 8

The opinion line-up for United States v. Bell, a recent Fourth Circuit opinion ordering resentencing in a drug case, showcases a defection by two of the three judges. It reads as follows:

Judge Davis wrote the opinion, in which Judge Floyd and Senior Judge Hamilton joined except as to footnote 8. Senior Judge Hamilton wrote an opinion concurring in part and concurring in the judgment, in which Judge Floyd joined.

The defecting-inducing footnote states, in part:

Perhaps in some future case we might be required to decide whether a defendant in circumstances similar to Bell’s bears a burden of production as to his or her personal consumption of a validly prescribed medication. But that question is not before us; in this case, whatever burden of production Appellant Bell may have had was satisfied by the very evidence produced by the government itself, along with the drug screens and evidence of her longstanding legitimate medical needs. Thus, to the extent the concurrence purports to announce a rule imposing an “obligation” on such a defendant to produce evidence of personal consumption at sentencing, it constitutes mere dicta and, in any event, was not argued by the government.

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Fourth Circuit affirms conviction and sentence for former SEC lawyer who participated in “pump and dump” scheme

The Fourth Circuit today affirmed the conviction and sentence of a former SEC lawyer who advised and participated in a “pump and dump” securities fraud conspiracy. Judge Niemeyer authored the opinion in United States v. Offill, which was joined in by Judge Wilkinson and Judge Traxler. The opinion contains extensive discussion of the admissibility of expert testimony about complex legal schemes. Here is a taste:

We conclude that the specialized nature of the legal regimes involved in this case and the complex concepts involving securities registration, registration exemptions, and specific regulatory practices make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury. The jury in this case needed to understand not only federal securities registration requirements but also the operation of several obscure Texas Code provisions and their relationship with the federal regime. To be sure, the ultimate responsibility for instructing the jury on the law belonged to the district court, but we cannot conclude that in these circumstances the district court abused its discretion by concluding that the expert testimony presented in this case would assist the jury. Indeed, we find it difficult to imagine how the government could have presented its case against Offill without the assistance of expert testimony to explain the intricate regulatory landscape and how securities practitioners function within it.

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Fourth Circuit affirms drug conspiracy conviction and sentence while warning that evidence is close to the lower boundary of acceptability

In United States v. Hackley, the Fourth Circuit today affirmed the conviction and sentence for several offenses arising out of a drug conspiracy. Judge Duncan authored the opinion, which was joined in by Judge Davis and Judge Diaz. While the ultimate outcome favors the prosecution, the language in the opinion strikes a cautionary note for federal prosecutors. The opinion begins as follows:

James Richard Hackley (“Hackley”) was convicted of several offenses related to his sale of cocaine base to a government informant and subsequent efforts to have that informant—the lead witness in the government’s case against him—murdered. Hackley challenges his convictions, the joinder of the charges into a single trial, the court’s refusal to grant him new counsel, and his sentence. Although the facts in this case come perilously close to the lower boundary of what we will accept as substantive evidence of a conspiracy to distribute drugs, for the reasons discussed below, we affirm.

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Catching up with the Fourth Circuit’s five published opinions this past week (and one from the prior week)

It’s been a busy week here in Richmond, and I’ve fallen behind a bit in passing along notable Fourth Circuit opinions. Here’s a catch-up post reporting on six published opinions: five from this past week, and one from the week before that.

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From release for insufficient evidence (state) to a 400-year sentence affirmed on appeal (federal)

The Fourth Circuit yesterday released an unpublished opinion affirming the conviction of, and 400-year sentence imposed upon, Timothy Poole. Judge Duncan wrote the opinion, in which Judge Agee and Senior Judge Damon Keith (of the Sixth Circuit) joined.

Poole was convicted of several counts of mail and wire fraud, and one count of conspiracy to commit mail fraud. The heavy sentence resulted from the application of a first-degree murder cross-reference. The government alleged and proved that Poole killed his adoptive mother and her husband in an attempt to inherit from his adoptive mother’s estate. Interestingly, Poole was first arrested and charged in the state system, but was released by a part-time magistrate who found insufficient evidence to present Poole’s case to a grand jury. Earlier news coverage here and here.

 

 

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