Fourth Circuit dissent: Panel majority serves up “yesterday’s breakfast” for district court

Holding that a criminal trial was tainted by the admission of prior “bad act” evidence, a split Fourth Circuit panel yesterday reversed an individual’s drug and gun convictions. In addition to addressing the admissibility of prior bad act evidence, the opinion contains an extensive discussion of the detention of a vehicle for a canine sniff. Judge Keenan wrote the opinion for the court in United States v. McBride, in which Judge Gregory joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part.

The improperly admitted evidence consisted of reliable audio and video recordings of a prior drug transaction in which the defendant sold crack cocaine to a government informant. The panel majority reasoned that the evidence surrounding this earlier transaction, which took place 18 months prior to the charged conduct, “was unrelated in time, place, pattern, or manner to the conduct” for which the defendant was indicted. The panel majority further reasoned that it could not conclude that it was “highly probable that the error did not affect the judgment.”

Judge Wilkinson’s dissent argues that the appellate court’s decision “regrettably pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant’s criminal activity.” The dissent’s analysis begins with a comparison:

Appellant’s position overlooks simply this: that institutional relationships are to law what personal relationships are to life. And keeping the relationship of trial and appellate courts free of unwarranted encroachments is essential to the harmonious workings of our system. . . . The majority pays lip service to our deferential review of the district court’s evidentiary rulings, but fails to show any actual regard for the reasoned rulings of the trial judge in this case.

The dissent concludes by arguing that “[s]ending this case back to the district court for a second round diminishes the trial process”:

Retrials are like yesterday’s breakfast–always stale and seldom satisfying. Witnesses often try to remember what they said at the first trial rather than their actual recollections of the events in question. Everyone is farther removed from the events the trial process is designed to reconstruct. “The very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first.” Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part).

It does more than merely inconvenience participants to put them through the process twice. Retrials can be traumatic, and criminal trials especially so, as witnesses are brought back for a second time to relive troubling events. As for the jurors here, it reduces to insignificance the time they spent in civic duty listening to evidence and argument and weighing facts whose accuracy is in no way questioned. The majority treads no ground here that was not covered at trial, reviewed by the district judge, and assessed by the jury in rendering a fair verdict. I would let the verdict stand in full. The district court applied proper legal standards, followed case law from ours and other circuits, made a sound and considered evidentiary inquiry, and admirably discharged its obligations throughout. With all respect to my fine colleagues in the majority, the trial court should be commended, not reversed.

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Take note of this refresher on evidence law from the Fourth Circuit

The Fourth Circuit’s unpublished per curiam opinion in United States v. Rydland provides a helpful and concise discussion of some rules of evidence relating to the use of notes to refresh a witness’s recollection and to impeach the witness with prior inconsistent statements. The panel that issue the opinion consisted of Judge Wilkinson, Judge Motz, and Judge Shedd.

The panel distilled two key principles that governed the district court’s ruling: ” (1) a party may not attempt to introduce otherwise inadmissible evidence under the guise of refreshing recollection and (2) a witness may not use a document to refresh recollection unless she has exhibited a failure of memory.”

The panel’s distillation of these principles is interesting in itself. In a footnote, the opinion notes that the district court cited three cases, to which citations the opinion added explanatory text. The three citations were to a 2004 opinion from the First Circuit, a 1967 opinion from the Eighth Circuit, and a 1965 opinion from the Fifth Circuit. Presumably, the district court’s ruling was based on something like a reliable bench book containing established principles of evidence law, rather than on-the-spot electronic research into the latest decisions.

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A warning about paywalls when relying on social science evidence in defending the constitutionality of a law

The Fourth Circuit’s opinion in United States v. Staten, issued last month, contains several observations about the use of social science reports. The government relied on a number of studies to establish the rate of domestic violence, the rate of recidivism among domestic violence offenders, and the use of firearms by domestic violence offenders. The government did not, however, introduce paper copies of these reports in the district court, asserting that they were freely available over the Internet. The Fourth Circuit found this approach to be generally okay (though not the best practice), with one exception:

We believe the far better practice is for the government to offer copies of whatever reports/articles upon which it seeks to rely in attempting to carry its burden under intermediate scrutiny for inclusion in the record at the district court level. However, with respect to the reports upon which the government relies in the present case, because Staten has never disputed the accuracy of either the government’s representations as to their ready availability via the Internet or the accuracy of the government’s representations as to their content, we reject Staten’s argument that the government cannot rely upon the reports to meet its burden under intermediate scrutiny in this case. We also note that, with one exception which we will address later in this opinion, we had no trouble viewing such reports via the Internet using the websites included in the addendum to the government’s appellate brief.

The one exception was an article from the Journal of the American Medical Association, which required a paid subscription for access to the full text. Senior Judge Hamilton, writing for the Fourth Circuit panel, wrote:

The online citation provided by the government for the full-text version of this report requires a paid subscription to the Journal of the American Medical Association. Fortunately for the government, we were able to confirm the accuracy of the government’s citation to our full satisfaction by viewing an abstract of the report on the Internet website for the Journal of the American Medical Association and by observing that the Seventh Circuit, sitting en banc, cited the same report for the same statistic in Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the government on notice that, while it caught a break under the circumstances this time, if a social science report, article, or raw data upon which it relies is not readily available free of charge on the Internet, the government must offer a paper copy in the district court for the record in order for it to be considered.

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Two published Fourth Circuit opinions by Judge Wynn on admissibility of expert testimony in medical malpractice case under Virginia law and statutory standing under the Telecommunications Act of 1996

The Fourth Circuit issued two published opinions in argued cases today. Judge Wynn authored both opinions, which were unanimous.

At issue in Creekmore v. Maryview Hospital was the admissibility, under Virginia Code § 8.01-581.20, of the testimony of an OB-GYN about the standard of care for a nurse’s postpartum monitoring of a high-risk patient with preeclampsia. The district court admitted the testimony and the court of appeals affirmed. The panel deciding the appeal consisted of Judge Wilkinson, Judge Wynn, and Judge Floyd.

In CGM, LLC v. BellSouth Telecommunications, the Court of Appeals held that a billing agent for competitive LECs lacked statutory standing to bring an action for declaratory relief against an incumbent LEC regarding the claim that the ILEC failed to pass on to CLECs the full value of discounts offered by the ILEC to its customers. No CLECs were parties in the case. Some key language:

CGM has no interconnection agreement with BellSouth. CGM has not brought this suit pursuant to any interconnection agreement. And no party to an interconnection agreement is a plaintiff in CGM’s suit. Because Section 251(c)’s resale duties and the related 47 C.F.R. § 51.613 are not free-standing but exist, to the extent that they do at all (given parties’ freedom to contract around them), only as embodied in interconnection agreements, CGM has no rights, and BellSouth no duties, under the circumstances of this case.

Although decided on statutory standing grounds, this case has some echoes of the Fourth Circuit’s decision on Article III standing in Neese v. Johanns:

In this case, any claim to a specific sum of money must flow from the contractual relationship between the Secretary and the producer. See 7 U.S.C. § 518b(a) (“The Secretary shall offer to enter into a contract . . . under which the producer of quota tobacco shall be entitled to receive payments under this section. . . .”) (emphasis added). Appellants, however, cannot maintain such a claim. After accepting the Secretary’s offer of payment contracts without reservation and entering into those contracts, they transferred all their rights under those contracts to third parties. Quite simply, appellants have no rights left to invoke and, therefore, lack standing to pursue further contracts or payments from the Secretary.

Procedure buffs may be interested in noting the court’s conclusion that a motion to dismiss for lack of statutory standing is properly brought under FRCP 12(b)(6) rather than FRCP 12(b)(1). It is also worth noting how easily the court dispatched the attempt to rely on the Declaratory Judgment Act as a free-standing cause of action.

The panel deciding CGM consisted of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith.

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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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