Feeds:
Posts
Comments

Posts Tagged ‘Floyd’

The Fourth Circuit has certified two questions to the Virginia Supreme Court.

One certified question involves the interpretation of a homeowners insurance policy under Virginia law:

For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from [the covered home’s] drywall unambiguously excluded from coverage under the policy because it is loss caused by: (a) “mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage itself”; (b) “faulty, inadequate, or defective materials”; (c) “rust or other corrosion”; or (d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste”?

The per curiam unpublished certification order in Travco Insurance Company v. Ward was entered by a panel consisting of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith. The panel heard oral arguments on September 20, 2011. The court’s reasoning with respect to certification is not that extensive for the amount of time that this appeal has been pending.

The other certified question arises out of the employment context:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer, such as a supervisor or manager, but who participated in the wrongful firing of the plaintiff?

Judge Floyd authored the certification order in VanBuren v. Grubb, on behalf of a panel that also included Judge Niemeyer and Judge Motz. The reasoning in favor of certification is much more extensive than in Ward. In addition to noting that the Virginia Supreme Court has not addressed this issue, the order notes that no consensus has arisen among Virginia’s trial courts and that other states are split on the issue.

Advertisements

Read Full Post »

Applying Virginia law, the Fourth Circuit today interpreted a commercial insurance policy that required the insurer to “pay for all loss resulting from a claim for a wrongful act” to include coverage for liquidated damages and attorneys’ fees that may be ordered in a FLSA overtime and backpay case. The court held that the insurer had a duty to defend its insured and a duty to indemnify beyond any payments due as back wages. (Back wages would not be “losses” “caused” by the FLSA violation, but rather payments that must be made according to a pre-existing duty.)  Judge Niemeyer wrote the opinion for the court in Republican Franklin Insurance Company v. Albemarle County School Board, in which Judge Motz and Judge Floyd joined.

Read Full Post »

A split panel of the Fourth Circuit held today that BP could enforce a restrictive covenant in a deed against a purchaser who sought to use the purchased property for a gas station selling different gas than agreed to in the sale of the property. Chief Judge Traxler wrote the opinion in BP Products, North America, Inc. v. Stanley, which was joined in by Judge Shedd. Judge Floyd authored a dissenting opinion.

From the majority opinion:

The parties agree that under Virginia law, covenants “restricting the free use of land are not favored and must be strictly construed.” Mid-State Equip. Co. v. Bell, 225 S.E.2d 877, 884 (Va. 1976). They disagree, however, regarding the test by which such covenants should be judged. Defendants argue that the restriction should be judged by the standard discussed in Omniplex World Services Corp. v. U.S. Investigations Services, Inc., 618 S.E.2d 340, 342 (Va. 2005), which applies to noncompete covenants in employment contracts. BP contends that restrictive covenants in deeds are judged by a different standard, namely the one discussed in Merriman v. Cover, Drayton & Leonard, 51 S.E. 817, 819 (Va. 1905), and that the Omniplex and Merriman tests are distinct from one another. We agree with BP.

* * *

BP advances multiple arguments challenging the ruling by the district court that the PR was overbroad as a result of its
application to the sale of these enumerated items. BP first argues that, as a petroleum refiner, it has a legitimate business
interest in prohibiting the sale of any products that would dilute the demand for BP’s petroleum. BP also maintains that
the PR should be read to prohibit the sale of kerosene, benzol, or naphtha only to the extent those products are used for the
sale of fuel for internal combustion engines. Finally, BP argues that it is not seeking to prevent the sale of lubricants and that any prohibition of such sales “is academic and represents far too slender a reed on which to invalidate the entire Petroleum Restriction, and thereby allow Stanley to use the Property to sell non-BP fuel, the very use the parties indisputably intended that the Property could not be put.” Appellant’s brief at 48.

From the dissent:

BP contends that we can enforce the PR regardless of any overbreadth simply by excising the offending language. And, since oral argument, BP purportedly has released Stanley from the overbroad portions of the PR. See Ante at 13 n.3. Nevertheless, I cannot conclude that the PR becomes enforceable through alteration by the court or BP. First, Virginia law disfavors judicial reformation of covenants through bluepenciling. See Strategic Enter. Solutions, Inc. v. Ikuma, No. CL 2008-8153, 2008 WL 8201356, at *4 (Va. Cir. Ct. Oct. 7, 2008) (“The Virginia Supreme Court has not directly ruled on ‘blue-penciling’ overly broad clauses in restrictive covenants[;] however it is clear from the restrictive covenant jurisprudence in Virginia that the Court does not entertain the notion that these disfavored restraints on trade should be reformed by the judiciary . . . .”); Daston Corp. v. MiCore Solutions, Inc., No. CL-2010-9318, 2010 WL 7375597, at *5 (Va. Cir. Ct. July 30, 2010); Better Living Components, Inc. v. Coleman, No. CH04-13,307, 2005 WL 771592, at *5 (Va. Cir. Ct. Apr. 6, 2005). More fundamentally, however, Virginia law supports narrowly drawn covenants that are reasonable, and general public policy encourages parties to draft precise language on which all participants to a contract can  rely. Allowing BP, a multinational, sophisticated corporation, to draft blatantly overbroad restrictions and then, when challenged, simply declare that such restrictions are a mistake and meaningless not only is contrary to basic contract principles, but also is detrimental to the public interest. Accordingly, I find that the PR’s overbreadth spoils its enforceability and dissent from the majority’s contrary conclusion.

Read Full Post »

A wife obtained a domestic violence protective order in Alexandria (VA) Juvenile & Domestic Relations Court against her husband based on his aggressive behavior and threat to kill her (a threat made credible, in part, by her husband’s prior combat experience in the Navy). The order included a bolded, all caps warning stating that “while this protective order is in effect, you may be subject to a federal penalty under the 1994 amendment to the Gun Control Act, 18 U.S.C. § 922(g)(8), for possessing, transporting, or receiving a firearm.” Here’s what happened next:

Just over one hour after the court issued the order and an officer served it on [the husband], [he] entered the Sharpshooters firearms retail store and small arms range in Lorton, Virginia. There, [he] paid for a monthly membership, rented a Glock 22 handgun, and purchased two boxes of ammunition containing fifty rounds each. He proceeded to a firing lane for approximately thirty minutes of shooting, after which he returned the gun and left the range. Shortly thereafter, [the wife] contacted the police when she arrived home to find [the husband’s] Sharpshooters membership card near the door inside her apartment.

The husband was convicted and sentenced on two counts of possessing a firearm or ammunition in violation of 18 U.S.C. § 922(g), which prohibits possession by individuals subject to a domestic violence protective order. On appeal, the husband argued that his convictions violated the Second Amendment and that it was plain error to convict and sentence him on two separate counts for the simultaneous possession of a firearm and ammunition.

In a unanimous opinion authored by Judge Wilkinson, and joined by Judge Wynn and Judge Floyd, the Fourth Circuit held in United States v. Mahin that the convictions did not violate the Second Amendment but that it was plain error to convict and sentence on two counts instead of one.

From the Second Amendment analysis:

[O]ur precedent indicates the district court is not required to speculate on a case-by-case basis what violent acts may have unfolded had the government failed to prosecute under § 922(g)(8). In Chapman we noted specifically that a conviction under § 922(g)(8)(A)-(B) and (C)(ii) is constitutional even if the statute’s “prohibitory net . . . may be somewhat over-inclusive” in reaching persons who would not misuse a firearm if permitted to possess one. Chapman, 2012 WL 11235, at *8. For intermediate scrutiny has never been held to require a perfect end-means fit. It is sufficient that § 922(g)(8) rests on an established link between domestic abuse, recidivism, and gun violence and applies to persons already individually adjudged in prior protective orders to pose a future threat of abuse. The obvious utility of Congress’ chosen means in advancing Congress’ indisputably important ends relieves trial courts of the need to ruminate in every case on what might have been if not for an indictment under § 922(g)(8).

From the plain error analysis and conclusion:

In United States v. Dunford, 148 F.3d 385 (4th Cir. 1998), we held that the defendant’s simultaneous possession of multiple firearms and ammunition supported only one count of conviction under § 922(g). Mahin’s indictment included two counts under §922(g)(8), one for the possession of a firearm and the other for the simultaneous possession of ammunition at the Sharpshooters firing range, which under Dunford constitutes only one violation. In light of Dunford, we agree with Mahin that the district court committed plain error in convicting and sentencing Mahin on both counts of the indictment. Because the court sentenced Mahin on each count and imposed a special assessment of $100 for each conviction, its rror affected Mahin’s substantial rights. We therefore affirm Mahin’s conviction under 18 U.S.C. § 922(g)(8) as to count one, reverse his conviction as to count two for possession of ammunition while subject to a protective order, vacate his sentence, and remand for the limited purpose of resentencing in accordance with this decision.

Read Full Post »

The Fourth Circuit’s unanimous opinion today in United States v. Strieper affirms the imposition of two sentencing enhancements on attempted enticement and child pornography charges. Judge Floyd wrote the opinion, in which Chief Judge Traxler and Judge Shedd joined.

Among the issues discussed is whether one can attempt to entice without having identified a particular minor to entice. The panel believed so:

At oral argument, Strieper also suggested that there must be an identifiable victim to constitute an attempt. This argument did not appear in Strieper’s brief, and as such, it is waived. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). In addition, this position lacks merit, as it is well established that attempt requires only the requisite intent to commit the crime and a substantial step toward its commission. United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). So long as these elements are satisfied, no identified victim is necessary. Indeed, as we noted at oral argument, if two individuals intending to rob a bank start out with all accoutrements necessary for a robbery and agree simply to rob the first bank they happen upon rather than identifying a specific bank ahead of time, we could still conclude that the individuals had attempted to commit robbery.

Read Full Post »

The Fourth Circuit’s decision yesterday in United States v. Ramos-Cruz held that the government’s withholding from the defense of the actual names of two prosecution witnesses did not violate the Confrontation Clause in the Sixth Amendment. Judge Duncan wrote the opinion for the court, in which Judge Niemeyer joined. Judge Floyd concurred in the judgment, reasoning that the use of pseudonymous witnesses violated the Sixth Amendment, but that the constitutional violation was harmless error.

For criminal proceduralists, Judge Floyd’s dissent in this case looks like a must-read opinion. Some excerpts:

I do not take lightly the safety concerns accompanying the decisions made by Juan Diaz and Jose Perez—the two witnesses who testified using pseudonyms—to testify against Ramos-Cruz. As the record reflects, MS-13 has demonstrated its willingness to engage in violent reprisal against witnesses who testify against its members. There is no denying that by agreeing to testify against Ramos-Cruz, Diaz and Perez exposed themselves to danger. Most assuredly, requiring them to state their true names in open court would have made it easier for MS-13 to target them and their families. Safety concerns were thus real and valid.

We must recognize, however, that these concerns inhere in many prosecutions of defendants who are members of violent criminal organizations. The sad truth is that, in this respect, the situation presented in today’s case is not rare. Gangs often employ violence as a means of intimidating witnesses. Laura Perry, Note, What’s in a Name?, 46 Am. Crim. L. Rev. 1563, 1580 (2009); Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation: The Waiver Doctrine After Alvarado, 39 San Diego L. Rev. 1165, 1194-96 (2002). Witness intimidation is a serious problem of an alarming magnitude, and it plagues many of our communities. See Alvarado, 5 P.3d at 222 & n.14; Comparet-Cassani, supra, at 1194-204. As a result, the prosecution of members of violent gangs—such as this prosecution of Ramos-Cruz—will often trigger safety concerns for many of the witnesses involved.

Nevertheless, in addressing these concerns, we cannot undermine our constitutional commitment to ensuring that criminal defendants, even those accused of belonging to violent criminal organizations, receive a fair trial. That means they must be allowed to rigorously test the government’s evidence, including all of its witnesses, in an adversarial proceeding before a jury. See Craig, 497 U.S. at 845; See Strickland v. Washington, 466 U.S. 668, 685 (1984). I am unconvinced that they are able to do so if the government can completely withhold the true names of its witnesses throughout the trial.

Access to the true names of the government’s witnesses is critical to ensuring that a criminal defendant is able to rigorously test their testimony in an adversarial manner. As noted, effective cross-examination often entails challenging the witness’s credibility. Hence, the opportunity for effective cross-examination, which the Sixth Amendment guarantees, includes the opportunity to challenge the witness’s credibility. See Van Arsdall, 475 U.S. at 679-80. But without a government witness’s true name, the criminal defendant is unable to perform the type of investigation—whether in court or out of court—necessary to be able to challenge his credibility. See Smith, 390 U.S. at 131. The criminal defendant cannot explore the witness’s background and qualifications to discover any facts that might reflect poorly on his credibility. See Alvarado, 5 P.3d at 221. In effect, denying a criminal defendant knowledge of the true names of the government’s witnesses severely inhibits his ability to perform what is often the most potent aspect of effective cross-examination: impeachment. In my opinion, because completely forbidding a criminal defendant from learning a witness’s true name prevents the opportunity for effective cross-examination, it denies the defendant a fundamental aspect of a fair trial.

My concerns with completely denying criminal defendants access to the true names of the witnesses testifying against them extend beyond practical consequences. Allowing the use of anonymous witnesses also undermines the perception that our criminal trials are open and even contests. Instead, it creates the impression that our criminal trials contain clandestine aspects that operate to provide the government with an upper hand. It does so by suggesting that convictions can be “based on the charges of . . . unknown—and hence unchallengeable—individuals,” Lee, 476 U.S. at 540, even if they can be physically seen. Simply put, obtaining a conviction by using anonymous witnesses appears eerie and covert, and does not inspire confidence in the promise that our criminal trials are open and even endeavors.

Interestingly, the majority opinion does not directly address the bulk of Judge Floyd’s constitutional arguments on their merits, but largely defers to the court’s prior unpublished opinion in United States v. Zelaya addressing the propriety of these witnesses’ testimony in a different case. Although Judge Floyd ultimately concurred in the judgment because he held that the Sixth Amendment error was harmless, I would not be surprised to see the Fourth Circuit decide to consider this issue en banc.

The majority opinion also discusses the standard of review for allegedly erroneous jury instructions (including a detailed discussion of harmless error) and the elements of the federal witness-tampering statute. Read the whole thing.

Read Full Post »

The Fourth Circuit issued published opinions in five cases today. That is a large number of opinions in argued cases for a single day. Two of the cases were argued in September. Both were split decisions. Two of the cases were argued in October. Both were unanimous as to outcome, but one featured an unusual concurring opinion joined by a panel majority. The fifth decision, from a case argued in December, was unanimous. I hope to have more to say about at least some of these opinions in the future, but here is a capsule summary for now.

Fortier v. Principal Life Ins. Co.  is a dispute over disability insurance. A split panel affirms the interpretation of an ERISA plan administrator that resulted in a denial of benefits. Judge Niemeyer wrote the opinion, which was joined in by Judge Wilkinson. Judge Floyd dissented. 

Lee-Thomas v. Prince George’s County is a dispute over sovereign immunity for a county board of education. A split panel affirms the district court’s decision that a statutory waiver of immunity, as interpreted by Maryland’s Court of Appeals, preserved claims against a county board’s of education for $100,000 or less. Judge King wrote the opinion, which was joined by Judge Davis. Judge Keenan dissented. 

Peabody Holding v. United Mine Workers presents a dispute about who decides arbitrability. A Fourth Circuit panel unanimously holds that the court rather than arbitrator must decide arbitrability, because the agreement contains no language unmistakably designating arbitrability for arbitration. Addressing arbitrability in an exercise of its independent judgment, the appellate court concludes that the dispute is arbitrable. Judge Diaz wrote the opinion, which was joined in by Judge Niemeyer and Judge Wynn. 

Zelaya v. Holder is an immigration case. The Fourth Circuit denies the petition for review with respect to an asylum claim and a withholding of removal claim, but grants the petition for review with respect to a Convention Against Torture claim. Senior Judge Hamilton wrote the opinion for the court, which was joined in by Judge Davis and Judge Floyd. Judge Floyd wrote a separate concurrence, in which Judge Davis joined. (One lesson? When Judge Floyd writes a separate concurrence, turnabout is fair play. See here for this panel’s similar voting in a different case. One question: What is going on with this panel?)

Warren v. Sessoms & Rogers is a case about the Fair Debt Collection Practices Act. The Fourth Circuit holds that the district court, based on the defendant’s characterizations of its Rule 68 offer of judgment, incorrectly dismissed the FDCPA complaint. Judge Motz wrote the opinion, in which Judge Gregory and Judge Floyd joined. (Judge Floyd did not write a separate concurrence.)

Read Full Post »

« Newer Posts - Older Posts »

%d bloggers like this: