Docket – November 6, 2018

4th U.S. Circuit Court of Appeals

United States v. Camara (P), 4th Cir. (Harris) from EDVA (Hilton).

The court affirmed the appellant’s convictions arising from his participation in a scheme to resell luxury vehicles using stolen identities.

The appellant’s indictment charged him with conspiring “with Ray Ekobena and others, known and unknown,” to violate three different federal laws. During deliberations, the jury asked: “Do we need to agree the defendant was conspiring with Ray specifically or conspiring in general?” The district court responded: “[T]he government has to prove beyond a reasonable doubt that the defendant was conspiring specifically with Ray or other known or unknown co-conspirators.”

The district court’s answer didn’t constructively amend the indictment in violation of the Fifth Amendment. It also didn’t violate his Sixth Amendment right to be tried in the venue where the charged conduct occurred; the government introduced ample evidence that the appellant or one of his co- conspirators committed an act in furtherance of the conspiracy in the Eastern District of Virginia.

U.S. District Court – Virginia Western

Latson v. Clarke (P), WDVA at Abingdon (Jones).

The court granted summary judgment as to various claims by plaintiff and former inmate Reginald Latson, who alleges he was denied medical treatment and subjected to abuse prior to being conditionally pardoned by the Governor of Virginia.

Latson’s claims under the Americans with Disabilities Act and Rehabilitation Act are time-barred. Contrary to his argument, those claims were not made possible by the ADA Amendments Act, and he therefore cannot avail himself of the four-year catch-all limitations period therein. The evidence is clear that autism spectrum disorder and intellectual disability are lifelong conditions that are not episodic but ever-present and do not go into remission. Thus, they would have been recognized as disabilities under the pre-amendment version of the ADA, and the applicable limitations period is the one year provided by Virginia’s Rights of Persons with Disabilities Act.

While courts are increasingly recognizing restrictive-housing conditions as Eighth Amendment violations, qualified immunity applies except for violations of clearly-established law. Given that the state of the law is evolving rather than clearly established, the individual defendants didn’t violate a clear standard in 2014 and 2015 by assigning Latson in restrictive housing.

Undisputed facts also fail to establish the individual defendants’ deliberate indifference to Latson’s serious medical needs. They are not medical professionals, and there is no evidence that they intentionally interfered with treatment prescribed by the treatment team or denied Latson access to necessary treatment. The evidence does not support Latson’s argument that the very act of placing him in restrictive housing was meant to interfere with his treatment.

The defendants are also entitled to summary judgment as to Latson’s due process claims. While he has established a liberty interest in avoiding restrictive housing, he received all the process that was due to him under the Fourteenth Amendment. The realities of prison administration required that Latson be segregated while he was being assessed to reduce the risk of harm to Latson or others that could have resulted from placing him immediately into general population without fully understanding his needs. Further, no case law in 2014 held that the defendants were required to provide any additional procedural protections beyond what they provided.

Finally, although Latson showed that placing him in restrictive housing would chill the speech of an ordinary person in his circumstances, he has not rebutted testimony that Latson was administratively segregated for his own protection and that other inmates at different facilities who were pardoned were also placed in isolation while awaiting release and that the general practice was to house pardoned individuals by themselves for their protection.

Motion for summary judgment granted.

Court of Appeals of Virginia

Butcher v. Commonwealth (P), CAV (Russell) from Petersburg (Teefey).

The court affirmed the appellant’s conviction for failure to stop at the scene of an accident. The sole question on appeal was whether he complied with the statutory requirement to “report his name, address, driver’s license number, and vehicle registration number forthwith” to an appropriate person.

To meet the statutory command of Code § 46.2-894, the appellant only needed to report “forthwith” the required information to one person described in the statutory list. Evidence sufficiently established that he didn’t report the required information to the driver of the car he ran off the road, and no evidence suggested that he was trying to do so. The fact that the other driver knew his name and address doesn’t excuse his failure to provide his driver’s license number or vehicle registration number, as required by the statute.

Absent a circumstance that makes an immediate report impossible or wholly impractical, the statutory command that the report be made “forthwith” requires an immediate report. No such circumstance is present here.


Anderson v. Commonwealth (P), CAV (Chafin) from Va. Beach (Lilley).

The circuit court did not err by refusing to admit the victim’s prior criminal charges and convictions into evidence at the defendant’s trial for voluntary manslaughter.

The excluded charges and convictions occurred 17 to 20 years earlier and didn’t establish that the victim had previously behaved in a violent manner. The defendant failed to call a witness to testify about the underlying conduct or to otherwise establish the foundation of the charges at issue. The excluded charges and convictions were also somewhat cumulative of other trial evidence as to the victim’s propensity for violence.


Daniels v. Commonwealth (P), CAV (Humphreys) from Williamsburg/James City (Maxfield).

The plain language and purpose of Code § 19.2-54 is to provide sufficient notice to the defendant of the basis for the issuance of the search warrant. It is a not a penal statute that must be construed strictly against the Commonwealth. Here, although the affidavit was delivered to the circuit court by the officer who executed the search warrant rather than by the magistrate who issued it, the notice-based purpose of Code § 19.2-54 was achieved. Thus, the circuit court did not err in denying the defendant’s motion to suppress evidence obtained from the search of his apartment.

Also, the warrantless seizure of contraband observed in the defendant’s vehicle was supported by the plain view exception to the warrant requirement. The investigator immediately recognized a bundle of heroin based on his years of training and experience, as well as through his investigation into a heroin overdose at the time. He also had reliable information that the defendant was selling heroin in wax paper bags with red stamps and had personally seen the defendant in the car.


Hall v. Commonwealth (P), CAV (Beales) from Pittsylvania (Moreau).

The trial court didn’t err in refusing to dismiss the defendant’s indictment for possession of a firearm by a convicted felon. Her voluntary decision to request that charges against her be severed benefited her because it kept the Commonwealth from introducing evidence of earlier felony convictions in the first trial. Since the severance was at her election, as in Currier v. Virginia, she was not subject to any prosecutorial overreaching or abuse that the Double Jeopardy Clause was intended to prevent.

Evidence also was sufficient to convict. Although the defendant claimed not to live at the residence where the firearm was found, she kept multiple vehicles at the address, she reported the address to the DMV, and she was alone at the residence a week before the search warrant was executed – and was also there very early in the morning on the day it was executed. She also kept numerous personal items in the bedroom where the firearm was found in plain view.

Conviction affirmed.

Speller v. Commonwealth (P), CAV (Petty) from Va. Beach (Croshaw).

To obtain a conviction for grand larceny of a firearm, the Commonwealth need not present specific testimony that the object was designed, made, and intended to fire or expel a projectile by means of an explosion. Whether the object is a firearm that was designed, made, and intended to fire or expel a projectile by means of an explosion is a question of fact that may be proven by circumstantial evidence.

Here, that evidence sufficiently demonstrated that the instruments the defendant took were designed, made, and intended to fire or expel a projectile by means of an explosion. Victim 2 testified that the handgun stolen from him was a “Springfield Armory XD .40,” which was loaded with ammunition. He also testified that he’d fired the gun several months before and that it was “operational.” The Commonwealth also introduced into evidence pictures of the stolen firearms.

A rational trier of fact could have found that the instruments stolen in this case were firearms designed, made, and intended to fire or expel a projectile by means of an explosion.


Va. Alcoholic Bev. Control Auth. v. Bd. of Sup’rs of Fairfax Cty. (U), CAV (O’Brien) from Fairfax (Carroll).

By granting a farm winery license over the objection of the Board of Supervisors of Fairfax County, the Virginia Alcoholic Beverage Control Board exceeded its authority, as the circuit court correctly held.

The 2016 amendments to Code § 4.1-100 excluded farm wineries from the permitted agricultural use in the R-C district. But in the enactment clause, the General Assembly provided an exception for applications pending before July 1, 2016, which could result in a license only if otherwise permitted by the locality. Thus, the enactment clause gives the locality, not the ABC Board, authority to determine if a pending farm winery – like the one seeking a license here – is permitted on land zoned R-C.

The ABC Board also lacked authority to adjudicate the reasonableness of a zoning ordinance requiring a five-acre lot. The grandfathering exception that allowed the landowner to build his residence on 1.86 acres does not also allow him to use his property without constraint.

The court properly determined that the ABC Board exceeded its authority in granting a license to an applicant who received an adverse zoning determination, but never appealed.


Gregory v. Martin (U), CAV (per curiam) from Pulaski (Finch).

The circuit court applied the wrong standard in finding that a mother withheld her consent contrary to the child’s best interests and in denying her motion to amend visitation.

Mother asked for “some type of visitation” to “reestablish a relationship” with daughter. But the circuit court didn’t consider the statutory factors through the lens of whether “some type of visitation” was in the best interest of her daughter. Rather, the circuit court focused on the length of time that Mother was separated from daughter, despite the fact that Mother had been trying to contact her daughter since her incarceration and had sought visitation immediately upon her release.

Reversed and remanded.

Zinner v. Commonwealth (U), CAV (Frank) from Va. Beach (Shockley).

The court affirmed the appellant’s conviction for DUI, first offense. Assuming without deciding that the trial court erred in allowing expert testimony regarding the appellant’s blood alcohol content based on “retrograde extrapolation,” other evidence supported his conviction. He smelled of alcohol, his speech was slurred, and his eyes were droopy. He seemed incoherent. He had rear-ended a family’s van but didn’t remember it. He left the scene and was found six hours later about a mile away, unconscious and smelling of alcohol. He admitted that he’d been drinking and driving. Hospital records indicated that seven hours after the accident, his blood alcohol content was between 0.20 and 0.22%, and he was still showing signs of intoxication.

Categories: Daily Dockets

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