Docket – November 14, 2018

4th U.S. Circuit Court of Appeals

United States v. Zelaya (P), 4th Cir. (Duncan) from WDNC at Charlotte (Conrad).

Evidence was sufficient to support the convictions of four MS-13 members on charges of violent crimes in aid of racketeering.

The combination of the appellant’s shooting offense as a grossly disproportionate retaliation to a public slight and his after-the-fact engagement of a fellow MS-13 member to help him manage the consequences of the crime suffice to permit the jury to infer the appellant’s gang-related motive. In particular, the excessive nature of the response, which was objectively apparent and involved the appellant shooting nearly a dozen rounds from an assault rifle at the victims, suggests a motive of making a statement rather than merely exacting payback.

Convictions affirmed. Judge Floyd dissented in part.

U.S. District Court – Virginia Eastern

JK Moving & Storage Inc. v. Winmar Constr. Inc., EDVA at Alexandria (Hilton).

In addition to $75,000 in contract damages awarded by a jury, the plaintiff is entitled to approximately $400,000 in attorneys’ fees and costs after a self-imposed 28-percent fee reduction on reasonable hours. Fees for processing and storage of electronic documents were not reimbursable costs.

Motion for attorneys’ fees and costs granted.

Prettyman v. LTF Club Operations Co., EDVA at Alexandria (Ellis).

A fitness instructor alleged facts sufficient to support a hostile-work-environment claim under Title VII, based on coworkers’ references to her Jewishness that the court said a reasonable juror could find carry the same discriminatory weight as using the “n-word.” The court’s reasoning, with citations omitted:

There are certain words and phrases that are loathsome. The n-word is a prime example. That word, because of its long and violent history, is no longer permissible and if uttered in the workplace can “create an abusive working environment in an instant.” Use of the n-word in the workplace is “degrading and humiliating in the extreme” and is so severe that it need not be pervasive to create a hostile work environment. Because the record does not warrant classifying … alleged anti-Semitic comments as “pervasive,” the question becomes whether references to “Jewish money,” and “Jewishness” are so severe as to create a hostile work environment. This question calls for a simple answer: references to “Jewish money” and “Jewish American Princess” and other derogatory remarks associated with Judaism, like use of the n-word, are sufficiently severe to create, without more, a hostile work environment in an instant.

America has a long history of discrimination and violence against Africans involuntarily brought to this country in chains and their descendants; slavery, Jim Crow and persistent racism are manifestly this country’s greatest sins. It is because of this history that use of the n-word in the workplace unquestionably creates a hostile work environment. Similarly, the history of violence and discrimination against Jews has spanned the pages [of] history dating back millennia. Whether it be the Alhambra Decree of 1492 (the zenith of the Spanish Inquisition), the Russian pogroms, or Hitler’s extermination camps, few have suffered more or longer than Jews. And America has not been immune to the plague of anti-Semitism. One need not look far to find tragic examples of anti-Semitism in this country.

Much of this historical antipathy towards Jews was grounded in economic antisemitism, which makes comments about “Jewish money” all the more objectionable and offensive. These words and phrases about Jews, like the n-word, are so serious and severe that they instantly signal to an employee that he or she is unwelcome in the work place because of his or her religion.

Still, the inquiry will always be context-specific.

Motion for summary judgment granted in part; denied in part.

United States v. Delavan, EDVA at Newport News (Jackson).

The defendant’s attorney is disqualified due to a serious potential conflict, in that he will likely be required to impeach the credibility of a witness who he previously represented.

Motion to inquire granted; counsel disqualified.

U.S. District Court – Virginia Western

United States v. Saravia-Chavez, WDVA at Charlottesville (Moon).

An indictment will stand charging the defendant with illegally re-entry of the United States. Although the initial notice to appear at removal proceedings lacked the time, date, and place, the defendant received subsequent notice of these details, attended his deportation hearing, and admitted to facts that supported the issuance of a deportation order. Therefore, he can’t show that his deportation proceedings were fundamentally unfair.

Motion to dismiss indictment denied.



Categories: Daily Dockets

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