Docket – January 15, 2019

4th U.S. Circuit Court of Appeals

United States v. Scott (U), 4th Cir. (per curiam) from DSC at Anderson (Cain).

The defendant’s indictment for conspiring to possess with intent to distribute cocaine violated the Double Jeopardy Clause. The trial court should have granted his motion to dismiss, and his conviction and sentence must be vacated.

The time frame of the more recent indictment, which alleged a conspiracy between 2003 and 2015, completely encompasses that of the defendant’s 2006 indictment. Both the 2006 and 2016 indictments describe conspiracies that took place in the same geographic area. The court is not persuaded that the current indictment describes a wholly separate criminal agreement from the 2006 indictment.

The defendant raised a non-frivolous double jeopardy claim that shifted the burden of proof to the government. The government then failed to meet its burden to prove that the conspiracy described in the present indictment were distinct from those described in the defendant’s 2006 indictment.

Reversed and remanded for vacatur of the defendant’s conviction and sentence.

Court of Appeals of Virginia

Warren v. Commonwealth (P), CAV (Russell) from Pittsylvania (Moreau).

Contrary to the defendant’s argument, Code § 18.2-361(A), relating to “carnal knowledge with a brute animal,” is not an unconstitutional prohibition on the private sexual conduct of consenting adults, either facially or as applied to the defendant’s actions.

The Supreme Court’s decision in Lawrence v. Texas didn’t necessarily prevent states from criminalizing sexual conduct involving something other than consenting adults in private; e.g. the defendant’s involvement of a dog in his sexual encounter with another person. If Lawrence didn’t facially invalidate the anti-sodomy provision of then Code § 18.2-361(A), it defies logic that it facially invalidates the bestiality portion of the statute. Because there are constitutional applications of the Virginia bestiality statute, the defendant’s facial challenge to Code § 18.2-361(A) fails.

As to his challenge to the statute as applied, the right he asserts as “the right [of adults] to engage in consensual private conduct without intervention of the government” is actually a right to engage in bestiality. Code § 18.2-361(A) doesn’t place any limitation on the rights of consenting adults to engage in private, consensual, noncommercial, sexual acts with each other; it only prohibits sexual conduct involving a “brute animal.” The conduct at issue here involved sexual activity with a dog. The addition of the dog fundamentally alters the equation, and thus, the claimed right is broader than the right of consenting adults to engage in noncommercial sex acts in private.

Warren has not identified any court that has concluded that bestiality is a fundamental liberty interest protected by the due process clause, and we decline his invitation to recognize bestiality as a fundamental right. Virginia’s ban on bestiality is rationally related to its interest in preventing cruelty to animals and in protecting public health.

Conviction affirmed.

Johnson v. Commonwealth (P), CAV (Beales) from Henrico (Yoffy).

The defendant was properly convicted for pandering and of sex trafficking to receive money. The case turned on the trial court’s finding that a witness credibly testified about her work as a prostitute for the defendant. Much of her testimony conflicted with the defendant’s account, but when such conflicts occur the appellate court must discard the evidence of the accused in conflict with that of the Commonwealth.

The Commonwealth’s evidence shows that the defendant was with the witness when she posted an advertisement for prostitution; he retrieved money from her hotel room that she’d earned from prostitution; and police found him in the hotel room where she said her pimp was. He had almost $4,000 cash in his possession. From this evidence, a reasonable factfinder could conclude beyond a reasonable doubt that the defendant knowingly received money from a person engaged in prostitution.

There was also evidence that the defendant drove the witness in from another state before assisting her in advertising for prostitution. The totality of evidence permits a reasonable conclusion that the defendant, with the intent to receive money, at the very least encouraged – if not solicited, invited, recruited, or otherwise caused – the witness to engage in prostitution.

Notwithstanding Carr v. Commonwealth – the court’s only prior precedent as to this relatively new statute – the text of Code § 18.2-357.1(A) does not establish threats of violence or actual use of violence as necessary elements for a conviction. It similarly doesn’t require the accused to have been the sole cause or the original cause for the person to engage in prostitution.


Marshall v. Commonwealth (P), CAV (Russell) from Campbell (Cook).

The defendant was properly convicted of violating Code § 18.2-308.2:2 by making a false statement on a federal Alcohol Tobacco & Firearms Form 4473 in his attempt to obtain a firearm from a licensed Virginia dealer. He indicated on the form that he hadn’t been convicted of a misdemeanor crime of domestic violence despite his prior conviction for assault and battery against a family member in violation of Code § 18.2-57.2.

The court holds that any conviction for violating Code § 18.2-57.2 involves a sufficient use of physical force to qualify as a conviction for a “misdemeanor crime of domestic violence” as that term is used in 18 U.S.C. § 921(a)(33). Accordingly, the defendant’s prior conviction order, coupled with his statement that the incident involved his former spouse, established that he’d previously been convicted of a misdemeanor crime of domestic violence. Therefore, the evidence was sufficient to support his conviction.


Robinson v. Commonwealth (U), CAV (O’Brien) from Amelia (Cella).

At the defendant’s trial for sexual battery by force, the evidence failed to establish that alleged touching was accomplished by the use of force sufficient to overcome the victim’s will.

While it’s undisputed that the defendant sexually abused the victim when he “grabbed and twisted her breasts as hard as he could,” the Commonwealth failed to prove that the sexual abuse was accomplished by “force” as required by Code § 18.2-67.4(A)(i). While the evidence demonstrated that the defendant accomplished the battery “by surprise,” it was insufficient to prove he committed sexual abuse by force. The act itself was not used to overcome the victim’s will to accomplish the non-consensual touching. Any durational evidence served only to demonstrate the non-consensual touching occurred.

Conviction reversed and remanded. Judge Beales dissented.

Porter v. Commonwealth (U), CAV (Decker) from Warren (Napier).

In a hearing on revocation of the defendant’s suspended sentence, the trial court did not err in admitting an out-of-court verbal statement to the defendant’s probation officer.

The defendant’s probation conditions included having no visitors in his state-provided motel room after 11 p.m. However, at his first probation meeting, the defendant was accompanied by a woman who ultimately told the officer that she was living with the defendant. Viewing the evidence in the light most favorable to the Commonwealth, the probation officer elicited this statement not in the course of investigating whether the defendant violated his probation, but rather in order to give her and the defendant directions to the local police department. Thus, the verbal statement was non-testimonial and did not implicate the Confrontation Clause when the companion was not present as a witness.

Affirmed. Judge Russell concurred in part and dissented in part.

Categories: Daily Dockets

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