Docket – January 25, 2019

4th U.S. Circuit Court of Appeals

United States v. Edgell (P), 4th Cir. (Harris) from NDWV at Clarksburg (Keeley).

The defendant’s criminal sentence was improper where the government failed to stipulate to a lower sentencing range, as it had agreed to do.

The defendant agreed to plead guilty to two drug offenses based on the government’s stipulation that his total drug conduct related to “less than five grams of substances containing a detectable amount of methamphetamine.” However, subsequent lab results showed that the substances in question were actual meth, which increased the minimum recommended sentence from 10 months to 30 months in prison. At sentencing, the government advocated for a sentence consistent with that elevated range.

The government was duty-bound to disclose the lab results to the sentencing court, but it denied the defendant the benefit of his bargain when it didn’t stipulate to the lower sentencing range. Given the government’s breach, the defendant should be resentenced before a different district judge.

Vacated and remanded.

Finch v. McKoy (P), 4th Cir. (Gregory) from EDNC at Raleigh (Dever).

In 1976, a jury convicted the habeas petitioner of first-degree murder, and he was ultimately sentenced to life in prison. The present record meets the exacting standard for the actual innocence gateway to consideration of his constitutional claim.

No physical evidence implicated the petitioner at trial, and new evidence casts doubt on the integrity of the police lineups where the petitioner was identified as the perpetrator, as well as on eyewitness and law enforcement testimony. In lineups, expert testimony indicates that the coat and hat the petitioner wore may have cued the identifying witness based on his apparel rather than on the witnesses’ original memory of the perpetrator’s physical characteristics.

At trial, the eyewitness testified that the petitioner shot the victim with a sawed-off shotgun. But new evidence demonstrates that it was a pistol, not a shotgun, that killed the victim. Further new evidence indicates that shells recovered from the crime scene can’t be matched with the shotgun shell found in the petitioner’s car. This new evidence not only undercuts the state’s physical evidence but also discredits the eyewitness’s reliability. Finally, new evidence also suggests that a key law enforcement witness worked with the prosecution to encourage false testimony.

Reversed and remanded.

U.S. District Court – Virginia Eastern

Marsh v. Curran, EDVA at Alexandria (O’Grady).

A plaintiff has sufficiently alleged intentional infliction of emotional distress arising from surreptitious recordings of his private conversations, which he claims were made by his ex-wife and her family and lawyers for use in their divorce proceedings. He has also sufficiently alleged computer crimes and aiding and abetting illegal wiretapping, assuming without deciding that such claim exists in Virginia.

Contrary to the defendant-attorneys’ argument, their alleged use of information obtained via the recordings is not privileged. Further, the crime-fraud exception to attorney-client privilege means that the attorneys will not be prevented from defending themselves. The attorneys were allegedly at least once on inquiry notice that information their client shared was obtained via unauthorized wiretap. The court will not strike the portions of the complaint alleging violations of Virginia’s Rules of Professional Conduct.

Motions to dismiss denied in part and granted in part.

U.S. District Court – Virginia Western

Perry v. Toyota Motor Credit Corp., WDVA at Abingdon (Jones).

In this Fair Credit Reporting Act suit, the plaintiff sufficiently alleged that Toyota violated the statute by falsely reporting that he had “reaffirmed” his vehicle lease, rather than “assumed” it.

The plaintiff has alleged that, among other things, he has been denied credit on multiple occasions due to the reporting of the Toyota account, exactly the type of harm Congress sought to prevent in enacting the Act. He also alleges facts making it plausible that Toyota did not conduct a reasonable investigation of his dispute regarding its reporting of his account as reaffirmed.

However, the plaintiff’s contention that Toyota inaccurately furnished information stating that his account was due and owing, with a past-due balance fails to state a claim under FCRA § 1681s-2(b).

Motion to dismiss granted in part and denied in part.

Categories: Daily Dockets

%d bloggers like this: