Docket – February 26, 2019

4th U.S. Circuit Court of Appeals

United States v. Tillmon (P), 4th Cir. (Agee) from EDNC at Elizabeth City (Howard).

After being caught in a sting operation aimed at exposing corrupt law enforcement officers, the defendant-appellant was convicted for multiple drug-trafficking offenses and three counts of federal programs bribery. The challenged drug convictions are affirmed, but the federal-programs bribery convictions must be vacated.

The government failed to produce evidence that the defendant’s services to a drug-trafficking organization had a value of $5,000 or more. There was no evidence other than the amount the defendant was paid as a bribe to establish that the value of his protection services were worth at least $5,000. In the absence of evidence to support that element of the offense, the bribery convictions cannot stand.

Affirmed in part and vacated in part.

United States v. Martin (P), 4th Cir. (Gregory) from DMD at Greenbelt (Titus).

Under the U.S. Supreme Court’s recent precedent in United States v. Chavez-Meza (2018), the district court erred in not giving the defendants-appellants individualized explanations for its adverse rulings on their respective motions for sentence reductions under 18 U.S.C. § 3582(c)(2).

One appellant presented a mountain of new mitigating evidence that the sentencing court never evaluated. For example, she not only successfully pursued her GED but also became a respected tutor for other inmates and helped incarcerated women follow her footsteps in achieving their educational goals. Given her old age and marked rehabilitation, she argues that she is no longer a threat to society. The district court failed to address any of this new mitigation evidence.

The other appellant similarly has been a model inmate, using his time to create an educational and awareness tool to help his fellow inmates help each other. Prison officials trust him so much that they allow him to work outside of the prison compound. He argues that he is unlikely to recidivate due to his advanced age, deteriorating health, and stable home upon release. Given that there is no reference to this new mitigation evidence, the district court did not comply with the standards set forth in Chavez-Meza.

Vacated and remanded.

United States v. Carver (P), 4th Cir. (Wilkinson) from DSC at Greenville (Cain).

In the appellant’s conviction and sentencing for identity theft offenses, the trial court did not err in accepting the appellant’s guilty plea or in its sentencing analysis.

The appellant’s challenges on appeal to his plea colloquy are insubstantial, and none comes close to meeting a plain error standard. As to sentencing, he raises three arguments: first, that the amount of loss caused by his criminal actions was miscalculated; second that the number of victims was overstated, and third that the court erroneously refused to reduce his offense level in light of his acceptance of responsibility. Each contention is without merit.

In United States v. Onyesoh (2012), the Ninth Circuit held that a card is not an access device if it is not functional. This court declines to adopt this “usability” standard. Congress, mindful of the need to “encompass future technological changes,” wrote broadly to include any device of the general sort that people use to get money. Even if a fraudulently altered card could not complete a transaction now, it is the type of thing that could do so, and was altered for precisely that purpose. Reading the phrase “can be used” in this way is consonant with including expired, revoked, or canceled devices in the definition of “unauthorized access device.”


Court of Appeals of Virginia

Rams v. Commonwealth (P), CAV (Decker) from Prince William (Bellows).

Evidence was sufficient to support the appellant’s conviction for capital murder of his 15-month-old son.

The law does not require the Commonwealth to prove the precise cause of death, only that the death “resulted through a criminal agency.” Here, the trial court found that the circumstantial evidence proved that the child’s death was criminal and did not result from natural causes. That evidence included the appellant’s false claims that he discovered the child seizing and “very hot” to the touch. It also included a financial motive in that the appellant’s financial state was dire and he’d recently purchased more than $500,000 of insurance policies on the child’s life. The appellant also spoke with his real estate agent about undertaking major home improvements. This evidence was sufficient to disprove all reasonable hypotheses that P.R. died from natural, noncriminal causes.

The trial court did not improperly shift the burden to the appellant to disprove the corpus delicti and to establish a natural death. Instead, the trial court’s analysis excluded the natural cause of death advanced by the appellant, eliminated other natural and accidental causes of death, and found that the evidence as a whole proved a criminal cause.

The trial court also didn’t err in denying the appellant’s numerous motions for a bill of particulars regarding the Commonwealth’s theory of the corpus delicti. He has established no constitutional entitlement to notice of the precise manner in which the Commonwealth alleged that he caused his son’s death. The appellant was aware of the Commonwealth’s theories regarding the cause of death significantly in advance of his 2017 trial. Finally, he concedes that any prejudice might have been remedied by a continuance, which he did not request.


City of Va. Beach v. Hamel (U), CAV (Chafin), from Va. WCC.

The Virginia Workers’ Compensation Commission erred in finding that the claimant’s injuries, incurred when she fell while walking to a work training, arose from her employment with the City of Virginia Beach.

While the City deemed the off-site training she attended mandatory, the City did not instruct her where to park or which route to take to the building in which the training was being held. There were no parking permits issued or parking spaces assigned to City employees and others attending the training on campus. Her risk of tripping over the tree roots was equal to that of any member of the general public walking on the unpaved area adjacent to the sidewalk. Thus, her injuries were not compensable.


Categories: Daily Dockets

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