Docket – March 19, 2019

4th U.S. Circuit Court of Appeals

United States v. Davis (P), 4th Cir. (Niemeyer) from WDNC at Statesville (Voorhees).

In the defendant’s trial for drug distribution, the district court did not abuse its discretion in admitting (1) a confidential informant’s out-of-court statement about purchasing drugs from the defendant prior to the relevant investigation, (2) an officer’s photographs of the informant’s cellphone screen; and (3) a recording of a phone conversation between the informant and the defendant.

The defendant’s sentence also was not procedurally unreasonable: The district court adequately explained its decision to credit the testimony of the defendant’s coconspirators about drug quantities despite the acquittal on the conspiracy count.

Contrary to the defendant’s argument, a court may consider acquitted conduct in establishing drug amounts. Even if a court knows that a jury had a reasonable doubt about drug quantities, that doubt would not preclude the court’s finding of those quantities by a preponderance of the evidence, a lower standard.

Further, the jury’s not-guilty verdict on the conspiracy count could have been based on numerous reasons relating to doubt about the defendant’s involvement or the absence of proof of an element of the crime. A finding of the drug quantity involved was therefore not necessary to a verdict of acquittal on the conspiracy count.

As the district court acted within its lawful discretion by relying on testimony relating to an acquitted count, its explanation that it found co-conspirator testimony convincing and the defendant’s argument to the contrary to be unsupported was an adequate explanation.


Duncan v. Barr (P), 4th Cir. (Duncan) from BIA.

In the petitioner’s claim for derivative citizenship and cancellation of removal, whether the government would acquiesce to torture under the Convention Against Torture is a mixed question of fact and law. Whether the petitioner was in the “physical custody” of his father under the Child Citizenship Act is likewise a mixed question of fact and law.

Here, the Board of Immigration Appeals applied the wrong standard of review as to both determinations. While the immigration judge’s findings of fact are subject to clear error review, the application of those facts to the relevant legal standards constitute legal judgments subject to de novo review by the Board. Should the Board resolve the physical custody determination in the petitioner’s favor, it must also address whether or not he was in his father’s “legal custody” as the statute so requires for purposes of derivative citizenship.

Petition granted; remanded for further proceedings.

Court of Appeals of Virginia

City of Va. Beach v. Va. Marine Res. Comm’n (P), CAV (O’Brien) from Va. Beach (Shockley).

The plain meaning of Code § 28.2-625 establishes that municipal corporations – like other corporations authorized to apply for, occupy, and hold oyster-planting ground leases – are entitled to receive these leases by transfer.

The circuit court order affirming a decision by the Virginia Marine Resources Commission rejecting the City’s application to receive a transfer of an oyster-planting ground lease under § 28.2-625. But the court erred in concluding that the General Assembly intended to make municipalities ineligible to receive these leases by transfer. As used in the Code, the term “corporation” generally includes “municipal corporations.” If the General Assembly wishes to make a distinction between municipal corporations and other corporations, it has used express language to do so. Code § 28.2-625(1) contains no such distinction.

Municipalities are eligible to apply for oyster-planting ground leases under Code § 28.2-604(ii). Because the City can apply for oyster-planting ground leases, it is among the corporate entities authorized to “occupy and hold oyster-planting ground” as required by Code § 28.2-625(1).

Reversed and remanded.

U.S. District Court – Virginia Eastern

In this employment discrimination case, the court will not dismiss the plaintiff’s claim for discrimination based on “color” even though her EEOC charge cited only sex, race, and disability discrimination.

During the administrative investigation, the plaintiff frequently cited her dark skin color as a causal or relevant factor in discrimination she alleged. Thus, her “color” and “race” allegations are intertwined, and the defendant was on notice that skin color was part of her claim.

Motion to dismiss denied.

Gardner v. Shulkin, No. 3:18cv98, Mar. 19, 2019. EDVA at Richmond (Gibney).

Categories: Daily Dockets

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