Docket – March 28, 2019

4th U.S. Circuit Court of Appeals

United States v. Guzman-Velasquez (P), 4th Cir. (Motz) from EDVA at Richmond (Lauck).

In denying the defendant’s motion to dismiss his indictment for illegal re-entry into the United States after being deported, the district court reached the right result for the wrong reason.

The defendant’s sought dismissal based solely on United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which held that an administrative removal proceeding marred by due process defects that foreclosed judicial review could not serve as a basis for criminal conviction.

The district court held that it lacked jurisdiction to hear the defendant’s claim because Congress has eliminated district courts’ jurisdiction to review determinations of temporary protected status (TPS). But while the statute on which the district court relied, 8 U.S.C. § 1252, limits a court’s jurisdiction to review immigration determinations, it says nothing about jurisdiction to hear a challenge to a criminal indictment. Here, the defendant didn’t ask for relief from removal; he raised a constitutional challenge to a criminal charge. The district court had jurisdiction to consider this argument.

This court need not resolve the defendant’s novel constitutional question whether the Mendoza-Lopez due process principle extends beyond removal orders to authorize constitutional challenges to TPS denials within criminal prosecutions for illegal reentry. On appeal, the defendant’s sole claim of fundamental unfairness is that the government violated his due process right to a fair and thorough review of the materials in the government’s possession when evaluating his TPS application. But if he had such a due process right, it would only require review of the materials within his TPS application. The government did exactly that. It reviewed the defendant’s submission, found it to be lacking, requested additional evidence to no avail, and only then denied relief.


Supreme Court of Virginia

Collins v. Commonwealth (P), SCV (Kelsey) on remand from SCOTUS (Sotomayor).

In this case regarding the automobile exception to the Fourth Amendment, the U.S. Supreme Court held that the exception does not permit a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked inside. The Court remanded to resolve whether the warrantless intrusion may have been reasonable on a different basis.

The exclusionary rule does not apply under the facts of this case because, at the time of the search, a reasonably well-trained police officer would not have known that the automobile exception did not permit him to search a motorcycle located a few feet across the curtilage boundary of a private driveway.

Affirmed. Three justices concurred; two dissented.

Rankin v. Commonwealth (P), SCV (per curiam order) from CAV.

After a police officer fatally shot a suspected shoplifter, the circuit court in his murder trial denied his motion in limine to exclude his statement to a witness on the scene: “It’s my second one.” The statement was admitted at trial, and the jury found the defendant guilty of voluntary manslaughter.

On appeal, the court of appeals held that the statement “did not indicate [that the defendant] had shot and killed another person,” that the statement met exceptions to the rule against propensity evidence, and that any error in admitting it was harmless.

Because the defendant failed to assign error to the court of appeals’ holding that any error was harmless, this court will uphold the ruling.


Dwyer v. Town of Culpeper (P), SCV (per curiam order) from Culpeper.

In this condemnation proceeding, the appellant did not timely appeal from an order distributing funds held by the circuit court. Contrary to the appellant’s argument, language in the court’s order stating that “the Court shall retain jurisdiction” didn’t render that order not final for appellate purposes.

Code § 25.1-239(B) manifests an intent that the word “shall” is mandatory. The General Assembly clearly intended to provide for the finality of the order confirming, altering, or modifying the report of just compensation. Here, the order at issue was the final order for purposes of appealing the just compensation award. The notice of appeal was filed more than 30 days after entry of that order, making it untimely under Virginia Supreme Court Rule 5:9(a).

In addition, the circuit court clearly didn’t, and didn’t intend to, retain jurisdiction over the portion of the order addressing the confirmation of the report of just compensation. Rather, it merely accomplished what the statute would have done had the circuit court remained silent, and that was to retain jurisdiction to hear the second stage of the condemnation proceedings.

Appeal dismissed.

Blazer v. About Women OBGYN PC (U), SCV (per curiam) from Prince William.

The circuit court abused its discretion in imposed sanctions on counsel in a medical-malpractice case, ordering him to pay $5,000 in the defendant’s attorneys’ fees and costs related to the identification of a trial expert the court found unqualified.

The question whether an active clinical practice is in a related field of medicine is a question of fact. But here, the circuit court heard no evidence regarding the specific medical procedure at issue, the nature of the proffered expert’s gynecological practice, or whether he had performed the relevant procedure at some point. The only evidence the circuit court had regarding the proffered expert’s practice was that he retired from practicing obstetrics in January 2012. To the extent that the circuit court ruled that gynecology and obstetrics are not related fields of medicine “as a matter of law,” its decision to impose sanctions was guided by erroneous legal conclusions and, therefore, was an abuse of discretion.

Sanctions award reversed.

Adkins v. Commonwealth (U), SCV (per curiam) from CAV.

In the defendant’s trial for murder, the trial court should have granted the defendant’s motion to suppress statements he made after invoking his right to remain silent. The defendant invoked that right when he said: “I don’t have no more to say to you.” The fact that detectives ended the interrogation within 15 seconds of the defendant’s statement indicates that they understood he was invoking his right to remain silent.

Once the defendant invoked his right, the Commonwealth was prohibited from interrogating him unless he voluntarily reinitiated the interrogation or a significant period of time passed. Here, neither exception applied. Because the Commonwealth relied on the defendant’s statements to undermine his claim that he was acting in self-defense, permitting this evidence was not harmless error.

However, the trial court did not err in refusing to instruct the jury on mutual combat. Where one party assaults another, the ensuing struggle cannot be accurately described as a mutual combat. Here, the record demonstrates that Adkins and the victim were engaged in an argument, and then the victim became the sole aggressor.

Reversed and remanded.

Cox v. Commonwealth (U), SCV (per curiam) from CAV.

The defendant pled guilty to driving while intoxicated, second offense, possession of marijuana and felony hit and run. The trial court sentenced the defendant to a maximum sentence of five years, but the court also stated that it would reconsider the sentence if the defendant found an in-house treatment center to attend after serving one full year in detention.

The trial court’s written order under appeal appears to state that the trial court reserved jurisdiction to act on the defendant’s sentence after he served a year in the Virginia Department of Corrections. However, the trial court lacked authority to modify or suspend the sentence once he was transferred to the Department. The presence of an ultra vires provision in a sentencing order renders the entire order void ab initio. Accordingly, the sentencing order is a nullity.

Vacated and remanded.

U.S. District Court – Virginia Eastern

United States v. Jackson, EDVA at Alexandria (Ellis).

In light of the U.S. Supreme Court’s 2016 decision in McDonnell v. United States, defendant Vernon Jackson’s 2006 convictions for bribery and conspiracy must be vacated.

In 2006, the defendant pled guilty to bribing and conspiring to bribe a former U.S. Congressman to perform “official acts” for the benefit of the defendant’s company. The defendant seeks a writ of coram nobis on grounds that, under the meaning of “official acts” established in McDonnell, he didn’t plead intelligently during his plea colloquy and there was no factual basis for his guilty plea.

The defendant’s conduct – namely, paying a public official and his family large sums of money in exchange for the official’s promotion of the defendant’s own private business interests – doesn’t fall within the bribery statute under which he was convicted. It’s for Congress to consider whether the law should be clarified so that large payments to public servants, such as those in this case, are within its scope.

Petition granted; convictions vacated.

Categories: Daily Dockets

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