On February 16, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for U.S. v. Cowden.

I. Facts and Procedural History

This case involves the appeal of Defendant Mark Cowden, who was charged with deprivation of rights under color of law under 18 U.S.C. § 242, and knowingly making a false statement to impede a federal investigation under 18 U.S.C. § 1519.

Michael Hoder, a West Virginia State Police Trooper, initiated a traffic stop of Ryan Hamrick, who was speeding and had a taillight violation. As Hoder attempted to arrest Hamrick, Hamrick engaged in a physical altercation with Hoder. Hoder called for additional law enforcement assistance, which arrived after Hoder had effectively placed Hamrick under arrest. Hamrick was then driven to the HCSO station for processing, without offering further resistance or speaking in any threatening manner to the officers.

Defendant Mark Cowden, an HCSO lieutenant, was waiting to process Hamrick when he learned that Hamrick resisted Hoder’s efforts in arresting him. Officers surrounding Defendant Cowden noticed that he was “unusually hostile” and stating threats against Hamrick for his behavior. When Hamrick arrived at the station, he was restrained in handcuffs securing his hands behind his back, and he was not threatening any officers physically or verbally. Hamrick did display a “loud and drunken demeanor,” but no other officers other than Defendant Cowden perceived him as a threat.

As Hamrick was entering the lobby of the HCSO, he attempted to pull away from Cowden and Sergeant Cline, who were escorting him in the building. Even though no other officers viewed this as a threat, Defendant Cowden “pulled Hamrick toward the elevator and threw him against the wall.” Cowden then slammed Hamrick’s head into the wall and told Hamrick that he was in “our house” and that Hamrick needed to “play by our rules.” Cowden continued to physically abuse Hamrick, until Sergeant Cline intervened and told Cowden to “back off.” After the altercation, Hamrick had injuries around his face and was bleeding from his nose and mouth. He was taken to a hospital to receive additional care, which costed $3,044.

At trial, the district court allowed the jury to hear evidence regarding Defendant Cowden’s previous use of force on two prior occasions during other criminal investigations. The district court instructed the jury that it “may not consider” that evidence “in deciding if the defendant committed the acts charged in the indictment.” Instead, the judge charged the jury that they should only use the evidence to show the state of mind or intent necessary to commit the crime charged in the indictment and to show that it was not due to mistake or accident. Cowden also submitted proposed jury instructions to the district court, which included a generic “Lesser Included Offenses” instruction, showing that a charge of Section 242 can qualify as a lesser offense depending on whether a victim suffered bodily injury. The district court, however, adopted the government’s proposed instructions of Section 242, and Cowden did not object to the court’s decision at the charge conference.

The jury acquitted Cowden of the false statement charge but found Cowden guilty on the deprivation of rights charge. Cowden appealed the decision.

II. Issues Presented

Four issues were presented on this appeal: (1) whether evidence of Cowden’s two prior uses of force were properly admitted by the district court; (2) whether the evidence was sufficient to support his felony conviction; (3) whether the jury was properly instructed on the elements of the Section 242 offense; and (4) whether Cowden was improperly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

III. Holding

The United States Court of Appeals for the Fourth Circuit held in the following manner for each issue on appeal: (1) evidence of Cowden’s two prior uses of force was properly admitted by the district court; (2) the evidence was sufficient to support his felony conviction; (3) Cowden failed to show plain error regarding the denial of a particular jury instruction; and (4) Cowden was properly held liable for injuries Hamrick sustained at the time he was arrested by another law enforcement officer.

IV. Reasoning 

The court reasoned that evidence of Cowden’s two prior uses of force was properly admitted by the district court because, although potentially constituting prior “bad acts,” the evidence was properly admitted under an exception to Rule 404(b). The evidence was used to help establish the defendant’s state of mind and not simply that he had a propensity for violence. In addition, the court concluded that any possible unfair prejudice did not “substantially outweigh” the probative value of this evidence.

Next, the court concluded that the evidence provided by the government was more than sufficient to support the jury’s determination that Cowden acted willfully. From the evidence presented, the jury could conclude that Cowden, while acting as a law enforcement officer, willfully used unreasonable force against Hamrick.

The court then determined that Cowden failed to show any error, let alone plain error, regarding the court’s denial of his requested jury instruction. The court reasoned that the instructions given by the district court correctly explained the statutory distinctions, permitting the jury to find Cowden guilty of a misdemeanor rather than a felony if the jury determined that Hamrick had not suffered a bodily injury as a result of Cowden’s actions. Thus, although the district court used different words, it instructed the district court as Cowden requested.

Lastly, the court reasoned that the government carried its burden of showing by a preponderance of the evidence “the amount of the loss sustained by a victim as a result of the offense.” Therefore, based on the overwhelming evidence regarding the injuries Hamrick sustained as a result of Cowden’s actions, the court held that the district court acted within its discretion in requiring Cowden to pay the full amount of Hamrick’s medical expenses.



By John Van Swearingen

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Winston. Robert Winston (“Appellant”), currently serving a 275-month sentence for a federal firearms charge from 2002, filed a motion for post-conviction relief under 28 U.S.C. § 2255 (2012) in the United States District Court for the Western District of Virginia. Appellant asserted the sentencing enhancements applied to his case were invalidated by Johnson v. United States (“Johnson II“), a 2015 Supreme Court decision striking part of the Armed Career Criminal Act (“ACCA”) and narrowing the scope of “violent felonies” included thereunder. No. 13–7120, slip op. at 15 (U.S. June 26, 2015). The district court rejected Appellant’s arguments. On appeal, the Fourth Circuit reversed the district court, holding Virginia’s common law robbery no longer qualified as a “violent felony” under the ACCA, and remanded the case for further proceedings.

Facts and Procedural History

In 2002, Appellant was sentenced to 275 month’s imprisonment for a federal firearms charge. Appellant’s sentence was enhanced under the ACCA, which mandates a fifteen-year minimum sentence for any person convicted of a firearms offense who has three prior “violent felonies” or serious drug offenses. At the time, the ACCA had categories of “violent felonies:” those established under the statute’s force clause and those under the statute’s residual clause, which included burglaries, arsons, and any other conduct that posed a serious risk of injury to another person. Appellant had four prior then-qualifying convictions: (1) rape under the Uniform Code of Military Justice (“UCMJ”), (2) common law robbery in Virginia, (3) possession of cocaine with intent to distribute in Virginia, and (4) a federal conviction for distribution of cocaine base.

After the Supreme Court published its 2015 opinion in Johnson II, which limited the definition of “violent felony” under the ACCA by striking the residual clause for vagueness, Appellant filed the instant action asserting that neither the UCMJ rape conviction nor the Virginia robbery conviction satisfied the new definition of “violent felony.” Without the ACCA sentencing enhancements, Appellant’s maximum sentence in 2002 would have been ten years, meaning Appellant would be immediately available for release.

The district court has not yet addressed Appellant’s rape conviction. The matter before the Fourth Circuit focused solely on Appellant’s common law robbery conviction. The government argued two points to challenge Appellant’s motion for relief. First, the government argued that, since Appellant could not prove that his robbery conviction was defined a “violent felony” under the now-stricken residual clause of the ACCA, Appellant did not rely on a new rule of constitutional law and was thus foreclosed from requesting relief. Second, the government argued that common law robbery still satisfied the limited definition of “violent felony” under the ACCA.

The district court disagreed with the government’s procedural assertion but agreed with the government’s substantive assertion, and it accordingly held the Virginia crime of common law robbery was a “violent felony” under the ACCA. Appellant timely filed the instant appeal.

Appellant Relied on a New Rule of Constitutional Law for the Motion for Post-Conviction Relief.

28 U.S.C. §§ 2244(b)(2)(A), 2244(b)(4) (2012) requires that motions for post-conviction relief rely on a new rule of constitutional law. The record never established that Appellant’s common law robbery conviction was only considered for enhancement by the sentencing court under the residual clause of the ACCA struck in Johnson II. Thus, the government argued, Appellant could not show reliance on the holding in Johnson II and was, therefore, barred from moving for relief.

The Fourth Circuit agreed with the district court that the sentencing court’s failure to disclose the clause or clauses of the ACCA under which it considered Appellant’s convictions could not be fatal to Appellant’s claim. The Fourth Circuit held that any movant seeking post-conviction relief, where that movant’s conviction may have been enhanced based on the now-void residual clause struck in Johnson II, may challenge their sentence. To hold otherwise, according to the Fourth Circuit, would punish defendants for a sentencing court’s discretion in failing to disclose the clauses of the ACCA under which it evaluated the defendant’s enhancements.

The Virginia Crime of Common Law Robbery Is Not a Violent Crime under the ACCA

Appellant challenged the district court’s holding that the Virginia crime of common law robbery was a “violent felony” under the ACCA. Since the residual clause was struck from the ACCA, all violent felonies must meet the definition established in the statute’s force clause, 18 U.S.C. § 924(e)(2)(B)(i) (2012), which requires an element of “use, attempted use, or threatened use of physical force against the person of another.” The force clause was clarified in the Supreme Court’s 2010 decision in United States v. Johnson (“Johnson I”), which defined “physical force” in the statute to mean only “violent force” that could cause injury or pain. No. 08–6925, slip op. at 6 (U.S. Mar. 2, 2010).

The Fourth Circuit noted that the Supreme Court’s decision in Moncrieffe v. Holder required the reviewing court to consider the “minimum conduct criminalized” by a state criminal law. No. 11–702, slip op. at 5 (U.S. Apr. 23, 2013). In Virginia, a common law robbery conviction can be sustained where a defendant steals the property of another by “violence or intimidation.” Pierce v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964). The “violence” element of the crime can be satisfied by the bare minimum of physical force needed to overcome a victim’s resistance. Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va. 1936).

A conviction for common law robbery could therefore be sustained where only a minimum amount of “violence” is used – for example, turning someone’s body in order to grab their purse. Injurious “violent force” is not an element of the crime. The crime is therefore not a “violent felony” for sentencing enhancements under the ACCA. Thus, the Fourth Circuit reversed the district court’s holding and held the Virginia crime of common law robbery did not meet the standard set by the force clause of the ACCA, as clarified in Johnson I.


The Fourth Circuit affirmed the district court’s holding regarding the procedural matter but reversed the district court’s substantive holding regarding the status of common law robbery as a “violent felony.” Thus, the district court’s judgment was vacated, and the case was remanded for further consideration regarding Appellant’s rape conviction under the UCMJ.


By Eric Jones

On July 17, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Watson.  John Watson, Jr. appealed to the Circuit asking that an order to forcibly medicate him with antipsychotics in order to render him competent to stand trial be reversed.  Because the government failed to establish by clear and convincing evidence that the involuntary medication was substantially likely to restore Watson’s competency, the Fourth Circuit reversed without remand.

The Attempted Destruction of an Aircraft and Medical Opinions

On September 28, 2012, Watson fired a handgun at a Coast Guard helicopter as it flew overhead.  The helicopter was undamaged, and none of the crew members were injured.  After his arrest, Watson was interviewed by a clinical psychologist and informed her that he was a covert operative for the British Special Forces, and had been since he was seven years old.  Watson believed that as a covert operative for the United Kingdom, he was entitled to diplomatic immunity.  It was concluded that Watson was incompetent to stand trial, and he was later diagnosed with Delusional Disorder, Persecutory Type, which is a rare mental illness characterized by the presence of one or more delusions that persist for at least a month.

Watson had never been medicated before, but an expert for the government nevertheless believed that antipsychotic medicine had a good chance of rendering him competent.  This opinion was based on the expert’s prior experience with psychotic patients, and the existing literature on the efficacy of antipsychotics.  Defense expert Dr. James H. Hilkey argued that there was very little existing literature involving double-blind studies on the efficacy of pharmacological treatment of Delusional Disorders.  Hilkey further argued that the Persecutory Type of the disorder was the most resistant to treatment, and opined that the chronic nature of Watson’s illness made treatment less likely to succeed.  Both experts agreed that Watson was not likely to be a threat to himself or to others, given the nature of his delusions.

The Standard for Forcible Medication

If a defendant is not a threat to himself or others, four factors laid out in the Supreme Court case Sell v. United States, 539 U.S. 166 (2003) must be met before he can be forcibly medicated for the sole purpose of rendering him competent to stand trial.  It is important to note that this is an exceptional and rare solution, and is granted only with significant vigilance because of the inherent deprivation of liberty that accompanies the administration of medication which alters the will and mind of the subject.  Each element must be shown by clear and convincing evidence.  First, the government must show that important governmental interests are at stake, and that special circumstances do not mitigate those interests.  Second, the government must show that involuntary medication significantly furthers those interests, which requires proof that the medication is substantially likely to render the defendant competent as well as that it is substantially unlikely to have side effects that will interfere with the defendant’s ability to assist counsel.  Third, the medication must be necessary to further the government’s interests, and less intrusive means must be unlikely to achieve the same results.  Fourth, the court must find that the administration of the drugs is medically appropriate and is in the defendant’s best medical interests.

A magistrate judge recommended that Watson be forcibly medicated, relying on the government’s expert and disregarding Hilkey’s testimony.  The District Court for the Eastern District of Virginia issued a brief order adopting the magistrate’s recommendations, and granting the government’s motion for involuntary medication.  This appeal followed.

The Likelihood of Forcible Medication to Render Watson Competent

The result in this appeal turned on the second prong of the Sell test—whether forcible medication was substantially likely to render Watson competent to stand trial.  In order to support this finding, the Fourth Circuit noted that the proposed treatment plan must be effective for this particular patient, and not simply that it is a generally effective treatment for the medical condition at issue.  In this case, the government’s expert opined that the treatment was likely to be successful based only on his own previous patients and on medical literature. Notably absent was any consideration of Watson’s particular circumstances or condition.  The Fourth Circuit explained that the extraordinary nature of forcible medication requires such particular and specific consideration, and thus held that the District Court had erred.

The Government Could Not Meet Their Burden on the Existing Record

Generally, an appellate court will remand for further consideration in cases similar to this.  Here, the Fourth Circuit took the rare position that a remand would be inappropriate because the burden could not be met by the government.  As explained above, the Circuit examined the evidence offered by the government and found it to be severely lacking.  Upon consideration of Hilkey’s testimony, the Fourth Circuit further held that the clear and convincing standard could not possibly be met.  Hilkey’s arguments focused extensively on Watson’s particular circumstances, and largely discredited the government’s evidence.  For instance, many of the studies cited dealt with psychotic disorders in general, and not delusional disorders in particular.  Furthermore, these studies showed questionable success rates at best with antipsychotic medication, especially in patients with Watson’s illness.  Additionally, based on Watson’s persecutory and paranoid delusions, Hilkey concluded that forcible medication was likely to increase Watson’s fears of persecution.  Given the concerns raised by Hilkey, the total lack of support offered by the government, and the fact that the standard had been established over a decade ago, the Fourth Circuit held that a remand would be ineffective and inappropriate.

The Fourth Circuit Reversed without Remand

One judge dissented, arguing that the standard was met, and that even if it was not, the case should be remanded rather than simply reversed outright.  However, because forcible medication was not substantially likely to render Watson competent, the Fourth Circuit reversed the District Court.  Furthermore, because the Circuit held that the standard could not be met given the facts in this case, the Court refused to remand.