By Marisa Mariencheck

On November 29, 2018, the Department of Education (“DOE”) published a notice of proposed rulemaking in the Federal Register (the “Proposed Regulations”).[1] If promulgated, the Proposed Regulations would be the first “Title IX regulations . . . to address sexual harassment as a form of sex discrimination” promulgated since Title IX’s implementing regulations were promulgated in 1975.[2] The DOE asserts that the Proposed Regulations will help ensure recipients understand their legal obligations, including what conduct is actionable as sexual harassment under Title IX, what conditions trigger a mandatory response by the recipient, and the specific requirements such a response must meet so that “recipients protect the rights of their students to access education free from sex discrimination.”[3] More specifically, the DOE proposes adding § 106.45(b)(3) which states that “the recipient must conduct an investigation of the allegations in a formal complaint,” and provides specific requirements and procedures applicable when investigating a formal complaint.[4]  Under § 106.45(b)(3)(vii), institutions of higher education must provide a live hearing and “permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.”[5]

To support the requirement of cross-examination for due process procedures in the Title IX context, the DOE relies entirely on Doe v. Baum, a 2018 Sixth Circuit decision concluding that due process requires cross-examination if credibility is in dispute and material to the outcome of a university student disciplinary proceeding.[6] The Sixth Circuit emphasized the importance of cross-examination in not only allowing “the accused to identify inconsistencies in the other side’s story,” but also in giving “the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”[7] Thus, where public universities must choose between competing narratives to resolve a case, the Sixth Circuit requires universities to “give the accused … or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”[8] Despite the DOE’s reliance on Doe v. Baum, several cases following that decision indicate that courts do not unequivocally follow Doe v. Baum’s holding, and generally limit its application to circumstances where the resolution of a material dispute turns on witness credibility.

However, courts have not consistently used Doe v. Baum to require universities to include cross-examination in Title IX proceedings. Courts citing Doe v. Baum unanimously refuse to “read Baum more broadly” than the Sixth Circuit wrote it and apply its holding to require private universities to allow for cross-examination in Title IX proceedings.[9] For example, in Doe v. Belmont Univ., the Middle District of Tennessee held that a private university did not breach its contract with a student where it failed to provide cross-examination.[10]  Similarly, that court noted in a different case that neither a sexual misconduct policy nor implied contractual relationship between an accused student and a private school provides for the right to cross-examination in the Title IX setting.[11] In fact, the District of New Jersey directly rejected a student’s argument referencing Doe v. Baum and asserting that the Proposed Regulations, in their current form, would be promulgated as final regulations.[12]

When considering Doe v. Baum, courts generally note that cross-examination must only occur if a material dispute turns on credibility. In Doe v. Princeton, the court concluded that cross-examination was not required because even if Doe v. Baum bound the Third Circuit, the student failed to establish that the ultimate determination of the issue turned on someone’s credibility.[13] Where the issue concerns the credibility of parties in the investigation, a “lack of meaningful cross examination may contribute” to a violation of an accused student’s due process rights in the Title IX setting.[14] For this reason, the District of Colorado recently determined that the lack of a full hearing with cross-examination provided evidence supporting an accused student’s claim of due process violation by a public university.[15] Similarly, in Doe v. Northern Michigan University, the court emphasized that need for cross-examination only arises where “the finder of fact must choose between believing an accuser and an accused.”[16] There, the court denied a public university’s motion to dismiss a student’s due process claim where material facts turned on witness credibility and the student was not able to testify directly to the body ultimately responsible for his discharge.[17]

In determining whether Title IX due process requires cross-examination, courts examine the specific factual context of the individual case rather than enforce a constant cross-examination requirement.[18] In Doe v. University of Mississippi, the court explained thatto assess the possible impact of cross-examination, it is imperative to understand the factual context.[19] Faced with a student accused of sexual assault’s claim of due process violation, the court noted that Title IX due process only requires cross-examination where governmental action seriously injures an individual and the reasonableness of the action depends on fact-finding.[20] Accordingly, the court determined that the student’s due process rights were violated where the university deprived him of an opportunity to cross-examine, either directly or through written questions submitted to the hearing panel, witnesses whose accounts of the disputed events was the sole evidence used by the fact-finders.[21] Thus, courts consistently limit cross-examination requirements to situations where assessments of witness credibility directly determine the outcome of the case.

Two California appellate court decisions use Doe v. Baum to explicitly require cross-examination in public university Title IX proceedings; however, both of these decisions involved cases where the resolution of material disputes turned on witness credibility. The first case overturned a trial court’s finding that the University of Southern California (“USC”) satisfied due process in investigating a student for sexual assault.[22] The California Court of Appeals emphasized that an adjudicator’s assessment of credibility requires an accused student to have the opportunity indirectly to question the complainant.[23] Therefore, USC violated a student’s due process rights where the Title IX agent who served as both investigator and adjudicator failed to interview three central witnesses in a case where material disputes and conflicting testimony existed.[24] Next, in Doe v. Allee, the California Court of Appeals agreed with Doe v. Baum’sholding extending the right of cross-examination to the questioning of witnesses other than the complainant where their credibility is critical to the fact-finder’s decision.[25] The court explicitly concluded that in the Title IX setting, where a student faces severe disciplinary sanctions, and the credibility of witnesses (including the accusing student) is central to the allegation’s adjudication, universities must provide a cross-examination mechanism.[26] Despite the court’s determination that the case before it required cross-examination, the court emphasized that cross-examination need not always be used.[27] However, where credibility is central to a university’s determination, a student accused of sexual misconduct has a right to cross-examine his accuser, directly or indirectly, so the fact finder can assess the accuser’s credibility.[28]

Moreover, where courts do follow Doe v. Baum’s holding, they do not specifically require a direct, live cross-examination. In Doe v. Allee, the court explained that “mechanisms” can readily be fashioned to “provid[e] accused students with the opportunity to hear the evidence being presented against them without subjecting alleged victims to direct cross-examination by the accused.”[29] The court explained that to satisfy due process, the accused may cross-examine critical witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconference) before a neutral adjudicator with the power to find facts).[30] Similarly, Doe v. University of Southern California elucidated that a public university may submit questions for the adjudicator to ask the accuser and interview critical witnesses in person or by video.[31]

Other district courts also proffer indirect ways in which university proceedings can satisfy Title IX cross-examination requirements. For example, in Doe v. University of Mississippi, the court indicated that the use of written questions submitted to a third party satisfied the right to cross-examination,[32] and in Doe v. Northern Michigan University,  the court concluded that “some form of witness questioning” must occur in front of the decision to allow it to “choose between competing narratives” in making its findings.[33] The Southern District of Ohio emphasized in June 2019 that “nothing in Baum” mandates that universities “employ specific written procedures” for witness cross-examination at disciplinary hearings.[34] It is “neither practical nor desirable” for a university to be a court of law.[35] Accordingly, courts do not construe Doe v. Baum’s holding as requiring live, trial-like cross-examination procedures.

In conclusion, courts interpreting Doe v. Baum generally conclude that the determination of the need for cross-examination requires an analysis of the specific factual situation, and courts impose a cross-examination requirement only in cases where the credibly of the parties or critical witnesses is at issue, and where a material dispute of the case turns on witness credibility. Importantly, courts do not require a live, direct cross-examination of witnesses or the accuser, as required in the DOE’s Proposed Regulation.

[1] See Title IX, 83 Fed. Reg. 61,462 (proposed Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106).

[2] Id. at 61,463.

[3] Id. at 61,462.

[4] Id. at 61,475. 

[5] Id.

[6] Doe v. Baum, 903 F.3d 575, 584 (6th Cir. 2018) (determining in part that a male student stated a due process claim against a public university because the university failed to allow for cross-examination)

[7] Id. at 581

[8] Id. at 578.

[9] Doe v. Belmont Univ., 334 F. Supp. 3d 877, 894 (M.D. Tenn. 2018)

[10] 334 F. Supp. 3d 877, 894 (M.D. Tenn. 2018)

[11] Z.J. v. Vanderbilt Univ., 355 F. Supp. 3d 646 (M.D. Tenn. 2018)

[12] Doe v. Princeton Univ., Civil Action No. 18-16539 (MAS) (LHG), 2019 U.S. Dist. LEXIS 4449, *17 (D.N.J. Jan. 9, 2019).

[13] Id. at *20.

[14] Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1020 (D. Colo. 2019)

[15] Id.

[16] 2:18-CV-196, 2019 WL 2269721, at *6 (W.D. Mich. May 28, 2019)

[17] Id.

[18] See Doe v. Univ. of Miss.,361 F. Supp. 3d 597, 611 (S.D. Miss. 2019)

[19] Id.

[20] Id. at 613.

[21] Id. at 611.

[22] Doe v. Univ. of S. Cal., 29 Cal. App. 5th 1212, 1235 (2018).

[23] Id. at 1237.

[24] Id.

[25] 30 Cal. App. 5th 1036, 1066 (2019).

[26] Id. at 1072.

[27] Id. at 1067.

[28] Id. at 1072.

[29] Id. at 1066

[30] Id.

[31] 29 Cal. App. 5th at 1237.

[32] 361 F. Supp. 3d at 611.

[33] No. 2:18-CV-196, 2019 U.S. Dist. LEXIS 88717 (W.D. Mich. May 28, 2019)

[34] Junhe Qiu v. Univ. of Cincinnati, 1:18-cv-634, 2019 WL 2396664, *10 (S.D. Ohio June 6, 2019)

[35] Doe v. Univ. of Miss., 361 F. Supp. 3d at 609

Weekly Roundup: 9/25-9/29
By: Chase Stevens & Robert Tucci

Brown v. Commissioner Social Security Administration
          In this administrative law case, the claimant appealed the district court’s decision affirming the Commissioner of Social Security’s denial of the claimant’s request for disability insurance benefits. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding that the Administrative Law Judge improperly evaluated the medical opinion evidence and failed to heed the “treating physician rule,” which provides that deference is given to the medical opinion of a physician who has examined the claimant over those who have not.

United States v. Marshall
          In this criminal case, the defendant argued that he was entitled to the release of substitute assets he forfeited after conviction, which he needed needed to finance the appellate counsel of his choice. The Fourth Circuit denied the defendant’s appeal, finding that the Constitution requires only that a criminal defendant be represented by adequate, court-appointed counsel and that a defendant may not use property connected to a crime to fund counsel of his choice.

Di Biase v. SPX Corporation
          In this civil case, the plaintiffs sought a preliminary injunction to enjoin SPX from changing its healthcare plan, arguing that SPX’s alternative healthcare plan breached the plaintiffs’ previous settlement agreements by not being “substantially equivalent” to their current healthcare plan. The Fourth Circuit affirmed the district court’s denial of the injunction, finding that the district court did not abuse its discretion in determining that plaintiffs had not met their burden that they would likely succeed on the merits of their claim.

By M. Allie Clayton

Today, in the criminal case of United States v. Powell, a published opinion, the Fourth Circuit affirmed the District Court in holding that a juror’s statement of “everything would be alright” and that the father needed to give his son “a good kick in the butt” was too ambiguous to establish actual juror bias.  Because the statement was ambiguous, Powell’s counsel’s response was within the range of competent representation, and thus not a violation of Powell’s Sixth Amendment right.

Facts and Procedural History

In June 2005, Powell was convicted by a jury of numerous drug and firearms charges. The district court sentence of 300 months’ imprisonment was affirmed by the Fourth Circuit on direct appeal. The Supreme Court vacated the judgment and remanded for resentencing due to Kimbrough v. United States. On remand, the District Court resentenced Powell to the same term.  Powell again appealed the judgment, which was affirmed by the Fourth Circuit, and the Supreme Court denied certiorari.

In this case, Powell has filed a 28 U.S.C. § 2255 with 16 different challenges to his conviction and sentence, most of which allege ineffective assistance of counsel. The specific claim as to ineffective assistance of counsel in this case is that his trial counsel’s performance was deficient because she did not bring to the attention of the trial court the fact that a juror approached Powell’s father and told him “everything would be alright” and that “he needed to give his son ‘a good kick in the butt.’” Powell alleged that the statement by the juror demonstrated that the juror was biased against him and if his counsel had brought this to the attention of the court, the court would have inquired about the juror’s prejudgment, and possibly removed the juror and replaced her with an alternate.

The Issue

Is the juror’s statement of “everything would be alright” and that “[Powell’s father] needed to give his son ‘a good kick in the butt’” sufficient to demonstrate a juror’s actual bias—thus requiring Powell’s counsel to bring that to the court’s attention?

Sixth Amendment Right to Effective Assistance of Counsel

Under Strickland v. Washington, there are two requirements for a defendant to prove a violation of the Sixth Amendment right to effective assistance of counsel: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

Under the first prong, the defendant must meet a high bar. The defendant must prove that his counsel’s representation fell below an objective standard of reasonableness, and that counsel’s errors were “so serious that counsel was not functioning as ‘counsel.’” The court is required to give a great amount of deference to the counsel’s decision-making and must be careful to eliminate any hindsight distortion and evaluate the decision from the counsel’s perspective at a time.

Sixth Amendment Right to an Impartial Jury

There is a presumption that jurors are impartial, unless there are indications to the contrary.  To be impartial, under the Sixth Amendment, the jury must be able to decide the case based on the evidence before it.  The question regarding juror impartiality is whether a juror can lay aside her opinion and render a verdict based on the evidence presented in court.


As it relates to this specific case, the “question is whether the juror’s statement to Powell’s father indicated that the juror was biased and unable to decide the case solely on the evidence.” The next question is “whether counsel’s failure to bring the statement to the attention of the court amounted to constitutionally deficient representation.”

In this case, the statement’s meaning is not clear. A reasonable lawyer who was told of the statement could conclude that the juror’s statement was “so ambiguous that it could not be taken as indicating that the jury was actually incapable or unwilling to base a verdict solely on the evidence presented at trial.”  The actions of the lawyer in not bringing the matter up were reasonable not only due to the ambiguous content of the statement, but also the risk of alienating the juror based on the mere act of inquiring about the juror’s bias. A reasonable lawyer could have concluded that the client’s interests were best served by not bringing the statement to the attention of the court.

The record further established that the lawyer was reasonable in not bringing the matter up because of how unsure she was as to the significance, if any, of the statement.  Even Powell and his father only described the statement as “troubling” or “strange.”  Powell and his father never stated that they felt panicked when they realized the person who made the statement was a juror in Powell’s trial. Those facts alone indicate that even Powell and his father did not take the juror’s statement as demonstrating a “clear and unmistakable bias against Powell.”


While it might have been more prudential to bring the matter to the attention to the court, the failure to pursue the issue with the court was not so problematic as to make defendant’s counsel’s performance constitutionally deficient.  Therefore, the district court’s order denying Powell’s § 2255 motion is affirmed.


By Sarah Walton

On March 11, 2016, the Fourth Circuit issued a published opinion in the criminal case of United States v. Ragin. The Fourth Circuit vacated the district court’s decision, holding that Ragin was deprived of his Sixth Amendment right to counsel when his attorney slept for a substantial portion of his trial.

The District Court Holds That Ragin’s Sixth Amendment Rights Were Not Violated 

Defendant Nicholas Ragin (“Ragin”) was indicted on October 18, 2004 in connection with a drug conspiracy. Following the indictment, the district court appointed Nikita Mackey (“Mackey”) as Ragin’s counsel. Ragin pleaded not guilty and proceeded to trial, which took place from April 3, 2006 to April 21, 2006. The jury rendered a guilty verdict and Ragin was sentenced to 360 months in prison. After trial, Ragin sent a letter to the district court in which he complained that his counsel fell asleep multiple times during the trial. On October 1, 2010, Ragin filed a motion under 28 U.S.C. § 2255, contending that his conviction should be reversed for ineffective assistance of counsel. The district court held an evidentiary hearing pursuant to the motion in which several witnesses testified that they saw Ragin’s counsel sleeping during the trial.

Ultimately, the district court denied Ragin’s motion. The court reasoned that the standard that a defendant must meet to succeed on a § 2255 motion depends on the type of evidence involved. If a defendant cannot show that his or her attorney slept through a “substantial portion” of the trial, then he or she must show that the attorney’s actions prejudiced the defendant. The district court concluded that Ragin did not present enough evidence to show that his attorney slept through a substantial portion of the trial, reasoning that Ragin’s accusations were not credible. The court then decided that Ragin would need to show prejudice to succeed on the motion, but concluded that he had not met that burden.

The Fourth Circuit Holds That Mackey Slept Through a Substantial Portion of the Trial

The Fourth Circuit started its discussion by outlining the two-part structure for ineffective assistance of counsel claims, which originates from Strickland v. Washington. First, a defendant must show that the attorney performed below an “objective standard of reasonableness.” Next, a defendant must show that the attorney’s performance resulted in actual prejudice during trial. However, in certain situations, prejudice is presumed. The Fourth Circuit then concluded that prejudice is presumed if an attorney sleeps through a substantial portion of the trial. As a result, the Fourth Circuit held that an attorney violates a defendant’s Sixth Amendment right to counsel when the attorney sleeps through a substantial portion of the trial.

Further, the court held that the district court erred when it decided that Mackey did not sleep through a substantial portion of Ragin’s trial. The Fourth Circuit reasoned that every witness testified that Mackey was sleeping, which supported Ragin’s contentions. Further, Mackey himself did not dispute that he slept at the trial. As a result, the court found it “impossible to conclude” that Mackey did not sleep for a substantial part of the trial. Ultimately, this amounted to a violation of Ragin’s Sixth Amendment right to counsel.

The Fourth Circuit Reverses the District Court’s Holding and Remands for Further Proceedings

As a result, the Fourth Circuit reversed the district court’s holding, vacated Ragin’s judgment and sentence, and remanded the case to the district court for further proceedings.




By Daniel Stratton

On September 2, 2015, the Fourth Circuit reversed the conviction of an individual convicted on several charges related to his possession of marijuana with intent to distribute, and remanded for further proceedings in a published opinion in the criminal case United States v. Ductan. The appellant, Phillip Ductan, argued that the district court violated his Sixth Amendment right to counsel by finding that he forfeited his right to counsel and requiring him to proceed pro se, and by subsequently removing him from the courtroom during the jury selection process. The Fourth Circuit, after reviewing Ductan’s argument, reversed the lower court’s decision and remanded the case back to the district court, holding that the lower court erred in finding that Ductan forfeited his right to counsel.

Ductan’s Arrest and Trial

Following a tip from a confidential informant in April 2004, the Charlotte, N.C., Police Department set up a controlled purchase of marijuana from Ductan at a restaurant in Charlotte. After Ductan showed the informant the drugs, the Charlotte Police moved in to arrest Ductan and two men accompanying him. Ductan fled the scene of the crime and in September 2004 was indicted by a federal grand jury on charges of possession of marijuana with intent to distribute, conspiracy to possess marijuana with intent to distribute, and carrying a firearm during a drug trafficking crime. He was arrested in May 2012.

At his initial court appearance, Ductan indicated to the magistrate judge that he had retained Charles Brant, an attorney, to represent him. Brant soon thereafter made a motion to withdraw from the case, explaining that Ductan was uncooperative, would not communicate, and refused to sign a discovery waiver.

At the hearing on Brant’s motion, the magistrate asked Ductan whether he intended to hire an attorney or have the court appoint one. Ductan explained that he did not want to have an attorney appointed and that he did not intend to represent himself. He also complained to the magistrate judge that it was difficult to obtain counsel while incarcerated.

The magistrate explained to Ductan that he had three options: represent himself, hire a new attorney, or ask the court to appoint an attorney for him. At this point Ductan began to make nonsensical statements (telling the judge that he was a “secured party creditor,” for example). The magistrate asked the prosecutor to explain the charges and potential penalties to Ductan, but Ductan claimed he did not understand what was being told to him and that he was “only here for the settlement of the account.” The magistrate questioned whether Ductan was under the influence of drugs or alcohol, but only received nonsense responses in return.

At this point, the magistrate told Duncan that he would not appoint a new attorney because Ductan had waived his right to an appointed attorney through his nonsense answers. The magistrate judge directed a Federal Defender’s office to appoint standby counsel for Ductan. In his order granting Brant’s motion to withdraw, the magistrate noted that Ductan had not “knowingly and intentionally waived his right to counsel” but because of his evasive responses, Ductan had “forfeited his right to counsel.”

Ductan refused to cooperate with Randy Lee, the court appointed standby counsel. About one month later, Lee moved to withdraw as Ductan’s attorney. Ductan continued to state that he did not want an appointed attorney because he was seeking private counsel, however the judge denied the motion explaining that Lee would not have to try the case because Ductan had “waived his right to appointed counsel” through his conduct.

At a calendar call, Ductan again stated that he was seeking private counsel, and stressed that he could not properly represent himself. The court explained that although Ductan had waived his right to appointed counsel, he was still free to hire an attorney.

Jury selection began the next day. Ductan told the district court that he was not prepared to move forward with the proceedings. Ductan repeatedly made nonsense statements, interrupting as the judge attempted to call the venire. After refusing the court’s instruction to stop, Ductan was held in contempt and removed from the court.

Ductan was allowed to observe the jury selection from a holding cell. Lee had no participation in the jury selection process beyond a brief bench conference; he did not strike any jurors.

Following jury selection, Ductan was allowed back into the courtroom and the judge offered to purge the contempt citation if Ductan would behave. Ductan once again stated that he did not want to represent himself and intended to seek private counsel. When Ductan again refused Lee as his counsel, the judge concluded that Ductan had chosen self-representation because the trial was ready to begin. Ductan told Lee that the judges assessment was not a fair representation of his decision.

During the trial Ductan waived his opening, cross-examined several witnesses and gave a closing argument, occasionally consulting with Lee. Ductan was convicted on all three counts of his indictment. He was sentenced to 24 months in prison for the two drug counts, followed by a 60-month term for the gun conviction.

The Fourth Circuit’s Standard of Review for Waiving Right to Counsel

Typically, a defendant’s failure to object in district court to an alleged error would bar a review on appeal absent plain error. However, in certain circumstances the Circuit can review under a de novo standard. There is a circuit split regarding the proper standard of review when a defendant does not object to a right-to-counsel waiver. Previously, the Fourth Circuit has acknowledged there is uncertainty surrounding the question, but declined to determine a specific standard. At different times, the Fourth Circuit has applied both a de novo standard and a plain error standard.

In the lone published decision applying a plain error standard, U.S. v. Bernard, the defendant sought to remove his attorney and proceed pro se. Despite a history of mental illness, the court granted that defendant’s motion because at the time of the hearing to decide, he was still represented by counsel who advocated for the defendant’s ability to represent himself. Because the counsel bore “substantial responsibility for allowing the alleged error to pass without objection” the Fourth Circuit concluded that the defendant had failed to preserve his claim of invalid waiver under a plain error review. Conversely, in cases where a defendant waives counsel while being completely unrepresented, some circuits will review de novo because it is inappropriate to expect a defendant to know fully the perils of self-representation. Such reasoning also applies when an unrepresented defendant does not raise a proper objection to a court’s finding of forfeiture.

The Fourth Circuit Addresses Tension Between Sixth Amendment’s Right to Counsel and Right to Self-Representation

Under the Sixth Amendment of the U.S. Constitution, a criminal defendant has a right to counsel before he can be convicted and punished to imprisonment. At the same time, the Sixth Amendment also protects a defendant’s right to self-representation. Because access to counsel can often be essential in asserting other rights a defendant may have, the Fourth Circuit presumes that the right to counsel is the default position. To this end, the Fourth Circuit has never held that anything less than a waiver relinquishes one’s right to be appointed counsel. In order to assert a right to self-representation, a defendant must “knowingly and intelligently” forgo the benefits of representation after being made aware of the dangers and disadvantages of self-representation.

The U.S. Supreme Court has not “established precise guidelines for determining whether a waiver is knowing and intelligent.” In the Fourth Circuit, a court must find that (1) an individual’s background, (2) appreciation of the charges against him and their potential penalties, and (3) understanding of the pros and cons of self-representation support the conclusion that a waiver to counsel is knowing and intelligent. In order to prevent a defendant from manipulating the system, the waiver must also be “clear and unequivocal.”

Did Ductan Unequivocally Waive His Right To Counsel?

As a starting point, the Fourth Circuit applied a de novo standard of review to Ductan’s case. The court explained that Ductan’s case differed from Bernard because at the time that the magistrate judge determined Ductan had forfeited his right to counsel, Brant had already successfully withdrawn from the case. Thus, Ductan was left without representation and was in a position where he could not be fully expected to understand the necessity of raising a proper objection to the lower court’s decision.

Ductan argued to the Fourth Circuit that at no point did he ever “clearly and unequivocally” elect to proceed without counsel, as required by the court’s case law. He also argued that his waiver was not knowing and intelligent because the judge did not complete the required inquiry to ensure that Ductan was fully aware of his decision’s impact.

Throughout the trial, Ductan continued to reiterate his desire to retain counsel. The Fourth Circuit noted that the magistrate judge was correct in determining that Ductan had not knowingly and intentionally waived his right to counsel, but that the magistrate was wrong in concluding that he had forfeited that right through his “frivolous arguments and answers to questions.” While acknowledging that Ductan had been uncooperative in his interactions with the trial court, the Fourth Circuit explained that it had never previously held that a defendant could forfeit their rights to counsel. Thus, Ductan could not have forfeited his right to counsel through his actions.

The Fourth Circuit also found that Ductan had never waived his right to counsel either. Because Ductan never expressed any desire to proceed pro se, the lower court should have insisted on appointed counsel against Ductan’s wishes in the absence of an unequivocal request to proceed on his own.

Finally, the Fourth Circuit explained that even if Ductan had unequivocally requested to proceed pro se, he still would not have waived his right to counsel because the lower court never finished its inquiry to ensure his decision was knowing and intelligent. Although the judge attempted to start the inquiry, Ductan’s nonsense answers prevented the court from fully exploring his understanding of the proceedings. The Fourth Circuit found that in such a situation it was a requirement that Ductan be appointed counsel “until he either effected a proper waiver or retained a lawyer.”

Ductan’s Case is Reversed and Remanded on First Claim; Court Declines to Address Second Claim

Ultimately, the court held that the lower court erred in finding that Ductan forfeited his right to counsel or made a valid waiver of that right. The court vacated Ductan’s conviction and remanded for a new trial. Judge Diaz, writing a concurring opinion, explained that while the court was right to remand on the first claim, the second claim regarding what happened during jury selection also provided an independent grounds for relief as well.


By Daniel Stratton

On July 10, 2015, the Fourth Circuit affirmed the conviction of former Virginia Governor Robert McDonnell on eleven corruption charges stemming from bribes he and his wife, Maureen McDonnell, had accepted from Jonnie Williams, CEO of Star Scientific Inc. The Fourth Circuit provided an explanation for affirming the conviction in a published opinion in the criminal case U.S. v. McDonnell. The appellant, Gov. McDonnell, alleged several errors in the district court. Primarily, Gov. McDonnell challenged the district court’s jury instructions and the sufficiency of the evidence presented at trial. He also argued that the district court erred by refusing to sever his trial from his wife’s, by violating his Sixth Amendment rights in the voir dire process, and by making several erroneous evidentiary rulings. The Fourth Circuit, after reviewing each of Gov. McDonnell’s claims, affirmed his conviction.

Gov. McDonnell and Jonnie Williams Begin a Mutual Quid Pro Quo Relationship

Prior to his election as governor of Virginia in November 2009, Gov. McDonnell had suffered financial setbacks as a result of the economic downtown. Gov. McDonnell and his sister owned and operated Mobo Real Estate Partners LLC, a business that was losing money on a pair of beachfront rental properties. At the time of the 2009 election, Mobo was losing more than $40,000 each year. The Governor and his wife were also accumulating large amounts of credit card debt, which had reached more than $74,000 at the time of his inauguration in January 2010.

Mr. Williams was the founder and CEO of Star Scientific. At the time of Gov. McDonnell’s election, the company was preparing to launch a new dietary supplement called Anatabloc. Star Scientific was in the process of getting Anatabloc classified as a pharmaceutical by the U.S. Food and Drug Administration. To receive a pharmaceutical classification Anatabloc would need to undergo extensive testing and studies, which required funding beyond what Star Scientific means. As a result, the company was looking for outside research and funding.

Gov. McDonnell first met Mr. Williams in December 2009. Mr. Williams had allowed Gov. McDonnell to use his plane throughout his campaign for governor, but the two did not officially met until December, when the Governor-elect had dinner with Mr. Williams to thank him for his support.

In October 2010, the two met again on Mr. Williams’ personal plane during a trip from California back to Virginia. On this flight, Mr. Williams “extolled the virtues of Anatabloc” to Gov. McDonnell and explained that he needed the Governor to help Star Scientific find a place for testing of the product in Virginia. The Governor agreed to introduce Mr. Williams to Virginia’s secretary of health and human resources.

In April 2011, Mr. Williams took Mrs. McDonnell on a shopping spree, which totaled approximately $20,000, while she and the Governor were attending a political rally in New York. Over the next month, Gov. McDonnell and his wife met and communicated with Mr. Williams about Anatabloc. During this time, the Governor reached out to his sister for information on Mobo’s finances and to his daughter to find out how much money the family still owed for her forthcoming wedding.

On May 2, 2011, Mrs. McDonnell met with Mr. Williams and explained her family’s financial troubles. At this meeting, Mrs. McDonnell told Mr. Williams that she had the Governor’s blessing, and that she could help Mr. Williams with securing research for Anatabloc, provided that he helped her with the family’s financial situation. At this meeting, Mr. Williams agreed to loan the McDonnells $50,000 and to provide the remaining $15,000 for their daughter’s wedding. After the meeting, Mr. Williams called Gov. McDonnell to say that he was willing to help with their financial problems and to confirm that the Governor was on board with the plan. Gov. McDonnell replied “Thank you.”

Over the next year, Mr. Williams provided the McDonnell family with expensive vacations, gifts, and additional loans. Mrs. McDonnell twice bought stock in Star Scientific, and unloaded the stocks before they would have to reported on a required financial disclosure form, known as a Statement of Economic Interest.

Throughout this time, Gov. McDonnell and his wife held the Anatabloc launch at the Governor’s Mansion, contacted the state secretary of health and human services about conducting Anatabloc studies at the Medical College of Virginia and the University of Virginia School of Medicine, reached out to the schools when Mr. Williams believed the studies were proceeding too slowly through the school administration, and attempted to persuade the state’s secretary of administration to include Anatabloc in the state employee health plans.

On January 21, 2014, the McDonnells were indicted by a federal grand jury sitting in the Eastern District of Virginia on a fourteen-count indictment. On September 4, 2014, a jury convicted Gov. McDonnell on eleven counts of corruption. Gov. McDonnell was sentenced to two years in prison, followed by two years of supervised release. Gov. McDonnell appealed to the Fourth Circuit, citing a multitude of alleged errors.

The Fourth Circuit Quickly Dispenses with Severance, Voir Dire, and Evidentiary Arguments

While Gov. McDonnell offered a long list of alleged errors at the district court level, the Fourth Circuit quickly disposed of several of the Governor’s allegations before turning to his more substantive challenges. Gov. McDonnell first challenged the district court’s refusal to sever his trial from his wife’s trial. Generally, if multiple defendants are indicted together, courts have held that they should be tried together. In order to have a motion for severance granted, a defendant must show that he has a bona fide need for a co-defendant’s testimony and that co-defendant would waive Fifth Amendment privilege and testify. He must also demonstrate to the court the substance of the testimony and how that testimony would exculpate him.

The Fourth Circuit found this argument to be unpersuasive because Gov. McDonnell offered “only vague and conclusory statements regarding the substance of Mrs. McDonnell’s testimony.” While Gov. McDonnell did offer to share a more detailed description of Mrs. McDonnell’s testimony, it was conditioned on the review of the evidence being ex parte. The lower court found this would violate the concept of due process, because such a review would have prevented the Government from challenging the evidence. The Fourth Circuit found the trial court did not err in that conclusion.

Gov. McDonnell also argued that the district court violated his Sixth Amendment right to an impartial jury because the court polled the potential jurors as a group instead of questioning them individually on whether they could put aside any information they had heard about the case prior to trial. Jury selection remains largely at the discretion of the trial judge and courts generally cannot apply a hard and fast rule for voir dire.

Here, the Fourth Circuit determined that the trial court had correctly proceeded with voir dire. The jury questionnaire used by the court was largely based off of one the parties had jointly submitted. Gov. McDonnell argued that the question asked of the jurors—if they had “expressed” an opinion, instead of formed an opinion—was problematic. However the Fourth Circuit also found that McDonnell bore most of the responsibility for that question, as the version originally proposed by his attorneys invited the potential jurors “to deliberate on [McDonnell’s] guilt or innocence before the case had even started. Additionally, the Fourth Circuit noted that there had been no contention that any actual juror bias had occurred.

As for Gov. McDonnell’s arguments that the district court made multiple erroneous evidentiary errors, the Fourth Circuit found that none of those findings were clearly erroneous. Evidentiary rulings are reviewed for an abuse of discretion, and the circuit court gives significant deference to the district court’s decisions. A district court abuses its discretion “if its conclusion is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” Because none of the evidentiary issues raised by Gov. McDonnell demonstrated an erroneous decision by the trial court, the Fourth Circuit concluded that none of the district court’s evidentiary rulings should be overturned.

Jury Instructions and Sufficiency of Evidence in the Fourth Circuit 

Gov. McDonnell’s most substantive arguments on appeal concerned the jury instructions given by the trial court and the sufficiency of the evidence used to support his conviction. Gov. McDonnell argued that the jury instructions defined bribery far too expansively. When reviewing jury instructions, the appellate court looks at the instructions as a whole and decides whether the instructions accurately state the controlling law. Even if the instructions do not correctly state the law, a circuit court can still find the error to be harmless.

The relevant definition of bribery is “corruptly demanding, seeking, or receiving anything of value in return for being influenced in the performance of any official act.” In the context of bribery, an official act is defined as “any decision or action on any [matter] . . . which may at any time be pending . . . before any public official.” The Fourth Circuit has found that the term “official act” however, does not encompass every action taken by a public official in an official capacity.

An “official act” is not required to be an act explicitly conferred upon an official by a statute. In U.S. v. Birdsall, the Supreme Court explained that an action may be classified as “official” even if it is not explicitly prescribed by statute or a written rule so long as it is found in the “established common usage” of the position. While an official act may be an action that a public official customarily performs, this does not mean that every act an official performs “as a matter of custom” is an official act. Job functions of a public official which are completely ceremonial or educational will usually not fall within the definition of an “official act” in the context of the bribery statute.

Gov. McDonnell also argued that the Government’s evidence was insufficient to support his conviction. On appeal, the Fourth Circuit reviews evidence in the light most favorable to the Government, and if there is substantial evidence supporting a jury conviction, it will be affirmed. In order to prove a quid pro quo arrangement, the government must provide evidence that shows a “specific intent to exchange money (or gifts) for specific official action.”

The Fourth Circuit Finds Jury Instructions were Appropriate and that There was Sufficient Evidence to Convict the Governor

The Fourth Circuit found Gov. McDonnell’s arguments unpersuasive. Gov. McDonnell argued that the jury instructions were too broad because of how they defined an official act. The Governor argued that under this definition, almost anything done by a public official could be construed as an official act, including routine functions such as attending a luncheon or organizing a meeting. Gov. McDonnell claimed that such activities can never constitute an official act and thus the district court incorrectly defined that term in its jury instructions.

The Fourth Circuit did not buy this argument, because the meaning of “official act” as used in the definition of bribery is connected to decisions or actions on matters that may come before the government, not simply any customary act. The court pointed out that the bribery statute criminalizes “corruptly demanding, seeking, or receiving anything of value in return for being influenced in the performance of any official act.” By this definition, the crime is completed when the bribe is either solicited or accepted, regardless of whether or not the “official act” is ever completed (or even started). Further, the court observed, the official act can be an act outside of the bribe recipient’s control, thus it does not matter if the bribe recipient has actual authority over the end result being sought. In his role as Governor, McDonnell had power to influence other public officials and obtain the results Mr. Williams was seeking.

The Fourth Circuit also found that the trial court did not err by denying Gov. McDonnell’s proposed jury instructions, which stated that “merely arranging a meeting, attending an event, hosting a reception, or making a speech” could never constitute an official act. The court found that such a broad statement was unsupported by case law and precedent.

Turning to the strength of the Government’s evidence, the Fourth Circuit dismissed Gov. McDonnell’s claims of insufficiency. The Government presented evidence on three specific matters within the Governor’s sphere of influence: (1) whether researchers at Virginia’s universities would initiate a study on Anatabloc; (2) whether the state Tobacco Commission would provide grant money for studying the active ingredients in Anatabloc; and (3) whether the state health insurance plan would include Anatabloc as a covered drug. The Government did not need to show that Gov. McDonnell actually took official action, but only that there was a corrupt agreement with an expectation that some type of official action would be taken. The Fourth Circuit found that the Government exceeded its burden by showing that the Governor actually used his power to influence government decisions.

The Government also succeeded in showing a quid pro quo relationship by demonstrating a close temporal relationship between Mr. Williams’ gifts and Gov. McDonnell’s actions supporting Anatabloc. The Fourth Circuit noted that Williams’ gifts were not gifts from one friend to another by pointing out that Mr. Williams and Gov. McDonnell did not even know each other until after Gov. McDonnell had been elected. The court concluded that the evidence was such that a jury could readily infer that there were multiple quid pro quo payments and that Gov. McDonnell was acting with corrupt intent.

Fourth Circuit Affirms Gov. McDonnell’s Conviction 

The Fourth Circuit affirmed Gov. McDonnell’s conviction on appeal because a review of the record demonstrated that the Governor received a fair trial and was duly convicted by a jury.


By David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.

By: Dan Menken

Today, in United States v. Ward, the Fourth Circuit affirmed the conviction of George A. Ward for violating the conditions of his supervised release. He was sentenced to 20 months imprisonment, which is the mandatory minimum under 18 U.S.C. § 3583(g), which Congress amended in 1994 to eliminate the statute’s minimum sentencing provision. In this case, the statute was amended after Ward committed the underlying offense, but after he engaged in the conduct that led to the revocation of his supervised release.

Ward Violated Parole Agreement by Testing Positive for Controlled Substances

In December 1994, Ward plead guilty to three counts of being a felon in possession of a firearm, two counts of distribution of crack cocaine, and one court of use of a firearm in furtherance of a drug trafficking crime. He ultimately received a sentence of 200 months, followed by a five-year period of supervised release. The supervised release prohibited Ward from illegally possessing a controlled substance.

In April 2013, the government filed a petition in the district court seeking to revoke Ward’s supervised release. The government alleged that Ward had tested positive for cocaine or marijuana on multiple occasions. At a hearing on the government’s petition, Ward admitted that he had possessed cocaine and marijuana on numerous occasions during his supervised release. The district court revoked Ward’s supervised release and sentenced him to 20 months in prison. In calculating Ward’s sentence, the court followed the version of 18 U.S.C. § 3583(g) that was in effect at the time he was sentenced for his underlying crimes. These guidelines specified that the defendant must serve a mandatory minimum sentence of one-third of his supervised release term.

Congress amended 18 U.S.C. § 3583(g) in September 1994, eliminating the mandatory minimum sentencing provision.

Did the District Court Err in Applying Former Version of 18 U.S.C. § 3583(g)?

Ward argued that the former version of the statute was not applicable because the statute was amended before he was originally sentenced and before he committed the acts in violation of his supervised release. In coming to their decision, the Fourth Circuit relied on Johnson v. United States, which held that a defendant was subject to the sentencing provisions of the statute in effect when the initial offense was committed. That court specifically held that “postconviction penalties relate to the original offense.” Thus, any violation of a supervised release would relate back to the time when the underlying offense was committed. The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial because the court must look back to the initial offense.

Moreover, under the federal Savings Statute, 1 U.S.C. § 109, absent a clear indication from Congress of retroactive application, a defendant is not entitled to “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Thus, the Savings Statute preserved the mandatory minimum punishment provision of § 3583(g).

The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial. Therefore, the district court correctly applied the former version of § 3583(g), which was the statute in effect when Ward committed the underlying crimes.

Did Mandatory Minimum Provision Violate Defendant’s Sixth Amendment Rights?

Ward further agues that the mandatory minimum provision in § 3583(g) violated his Sixth Amendment rights, because the factual findings required to impose that sentence were not made by a jury applying the standard of beyond a reasonable doubt. The Fourth Circuit once again turned to Johnson, which stated that a violation of the conditions of a supervised release “need only be found by a judge under a preponderance of the evidence standard.” However, they also noted that in Alleyne v. United States, the Supreme Court required a jury determination under the standard of beyond a reasonable doubt for any factual finding in a criminal trial that requires imposition of a statutory mandatory minimum sentence. In this case, the Fourth Circuit determined that Ward was facing a supervised release revocation, which stands in contrast to a criminal trial. According to Morrissey v. Brewer, “the full panoply of rights due a defendant in [a criminal prosecution] does not apply to parole revocations.” Additionally, those individuals on supervised release enjoy only “conditional liberty” because they already have been convicted of the criminal offense.

Thus, the Fourth Circuit concluded that Ward was not entitled to have the alleged supervised release violation proven to a jury beyond a reasonable doubt.

District Court’s Judgment Affirmed

The Fourth Circuit held that the district court did not err in applying the former version of 18 U.S.C. § 3583(g) in Ward’s supervised release revocation proceeding. The Court further held that Ward’s Sixth Amendment rights were not violated. Accordingly, the Court affirmed the district court’s judgment.

By: Kelsey Kolb

Friday, in United States v. Stewart, the Fourth Circuit affirmed the District Court for the District of Maryland’s 180-month armed career criminal sentence against Stewart. Stewart pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), to which the district court attached the 180-month sentence, pursuant to 18 U.S.C. § 924(e) (2012).

Did the district court err in its imposition of both a statutory mandatory minimum and increased statutory maximum sentence?

Stewart contended that the district court’s imposition of the statutory mandatory minimum sentence was in direct conflict with 18 U.S.C. § 3553(a) (2012), which mandates the court to impose a sentence that is “sufficient but not greater than necessary.” Stewart further appealed his statutory maximum sentence, arguing that the district court violated his Fifth and Sixth Amendment rights by increasing his sentence based on facts that were neither charged on the indictment, nor submitted to the jury.

The § 924(e) mandatory minimum does not conflict with the sentencing mandate of § 3553(a).

The Fourth Circuit held that § 3553(a) was not controlling in this case and thus, that the mandatory minimum was proper. The court reasoned that 18 U.S.C. § 3551(a) only yields to § 3553(a), the general criminal sentencing provision, if there is no other specific mandatory sentencing provision on point. Consequently, the “no greater than necessary” language from § 3553(a) would not apply in this case since there was another specific provision on point, § 924(e). Furthermore, even if § 3553(a) were controlling in this case, the court reasoned that the “no greater than necessary” language does not authorize a district court to sentence below the mandatory statutory minimum.

The increased statutory maximum sentence is not in violation of Stewart’s Fifth or Sixth Amendment rights.

The court briefly held that this claim was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228–35 (1998).

By Karon Fowler

In 2010, Drug Enforcement Agency (DEA) agents sent an undercover informant to buy fifteen bundles of heroin from a distributor associated with defendant Ernest James McDowell, Jr.  McDowell was eventually busted for dealing and the cops discovered a firearm while searching his apartment. In March 2011, McDowell pled guilty without a plea agreement to one count of possession of heroin with intent to distribute and one count of being a felon in possession of a firearm.

McDowell’s probation officer prepared a presentence report (PSR) with an increased recommended sentence on the ground McDowell as an “armed career criminal” pursuant to the Sentencing Guidelines and defined by the Armed Career Criminal Act (ACCA). Under the ACCA, a felony convicted of unlawfully possessing a firearm after committing three “violent felon[ies]” or “serious drug offense[s]” must be sentenced to a term of fifteen years to life imprisonment.

The probation officer concluded that three of McDowell’s prior convictions qualified as “violent felonies” under the ACCA. The first two convictions were evidenced by formal court judgments, but for the third conviction, the Government relied on a criminal record check obtained from the National Crime Information Center (NCIC) database. The database listed a 1971 conviction in the Bronx for second degree assault.

At McDowell’s sentencing hearing, he objected to the probation officer’s reliance on the NCIC report to establish the existence of the 1971 assault conviction. The Government conceded that a certified court record of the conviction was “no longer available,” but insisted that NCIC reports are sufficiently reliable to evidence McDowell’s commission of the crime.

McDowell’s first argument on appeal was that the NCIC report cannot establish the fact of the 1971 conviction. His specific concerns pertained to the reliability of the NCIC reports in general and his report in particular. However, the Circuit explained that every court of appeals to address a similar argument in a published opinion has rejected it and instead concluded that a district court may use the NCIC report to establish the fact of a prior conviction.

The Circuit stated that McDowell failed to provide any evidence to suggest that the NCIC database is inaccurate with significant frequency. McDowell was only able to provide “anecdotal evidence of a 99.5% accuracy rate,” which obviously failed to establish firm unreliability. In fact, it cuts against his argument and tends to prove the database significantly more reliable than not. Moreover, the NCIC reports are used extensively throughout the criminal justice system. Courts use the system to make bail and pretrial release decisions, while prosecutors rely on the reports at trial to impeach the witnesses.

Even if the reports are generally reliable, McDowell alternatively contends that the specific report at issue in his case is such a blatantly unreliable document that the district court clearly erred it allowing its use. The inaccuracies of his report include his incorrect name and birthday. He also points to the passage of 40 years since the alleged assault conviction, which he suggests increases the unreliability of the information. Nevertheless, the Government provided sufficient explanation of each supposed defect in the report.

The NCIC report includes any names and birthdays provided by the defendant upon arrest, including alias and falsely provided information. More specifically, the Government illustrated that McDowell had been convicted of other crimes in the Bronx under the alias “Michael” within the same time frame of the supposed assault conviction. The Government also stated that if the 1971 conviction were false as McDowell now alleges, he would have sought to challenge it during his 1983 federal crime conviction which would have included a criminal background check.

Although these explanations do not fully resolve the possible unreliability of the NCIC report, they sufficiently substantiated the report’s information for the district court to conclude by a preponderance of the evidence that McDowell committed the 1971 crime. The Circuit refused to hold that a contested NCIC report standing alone would always suffice to establish the fact of a prior conviction. The court, in limited fashion, only held that the district court did not clearly err in finding that McDowell’s NCIC report in conjunction with the corroborative evidence supplied by the Government, established the existence of the 1971 assault by a preponderance of the evidence.

McDowell also challenged the use of the NCIC report on constitutional grounds. He argued that the district court violated his Sixth Amendment right to a jury decision on each element of his offense beyond a reasonable doubt. Under the Sixth Amendment, it is usually required that any fact raising the statutory penalty for a crime “be submitted to a jury, and proved beyond a reasonable doubt.” However, there is an exception to the general rule whereby a jury need not find the “fact of a prior conviction” beyond a reasonable doubt. Instead, a judge may find the fact of a prior conviction by the lower preponderance of the evidence standard, even if it raises the statutory maximum or minimum penalty for the offense. This exception was articulated in the U.S. Supreme Court’s Almendarez-Torres decision. The Fourth Circuit explains that although some recent U.S. Supreme Court jurisprudence has cast doubt on the strength of the Almendarez-Torres exception, it remains good law that the Fourth Circuit will follow.

However, the Circuit acknowledged the distinctions between McDowell’s claim and the defendant’s claim in Almendarez-Torres. Unlike Almendarez-Torres, McDowell did not concede that his prior conviction in fact occurred. Moreover, there was no assurance that the alleged 1971 conviction arose pursuant to proceedings with substantial procedural safeguards of their own that would mitigate McDowell’s constitutional concerns. Thus, McDowell’s claim “untethers the exception from its justifications and lays bare the exception’s incompatibility with constitutional principles that are by now well settled.”

Nevertheless, the court explains that the law as it currently stands provides that the district court may find the fact of a prior conviction by a preponderance of the evidence. Under that standard, the district court did not clearly err in its conclusion that McDowell committed the 1971 crime for purposes of the PSR recommendation.

The NCIC database may be found at