Criminal – Felon In Possession – Brandishing – Inducing Fear 
By Deborah Elkins
Published: April 14, 2008
Although defendant acknowledged that he loaded a gun with two bullets in front of a group that included his 16-year-old girlfriend and her mother, and waved the firearm around, he claimed he cannot be convicted of “brandishing” under Va. Code §18.2-282(A) because he did not wave the gun in a manner to “induce fear.” His [...]
Traffic Offenses – DUI – Intoxilyzer 5000 – Confrontation Right
By Deborah Elkins
Published: April 14, 2008
A defendant’s DUI conviction and mandatory 10-day jail sentence are affirmed, and the Court of Appeals rejects defendant’s claims that 1) admission of the certificate of analysis violated his rights under the federal constitutional Confrontation Clause; and 2) the mandatory 10-day sentence is based on an unconstitutional mandatory presumption.
Defendant argues that the test results provided [...]
Criminal – Sentence Reduction – Crack Cocaine – Time Served
By Deborah Elkins
Published: April 14, 2008
Although the district court indicated defendant, who has been in federal custody since July 1997, was eligible for immediate release when she was granted a sentence reduction under the amended federal sentencing guidelines for crack cocaine, the district court does not have authority to further modify the Bureau of Prisons’ sentence that projects a release [...]
Real Estate – Mortgage Default – Abstention
By Deborah Elkins
Published: April 14, 2008
Plaintiff homeowners who have defaulted on their mortgage and seek to avoid foreclosure have their claim against the federal government dismissed under the Rooker-Feldman doctrine.
The only reference to the United States in the entire amended complaint, an assertion that the U.S. is acting on behalf of the U.S. Department of Veteran Affairs and the Secretary [...]
Employment Discrimination – Race – Deputy Sheriffs – Disparate Discipline
By Deborah Elkins
Published: April 14, 2008
A magistrate judge recommends denial of defendant sheriff’s motion for summary judgment in this race discrimination suit filed by Caucasian employees of the Richmond City Sheriff’s Department who allege they were subjected to disparate discipline based on their race for the mistaken, premature release of inmates from the city jail.
Plaintiffs meet their burden of asserting [...]
Criminal – Firearm Use – Drug Trafficking
By Deborah Elkins
Published: April 14, 2008
A district court vacated defendant’s conviction on a plea of guilty to use of a firearm during and in relation to a drug trafficking crime, in light of the U.S. Supreme Court decision in U.S. v. Watson, 128 S.Ct. 579 (2007), in which the high court held that a person does not “use” a firearm [...]
Employment Discrimination – National Origin – Russian Teacher
By Deborah Elkins
Published: April 14, 2008
A Norfolk federal district court dismisses with prejudice a suit alleging national origin discrimination under Title VII filed by a Russian native who was denied a position teaching Russian in the Virginia Beach public school system.
By the time plaintiff interviewed for the posted position, the school system already had filled it with a native of [...]
Civil Rights – Schools – IDEA – Tuition – Attorney’s Fees
By Deborah Elkins
Published: April 14, 2008
In this case involving a special education student’s reimbursement claims under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq., on remand from the 4th Circuit, the district court finds that the private Riverview School in Massachusetts was an appropriate school placement for the student during and awards reimbursement of $129,020 for [...]
Criminal – Forfeiture Reform Act – Attorney’s Fees
By Deborah Elkins
Published: April 14, 2008
A petitioner who successfully recovered funds from a bank account the government seized from third parties in a criminal forfeiture proceeding is entitled to an award of $17,222.50 in attorney’s fees under the Civil Asset Forfeiture Reform Act.
The district court grants the fee award because petitioner has prevailed in a civil proceeding to forfeit property [...]
Civil Rights – Disability – Rehabilitation Act – Va. Inmate
By Deborah Elkins
Published: April 14, 2008
A Virginia inmate who suffers from Guillain-Barre syndrome, a neurological disorder that has caused nerve damage in his feet, can sue for defendant Department of Corrections’ alleged denial of benefits such as a cane and a wheelchair, under § 504 of the federal Rehabilitation Act; his claim is not barred by sovereign immunity, as defendants [...]
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