Pregnancy Center Wins ‘Speech’ Injunction

FINRA Arbitration Upheld for Municipal Bond ‘Customer’

By Deborah Elkins
Published: January 29, 2013
Tags: 4th U.S. Circuit Court of Appeals, Contract, Judge Paul V. Niemeyer

A Virginia healthcare company is a “customer” of the financial services companies it hired to structure its municipal bond offering, and it entitled to FINRA arbitration of its claims that it was fraudulently induced to issue over $234 million in auction-rate municipal bonds; the 4th Circuit upholds the order allowing arbitration to go forward. Carilion [...]

Illegal Alien’s Gun Rights Limited

By Deborah Elkins
Published: January 7, 2013
Tags: 4th U.S. Circuit Court of Appeals, Civil Rights, Judge Paul V. Niemeyer

A Mexican citizen can be prosecuted for possession of a weapon while being in the U.S. illegally; the 4th Circuit rejects his claim that his prosecution under 18 U.S.C. § 922(g)(5) violated his rights under the Second and Fifth Amendments. Appellant filed a motion to dismiss the charge. The district court denied the motion, and [...]

Reg Upheld for Rail-to-Trail Conversion

By Deborah Elkins
Published: November 27, 2012
Tags: 4th U.S. Circuit Court of Appeals, Administrative, Judge Paul V. Niemeyer

The 4th Circuit upholds a federal agency’s interpretation of its regulation under the National Trails System Act to require a state agency that wants to sponsor conversion of a railroad right-of-way to a public trail to indemnify the railroad against “any potential liability”; the regulation does not require a state agency to waive its sovereign [...]

Drug Sentence Remand Under Dorsey

By Deborah Elkins
Published: November 27, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Paul V. Niemeyer

On remand of this drug conspiracy case by the U.S. Supreme Court for reconsideration of the sentence under the Fair Sentencing Act of 2010, the 4th Circuit reaffirms elements of its earlier decision and remands for possible resentencing by the trial court. In U.S. v. Edmonds, 679 F.3d 169 (4th Cir. 2012), we affirmed the [...]

Forfeiture Filing Limit Not Jurisdictional

By Deborah Elkins
Published: November 19, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Paul V. Niemeyer

In this civil forfeiture proceeding, the government’s failure to file its forfeiture petition within the 90-day time limit of 18 U.S.C. § 983(a)(3) was not jurisdictional, and the 4th Circuit says because a drug defendant did not invoke this statute of limitations during the forfeiture proceeding, he forfeited this defense. Defendant asserted a claim for [...]

‘Prior Conviction’ Ruling Not Retroactive

By Deborah Elkins
Published: August 22, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Paul V. Niemeyer

The 4th Circuit denies post-conviction relief for a defendant’s 240-month sentence for conspiracy to distribute cocaine, enhanced due to defendant’s prior North Carolina drug conviction; the rule defendant advances from a 2010 U.S. Supreme Court case is not retroactively applicable to cases on collateral review, and defendant’s § 2255 motion is untimely. Defendant moved for [...]

No Post-Conviction Relief on Padilla Claim

By Deborah Elkins
Published: July 19, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Paul V. Niemeyer

A criminal defendant’s right to be advised that he could face deportation after a guilty plea is not a “watershed rule” that applies retroactively on collateral review, the 4th Circuit says. The issue here is whether the right recognized in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), which held that the Sixth Amendment right to [...]

Engineer’s Phony Permit Was Mail Fraud

By Deborah Elkins
Published: July 3, 2012
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Paul V. Niemeyer

An engineer who mailed a client county a valid permit cut off an old set of plans and attached to a new plan for a county airport runway extension committed mail and wire fraud, and the 4th Circuit rejects his appellate challenges to jury instructions and the restitution calculation of $118,000. When the county asked [...]

School Credit for Christian Study Upheld

By Deborah Elkins
Published: July 3, 2012
Tags: 4th U.S. Circuit Court of Appeals, Civil Rights, Judge Paul V. Niemeyer

A high-school student and her parents lose their First Amendment Establishment Clause challenge to a Spartanburg County public school system’s policy of allowing public school students two academic credits for off-campus religious instruction offered by private instructors; the 4th Circuit upholds the program as comparable to allowing credit from private school instruction. Since at least [...]