South Carolina Lawyers Weekly April 25, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 9 ■

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APRIL 25, 2022 ■ $8.50

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Supreme Court expands scope of death penalty reviews ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

abnormalities, critical findings, or cause for concern. As such, the client went on about his day-to-day activities until his on-again, off-again symptoms became unbearable in 2018. He underwent another MRI, and this time, Kilpatrick identified the tumor, which had nearly tripled in size since the time of the original scan.

The client immediately underwent a tumor resection surgery for what was determined to be

The South Carolina Supreme Court has never struck down a death sentence for being disproportionate, a record that remains intact after the court denied habeas relief to a man who was sentenced to death for robbing and killing a store clerk. But the court has, for the first time, agreed to treat cases that didn’t result in a death penalty sentence as “similar cases” during its required proportionality review, perhaps making it easier for future defendants to bring a successful challenge.

Richard Moore argued that his 2001 death sentence was disproportionate, that the proportionality review the Supreme Court conducted in 2004 was insufficient because it considered only other death penalty cases, and that the court should expand its comparative proportionality review to include a larger pool of cases in which the death penalty wasn’t imposed.

The court declined to find Moore’s sentence disproportionate to his crime, but it agreed that proportionality reviews are typically intended to compare the sentence of one defendant to the sentence imposed on others who were convicted of the same offense—but not necessarily sentenced the same way.

Writing for the court in the April 6 opinion, Chief Justice Donald Beatty noted that while the court determined in its 1982 decision in State

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Missed pediatric tumor leads to $28.5M settlement, policy changes ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A teenager who discovered that he was suffering from brain cancer nearly two and a half years after a radiologist failed to diagnose a tumor there has settled his medical malpractice and negligence case for $28.5 million, his attorneys report.

William Applegate and Perry Buckner of Yarborough Applegate in Charleston report that their client was 14 years old in 2015 when he experienced shooting pain head-

aches, balance issues, fatigue, and dizziness. At the time, he was a student and basketball player at the Governor’s School for Science and Mathematics.

The client’s doctor ordered a brain MRI, which was performed at Florence MRI & Imaging, a Medquest Associates, Inc. imaging center, in December 2015. The results were read and interpreted by Dr. Zachary Kilpatrick, who acted as a radiologist for several Medquest centers.

The attorneys said that Kilpatrick’s radiology report indicated no

Student’s First Amendment claim reinstated on appeal ■ BY JASON BOLEMAN A former Virginia high school student’s First Amendment claim against a county’s school board has been reinstated after the 4th U.S. Circuit Court of Appeals found the former student’s complaint “plausibly alleges a First Amendment claim.”

The case stems from a conversation amongst classmates on Feb. 15, 2018, one day after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.

Jonathan Starbuck engaged in a conversation with his classmates about the shooting that he alleged was factual and contained no threats from

any student in the conversation. According to the 4th Circuit’s opinion, Starbuck “made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to, noting [the shooter’s] possession of explosives and considering the time the shooter was left alone within the building unchallenged by local law enforcement.”

A teacher reported the conversation to the local police and to school administration, resulting in Starbuck’s removal from class for the rest of the day. During this time, Starbuck alleged that school officials interrogated him and that the school police officer found no threat was made and no criminal

offense occurred.

That evening, Starbuck’s parent was informed that he faced a two-day out-of-school suspension, citing “unspecified ‘threats.’” The initial in-school suspension was given due to concerns for Starbuck’s “own safety.”

Starbuck appealed his suspension, and the Williamsburg-James City County School Board found the suspension proper in May 2018. He later brought a 42 U.S.C. § 1983 action against the school board, alleging the suspension violated his First, Fifth and 14th Amendment rights, citing free speech and due S e e 1s t A m e n d m e n t P a g e 6 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

After failing to pay $95K, insurer agrees to pay $11.7M

Injured biker settles suit for $1.25M

Has the legal system failed us?

Not so PFAS-t!

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2 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 25, 2022

LAWYERS IN THE NEWS Turner Padget announced the additions of Charles S. Gwynne Jr., Christopher D. Scalzo, and Adrian R. Peguese to its ligation practice group. Gwynne joins the Columbia office as of counsel, Scalzo joins the Greenville office as of counsel, and Peguese joins the Florence office as an associate. Gwynne and Peguese will support the firm’spersonal injury defense team, and Scalzo will support its white collar crime team by representing matters involving nonviolent offenses at the corporate level.

B. Shawan Gillians has joined Womble Bond Dickinson in its Charleston office as of counsel in its capital markets practice group. She joins the firm from Santee Cooper,

where she most recently served as its director of legal services and corporate secretary.

Henry D. McMaster Jr. and Molly Flynn have joined Collins & Lacy’s Columbia office as associates in the firm’s retail and hospitality practice group. McMaster was previously an assistant solicitor in the 6th Circuit. Flynn served for six years as an assistant solicitor in the 5th Circuit and also has experience representing school districts and their boards in the areas of school and employment law.

Amanda Mellard has joined Robinson Gray law firm as a member.

She will be working out of the firm’s Greenville office in the area of workers’ compensation defense.

NEWS BRIEFS Juvenile justice agency agrees to reform main prison COLUMBIA (AP) — The South Carolina Department of Juvenile Justice has announced that it will reform its beleaguered central prison for youths under a settlement agreement with the federal government.

The agreement with the U.S. Department of Justice follows a 2020 report from the federal agency that ordered the state to make changes at the Broad River Road Complex in Columbia or face a lawsuit.

Federal investigators found state officials were violating the rights of incarcerated youths by failing to protect them from fights, forcing them to spend days or weeks in isolation for minor offenses and failing to get them mental health when they threaten to harm or kill themselves.

The Justice Department reiterated those findings in April 14 court filings, observing that agency staff harm children with excessive force such as choking, punching, kicking, and twisting arms; and that the agency doesn’t thoroughly investigate abuse allegations.

State officials have agreed to ensure facilities are properly staffed, offer rehabilitative programming and revise its use-of-force policies, according to the agreement filed in federal court. The state has also agreed to hire consultants on staffing and behavior management, overhaul its security camera system, limit its use of solitary confinement and adequately train its staff, among other measures.

“We are optimistic and determined to use this Settlement Agreement as an opportunity to institute sweeping reforms that will positively impact youth, their families, our staff, and the state of South Carolina,” said Eden Hendrick, the agency’s interim leader, in a statement.

Juvenile Justice officials acknowledged the federal use-of-force findings as “concerning” but said the agency has since taken steps to address those issues.

Hendrick, who took over last fall after then-director Freddie Pough’s resignation, has outlined to lawmakers her planned overhaul of the agency.

She has restructured agency’s leadership, modernized facilities, instituted sign-on and retention bonuses at the agency to try to fill correctional officer vacancies and asked lawmakers for funding to move mentally ill youth out of detention facilities they are illegally

housed at, she said earlier this year.

Pough stepped down following a scathing state audit, a no-confidence vote by state senators and a walkout by correctional officers at the Broad River Road Complex.

Last year’s state audit found a number of issues, from an increase in violence at agency facilities to students missing GED testing because they were locked up in isolation units.

Staffing and transportation shortages also meant some youths were not receiving adequate and timely medical care.

Court halts plan for firing squad execution COLUMBIA (AP) — South Carolina’s highest court issued a temporary stay on April 20 blocking the state from carrying out what was set to be its first-ever firing squad execution.

The order by the state Supreme Court puts on hold at least temporarily the planned April 29 execution of Richard Bernard Moore, who drew the death sentence for the 1999 killing of convenience store clerk James Mahoney in Spartanburg.

The court said in issuing the temporary stay that it would release a more detailed order later.

Attorneys for the 57-year-old inmate had sought a stay, citing pending litigation in another court challenging the constitutionality of South Carolina’s execution methods, which also include the electric chair. Moore’s lawyers also wanted time to ask the U.S. Supreme Court to review whether Moore’s sentence was proportionate to his crime.

It has been more than a decade since the last firing squad execution in the U.S. The state of Utah carried out all three such executions in the nation since 1976, according to the Washington-based nonprofit Death Penalty Information Center.

The South Carolina Supreme Court on April 20 also set a May 13 execution date for Brad Sigmon, 64, who was convicted in 2002 of the double murder of his ex-girlfriend’s parents in Greenville County.

A state judge agreed last week to examine a legal challenge brought by Moore, Sigmon and two other death row inmates who have mostly exhausted their appeals. Their lawyers argue that both electrocution and the firing squad are “barbaric” methods of killing. The prisoners’ attorneys also want the judge to closely examine prisons officials’ claims that they can’t

BAR DISCIPLINE

ROUNDUP Attorney: P. Michael DuPree Location: Charleston Bar membership: Member since 1988 Disciplinary action: Suspended from the practice of law for nine months on April 13, retroactive to the date of his interim suspension.

Background: On March 20, 2021, DuPree was arrested after a physical altercation with his girlfriend at a bowling alley.

DuPree, who had been drinking, approached his girlfriend from behind, put his arms around her neck, pulled her backwards, and pulled her hair. A third party saw DuPree assault his girlfriend and intervened by physically restraining and hitting DuPree. DuPree was charged with third-degree assault and battery. He self-reported the criminal charge to the Office of Disciplinary Counsel on March 29, 2021 and admitted himself into an inpatient treatment program. The Supreme Court subsequently placed DuPree on interim suspension. Following his release from inpatient treatment, DuPree contacted Lawyers Helping Lawyers and continued with outpatient treatment. The Attorney General’s office referred DuPree to the Dorchester County pretrial intervention program in July 2021. In September 2021, after completion of the program, the solicitor nolle prossed DuPree’s criminal charge, and the circuit court subsequently entered an order for destruction of the related arrest records.

Previous discipline: DuPree had been on interim suspension since April 16, 2021. DuPree had previously been suspended from the practice of law for nine months in February 2013 after pleading guilty to two counts of assault, one count of interference with a peace officer making a lawful arrest, and one count of failure to disclose identity in the state of Utah.

Attorney: Robert S. Guyton Location: Myrtle Beach Bar membership: Member since 2001 Disciplinary action: Publicly reprimanded and fined $5,000 on April 13.

Background: Guyton was reported to the South Carolina State Ethics Commission in January 2010. In January 2019, Guyton and the State Ethics Commission entered into a consent order in which Guyton admitted that in 2009 he engaged in an effort to maximize financial support to certain favored political candidates running for local and statewide election. In connection with this ef fort, in June 2009 Guyton instructed his bookkeeper to order

get hold of lethal injection drugs, citing executions by that method carried out by other states and the federal government in recent years.

South Carolina’s last execution was in 2011. State officials have attributed the decade-long hiatus to an inability to secure lethal injection drugs after the state’s last batch expired in 2013. Efforts to contact manufacturers and compounding pharmacies have proved unfruitful, Corrections Department officials have repeatedly said.

A 2021 law intended to solve that problem made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option

numerous cashier ’s check s that ostensibly derived from 14 different limited liability companies. After the checks were prepared by the bank, one of Guyton’s employees delivered them to the Myrtle Beach Area Chamber of Commerce office. The checks were then distributed to the candidates by the MBAC chairman. In total, 148 cashier’s checks were issued in amounts totaling $183,000. Guyton admitted that he personally funded these political contributions, as most of the LLCs had little or no money of their own, and that he had previously provided these candidates the maximum political campaign contribution allowed, and as such, the subsequent contributions were excessive as a matter of law. Guyton admitted to violating Section 8-13-1314 of the South Carolina Code by providing the contributions to the candidates.

Previous discipline: None Attorney: Ralph James Wilson Jr. Location: Conway Bar membership: Member since 2007 Disciplinary action: Publicly reprimanded on April 13.

Background: Wilson was charged with felony first-degree domestic violence on January 24, 2021 and subsequently placed on interim suspension. (In February 2022, the Supreme Court issued an order lifting that interim suspension.)

On December 6, 2021 Wilson entered a plea of no contest to one count of thirddegree simple assault. The facts supporting the plea indicate that Wilson willfully and unlawfully engaged in an argument with his wife which escalated to the point that it was reasonable for his wife to fear imminent harm. Wilson was sentenced to thir t y days in jail, suspended upon payment of a $500 fine plus costs. The next day, Wilson paid all fines and costs, thereby successfully c o m p l e t i n g t h e c o u r t- o r d e r e d requirements of his sentence.

Previous discipline: Wilson was placed on interim suspension on Feb. 1, 2021 in connection with the same incident. He petitioned the Supreme Court to lift his interim suspension, and the Office of Disciplinary Counsel did not oppose that request. On Feb. 7, 2022 the court granted the petition and lifted the interim suspension. Wilson had no discipline prior to the suspension.

All information contained in the Bar Discipline Roundup is compiled and edited

by Lawyers Weekly editor in chief David Donovan. He can be reached at david. donovan@sclawyersweekly.com.

for condemned inmates.

Moore’s execution date was set after corrections officials disclosed last month that they had completed renovations on the state’s death chamber in Columbia to accommodate the firing squad and also developed new execution protocols.

Though Moore elected execution by firing squad earlier this month, he maintained in a written statement that he was forced to make a decision by a deadline set by state law and still found both options unconstitutional.

Moore is also separately asking a federal judge to consider whether the firing squad and the electric chair are cruel and unusual.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

VERDICTS & SETTLEMENTS / 3

After failing to pay $95K, insurer agrees to pay $11.7M ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A woman who would have been satisfied with $95,000 in insurance money after being injured in a car crash has settled her personal injury claim for more than $11.7 million after the insurer initially refused to tender its liability limits, her attorneys report.

Shelly Leeke and Jessica CorShelly Leeke ley of Shelly Leeke Law Firm in Columbia and David Yarborough of Yarborough Applegate in Charleston report that their client, 57-year-old Joyce Fogle, suffered serious injuries when she was rear-ended in June 2019 while driving in Orangeburg County. The attorneys said that the at-fault driver was following David too closely and was solely responYarborough sible for the crash.

Fogle suffered a dislocated disc in her back and several injuries to her knee, leg, and neck, Yarborough said. She sought chiropractic care and underwent several other therapies but ultimately required surgery for her back injuries, and still suffers from residual pain.

The attorneys said that State Farm carried both the at-fault driver’s liability policy and Fogle’s underinsured motorist policy. The UIM adjuster tendered the $50,000 policy limits, but the liability ad-

juster refused to do so until the lawsuit was filed.

“Only then did State Farm offer to tender its [bodily injury] and [property damage] policy limits of $150,000, but its untimely offer was rejected,” Yarborough wrote in an email to Lawyers Weekly, adding that the insurer “bungled” the handling of the case on several occasions.

“The lawsuit was delivered both to the State Farm agent by personal counsel for the Defendant and to the adjuster, and they still dropped the ball,” Yarborough wrote.

Fogle’s attorneys said that the insurer thereafter failed to hire counsel and defend the lawsuit in a timely manner, and that State Farm’s negligence caused a default judgment to be entered against the at-fault driver.

Yarborough said that the insurer promptly paid the $11.7 million settlement—a multiple of Fogle’s actual damages and what plaintiff’s attorneys felt was an appropriate value, given State Farm’s misconduct—after their client issued an “escalating” time-sensitive demand.

Court records show that Fogle presented evidence of more than $170,000 in medical expenses and that Judge Edgar Dixon found that she was also entitled to damages for physical pain and suffering, mental and emotional pain and anguish, loss of enjoyment to her life, permanent impairment, and the loss of her earning capacity.

Leeke said that Fogle was forced into bankruptcy and nearly lost her home because her injuries prevented her from working.

“Luckily for her, we didn’t have to just accept the last pre-suit offer from State Farm, which was

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $11,736,528.98 Injuries alleged: Dislocated disc, several injuries to the leg, knee, and neck, residual back pain Case name: Joyce Fogle v. Taylor Merritt Court: Orangeburg County Circuit Court Case No.: 2021-CP-38-01375 Judge: Edgar Dixon Date of settlement: March 14 Highest offer: $150,000 Special damages: Past medical bills of $145,081.88 Insurance carrier: State Farm Attorneys for plaintiff: Shelly Leeke and Jessica Corley of Shelly Leeke Law Firm in Columbia and David Yarborough of Yarborough Applegate in Charleston below value of her injuries,” Leeke said. “We had the resolve and the resources to fight for a full measure of damages by filing a lawsuit and ultimately capitalizing on State Farm’s mistakes. By doing so, we were able to recover an eight-figure settlement for Ms. Fogle which will allow her to keep her home and be comfortable for the rest of her life.”

Injured biker settles suit for $1.25M ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

The insurance company for a driver who seriously injured a motorcyclist has agreed to pay $1.25 million to settle the plaintiff’s personal injury claim, the plaintiff’s attorney reports.

John Mobley of Columbia said that his client, Charles Lawhorn, was driving his motorcycle on Fairfield Road near Columbia on the morning of May 27, 2021, when Christopher Fortner pulled out of a parking lot and directly in front of him while trying to make an illegal left turn across the median.

Lawhorn slammed into the side of Fortner’s pickup truck, John Mobley and the crash left him with numerous injuries including traumatic brain injury, multiple jaw fractures, a fractured pelvis, and a cervical fracture, Mobley said.

On Sept. 16, 2021, Mobley sent a demand letter to Fortner’s insurer, State Farm, for its policy limits of $1 million in umbrella coverage and $250,000 in liability coverage. The insurer tendered those limits five days later.

Austin Hood of Clawson and Staubes in Columbia represented State Farm.

Hood did not immediately respond to a request for comment.

Amount: $1.25 million Injuries alleged: Traumatic brain injury, cervical fracture, pelvic fracture, vascular injury, multiple jaw fractures Case name: Settlement reached before any suit was filed Venue: Richland County Date of settlement: Sept. 23, 2021 Demand: Policy limits of $1.25 million Most helpful experts: Woody Poplin of Wadmalaw Island (accident reconstruction) Insurance carrier: State Farm Attorney for plaintiff: John Mobley of Columbia Attorney for defendant: Austin Hood of Clawson and Staubes in Columbia

Doctors, hospital pay $950K in post-partum hemorrhage death ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The estate of a woman who bled to death after childbirth has settled its medical malpractice suit for $950,000, the estate’s attorney reports.

Brink Hinson of Hinson, Hiller & Padget in Columbia reports that the 35-year-old woman died despite experiencing no complications during her pregnancy, labor, or delivery.

After delivering her third child the mother continued to hemorrhage, Hinson said. The Brink Hinson attending obstetrician timely ordered exploratory surgery to determine the cause of the bleeding and transferred the mother to an operating room but failed to order blood at or before that time.

Once the mother reached the operating room, the anesthesiologist breached the standard of care by not ordering emergency release blood for her, the estate alleged.

“While typed and cross-matched blood was ul-

timately brought for the patient, she had already coded by the time the blood was administered,” Hinson said. “Although the patient was able to be resuscitated, she suffered a catastrophic brain injury and died the following day.”

The estate sued the obstetrician, the anesthesiologist and their employer, and a hospital.

Many details of the case, including the names of the parties and the defense counsel, and the venue, were withheld due to a confidentiality agreement.

Hinson said that defense counsel argued that the standard of care wasn’t breached, and even if it was, earlier delivery of the blood wouldn’t have saved the mother.

Hinson called the case a “horrible tragedy,” but said that the events have served to change the way in which blood orders are handled in the hospital’s labor and delivery unit.

“It brings the family some comfort to know that they have served as a catalyst for some important change that may well save a life later down the road,” Hinson said.

He added that the case of a unmarried mother who died intestate with three minor children

SETTLEMENT REPORT — MEDICAL MALPRACTICE/WRONGFUL DEATH

Amount: $950,000 Injuries alleged: Death and survivorship Case name: Withheld Court: Withheld Date of settlement: March 2022 Attorney for plaintiff: Brink Hinson of Hinson, Hiller & Padget in Columbia Attorneys for defendants: Withheld should also serve as a reminder to plan for the worst while hoping for the best.

“Most of the time, the relatively short delay in ordering blood would likely not have resulted in any serious injury,” Hinson said. “However, the small chance that a delay will cause injury is the exact reason why delay is not acceptable and why we must all plan for what is foreseeably possible, not simply what is most probable.”

4 / COMMENTARY

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 25, 2022

Has the legal system failed us? Not so PFAS-t!

■ BY DAN SMITH This weekend I was mildly concerned to see a news article stating that the wrappers for the ohso-delicious chicken sandwiches I enjoy likely contain PFAS (perand polyfluoroalkyl substances).

Even more recently, a proposed class action was filed in the Southern District of Illinois against the keeper of the golden arches, alleging that the PFAS content in its food and food wrappers has injured customers. (Clark v. McDonald’s Corporation, 3:22-cv00628, filed March 28, 2022).

At least some of the family of chemicals known as PFAS likely have health impacts on humans.

With continuing advancements in analytical chemistry, PFAS can be detected in the parts per trillion and, for nearly ten years, have been the subject of much study—and, increasingly, lawsuits—throughout the country.

The federal government appears to be proceeding deliberately towards greater regulation of PFAS using existing regulatory structures. But if PFAS has made it into my chicken sandwich, I have to ask myself, has the legal system failed us? Having pondered for the past few days and eaten one (quite delicious) sandwich in the interim, I think the answer is no.

Human civilizations have a long history of causing ourselves trouble with our own activities— and then growing, adjusting and improving. A classic example is the human waste problem and all the wonderful diseases we can give ourselves (cholera, typhoid, parasitic diseases, etc.) if our waste is not handled in a sanitary manner. After dozens of epidemics and outbreaks, we learned to separate ourselves from our waste and treat our sewage.

I also think back to DDT, Rachel Carson and Silent Spring, where the chemical at issue (and its degradation products: the chemicals produced when DDT breaks down) interfered with calcium transport in the ovarian glands of birds leading to thinner eggshells and declining bird populations. During my wonderful liberal arts education, I took a history of public health class where I wrote a paper on James Whorton’s 1975 book, Before Silent Spring: Pesticides and Public Health in Pre-DDT America.

Whorton addressed the use of lead and arsenic pesticides on various food crops, including apples. I still recall an apple salesperson being quoted sometime in the early 1900s as saying you would have to eat a whole bushel of apples to get sick. (Unfortunately, at that time, there was no appreciation

for the chronic impacts of lead and arsenic exposure.)

Within the legal system, I am reminded of the layers of protection that have developed in our nation over nearly 250 years.

Statutes like the Clean Water Act, Safe Drinking Water Act and Resource Conservation and Recovery Act are generally intended to be forward-looking, creating a regulatory system that is intended to prevent society from injuring itself. Moreover, assuming consensus can be built among legislators, new statutes could be passed. If the statutory scheme fails to protect us adequately, torts and other common law claims provide a backward-looking approach, allowing injured parties to seek payment from the bad actor who caused them harm.

Admittedly, the system is imperfect and has its troubles. But the law does grind on towards justice. In the meantime, I think I’ll have another sandwich.

Dan Smith, a partner at Brooks Pierce, focuses his law practice on matters involving environmental, commercial, education, and state constitutional law. A former educator and environmental scientist, Dan represents businesses, boards of education, and individuals in state, federal, administrative, and appellate courts.

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Material published in South Carolina Lawyers

It was, really, all good things ■ BY DAVID DONOVAN david.donovan@sclawyersweekly.com It’s hard to leave a job that has meant so much to me, but these things happen sometimes, and so this will be my final issue as the editor-in-chief of South Carolina Lawyers Weekly. I’ve worked for this newspaper for more than ten years, including almost four as editor, and I feel incredibly blessed to have been able to do this for so long. Journalistic tradition dictates that I write a farewell column to impart the wisdom I’ve gained in my time here, but having no real wisdom to impart, I’d just like to say this: Thank you.

Thank you to all of our subscribers, because in the end you are the ones who allowed me to do this exciting work for so long.

When I took over as an editor I added to our masthead a new mission statement, one that I borrowed word-for-word from one of my mentors. It says that our job is to help you practice law better, more efficiently, and more profitably. I hope we’ve been able to do that for you and your firm.

Our work is animated by the belief that the law is a noble profession. Clients typically come

to lawyers because they have a problem. Oftentimes it may be one of the most difficult problems they’ve had to deal with in a long time, and they need a lawyer to help them navigate that problem as best they can. By helping you to provide your clients with the best counsel possible, hopefully we’re also able to help them as they work through whatever challenges brought them into your offices, and in doing so provide a valuable service to a great many people.

What made the work even better was that I had a good time doing it. Writing and editing Lawyers Weekly has always been interesting because every week has always brought something fresh and new to write about, and it’s allowed me to learn about and come to appreciate so many different areas of the law. That’s one of the many things I will miss greatly about this job.

If I do have any advice to offer, it would really just be two things.

First, take good care of yourself, physically, mentally, and emotionally. It will in the long run make you a better lawyer, but far more importantly it will also make you a happier person. Second, when you see opportunities

to offer kindness to other people in our profession—from opposing counsel to support staff to court officials—take those opportunities as often as you can.

In short, be good to yourself, and to one another.

I’m very happy to say that I’m not leaving the legal profession, and I’ve accepted a position with McGuireWoods. I’m very excited about this new opportunity, and I hope that it will allow me to continue to cross paths with many of the people I’ve gotten to know during my time at Lawyers Weekly. I’ve always maintained that this is a community newspaper, and you are the members of the community that we serve. So while I’m leaving the paper, I’m not leaving that community.

There are so many people who have helped me during my time at Lawyers Weekly, more than I could possibly thank here, but I am grateful for all of them, both the ones who have moved on to other things and the ones who are still here. I know that I’m leaving this newspaper in very capable hands. I hope you continue to enjoy reading South Carolina Lawyers Weekly. I know I will.

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NEWS / 5

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

PEDIATRIC / Doc spent less than a minute reviewing images C o nt inu e d f r o m 1 ►

medulloblastoma, a tumor of the cerebellum, but the tumor couldn’t be removed without likely affecting blood vessels. The attorneys said the client suffered a debilitating stroke and that he continues to suffer from severe nausea, vision and speech deficits, and difficulty walking independently years William after completing radiation and Applegate chemotherapy.

The attorneys said that the initial diagnosis was a “clear miss”

by Kilpatrick, who also failed to identify an abdominal tumor on another patient around the same time as the teen’s missed diagnosis. Further, Kilpatrick spent less than a minute reviewing the 251 images that made up their client’s Perry Buckner MRI study, they said.

“This was a very serious turning point in the case and changed the focus of the lawsuit,” the attorneys wrote in an email to Lawyers Weekly.

The client brought claims for both medical malpractice against Kilpatrick and also direct corporate negligence against Medquest and its affiliated companies for failing to properly manage, operate, and oversee the delivery of diagnostic imaging and radiological services.

“The Defendants had a monitoring system for ensuring that their team of radiologists would turnaround/read all images in a mandatory time frame, but they had no system at all that would make sure that a sufficient amount of time would be spent on

the actual review of the images, making the quality control focused on profits as opposed to quality care,” the attorneys wrote.

The attorneys said that they felt confident that a jury would have held the imaging company to a higher standard and would have found that their doctors were responsible for thoroughly reviewing all imaging, not simply “churning volume.”

Before Kilpatrick’s deposition the defendants offered $1 million to settle the case, the attorneys said. But the plaintiffs, through several motions to compel and court orders, discovered significant insurance coverage applicable to the case that hadn’t been disclosed by the defendants, who made no significant offers until after mediation and as trial became imminent.

The defendants were represented by Gary Lovell and Christie Perrin of Copeland Stair in Charleston (for Kilpatrick) and Mitch Brown and Blake Williams of Nelson Mullins in Columbia (for Medquest Associates and affiliated companies).

Neither Brown nor Williams responded to a request for comment. Lovell declined to comment on the details of the settlement but wrote in an email that the defendants “believe the resolution of the case was in the best interests of all of the parties involved in light of the plaintiff’s tragic circumstances.”

Tom Wills of Charleston mediated the settlement.

The attorneys wrote that in addition to the settlement’s financial terms, the corporate defendants— with imaging centers across the country—agreed to implement significant, sweeping changes including second readings of all pediatric MRIs and CT scans; of all head, neck, and spine MRIs for all patients; and of several other high-risk patient scans.

“They have also increased their quality control

SETTLEMENT REPORT — MEDICAL MALPRACTICE/CORPORATE NEGLIGENCE

Amount: $28.5 million Injuries alleged: Stroke, posterior fossa syndrome, resulting medical problems including impacted speech, walking, vision, and coordination Case name: Pritchett v. Kilpatrick, Medquest Associates, Inc., et al.

Court: Richland County Circuit Court Case No.: 2019-CP-40-06306 Mediator: Tom Wills of Charleston Date of settlement: December 2021 Insurance carriers: The Doctor’s Company, Sompo International, and Novant Health Captive Insurers Attorneys for plaintiff: William Applegate and Perry Buckner of Yarborough Applegate in Charleston Attorneys for defendants: Gary Lovell and Christie Perrin of Copeland Stair in Charleston for Dr. Zachary Kilpatrick and Mitch Brown and Blake Williams of Nelson Mullins in Columbia and John Hall Jr. and Douglas Ammerman of Hall Booth Smith in Atlanta for corporate defendants policies to enhance patient safety and reduce reading errors at all levels,” the attorneys wrote. “We, as the attorneys, and the family are very happy to have been able to find a silver lining to this otherwise horrific incident.”

DEATH PENALTY / Pool of comparable cases widened C o nt inu e d f r o m 1 ►

v. Copeland that it should begin its comparison by looking to other cases involving a conviction and sentence of death, it ultimately noted in 2011 in State v. Dickerson its concern that “restricting our statutorily mandated proportionality review to only similar cases where death was actually imposed is largely a self-fulfilling prophecy as simply examining similar cases … will almost always lead to the conclusion that the death sentence under review is proportional.”

Intent at the time

In 1999, Moore shot and killed a convenience store clerk during an armed robbery and shot at a store patron. The patron, who played dead despite not being hit by a bullet, testified at Moore’s trial that he saw Moore, gun in hand, struggling with the clerk before hearing gunshots. After Moore fled the store with a bag of money, the witness discovered the clerk’s body.

Moore did not enter the store armed, but he killed the clerk with a gun belonging to the store’s owner.

The clerk usually carried a firearm for his protection while working nights, witnesses testified, and the owner kept several firearms under the counter.

According to prosecutors, Moore committed the robbery to get money for drugs. He was convicted of murder, robbery, possession of a firearm during the commission of a violent crime, and assault with intent to kill. The jury recommended the death penalty after finding three aggravating circumstances: the murder was committed during the commission of a robbery and while armed with a deadly weapon, Moore created a great risk of death to more than one person in a public place and by means of a weapon or device that normally would be hazardous to the lives of more than one person, and the murder was committed for the purpose of receiving money or a thing of value.

But what about the others?

Moore argued that his sentence wasn’t proportionate, and the high court had found otherwise by relying on cases selected solely for the similar aggravating circumstance of armed robbery. More argued that the circumstances of those cases were more severe than his own, including the fact that he

didn’t enter the premises with a weapon.

The court disagreed, finding Moore’s offenses similarly egregious and stating that whether he entered the store with a weapon or armed himself once inside didn’t determine his intent or the egregiousness of his crimes.

While the court recognized that the severity and brutality of crimes vary and acknowledged Moore’s assertion that others have received life sentences after committing “far worse” crimes, it noted that the jury found that Moore intentionally robbed and murdered the clerk and knowingly endangered the life of another person, and that the state had proven, beyond a reasonable doubt, three aggravating circumstances.

“Whether this Court would impose a death sentence under the same circumstances is not within the permitted scope of this Court’s appellate review,” Beatty wrote. “Rather, the Court’s task in comparative proportionality review aims to ensure that a jury’s decision was not the result of arbitrariness.

Something beyond death

In 2004, the court determined on direct appeal that Moore’s death sentence wasn’t the result of passion, prejudice, or any other arbitrary factor and that it was not excessive or disproportionate to the penalty imposed in similar capital cases.

But regarding the scope of what the court considers when conducting that analysis, Beatty wrote that the Copeland court observed that comparative proportionality review has been left to state determination because the U.S. Supreme Court has declined to impose any specific model of review upon the states.

Moore argued that that the reviewable case pool should be expanded beyond those in which death was imposed—and even beyond actual convictions—asserting that his death sentence is disproportionate based on an expanded comparison of these “similar cases.”

While the court declined to adopt Moore’s proposal to expand the pool of cases to incidents or charges that haven’t resulted in a conviction and sentence (both state and case law mention convictions, punishment, and penalty), it agreed that the state’s proportionality statute doesn’t expressly limit the pool of cases to only those in which the death penalty

was imposed.

As such, the review could include a comparison of death-eligible cases where there is a record available for review.

“This can include, for example, cases where a defendant’s conduct was eligible for a capital sentence, but the state elected to seek only a life or lesser sentence, as well as cases where a jury considered but ultimately declined to impose a death sentence,” Beatty wrote.

The court added that life sentences traditionally were not included in the pool of comparison cases in most states because life sentences are generally not appealed, so there is no appellate record.

‘Our system is broken’

Justice Kaye Hearn dissented from the ruling.

“This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly,” Hearn wrote.

“Our system is broken.”

Hearn wrote that the majority erred by rejecting the significance of Moore’s unarmed status, focusing more on the jury’s decision than whether the sentence is excessive compared to similar cases.

“By improperly focusing on whether the crime committed by petitioner meets the legal definition of armed robbery, the majority completely loses sight of the vast difference between a ‘robbery gone bad’ and a planned premeditated murder,” Hearn wrote.

Hearn said that the death sentence is a “relic of a bygone era” (Moore being convicted by a jury of 11 white people and one Hispanic) and that while general patterns of racial discrimination are not enough to prove arbitrariness, it is disingenuous to discount the factor race plays.

Lindsey Vann and Hannah Freeman of Justice 360 in Columbia, Gerald Malloy of Hartsville, Whitney Boykin of McGowan Hood & Felder in Columbia, and John Blume of Ithaca, New York, represented Moore. Deputy Attorney General Donald Zelenka, Senior Assistant Deputy Attorney General Melody Brown, and Senior Assistant Attorney General W. Edgar Salter III of Columbia represented Stirling.

The 33-page decision is Moore v. Stirling (Lawyers Weekly No. 010-011-22). The full text of the opinion is available online at sclawyersweekly.com.

6 / NEWS/OPINION DIGESTS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 25, 2022

1ST AMENDMENT / ‘Upsetting ideas’ can’t be silenced C o nt inu e d f r o m 1 ►

process concerns.

Chief Judge Mark S. Davis of the U.S. District Court for the Eastern District of Virginia granted the school board’s motion to dismiss, finding that the U.S. Supreme Court’s decision in Monell v. Department of Social Services barred the suit.

In Monell, the Supreme Court found that local government bodies can be sued directly under § 1983 “where … the action that is alleged to be unconstitutional implements or executes a … decision officially adopted and promulgated by that body’s officers.”

Judge Diana Gribbon Motz, writing for a unanimous panel in a March 15 opinion, found that because the school board acted as the final policymaking authority in approving Starbuck’s suspension, Monell didn’t bar Starbuck’s suit.

“When a final policymaker has the authority to review the decision of a subordinate, its approval of that allegedly unconstitutional decision can ... give rise to liability under Section 1983,” Motz wrote.

“The School Board’s approval of a

suspension allegedly imposed to punish assertedly protected speech is a decision of a body with final policymaking authority. Monell teaches that such a decision gives rise to the School Board’s potential liability under 42 U.S.C. § 1983.”

After finding the school board open to liability, the 4th Circuit evaluated Starbuck’s First Amendment claim, citing how precedent has long held that students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”

Motz wrote that Starbuck’s speech didn’t fall under any category that exempts it from First Amendment protections, and he “only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting.”

“Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas,” Motz wrote.

The school board cited precedent where courts have found “that language reasonably perceived as threatening school violence is not constitutionally protected.” But Motz wrote

that, when viewed in the light most favorable to him, Starbuck’s remarks “were non-threatening statements about the tragedy that any student could have uttered in response to the news.”

“The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here,” she wrote.

The 4th Circuit agreed with the district court’s ruling that Starbuck’s Fifth and 14th Amendment claims didn’t survive the school board’s motion to dismiss.

Regarding the Fifth Amendment claim, Motz said the Due Process Clause applies to federal actors, not municipalities, and that the Double Jeopardy Clause applies to criminal cases, not school discipline proceedings. The Self-Incrimination Clause also didn’t apply in this case, as Starbuck didn’t allege that school officials compelled him to furnish testimony that could incriminate him in later proceedings.

The court disagreed with Starbuck’s argument that the school board’s shift in the description of the reason for his suspension violated his

14th Amendment right to due process.

“To be sure, accusing a student of one act and then suspending him because he committed another could well violate the Due Process Clause if the student never had any opportunity to respond to the ultimate reason for the suspension. But that is not what happened here,” Motz said.

Throughout the proceedings, the school board didn’t attempt to change the factual basis for Starbuck’s suspension, but merely changed the wording to describe the basis, and Starbuck presented no precedent holding that in these circumstances merely changing the description of the reason for suspension constitutes a due process violation.

“The only constitutional infirmity alleged in Starbuck’s complaint is the punishment of protected speech itself,” Motz wrote.

The 14-page decision is Starbuck v. Williamsburg James City County School Board (Lawyers Weekly No. 001-057-22). The full text of the decision is available online at sclawyersweekly.com

Opinions S.C. SUPREME COURT

6

S.C. COURT OF APPEALS

8

4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED

S.C. SUPREME COURT

Criminal Practice Death Penalty – Proportionality Review – Review Pool – Armed Robbery In death penalty cases, the court is not statutorily required to restrict its proportionality review of “similar cases” to a comparison of only cases in which a sentence of death was imposed. However, petitioner, who committed murder in the course of an armed robbery, is not entitled to habeas relief.

Habeas relief denied.

In 1999, petitioner tried to rob a convenience store. Though he came into the store unarmed, he took a gun from the store clerk, shot at a customer, and shot and killed the clerk.

Proportionality Review

Whether petitioner entered the store with a weapon or whether he armed himself once inside is not determinative of either his intent or the egregiousness of the offenses he ultimately committed. The significant fact is that petitioner became armed at some point during the commission of the offenses.

After hearing the evidence at trial, a jury found petitioner intentionally shot and killed the store employee during an armed robbery and he endangered the life of a bystander for the obvious purpose of

4TH U.S. CIRCUIT COURT OF APPEALS

13

eliminating the only eyewitness to the murder. The robbery could have resulted in two deaths but for the astute actions of the eyewitness, who “played dead” when petitioner shot at him. The jury considered all of the attendant facts in determining there were statutory aggravating circumstances that qualified this as a capital case.

Petitioner alternatively argues this court should expand the relevant pool of cases to be reviewed beyond those in which a death sentence was imposed, as is currently done in accordance with the precedent of State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982). We agree that our comparative proportionality review statute should not be so narrowly construed.

Comparative proportionality review typically is intended to compare the particular sentence of one defendant to the punishment imposed on others convicted of the same crime. Consequently, we decline to adopt petitioner’s proposal to expand the pool of cases to incidents or charges that have not resulted in a conviction and sentence.

We agree, however, that the language of South Carolina’s proportionality statute does not expressly limit the pool of cases to only those in which the death penalty was actually imposed. We clarify Copeland and hold § 16-3-25(C)(3) does not limit the pool of comparison cases to only those in which the defendant actually received a sentence of death.

Because only the records of cases

10

in which there has been an appeal are readily accessible by this court, if a defendant seeks the court’s consideration of a case that has not resulted in an appeal, the defendant shall submit to the court an official record of the conviction and sentence, including a trial transcript, for consideration in the court’s review.

The additional cases highlighted by petitioner do not alter our determination that his sentence is not disproportionate to the penalties given in other similar cases.

The jury specifically found the state had proven that petitioner committed the murder during the commission of a robbery while armed with a deadly weapon, he knowingly created a great risk of death to more than one person in a public place by means of a weapon or device that normally would be hazardous to the lives of more than one person, and he committed the murder for the purpose of receiving money or a thing of monetary value. See S.C. Code Ann. § 16-320(C)(a)(1)(e), -(a)(3), -(a)(4) (2015).

Any one of these aggravating circumstances qualified petitioner for a capital sentence.

The fact that petitioner did not kill more than one person does not negate the presence of the three other aggravating circumstances found by the jury. Further, the jury obviously considered the fact that petitioner attempted to eliminate the only eyewitness to the armed robbery and murder of the store clerk, who narrowly avoided being

a second victim. Accordingly, we are not persuaded that the lack of a second murder victim renders petitioner’s capital sentence disproportionate.

To the extent petitioner urges the court to find his sentence disproportionate because he did not bring a weapon to the scene and had no intent to commit the offenses for which he was convicted, we hold, as we must, that this assertion does not negate the jury’s findings as to his intent, and a jury has found against him in that regard.

This court’s scope of review does not allow it to disregard the factual findings in the case and pronounce an alternative sentence in these circumstances.

Habeas relief denied.

Dissent

(Hearn, J.): This court has never found a single death sentence disproportionate. Our system is broken.

The majority errs in repeatedly rejecting the significance of petitioner’s unarmed status upon entering the store. By focusing on the jury’s decision rather than on whether this death sentence is excessive or disproportionate compared to other similar cases, the majority substantially undermines this court’s responsibility under § 16-3-25(C)(3). Only this court—not a jury—can determine whether a sentence is disproportionate.

By improperly focusing on whether the crime committed by petitioner meets the legal defini-

OPINION DIGESTS / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

tion of armed robbery, the majority completely loses sight of the vast difference between a “robbery gone bad” and a planned and premeditated murder. The state conceded that it could not cite to any case in our state where a defendant receiving the death penalty where he entered the place of business unarmed. This striking concession is ignored by the majority and seriously undermines the suggestion that petitioner’s sentence is sufficiently similar to other cases to warrant capital punishment.

Furthermore, petitioner’s death sentence is a relic of a bygone era.

Although general patterns of racial discrimination are not enough to prove an arbitrary sentence, it is disingenuous to discount the factor race plays.

I would grant habeas relief and vacate petitioner’s death sentence.

Moore v. Stirling (Lawyers Weekly No. 010-011-22, 33 pp.)

(Donald Beatty, C.J.) (John Kittredge, J., concurring in result only without separate opinion) (Kaye Hearn, J., concurring in part & dissenting in part) On petition for writ of habeas corpus. Lindsey Sterling Vann, Hannah Freeman, John Blume and Whitney Boykin Harrison for petitioner; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown and Edgar Salter for respondent. S.C. S. Ct.

Criminal Practice Murder – Death Penalty – Closing Argument – Deadlock Consequences – Sentencing by Jury – Expert Testimony – Underlying Hearsay We now hold a party may not argue the consequences of a deadlock in his closing argument to the jury.

The state has a legitimate interest in fostering the resolution of criminal trials by verdict. If the jury does not unanimously agree, then there is no verdict. Informing jurors that an individual juror can control the outcome of the trial by holding out their vote directly frustrates the goal of a unanimous jury verdict.

Therefore, the trial court was correct to prohibit counsel from making the closing argument he requested.

We affirm defendant’s convictions of murder, attempted murder, and armed robbery and the sentence of death.

Even though the circuit court judge made an inaccurate statement of law when he told defendant that pleading guilty would mean the death penalty, this error was not preserved for our review, despite multiple opportunities for defense counsel to bring it to the judge’s attention. Moreover, the statement was made weeks before trial, during which time defense counsel must have discussed with defendant his options of (1) pleading not guilty and having a jury decide his sentence and (2) pleading guilty and having a judge decide his sentence.

Defendant cites Hurst v. Florida, 577 U.S. 92 (2016), which says, “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”

However, Hurst is distinguishable.

It dealt with a Florida statute under which the jury renders only an advisory sentence and the trial court enters a sentence of life imprisonment or death. We once more

affirm the constitutionality of S.C. Code Ann. § 16-3-20(B)’s requirement that a capital defendant who pleads guilty to murder must be sentenced by the trial court.

During the sentencing phase of trial, defendant’s expert witness opined that defendant was under the influence of his partners in crime, James and McKinley Daniels. Her opinion was based, in part, on McKinley’s telling her that he had told defendant to kill a convenience-store clerk in a subsequent robbery-homicide that was not the subject of this case. The trial court refused to admit evidence of McKinley’s statement. Although McKinley’s statement was minimally prejudicial to the state—it supported the state’s evidence of a second armed robbery and murder defendant had committed—we cannot say the trial court’s decision to exclude the statement was an abuse of its discretion.

Evidence of defendant’s misconduct, particularly towards correctional officers, as a pretrial detainee was relevant to determine and evaluate his future dangerousness as an aggravating circumstance in the sentencing phase of trial.

Defendant argues evidence of his pre-trial misconduct should have been excluded because it occurred while the state “unconstitutionally” held him for over three years pretrial in maximum security prison and on death row. However, defendant does not point to any rule of evidence or other statutory or constitutional provision that excludes this type of evidence. He merely argues that it is unfair for the state to use his own conduct against him.

We disagree and find the trial court did not abuse its discretion in admitting evidence of defendant’s pre-trial misconduct.

Upon review of both death penalty cases and other death-eligible cases for which a record was available, and based on (1) defendant’s admitted shooting at one convenience store clerk, shooting and killing another clerk, and robbing the store; (2) evidence of defendant’s future dangerousness; and (3) evidence that defendant committed two more armed robberies and a murder just weeks later, we hold that the death sentence was neither excessive nor disproportionate.

Affirmed.

State v. Jenkins (Lawyers Weekly No. 010-012-22, 26 pp.)

(John Few, J.) Appealed from Horry County Circuit Court (Robert Hood, J.) Robert Michael Dudek, Kathrine Haggard Hudgins and Adam Sinclair Ruffin for appellant; Alan McCrory Wilson, Melody Jane Brown and William Edgar Salter for respondent. S.C. S. Ct.

Attorneys Discipline – Definite Suspension – Alcohol Abuse – Assault The respondent-attorney, who had been drinking, physically assaulted his girlfriend and was charged with third-degree assault and battery. He self-reported the charge, attended a 45-day inpatient treatment program, continued with outpatient treatment, attends Alcoholics Anonymous meetings, and has had his criminal charge nolle prossed and his arrest records destroyed. Respondent’s conduct vio-

lated Rule 8.4(b), RPC (prohibiting criminal acts that reflect adversely on a lawyer’s fitness to practice law).

We accept the agreement for discipline by consent; suspend respondent from the practice of law in this state for nine months, retroactive to April 16, 2021, the date of his interim suspension; and order respondent to pay the costs of the investigation and prosecution of this matter. Should respondent be reinstated, he shall enter into and comply with a three-year monitoring contract with Lawyers Helping Lawyers and ensure quarterly reports by his treating physician are filed with the Commission on Lawyer Conduct.

In re DuPree (Lawyers Weekly No. 010-013-22, 3 pp.) (Per curiam) John Nichols and Julie Martino for the Office of Disciplinary Counsel; Grady Query for respondent. S.C. S. Ct.

Attorneys Discipline – Reprimand & Fine – Campaign Finance Law Violations After having provided certain political candidates the maximum political campaign contributions allowed, respondent personally funded another $184,000 in contributions through 14 limited liability companies, thereby violating S.C. Code Ann. § 8-13-1314, Rule 8.4(a), RPC (prohibiting misconduct) and 8.4(d) (prohibiting conduct involv-

ing dishonesty, fraud, deceit, or misrepresentation).

We accept the agreement for discipline by consent; publicly reprimand respondent and impose a $5,000 fine; order respondent to pay the costs incurred in the investigation and prosecution of this matter; and order him to complete the Legal Ethics and Practice Program Ethics School within nine months.

In re Guyton (Lawyers Weekly No. 010-014-22, 3 pp.) (Per curiam) (Kaye Hearn, J., not participating) John Nichols and Ericka Williams for the Office of Disciplinary Counsel; James Emerson Smith for respondent. S.C. S. Ct.

Attorneys Discipline – Reprimand – Assault Respondent engaged in an argument with his wife, which escalated to the point that it was reasonable for his wife to fear imminent harm.

Respondent was charged with felony first-degree domestic violence but entered a plea of no contest to third-degree simple assault. Respondent violated Rule 8.4(b) (prohibiting criminal acts that reflect adversely on fitness as a lawyer) and 8.4(c) (prohibiting conduct that is prejudicial to the administration of justice).

We accept the agreement for discipline by consent, reprimand respondent, and order him to pay the costs of the investigation and prosecution of this matter.

Murphy & Grantland is pleased to announce the addition of Jay Thompson to the firm on March 4, 2022, adding even more depth to the firm’s growing roster of talented professionals focused on defense of complex litigation.

Jay is an experienced defense litigator in product liability, dram shop, and other matters involving catastrophic injury and wrongful death. He is also experienced with complex business litigation and Constitutional litigation involving the First Amendment. Jay serves on the SCDTAA board of directors and the board of directors for Ben Lippen School in Columbia.

8 / OPINION DIGESTS In re Wilson (Lawyers Weekly No. 010-015-22, 2 pp.) (Per curiam) (Kaye Hearn, J., not participating) John Nichols and Kelly Arnold for the Office of Disciplinary Counsel; George Hearn for respondent. S.C. S. Ct.

Insurance Commercial Liability – Anti-Assignment Clause – Post-Loss Exception – Environmental Because the covered “occurrence” had already happened when an insured assigned its rights under its expired commercial liability policies to its successor in interest, pursuant to the post-loss exception, now adopted by this court, the insurers’ consent was not required for the assignment of rights.

We reverse summary judgment for the respondent-insurers and remand for further proceedings on the coverage claims of petitioner, the insured company’s successor in interest.

At issue are commercial liability policies issued decades ago to a company, which has recently been adjudged (in federal court) to have environmentally contaminated its land. When the company was sold, it assigned its rights under the expired policies to its successor in interest. Those policies had anti-assignment provisions and required the insurers’ consent to any assignment.

However, the court now adopts the majority rule and applies the post-loss exception: an assignment after a loss has already occurred does not require an insurer’s consent.

Courts have recognized the postloss exception because the purpose of a no-assignment clause is to protect the insurer from increased liability, and after events giving rise to the insurer’s liability have occurred, the insurer’s risk cannot be increased by a change in the insured’s identity. Additionally, the post-loss exception recognizes that a consent-to-assignment clause cannot bar an insured from transferring the right to coverage that exists after a loss takes place.

We agree with the majority of jurisdictions and hold the “loss,” in the context of the post-loss exception, is synonymous with the “occurrence.” In this case, any loss occurred before the original insured executed the assignment in 1986.

We therefore reverse the Court of Appeals’ holding that the loss does not take place until the insurer’s obligation to pay is fixed by a judgment against the insured.

An insured’s claim to coverage does not have to be reduced to a sum due or to become due under the policy for the claim to be assignable without insurer consent. After an occurrence, the insured possesses a contingent right to coverage, and it is a right that may be assigned without insurer consent.

The insurers argue that their risk was actually increased because, during the federal litigation, petitioner sought to cast blame for the contamination on the original insured. However, petitioner’s allegations did nothing to change respondents’ risk, which became fixed at the time of the loss.

Moreover, relieving respondents of their contractual duty to provide coverage would give respondents a

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 25, 2022

windfall. As petitioner argues, the risks at issue were factored into the original underwriting of the policies, and the premiums paid by the insured were in exchange for coverage against the same risks. If the assignment is voided under these circumstances, respondents would receive the windfall of never having to insure occurrences they received premiums for covering.

Reversed and remanded.

person in the video.

Biggers hearings are required to determine if an identification arising from an unnecessarily suggestive identification procedure was nevertheless so reliable that no substantial likelihood of misidentification exists. The Biggers analysis has not been extended beyond eyewitnesses, and we decline to do so here.

Concurrence

(Hearn, J.): While there is no dispute Carpenter applies retroactively, applying the exclusionary rule is not called for when the behavior of the officers was made in either good faith or isolated simple negligence. Here, the officers were operating under the belief that defendant had no expectation of privacy in his cell phone records, and at the time, under the persuasive authority of United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc) and the binding authority of United States v. Miller, 425 U.S. 435 (1976), that was true.

I would not resurrect the probable cause issue now because the exclusionary rule would not serve any deterrent purpose.

Even if the circuit court erred in denying the motion to suppress, any error was harmless given the myriad of other evidence which tied defendant to the crime.

State v. Warner (Lawyers Weekly No. 010-017-22, 12 pp.)

(John Few, J.) (Kaye Hearn, J., dissenting) Appealed from Anderson County Circuit Court (Lawton McIntosh, J.) Robert Michael Dudek and Adam Sinclair Ruffin for petitioner; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown and Edgar Salter for respondent.

S.C. S. Ct.

(Few, J.): I write separately to express my dismay at respondents’ reliance on the meaningless phrase “chose in action” as a basis for their position.

PCS Nitrogen, Inc. v. Continental Casualty Co. (Lawyers Weekly No. 010-016-22, 15 pp.)

(George James, J.) (John Few, J., concurring) Appealed from Charleston County Circuit Court (Thomas Cooper, J.) On writ of certiorari to the Court of Appeals. William Howell Morrison, Sarah Spruill, Michael Ginsberg and Matthew Divelbiss for petitioner; Morgan Templeton, Patrick Hofer, J.R. Murphy, Adam Neil, Wesley Sawyer, Christian Stegmaier, Scott Wallinger, John Favate, Edward Pritchard, Richard McDermott, Seth Jaffe, John Lay, Laura Jordan, Helen Franzese, Elizabeth Palmer, Molly Poag, Harry Lee, John Bonnie, Michael Ethridge, Suzanne Chapman, Wayne Karbal and Paul Parker for respondents; Matthew Gerrald and Laura Foggan for amicus curiae.

S.C. S. Ct.

Criminal Practice Search & Seizure – Cell-Site Location Information – New Jersey Office – Probable Cause Thanks to Carpenter v. United States, 138 S. Ct. 2206 (2018), we now know that the Fourth Amendment’s warrant requirement applies to cell-site location information (CSLI). Although T-Mobile stored its CSLI records in New Jersey, since T-Mobile clearly does business in South Carolina, including in Anderson County, T-Mobile is subject to the jurisdiction of an Anderson County Magistrate.

However, the affidavit in support of the warrant said merely, “Information was received through crime stoppers indicating that Justin Warner is a possible suspect.

The informant’s information was corroborated and a record search revealed that Warner has this listed number to him.” Without supporting testimony that does not appear in our record, the warrant application did not set forth probable cause.

We remand for further proceedings to determine the validity of the warrant. We affirm the trial court’s refusal to conduct a hearing under Neil v. Biggers, 409 U.S. 188 (1972).

Police had (1) a surveillance video of the murder and attempted robbery of a convenience store clerk, (2) a tip that defendant was the perpetrator, and (3) the clerk’s entry of a birthdate, which matched defendant’s, into the cash register for the purported purchase of cigars. A police detective sent the video to defendant’s probation officer in Georgia and asked whether the P.O. could identify the person in the video as defendant. The P.O. then identified defendant as the

Dissent

S.C. COURT OF APPEALS

Criminal Practice DUI – Late Miranda Warnings – Incomplete Dash Cam Video After an accident, the apparently intoxicated defendant was (1) found at a gas station, along with a damaged vehicle; (2) surrounded by law enforcement officers; and (3) questioned in an accusatory manner. Defendant was thus subjected to custodial interrogation without being given Miranda warnings, and his admissions—including his admission that he had been driving the damaged vehicle—should have been excluded.

We reverse defendant’s conviction for driving under the influence and remand.

Several factors show defendant was in custody at the time of the interrogation: First, he was surrounded by numerous officers and denied his request to use the telephone or the restroom. Defendant was being questioned as a suspect rather than as a witness. An officer initiated the admittedly accusatory interrogation. Defendant’s movements were restricted by the officers surrounding him. This was a custodial interrogation that necessitated Miranda warnings. Those warnings were not given until after defendant was placed under arrest.

Although there was other evidence that defendant was intoxicated, there was no direct evidence that

he had driven the damaged vehicle except from his statements made during the interrogation. Therefore, defendant’s incriminating statements—made prior to Miranda warnings, while being interrogated and in custody—could reasonably have affected the verdict. The error in admitting the statements into evidence was not harmless.

Due to technical difficulties encountered by the state, the video recording of defendant’s field sobriety tests and his Miranda warnings stopped before the last test and the warnings. Thus, the recording did not comply with S.C. Code Ann. 565-2953(A).

Until recently, dismissal of a DUI charge was an appropriate remedy if a police officer failed to produce a video in compliance with the statute unless an exception applied. However, in State v. Taylor, Op. No. 28085 (S.C. Sup. Ct. filed Feb. 23, 2022), our Supreme Court found a violation of the statute as to Miranda warnings no longer required a per se dismissal of the DUI charge. The court said any statements made by the defendant in violation of the statute should be considered the same as any other violation of Miranda.

Based on Taylor, we find the remedy for the failure to meet the statutory requirement is not dismissal.

Reversed and remanded.

State v. Lowery (Lawyers Weekly No. 011-019-22, 9 pp.)

(Paula Thomas, J.) Appealed from Greenville County Circuit Court (Robin Stilwell, J.) Taylor Davis Gilliam for appellant; Alan McCrory Wilson, William Blitch, Ambree Michele Muller and William Walter Wilkins for respondent. S.C. App.

Criminal Practice CSC with a Minor – Evidence – STD Test Results – Practitioners’ Testimony When a seven-year-old girl tested positive for gonorrhea, her father and her mother’s boyfriend both sought testing for sexually transmitted diseases. At the defendantfather’s trial, the test results were admitted with supporting testimony by the medical practitioners who had collected the men’s samples and confirmed their test results, rather than the laboratory technicians who actually performed the tests. The state laid an adequate foundation, and the trial court did not err in admitting the test results, which showed that defendant tested positive for gonorrhea while the mother’s boyfriend did not (though he was also convicted of first-degree criminal sexual conduct with a minor).

We affirm defendant’s conviction for first-degree criminal sexual conduct with a minor.

The testimony of practitioners Dr. Frierson and Nurse Levi established both records containing the test results were “made at or near the time” of the men’s healthcare visits. The records were made “by, or from information transmitted by, a person with knowledge.”

Lexington Medical Center—the same organization that both men visited to receive healthcare—conducted both sets of tests. The analysts who performed the tests entered the results into the patients’ records and the results were verified by Dr. Frierson and Nurse Levi, respectively.

Both practitioners testified they kept records of patient visits, including

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10 / OPINION DIGESTS tests run and diagnoses made, in the regular course of business of treating patients at Lexington Medical Center.

Furthermore, no evidence demonstrates a lack of trustworthiness as to the sources of the information or the methods or circumstances of preparation. Each man voluntarily requested STD testing before law enforcement became involved in the victim’s case. Healthcare professionals with Lexington Medical Center— as opposed to a law enforcement agency—performed the testing and recorded the results. Because law enforcement was not involved in the testing and the sole purpose of the testing was to diagnose and treat the patients, the trustworthiness of the test records is presumed.

Based on the foregoing, evidence supports the trial court’s ruling that the test results were admissible under Rule 803(6), SCRE, because they were records of diagnoses made at or near the time of testing “by, or from information transmitted by, a person with knowledge,” and were kept in the course of a regularly conducted business activity, all as shown by the testimony of a qualified witness as Rule 803(6) requires. Accordingly, the trial court did not abuse its discretion in admitting the test results under the business record exception.

State v. James, 255 S.C. 365, 179 S.E.2d 41 (1971), is distinguishable.

James held, “[When] the results of tests or analyses are offered to prove an essential element of a crime or connect a defendant directly with the commission of a crime, such results must be substantiated by the person who conduct the tests or analyses.”

In James, the hospital sent the sample off to an independent lab in California, and the physicians who testified were not familiar with the lab and could not verify the results.

Here, however, the lab that conducted the testing was an in-house lab, and both healthcare providers testified they reviewed and verified the test results.

Second, unlike the case in James, the evidence at issue in this case did not present a Confrontation Clause problem. These STD tests were not conducted to establish or prove past events potentially relevant to later criminal prosecution. Instead, both men voluntarily requested these tests without any law enforcement involvement. The test results were nontestimonial and therefore the admission of these test results did not present a Confrontation Clause issue.

For the foregoing reasons, we find the ruling in James did not prohibit the admission of the test results.

Affirmed.

State v. English (Lawyers Weekly No. 011-020-22, 9 pp.) (James Lockemy, A.J.) Appealed from Lexington County Circuit Court (Eugene Griffith, J.) Joanna Katherine Delany for appellant; Alan McCrory Wilson, Mark Reynolds Farthing and Samuel Hubbard for respondent.

S.C. App.

4TH U.S. CIRCUIT COURT OF APPEALS

Criminal Practice Precedent on constructive amendment challenges overruled Where the Fourth Circuit previ-

ously held that constructive amendments to an indictment not objected to below must be reversed without reference to the four factors of plain error review, but that rule is inconsistent with subsequent Supreme Court decisions, it was overruled.

Background

Omar Kareem Banks, who was indicted for possession with intent to distribute 50 or more grams of methamphetamine, principally argues that the district court’s jury instructions at his trial constructively amended his indictment by permitting the jury to convict on a basis not included in the indictment. He also raises arguments regarding jury instruction and evidence.

Standard

This court previously held in United States v. Floresca, 38 F.3d 706 (4th Cir. 1994), that constructive amendments must always be reversed without reference to the four factors of plain error review.

Under the rule announced in Floresca, if the district court constructively amended the indictment by including the “or distributed” language in its jury instructions, the court would be compelled to vacate Banks’ conviction.

But Floresca’s reasoning and holding are inconsistent with subsequent Supreme Court opinions and thus no longer tenable. The court thus joins all of its sister circuits that have addressed the issue to hold that, in the Fourth Circuit, alleged constructive amendments not objected to below are subject to plain error review.

Merits

Under the plain error review Banks fails to establish that his conviction for possession with intent to distribute would seriously affect the fairness, integrity and public reputation of judicial proceedings. Based on the record, a jury could not have found Banks guilty of only distribution and not possession with intent to distribute. The overwhelming and uncontroverted evidence supports Banks’ conviction for possession with intent to distribute.

Remaining arguments

Banks alternatively argues that count 10, and by association count 11, as instructed to the jury was duplicitous. He insists that the district court’s inclusion of “or distributed” in its instruction created the possibility that the jury could have convicted him for either possession with intent to distribute or distribution. Banks did not raise a duplicity objection before the district court. Therefore, this court reviewed his argument for plain error. Ultimately, Banks does not provide any argument suggesting how he prevails at the fourth prong of plain error review. Thus, no reversal is required for duplicity.

Banks asserts another duplicity argument. He contends that count 11 is duplicitous as charged in the indictment and as instructed because § 924(c) sets forth two distinct offenses. Banks argues that § 924(c) sets forth distinct “use and carry” and “possession” offenses.

The inclusion of those two offenses in one count, according to Banks, improperly created “the risk that a jury divided on two different offenses could nonetheless convict

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for the improperly fused double count.” However Banks fails to meet the requirements of plain error review.

Banks also argues that the district court erred in admitting into evidence, over his objection, the certificate of authenticity of the Facebook records and the messages associated with the Facebook account bearing the “Banks” name.

He contends the government provided no foundation showing that the “Omar Banks” referred to in the records was him or that the messages were written by him.

At trial, the government presented a certification from a Facebook records custodian showing that the Facebook records containing the messages sent and received through the “Banks” account were made “at or near the time the information was transmitted by the Facebook user.” Banks does not dispute that the Facebook user on one side of the messaging transactions involving the “Banks” account was, or was linked to, a co-conspirator.

The username associated with the account was “Omar Banks,” and the account bearing this name was present on a phone recovered from the vehicle at the motel from which Banks was observed exiting and entering.

A 2018 message sent from the account identified the sender as “O, from Coeburn”—using Banks’ nickname and place of residence in 2018. The sender used coded language to express their need for 2 ounces of methamphetamine.

Given this evidence, it was not an abuse of discretion for the district court to conclude that the jury could find Banks authored and received the messages.

Affirmed.

United States v. Banks (Lawyers Weekly No. 001-060-22, 24 pp.) (A. Marvin Quattlebaum Jr., J.) Case Nos. 20-4172 and 20-4173.

March 18, 2022. From W.D. Va. at Big Stone Gap (James P. Jones, S.J.). Paul Graham Beers for Appellant. Jonathan Patrick Jones for Appellee. 4th Cir.

Criminal Practice En banc court won’t reconcile conflicting panel decisions Although two published panel decisions appeared to reach different conclusions on whether the Supreme Court had overruled an earlier ruling regarding the enforceability of and weight to be given the official commentary of the sentencing guidelines, a majority of the judges voted against rehearing en banc.

Background

A requested poll of the court failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. The court further denies the motion for rehearing before the panel.

Motion for rehearing en banc denied. Motion for panel rehearing denied.

Concurrence

(Niemeyer, J., supporting the denial of rehearing en banc): At the root of this case lies the question of whether the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), overruled its ear-

lier decision in Stinson v. United States, 508 U.S. 36 (1993), for determining the enforceability of and weight to be given the official commentary of the sentencing guidelines. The panel concluded that until the Supreme Court expresses its view on the point, this court should not hold that court has overruled one of its earlier opinions, recognizing the court’s instruction that “it is this Court’s prerogative alone to overrule one of its precedents.” Accordingly, the panel concluded that in determining the enforceability of and weight to be given guidelines commentary—which was the precise issue before the Supreme Court in Stinson, but not in Kisor— this court should continue to apply Stinson.

While this case was pending in this court and the panel opinion was being prepared, another case, United States v. Campbell, 22 F.4th 438 (4th Cir. 2022), was also pending before another panel as the opinion was being prepared.

The opinion in Campbell, however, was filed several days before the opinion in this case. While there is some tension between the analyses in the two opinions relating to the reach of Kisor, there is a legitimate question about whether the panel opinion here is in “irreconcilable conflict” with Campbell.

Thus, the tension between this case and Campbell would be better addressed in a future case where the issue becomes meaningful to that case’s disposition.

In the meantime, this court would welcome the Supreme Court’s advice on whether Stinson or Kisor controls the enforceability of and weight to be given guidelines commentary, an issue that could have far-reaching results. But for now, I believe it wise to postpone addressing the issue until it is presented to us directly in a future case. Therefore, I vote against rehearing this case en banc.

Dissent

(Motz, J., with whom King, J., Wynn, J. and Thacker, J., join, dissenting from the denial of rehearing en banc and voting to grant rehearing en banc): I respectfully dissent from the denial of rehearing en banc and vote to grant rehearing en banc. As Judge King correctly noted in his dissent from the panel opinion, a central holding in this case—that Kisor v. Wilkie, 139 S. Ct. 2400 (2019), does not apply to the sentencing guidelines’ commentary—directly conflicts with an earlier panel opinion of our court, United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). I continue to believe that Campbell was correctly decided, but merits aside, resolving intra-circuit conflicts is a quintessentially proper basis for en banc rehearing. I fear the court’s failure to resolve this conflict now risks stoking confusion over the state of our precedent.

Dissent

(Wynn, J., with whom Motz, J., King, J. and Thacker, J., join, voting to grant rehearing en banc): To the extent that there is an irreconcilable conflict between our opinions in United States v. Campbell, 22 F.4th 438 (4th Cir. 2022), and United States v. Moses, 23 F.4th 347 (4th Cir. 2022), we all agree that Campbell, as the earlier published opinion, must control.

Our disagreement stems over

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the proper use of Federal Rule of Appellate Procedure 35. That rule could not be clearer: an en banc hearing is “not favored and ordinarily will not be ordered unless” “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.” Both factors are unquestionably present in the instant case.

United States v. Moses (Lawyers Weekly No. 001-061-22, 14 pp.) Case No. 21-4067, March 23, 2022. 4th Cir.

Immigration Board erred by imposing ‘living parent’ requirement in statute Where the attorney general has discretion to waive removal for an alien who is the son of a U.S. citizen, the board erred by concluding that a deceased parent is not a qualifying relative for waiver eligibility.

Nothing in the statute contains the living parent requirement.

Background

Congress allocates a certain number of immigrant visas per year for “the unmarried sons or daughters of citizens of the United States.” Evens Julmice applied for and received one of those visas while his U.S. citizen father was still living. But Julmice was ineligible for such a visa because he had been married for five years when he applied for it. And misrep-

resenting his marital status rendered Julmice removable from the United States.

The attorney general, however, has discretion to waive removal “for any alien ... who ... is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence.” Julmice requested such a waiver, but an immigration judge concluded he was ineligible for one.

Noting that Julmice’s father was deceased, the immigration judge followed Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. 2008), a precedential board decision concluding that a deceased parent is not a qualifying relative for waiver eligibility.

Julmice appealed to the board, noting that the Ninth Circuit in Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010), already rejected the living-parent requirement as contrary to the statutory text. Without engaging with the Ninth Circuit’s reasoning, the Board declined to revisit Federiso and adopted and affirmed the immigration judge’s decision holding Julmice ineligible.

Analysis

This case raises a discrete question of statutory interpretation: To be eligible for a § 1227(a)(1)(H)(i) waiver, must a person be the son or daughter of a currently living U.S. citizen or lawful permanent resident? The relevant statutory text says the Attorney General “may” waive removal “for any alien ... who ... is the spouse, parent,

son, or daughter of a citizen of the United States.” The subject of the sentence is the “alien” seeking the waiver, and the relevant verb (“is”) appears in the present tense. In contrast, there is no present-tense verb (or any verb at all) applicable to the citizen parent.

Hearing the sentence “Olivia is the child of a U.S. citizen,” a listener might safely assume that Olivia is currently alive but has no syntax-based reason to assume the referenced parent remains living (as one might if the sentence read “Olivia is the child of a parent who is a U.S. citizen”). Simply put, “an ordinary speaker of English would say that” a still-living child remains the child of a deceased parent.

The board never explained how its contrary view is consistent with (much less mandated by) the statutory text. On appeal, the government relies primarily on a purported statutory “silence,” noting that the relevant provision does not specify whether the parent must be living or dead. Saying the statute is “silent” about whether the parent must currently be alive is just another way of saying Congress chose not to include such a requirement, and the government cannot invoke that silence “to impose unilaterally novel substantive requirements beyond those” Congress enacted.

The government also asserts that the statute’s use of the present tense “is” connotes an ongoing parent-child relationship. That may well be true when it comes to § 1227(a)(1)(H)(i)’s use of the word “spouse”—a relationship that cer-

tainly terminates on divorce and is normally understood to terminate on death as well. (After all, a widowed person may remarry without violating anti-bigamy laws.) But, in ordinary English, we continue to refer to someone as the “son of ” or “daughter of ” their parent in the present tense even long after the parent has died.

One also might argue that— even if Julmice is still the child of his deceased father— he is no longer the child of “a citizen of the United States” because his father (the argument would go) is no longer a U.S. citizen following the father’s death. But the board did not rely on that theory in Federiso and the government affirmatively disclaimed it at oral argument.

Regardless, any such argument would fail as well. For one thing, it founders on the same grammatical shoals as the government’s view of the parent-child relationship.

The statute asks whether Julmice “is” the son of a U.S. citizen, not whether his father is still a U.S. citizen following the father’s death.

The broader statutory context does nothing to undermine this interpretation; rather, it tends to confirm it.

Petition for review granted. Vacated and remanded.

Julmice v. Garland (Lawyers Weekly No. 001-062-22, 8 pp.)

(Toby Heytens, J.) Case No. 211177. March 23, 2022. From the Board of Immigration Appeals.

Jennifer Sheethel Varughese for Petitioner. Spencer Stephen Shucard for Respondent. 4th Cir.

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12 / OPINION DIGESTS Criminal Practice ‘Bright-line’ rule for compassionate release motions rejected Where a detainee files a motion for compassionate release, it would be error for the district court to use a bright-line rule that accepts only the CDC’s highest risk conditions as a basis for grating the motion.

Such a holding might fail to account for the complexities that may be presented in certain cases.

Background

On July 7, 2020, Terrell Hargrove filed a motion for compassionate release alleging: (1) that FMC Devens had “just recently reported positive COVID-19 test results”; (2) that he has asthma, high blood pressure and obstructive sleep apnea, making it “reasonably probable” that he will suffer “severe complications” if he were to contract COVID-19 and that he has a “clean disciplinary record,” has “participated in extensive programming” and has a “concrete release plan.”

The district court denied Hargrove’s motion, finding principally (1) that because his medical conditions only “might increase Hargrove’s risk” of experiencing serious illness from COVID-19, he failed to establish an “extraordinary and compelling reason” for release and (2) that the factors of 18 U.S.C. § 3553(a) did not, in any event, support his release.

Analysis

Hargrove contends first that the district court abused its discretion “by limiting the medical conditions it considered [only] to the CDC’s highest tier.” He argues that instead of considering preliminary studies indicating that one of his conditions (sleep apnea) “creates a risk of severe complications” from COVID-19, the court “simply set a bright-line rule that conditions not listed in the CDC’s highest category, no matter the conditions of the prison and risk of infection, can never qualify as extraordinary and compelling reasons to reduce a sentence.”

The court agrees that use of a bright-line rule that accepts only the CDC’s highest risk conditions is too restrictive. But the premise that the court applied such a bright-line rule is not supported by the district court’s ruling.

While the district court relied on the CDC data, just as Hargrove did, as evidence on the issue before it, it did not adopt a bright-line rule limiting its consideration to medical conditions that the CDC had included in its highest risk category.

Rather, it found that, as to asthma and hypertension, the CDC’s current findings were that those conditions might increase a person’s risk, and as to sleep apnea, it noted that the CDC had not recognized the condition as one increasing COVID-19 risk, all of which Hargrove had also recognized. While the court did not indicate that it had considered the preliminary studies on sleep apnea referenced

by Hargrove, that failure was of no moment because, according to Hargrove’s proffer, those studies similarly concluded only that sleep apnea “‘may be a risk factor.’”

When the sentencing commission and the bureau of prisons, or BOP, have considered what amounts to

“extraordinary and compelling reasons,” they have pointed to an array of factors—not just to the single question of whether a medical condition or a group of medical conditions “might increase [an inmate’s] risk” of severe consequences. While this court does not hold that only the sentencing guidelines commentary and BOP guidance can constitute the appropriate standard, it concludes that the inquiry is multifaceted and must take into account the totality of the relevant circumstances.

Thus, Hargrove’s argument focusing on the appropriateness of the district court’s conclusion—that medical conditions that might increase the risk of serious illness or death are insufficient—is not without merit, as a district court’s so holding might fail to account for the complexities that may be presented in certain cases. But in the circumstances presented by this case, the district court did not abuse its discretion.

3553 factors

Hargrove argues that because part of his sentence was a revocation sentence, the court should not have considered the factors of § 3553(a)(2)(A), which are prohibited when imposing a revocation sentence. But the court was not imposing a sentence; it was being asked to reduce a sentence that was already legally imposed. It follows, therefore, that Congress could specify distinct factors in performing the two distinct functions, as is, indeed, reflected in the specific criteria set forth in § 3582(c)(1)(A) for reducing a sentence.

Moreover, even were Hargrove’s theory accepted, the court would still have had to consider the § 3553(a)(2)(A) factors in deciding whether to reduce his 46-month sentence for drug trafficking, which he was still serving. Accordingly, the court rejects Hargrove’s challenge to the district court’s consideration of the § 3553(a) factors.

Finally, Hargrove contends that the district court erred in “not [addressing] [his] extensive rehabilitation efforts or [explaining] why it gave them no weight under the § 3553(a) factors.” Yet, the record belies his argument.

Affirmed.

United States v. Hargrove (Lawyers Weekly No. 001-063-22, 21 pp.) (Paul V. Niemeyer, J.) Case Nos. 20-7709 and 20-7726. March 29, 2022. From E.D. Va. at Richmond (John A. Gibney Jr., S.J.) Joseph Stephen Camden for Appellant. Jacqueline Romy Bechara for Appellee. 4th Cir.

Bankruptcy Standard for Chapter 11 contempt is clarified Where the Supreme Court previously addressed the proper standard for holding a creditor in civil contempt for attempting to collect a debt that a Chapter 7 discharge order has immunized from collection, that rule also applied in a Chapter 11 case. The analysis was not limited to violations of Chapter 7 discharge orders and did not turn on considerations unique to the Chapter 7 context.

Background

In Taggart v. Lorenzen, 139 S.

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Ct. 1795 (2019), the Supreme Court addressed the proper standard for “[holding] a creditor in civil contempt for attempting to collect a debt that a discharge order” entered under Chapter 7 of the Bankruptcy Code “has immunized from collection.” The threshold question here is whether the standard adopted in Taggart also applies when a court is considering whether to hold a creditor in civil contempt for violating a plan of reorganization of debts entered under Chapter 11.

In 2009, Gordon and Stella Beckhart filed a voluntary petition for relief under Chapter 11. The bankruptcy court confirmed a reorganization plan for the Beckharts’ debts. Under the confirmation order, the Beckharts maintained possession of the beach house, with the creditor retaining a secured claim for the total outstanding mortgage balance.

Several years later, Shellpoint took over as loan servicer on the Beckharts’ account. Although the Beckharts had been making regular monthly payments under the confirmation order, Shellpoint initially believed the account was past due because of the payments missed before the bankruptcy proceedings. Shellpoint ultimately commenced foreclosure proceedings on the beach house.

The Beckharts filed an emergency motion for contempt in the bankruptcy court. According to the Beckharts, Shellpoint had violated the confirmation order by placing their account in default and seeking to foreclose on the property when the Beckharts had been paying on time since the bankruptcy. After hearing argument and testimony, the bankruptcy court found Shellpoint in contempt and awarded sanctions to the Beckharts.

Shellpoint appealed the contempt order to the district court, which reversed. Concluding that “the Taggart standard” applied, the district court determined that “the bankruptcy court’s contempt order [fell] far short of meeting” it because Shellpoint “[had] established a fair ground of doubt with regard to the unclear terms of the confirmation order.”

Standard

The Beckharts first argue that Taggart does not apply to violations of Chapter 11 confirmation orders.

The court disagrees. Nothing about the Supreme Court’s analysis in Taggart suggests it is limited to violations of Chapter 7 discharge orders, or that the court’s decision turned on considerations unique to the Chapter 7 context.

The Beckharts may be right that Chapter 11 reorganization proceedings differ in many ways from Chapter 7 liquidations. But a bankruptcy court’s authority to enforce its own orders—regardless of which chapter of the Bankruptcy Code those orders were issued under— derives from the same statutes and the same general principles the Supreme Court relied on in Taggart.

And those principles make clear that the logic of Taggart applies broadly and cannot be confined to Chapter 7 bankruptcy in the way the Beckharts seek.

Merits

The court likewise disagrees with the Beckharts’ assertion that the bankruptcy court actually applied the Taggart standard in finding

Shellpoint in contempt. Although Taggart was discussed at the contempt hearing, the court’s written order does not mention Taggart or its no-fair-ground-of-doubt standard. Rather, the bankruptcy court’s order states that “a finding of civil contempt is warranted when there is a demonstration ... of” four factors discussed by this court in a decision that long predated Taggart and did not even involve bankruptcy.

At the same time, the court disagrees with Shellpoint’s assertion that the district court committed no error in overturning the bankruptcy court’s contempt order. For one thing, the district court erred in appearing to grant controlling weight to the fact that Shellpoint had requested and received legal advice from outside counsel.

But this court had squarely held—long before Taggart—that advice of counsel “is not a defense” to “civil contempt.” And Taggart reaffirmed this approach when explaining that “the absence of wilfulness does not relieve from civil contempt.” As a result, the district court erred when concluding that Shellpoint’s reliance on the advice of outside counsel was seemingly dispositive as a defense to civil contempt.

Vacated and remanded with instructions.

Beckhart v. Newrez LLC (Lawyers Weekly No. 001-064-22, 8 pp.) (Toby J. Heytens, J.) Case No. 21-1838. April 15, 2022. From E.D.N.C. at Wilmington (Terrence W. Boyle, J.) Ciara Louise Rogers for Appellants. Richard Aaron Chastain for Appellees. 4th Cir.

Immigration Applicant fails to show likelihood of torture in El Salvador Where the immigration judge or IJ, found that the threat of torture from MS-13, police and vigilante groups in El Salvador was less than 50%, both separately and in the aggregate, an applicant’s bid for protection under the Convention Against Torture or CAT, was denied.

Background

Miguel Angel Ibarra Chevez petitions for review of the final order of the Board of Immigration Appeals or BIA, denying his application for protection under the CAT. The IJ found that Ibarra was not credible and that he had failed to show that it was more likely than not he would be tortured if returned to his native country of El Salvador.

Aggregation

Ibarra first argues that the IJ failed to properly aggregate the risk of torture under RodriguezArias v. Whitaker, 915 F.3d 968 (4th Cir. 2019), in which this court joined other circuits in holding “that the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.”

The IJ there had combined the risks that the applicant faced from gangs and the police in her first decision and, on remand, found that the applicant had failed to demonstrate that it is more likely than not that he would be tortured by vigilante groups. But “at no point

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did she consider the aggregated risk caused by all three entities in unison by adding the probability of torture from each entity and determining whether that sum exceeded 50%.”

Here, in contrast, the IJ considered the likelihood of torture by MS-13, police and vigilante groups, and found that “the threat to [Ibarra] from [all] sources is less than a 50% chance of torture both separately and in the aggregate.” In response, Ibarra argues that IJ erred in conflating the risk posed by the police with the risk posed by vigilante groups and erred in failing to employ more precise quantitative risk estimates for each feared entity. The court disagrees.

The court finds no factual or legal error in the IJ’s consideration of the risk allegedly posed to Ibarra from police and vigilante groups.

The court also finds no error in the method in which the IJ aggregated the likelihood that Ibarra would be subjected to torture. The BIA found that the IJ’s findings were supported by substantial evidence, and the court agrees. Accordingly, the agency did not err in its consideration of the aggregate risk of torture.

Standard of review

Ibarra next argues that the BIA applied an incorrect standard of review to the IJ’s aggregate finding.

The court rejects his argument. The IJ considered the potential threat to Ibarra from MS-13, the police and vigilante groups, both individually and in the aggregate, and made a predictive factual determination of what would likely happen if Ibarra was removed to El Salvador. This factual finding was “entitled to deference under the clearly erroneous standard.”

And once the BIA accepted the IJ’s non-clearly erroneous factual findings regarding the treatment that Ibarra was likely to receive from all the entities and for the reasons combined, the BIA properly concluded that Ibarra had failed to meet the ultimate statutory standard for CAT relief.

Merits

Ibarra also argues that the IJ and BIA arbitrarily ignored evidence relevant to his claim and that

the evidence was so compelling that no reasonable factfinder could fail to find that Ibarra had shown that it was more likely than not that he would be tortured if removed to El Salvador. The court disagrees.

The IJ and BIA thoughtfully considered the evidence presented

by Ibarra and the Department of Homeland Security, including the expert opinions and other countryconditions evidence, in four separate opinions. The crux of Ibarra’s argument is that the IJ arbitrarily ignored relevant evidence because she failed to specifically address the final opinions of the experts— i.e., that, based upon their review and acceptance of Ibarra’s written declaration as credible, Ibarra faces a significant risk of torture if he is deported to El Salvador. This likelihood of torture, however, constitutes the ultimate factual finding that rested solely with the IJ, and the IJ’s decisions more than amply explain why she reached a contrary finding.

Petition for review denied.

Chevez v. Garland (Lawyers Weekly No. 001-065-22, 23 pp.)

(William Byrd Traxler Jr., S.J.) Case No. 20-1576. From the Board of Immigration Appeals. Maya Rose Tsukazaki and Jeremy Padow for Petitioner. Shahrzad Baghai for Respondent. 4th Cir.

4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED

Criminal Practice Sentencing – ACCA – Crime of Violence – Alford Plea The district court may not determine whether a prior conviction resulting from an Alford plea constitutes a crime of violence by relying on facts which are neither inherent in the conviction nor admitted by the defendant. However, South Carolina strong-arm robbery is categorically a crime of violence.

Hence, the district court properly counted defendant’s South Carolina strong-arm robbery conviction as a crime of violence under the Armed Career Criminals Act.

We affirm defendant’s sentence.

Since defendant claims that his sentence exceeds the maximum sentence provided by statute, the appellate waiver in his plea agreement does not bar review of his claims.

United States v. Barr (Lawyers Weekly No. 003-004-22, 4 pp.) (Per curiam) Case No. 18-4490. Jan. 14, 2022. From D.S.C. at Florence. (R. Bryan Harwell, C.J.) David Alan Brown for appellant; Lauren Hummel for appellee. 4th Cir. Unpub.

Criminal Practice Sentencing – Minimal Participant Role – Guidelines Range Even if the minimal participant role reduction to U.S.S.G. § 3B1.2(a) applied, defendant’s advisory Guidelines range would still have been higher than the fouryear statutory maximum to which defendant was subject under 21 U.S.C. § 843. Therefore, the district court did not clearly err when it determined that it was unnecessary to rule regarding whether U.S.S.G. § 3B1.2(a) applied.

We affirm defendant’s sentence for use of a telephone to facilitate the commission of a controlled substance felony.

United States v. Salley (Lawyers Weekly No. 003-005-22, 5 pp.)

(Per curiam) Case No. 21-4149.

Jan. 13, 2022. From D.S.C. at Orangeburg. (Terry L. Wooten, S.J.) Christopher Geel for appellant; Jane Barrett Taylor for appellee.

4th Cir. Unpub.

Criminal Practice Sentencing – Supervised Release – Conditions At sentencing, the district court announced that, “within 72 hours of release, [defendant] shall report in person to the probation officer in the district to which he’s released.”

However, the written judgment required defendant to report in person to the probation officer in the “judicial district where you are authorized to reside.” This error alone is reversible under United States

v. Rogers, 961 F.3d 291 (4th Cir. 2020).

Moreover, the district court orally announced conditions corresponding only with standard conditions 1 and 12. The court did not orally announce the imposition of any of the other standard conditions of supervised release, nor did it state that it was adopting the Presentence Investigation Report (PSR). Nevertheless, the written judgment imposed the standard conditions as set out in the Presentence Investigation Report.

We vacate defendant’s sentence and remand for resentencing.

United States v. Jenkins (Lawyers Weekly No. 003-006-22, 6 pp.) (Per curiam) Case No. 214003. Jan. 12, 2022. From D.S.C. at Beaufort. (David C. Norton, J.) Emily Deck Harrill for appellant; Rhett DeHart or appellee. 4th Cir. Unpub.

Corporate LLC Dissolution & Termination – Judgment Creditor – Judicial Assignment – Insurance While plaintiff was suing defendant’s former insured, Window World of North Charleston, LLC (WWNC), WWNC filed articles of both dissolution and termination.

WWNC’s legal existence ended upon the filing of its articles of termination; thus, by the time of a judicial assignment to plaintiff of any claims WWNC might have against the defendant-insurer, WWNC—a defunct entity—had no legal claims against the insurer to be assigned to plaintiff.

Even if we were to agree that WWNC failed to properly wind up its affairs prior to termination, plaintiff identifies no mechanism for challenging the legal effect of an LLC’s articles of termination, including on grounds of improper winding up. We decline to recognize such a remedy absent evidence that the South Carolina legislature intended to authorize it.

We affirm summary judgment for defendant.

Muhler Co. v. State Farm Fire & Casualty Co. (Lawyers Weekly No. 003-007-22, 6 pp.) (Per

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14 / OPINION DIGESTS curiam) Case No. 20-1800. Feb. 3, 2022. From D.S.C. at Charleston (David Norton, J.). JaanRannik for appellant; Kathleen McTighe Mellen and Charles Norris for appellee.

4th Cir. Unpub.

Criminal Practice Sentencing – Supervised Release Revocation – Breach of Trust In revoking defendant’s supervised release, the district court’s discussion of the seriousness of defendant’s violations and the consequences of them was clearly intertwined with its analysis of permissible 18 U.S.C. § 3553(a) factors and defendant’s breach of trust.

The district court did not predominantly sentence defendant based on impermissible sentencing factors, and it is apparent that the court’s concern with defendant’s breach of trust far outweighed any other concerns and provided independent justification for the sentence.

We affirm defendant’s sentence.

United States v. Alford (Lawyers Weekly No. 003-008-22, 5 pp.)

(Per curiam) Case No. 21-4211.

Feb. 7, 2022. From D.S.C. at Florence (Terry Wooten, S.J.) Michael Meetze for appellant; Rhett DeHart and Robert Daley for appellee. 4th Cir. Unpub.

Contract Real Property – Donation – Tax Savings – Timber Sale Plaintiffs helped defendant secure land to donate to the Savannah College of Art and Design.

Section 2.a of the parties’ profit participation agreement said plaintiffs were entitled to 20 percent of the profits from any sale of the land or a portion thereof. Under North Carolina law (applicable because plaintiffs accepted and signed the contract there), the timber on the land became “goods” at the moment defendant sold the timber rights to a third party. Therefore, the timber was longer a portion of the land the moment defendant sold it.

We affirm judgment for defendant on the issue of the timber sale.

We affirm judgment for plaintiffs on the issue of their share of the tax savings.

Section 2.b of the agreement clearly establishes that plaintiffs are entitled to 20 percent of the tax savings realized by defendant by reason of the donation of the land, with no deductions for costs and expenses. Section 2.b does not support defendant’s contention that plaintiffs are only entitled to 20 percent of the profits realized from the tax savings. Unlike § 2.a, § 2.b omits any reference to “profit.”

Defendant’s proposed interpretation is also inconsistent with the agreement’s internal definition of a profit. The agreement defines a profit as “the total proceeds from a sale, less reasonable expenses.” A sale is the transfer of property or title for a price. Because defendant received no compensation from the college for the donation, the donation does not qualify as a sale.

Gee v. Delta Speir Plantation LLC (Lawyers Weekly No. 003009-22, 7 pp.) (Per curiam) Case Nos. 20-1852 and 20-1912. Feb. 25, 2022. From D.S.C. at Beaufort (David Norton, J.) Caroline Gie-

ser, Matthew McGuire and Caitlan VanHoy for defendant; Rex Morgan and Robert Gunst for plaintiffs. 4th Cir. Unpub.

Criminal Practice Sentencing – ‘Financial Institution’ – Possession of a Firearm by a Felon – Predicate Offense – Hobbs Act Robbery The object of defendant’s Hobbs Act robbery, Carolina Casher, is an agent of Western Union and routinely cashes out-of-state checks. Western Union is a financial institution registered with the Securities and Exchange Commission. Applying the plain meaning of “financial institution,” we conclude Carolina Casher falls within the definition. The trial court did not err in applying a two-level enhancement because “the property of a financial institution ... was taken.” USSG § 2B3.1(b)(1).

We affirm defendant’s conviction and sentence for possession of a firearm by a convicted felon, conspiracy to commit Hobbs Act robbery, and substantive Hobbs Act robbery.

While conspiracy to commit Hobbs Act robbery does not qualify as a “crime of violence” under 18 U.S.C. § 924(c), substantive Hobbs Act robbery is unequivocally a “crime of violence.” The district court specifically informed defendant that the predicate for his firearm possession conviction was the substantive crime of Hobbs Act robbery.

In any event, even if defendant pled guilty to a § 924(c) offense based on both the conspiracy and the substantive crime, when a defendant’s § 924(c) conviction is expressly based on a valid and invalid predicate, it remains sound. In other words, we will uphold a § 924(c) conviction if it is predicated on at least one offense that categorically qualifies as a crime of violence or drug trafficking crime. Accordingly, we affirm defendant’s § 924(c) conviction.

United States v. Sansosti (Lawyers Weekly No. 003-010-22, 5 pp.)

(Per curiam) Case No. 20-4214. Feb. 22, 2022. From D.S.C. at Greenville (Henry Herlong, S.J.) David Brown for appellant; Peter McCoy and Addison Gantt for appellee. 4th Cir. Unpub.

Civil Practice Damages – Setoff – Broad Settlement – Narrow Trial Plaintiff’s pretrial $825,000 settlement with the Boys Home of the South covered three years and 21 alleged incidents of sexual abuse.

Plaintiff’s claims tried against the South Carolina Department of Social Services, for which he was awarded $400,000 by a jury, were limited to four alleged incidents of sexual abuse. Pursuant to Smith v. Widener, 724 S.E.2d 188 (S.C. Ct. App. 2012), since the settlement covers both claims that were tried to verdict and claims involving different injuries that were not tried to verdict, the district court should have made the factual determination of how to allocate the settlement between those claims.

We vacate the district court’s ruling that SCDSS was entitled to a setoff that reduced the jury’s award from $400,000 to $0. Remanded for further proceedings.

W.S. v. Daniels (Lawyers

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 25, 2022

Weekly No. 003-011-22, 11 pp.)

(Robert King, J.) Case Nos. 192348, 19-2349, 19-2350, and 192376. March 3, 2022. From D.S.C. in Anderson (Donald Coggins, J.) Andrew Lindemann and James Logan for appellants; Robert James Butcher, Heather Hite Stone, Thomas Hite III and Thomas Hite Jr. for appellees. 4th Cir. Unpub.

Criminal Practice Conspiracy to Defraud the Government – Scientific Research – CRADAs Where the government presented evidence that two agents of the corporate defendants agreed and intended to defraud the United States and committed numerous overt acts in furtherance of that agreement, there was sufficient evidence to support the corporate defendants’ convictions of conspiracy to defraud the government.

We find no error in the district court’s rulings concerning defendants’ multiple criminal convictions, including wire fraud, theft of government property, and conspiracy to defraud the United States.

Facts

Corporate defendant GenPhar, Inc., entered into three cooperative research and development agreements (CRADAs) with the federal government. GenPhar and a subsidiary, defendant Vaxima, Inc., used CRADA funds, not as the CRADAs required, but to build a new research facility and to lobby politicians.

Discussion

Defendants argue there is no statute criminalizing fraud in the administration of CRADAs. However, the various federal criminal statutes relating to fraud broadly apply to a plethora of fraud schemes and properly encompass the conduct defendants were accused (and ultimately convicted) of here.

Defendants also argue that the money held by the National Institutes of Health and paid to GenPhar lost its federal character immediately upon payment. But the numerous supervision, reporting and auditing requirements imposed in the CRADA process are sufficient to allege retention of governmental control over those funds, making them the proper subject of an 18 U.S.C. § 641 offense.

Defendants claim that the involvement of a Defense Criminal Investigation Service special agent in this case violated the Posse Comitatus Act (PCA). First, the provisions of the PCA do not apply to audits and investigations conducted by the Inspector General of the Department of Defense, the precise agency to which the special agent belonged.

Second, even if there were a PCA violation, the exclusionary rule would not apply, and the remedy for a violation of the PCA is not to reverse a criminal conviction but to hold the PCA transgressor criminal liable.

There was sufficient evidence to support defendants’ conspiracy convictions. The actions of two or more agents of a corporation, conspiring together on behalf of the corporation, may lead to conspiracy convictions of the agents and of the corporation.

There was substantial evidence to support the district court’s finding that Vaxima and GenPhar, through the acts of its agents, Drs.

Jian-Yun Dong and Danher Wang, agreed and intended to defraud the United States and committed numerous overt acts in furtherance of that agreement.

The issue of forfeiture was not required to be submitted to a jury.

Because no statutory or other maximum limits the amount of a forfeiture, a forfeiture order can never violate Apprendi v. New Jersey, 530 U.S. 466 (2000). The Supreme Court’s decision in Southern Union Co. v. United States, 567 U.S. 343 (2012), did not change this fact.

Contrary to defendants’ arguments, there was a statutory basis for the district court’s forfeiture order. As specified in the indictment, 18 U.S.C. § 981 is applicable. Among other subsections, § 981(a)(1)(C) permits the forfeiture of “any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of ... any offense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.”

The relevant offenses of conviction here all fall within § 981(a)(1) (C). The offenses in Count Seven (theft of Government property, 18 U.S.C. § 641) and Counts 13 through 34 (wire fraud, 18 U.S.C. § 1343) are explicitly included in the definition of “specified unlawful activity” set forth in 18 U.S.C. § 1956(c)(7). And Count One alleged “a conspiracy to commit such offense[s].” § 981(a)(1) (C). Accordingly, there was a statutory basis for the forfeiture order.

Although 21 U.S.C. § 853(a)(1) does not permit district courts to impose forfeiture orders under a joint and several liability theory, the forfeiture order in this case was not entered pursuant to § 853(a). Rather, the forfeiture order was entered pursuant to 18 U.S.C. § 981(a)(1)(C), as incorporated by 28 U.S.C. § 2461(c).

Moreover, only GenPhar argues a violation of this rule, and the evidence established that GenPhar itself obtained the entirety of the proceeds constituting the forfeiture money judgment.

No error.

United States v. Vaxima, Inc. (Lawyers Weekly No. 003-012-22, 20 pp.) (Per curiam) Case Nos. 17-4277 and 17-4278. Feb 28, 2022. From D.S.C. at Charleston (Bruce Hendricks, J.) Linda Sheffield for appellants; Nathan Williams and Peter McCoy for appellee. 4th Cir. Unpub.

Criminal Practice Defrauding the Government – Sentencing – Forfeiture Order – Joint & Several Liability – Circuit Split Before Honeycutt v. United States, 137 S. Ct. 1626 (2017), held that defendants could not be made jointly and severally liable for forfeitures under 21 U.S.C. § 853(a)(1), the district court in this case held the individual defendant jointly and severally liable with his corporations in a forfeiture order entered pursuant to 18 U.S.C. § 981(a) (1)(C). The circuit courts are split as to whether Honeycutt applies to forfeiture orders entered under § 981(a)(1) (C).

We vacate the forfeiture order as to the individual defendant and remand for the district court to reconsider its order in light of Honeycutt.

United States v. Dong (Lawyers Weekly No. 003-013-22, 10 pp.) (Per curiam) Case Nos. 17-4268, 18-4852, 19-4359 and 19-4511. Feb. 28, 2022.

OPINION DIGESTS / 15

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

From D.S.C. at Charleston (Bruce Hendricks, J.) Robert Bares for appellant; Rhett DeHart, Lance Crick, Carrie Fisher Sherard and Nathan Williams for appellee. 4th Cir. Unpub.

2022. From D.S.C. at Florence (Sherri A. Lydon, J.) John Robert Murphy for appellant; John Elliott Parker and Donald Budman for appellee.

4th Cir. Unpub.

Insurance

Criminal Practice

Auto – Declaratory Judgment Action – Appeals – Mootness

Sentencing – Prior Conviction – Change in Law – Not Retroactive

The plaintiff-insurance company sought a declaratory judgment that an auto insurance policy was void because of misrepresentations made by its insured in her application.

Plaintiff appeals the district court’s ruling that plaintiff lacked standing because no underlying suit had been brought which would require a defense or indemnity from plaintiff.

Such a suit has now been brought, rendering this appeal moot.

Appeal dismissed. However, since plaintiff – through no fault of its own – finds itself unable to appeal an adverse ruling, we vacate the order of the district court.

Whether plaintiff should have been permitted to proceed even before the underlying suit was filed has become a purely hypothetical question with no “real world” consequences. Because a ruling on plaintiff’s challenge to the district court’s analysis could not have any practical effect on the outcome of this case, we must dismiss plaintiff’s appeal as moot.

Progressive Northern Insurance Co. v. Y.E. (Lawyers Weekly No. 003-014-22, 9 pp.) (Pamela Harris, J.) Case No. 20-2191. March 7,

Although defendant argues that his 2009 robbery conviction no longer qualifies as an adult conviction due to a change in South Carolina law (see S.C. Code Ann. § 63-29-20, defining juvenile as a person under 18 years old, effective July 1, 2019), there is no indication that this change in the law applies retroactively. Therefore, since (1) defendant was over 18 when he committed conspiracy and 18 U.S.C. § 924(c) offenses, (2) armed robbery in violation of 18 U.S.C. § 2113(a) is a felony crime of violence, and (3) defendant had two prior felony convictions for crimes of violence (a 2009 South Carolina conviction for strong arm robbery and a 2016 South Carolina conviction for attempted armed robbery), the district court properly sentenced defendant as a career offender.

We affirm defendant’s sentence of 248 months and restitution of $18,317, entered upon defendant’s plea of guilty to armed robbery and brandishing a firearm during and in relation to a crime of violence.

Defendant contends his sentence is unreasonable because his codefendants received lighter sentences even though they committed one

more robbery than defendant did.

This disparity does not make defendant’s sentence unreasonable.

The kind of disparity with which 18 U.S.C. § 3553(a)(6) is concerned is an unjustified difference across judges (or districts) rather than among defendants to a single case. In addition, defendant’s codefendants each pled guilty to only one robbery, just as defendant did, and the district court explained that the codefendants’ criminal histories were lower than defendant’s, justifying the disparity.

United States v. Ball (Lawyers Weekly No. 003-015-22, 7 pp.) (Per curiam) Case No. 19-4851. March 23, 2022. From D.S.C. at Columbia (Joseph Anderson, S.J.) Christopher Geel for appellant; Rhett Dehart and Leesa Washington for appellee. 4th Cir. Unpub.

Criminal Practice Compassionate Release Refusal – First Step Act – Past Violence Where the district court noted that (1) the First Step Act was not retroactive; (2) the government would have likely offered a different plea deal if the First Step Act were applicable; and (3) given the nature of defendant’s crimes, he would likely be sentenced to greater than the statutory minimum, the district court did not abuse its discretion when it determined that changes in the relevant sentencing law did not weigh in favor of compassionate release.

We affirm the district court’s denial of defendant’s request for com-

passionate release.

The district court clearly considered defendant’s medical condition (cervical myelopathy), his rehabilitation, and the 18 years he had already served, yet the court was well within its discretion to determine that defendant’s repeated, violent criminal conduct was entitled to great weight.

While the district court recognized that the need to protect the public from further crimes by defendant was lessened by defendant’s diminished ability to commit violent crimes, the court found this consideration outweighed by defendant’s egregious criminal actions and the need to promote respect for the law, provide just punishment, and afford adequate deterrence.

Given the medical care defendant was receiving in prison (his examination by a neurosurgeon who recommended surgery and aggressive physical therapy and his subsequent relocation to a medical facility), it was not an abuse of discretion for the district court to determine that, given the medical care defendant was receiving in prison, defendant’s assertions that he needed to be released to receive proper medical treatment and that he had a release plan that covered his medical care did not weigh in favor of release.

Affirmed.

United States v. Gist (Lawyers Weekly No. 003-016-22, 6 pp.) (Per curiam) Case No. 21-6893. March 23, 2022. From D.S.C. at Florence (Terry Wooten, S.J.) Michael James Bogle and Charles Cohen for appellant; Rhett DeHart and Derek Shoemake for appellee. 4th Cir. Unpub.

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 26, 2017

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