Semi-retired faculty member Bob Farb has begun a new service that may be of interest to some readers. He is summarizing select published Fourth Circuit opinions. Generally, he will focus on criminal cases and civil cases that have a criminal law connection. For example, his first summary concerns Owens v. Baltimore City State’s Attorneys Office, ___ F.3d ___, 2014 WL 4723803 (4th Cir. Sept. 24, 2014), a civil case filed under 42 U.S.C. § 1983 alleging in part that law enforcement officers intentionally withheld exculpatory evidence in a murder case.
Tag Archives: fourth circuit
Must a parent testify against his or her child when called as a witness? Conversely, must a child testify against his or her parent? The answer depends on whether there is a parent-child privilege.
No North Carolina case, statute, or rule. I couldn’t quickly find a North Carolina case or statute on point. So I don’t think that there’s a statutory privilege, and I don’t think our appellate courts have ruled on whether there is a common law privilege. Evidence Rule 501 concerns privileges, but it just says that questions of privilege should be determined in accordance with state law. It doesn’t attempt to list or define the permitted privileges.
Recent Fourth Circuit case. Yesterday, the Fourth Circuit decided a case on point. In Under Seal v. United States, __ F.3d __, 2014 WL 2699722 (4th Cir. June 16, 2014), the Government suspected a man of growing drugs in his home and of possessing illegal firearms, including automatic weapons. It subpoenaed his 19-year-old son, who lived with him, to testify before a grand jury. The son moved to quash the subpoena, arguing that he should be allowed to refuse to testify based on the parent-child privilege. Forcing him to testify, he contended, would create the perception that he was responsible for his father’s prosecution. He argued that “[t]he damage to the father-son relationship [would be] as certain as it is incalculable.” The district court agreed, ruling that a parent-child privilege should be available on a case-by-case basis and that the child in this case should be allowed to claim the privilege because he was relatively young and was financially dependent on his father.
The Fourth Circuit ruled that no such privilege should be recognized in this case. First, it noted that privileges should not be recognized easily, as they conflict with the principle that the law is entitled to every person’s evidence. Second, it observed that while a few state courts and federal district courts have recognized such a privilege, no federal court of appeals has done so while several have rejected it. Finally, it pointed out facts of this case that undercut the claim of privilege, including that the witness is an “adult college student” rather than a young child, and that the witness and his siblings might be at risk from the father’s allegedly illegal activities. The court left the door open to the possibility of recognizing the privilege in a future case with more favorable facts.
Further reading. Those interested in learning more about this issue might consider reading Maureen P. O’Sullivan, An Examination of the State and Federal Courts’ Treatment of the Parent-Child Privilege, 39 Cath. Lawyer 201 (1999) (collecting authorities; acknowledging that most courts in the United States have not recognized the privilege; noting that some other countries do recognize it; and arguing that the rationale for a such a privilege is at least as strong as that for a priest-penitent privilege and other accepted privileges). This ABA article suggests that only four states have recognized such a privilege, but it is an older piece so it may or may not be accurate today.
Additional thoughts. Based on the foregoing, my guess is that a claim of parent-child privilege would face an uphill battle in North Carolina. The claim would be strongest if the case involved a minor child who lived with and was dependent on the parent, and if the criminal activity under investigation did not pose a threat to the child’s safety or well-being. The claim might also be more likely to prevail if the evidence sought concerned a communication between the parent and child that arguably was based on the closeness of the relationship. Communications from the child to the parent might be more likely to be protected than communications from the parent to the child. Cf. Minn. Stat. 595.02(j) (providing that “[a] parent or the parent’s minor child may not be examined as to any communication made in confidence by the minor to the minor’s parent.”).
If you have litigated this issue or have thoughts about whether such a privilege should be recognized, and under what circumstances, please post a comment.
I’ve previously discussed the forfeiture by wrongdoing exception to the confrontation clause in this blog (here) and in numerous other publications (for example, here). In a nutshell, the forfeiture by wrongdoing exception extinguishes confrontation claims on the equitable grounds that a person should not be able to benefit from his or her wrongdoing. Forfeiture by wrongdoing applies when a defendant engages in a wrongful act that prevents the witness from testifying, such as threatening, killing, or bribing the witness. When the doctrine applies, the defendant is deemed to have forfeited his or her confrontation clause rights. Put another way, if the defendant is responsible for the witness’s absence at trial, he or she cannot complain of that absence.
In a recent case, United States v. Jackson, 706 F.3d 264 (4th Cir. 2013), the Fourth Circuit declined the defendant’s invitation to take a narrow view of this equitable doctrine. In Jackson, the defendant was charged with murder, drug, and firearm offenses. The defendant was the leader of a local drug ring. Unfortunately for the victim, he got on the defendant’s bad side. In addition to stealing money and drugs from one of the defendant’s associates, the victim was known for selling fake drugs in the area, thus putting a damper on the defendant’s drug trade. All of this lead to a confrontation between the defendant and the associate on one side and the victim on the other. During this confrontation the defendant’s associate shot at the victim but missed and the victim escaped. Later, and while in custody on an unrelated matter, the victim gave officers information about the attempt on his life, fingering both the defendant and his associate as the perpetrators. Word got to the defendant that the victim was “telling everything” to the police and after the victim was released from custody, he was attacked and killed by a masked assailant. When asked about the victim’s death by a member of his drug operation, the defendant said that the victim “was an informant trying to bring down him and his brothers” and that the victim “deserved” to be killed. The defendant was charged with the victim’s murder.
Before trial, the prosecution filed a motion in limine seeking to admit the victim’s written statement to police describing the defendant’s involvement in the attempt on the victim’s life. The government argued that the defendant forfeited his right to confront the victim by killing him with the intent to make him unavailable as a witness. The trial court found that the defendant’s desire to silence the victim was a “precipitating” and “substantial reason” for the murder and granted the prosecution’s motion to admit the victim’s statement. The jury found the defendant guilty and he appealed.
On appeal the defendant argued that the forfeiture by wrongdoing exception does not apply unless a defendant’s sole motivation in making a witness unavailable was to prevent that witness’s testimony. Here, the defendant argued, he had additional reasons for killing the victim: to prevent him from undercutting the defendant’s drug operation and to get revenge for stealing from his associate. The Fourth Circuit looked to controlling precedent and found no support for the defendant’s “restrictive view” of the forfeiture by wrongdoing exception. Additionally, the court reasoned, such an approach “finds no support in the functional needs of our criminal justice system” and accepting it “would play roulette with the safety of cooperating witnesses.” It explained:
Eroding the forfeiture-by-wrongdoing exception risks not only giving defendants an intolerable incentive to bribe, intimidate, or even kill witnesses against them. It also provides a disincentive for witnesses themselves to come forward and testify. While the Confrontation Clause is fundamental to our conception of a fair and just system of criminal adjudication, so also is the vigorous and candid participation of relevant witnesses. Accepting [the defendant’s] proposition would throw the system off kilter by hindering factual development in criminal prosecutions. That, too, would prevent the adversarial process from playing out as the Framers intended.
(quotation and citations omitted). Thus, the court held, the forfeiture by wrongdoing exception applies when a defendant intends to prevent a witness from testifying; the fact that the defendant may have had other motivations for harming the witness is irrelevant.
At the Oklahoma City bombing trial of Timothy McVeigh jurors’ names were kept private. So, too, in the corruption trials of former governors Edwin Edwards of Louisiana and Rod Blagojevich of Illinois. Likewise in the recent Chicago trial for the murder of Jennifer Hudson’s mother and other family members. And last year Maryland’s courts adopted rules saying jurors are to be referred to by numbers, not names, and authorizing the trial judge to order that names and addresses be withheld from everyone except counsel when there is substantial danger of harm or undue influence.
Then last month the federal Fourth Circuit Court of Appeals weighed in on the subject. In United States v. Dinkins, No. 09-4668, 09-4669, 09-4755 (August 14, 2012), the court approved the use of an anonymous jury in a murder/drugs/firearms trial in Baltimore. The Fourth seems to be the last federal circuit court to rule on anonymous juries, and there now is fairly uniform agreement among the federal courts on when they are permitted. It is worthwhile to review what the federal courts say since there is little useful state law, and state courts generally tend to follow federal precedent on issues with First and Sixth Amendment implications.
(There appears to be only one North Carolina appellate case that even touches on the issue of anonymous juries, and it is a glancing blow. In State v. Garcell, 363 NC 10 (2009), the Supreme Court said that the trial judge did not have to investigate possible juror exposure to external influence just because the jurors sent a note to the judge asking to be referred to by number rather than name. The opinion does not say whether the judge granted the jury’s request to use numbers.)
First, let’s be sure we know what we mean by an anonymous jury. Anonymity usually begins during jury voir dire and continues throughout the proceedings. The degree of anonymity can vary. Sometimes it means withholding the names of jurors from the public and referring to jurors or prospective jurors in the courtroom by number rather than name — though the lawyers still have names, addresses and other identifying information. At other times the anonymity may be broader, shielding the jurors’ names and addresses not just from the public but from the defendant, defendant’s counsel and the prosecutor as well. The court might also withhold certain biographical information such as the identity of the juror’s employer.
In the Baltimore case the charges against the defendant included murdering an informant who was to be a key witness on drug trafficking and on the murder of another informant. The trial judge kept from the lawyers the names, addresses, spouses and employers of the jurors. However, the jury questionnaire which the lawyers had was extensive and included information about the employment of the jurors and their spouses, albeit without naming the employers. The lawyers also got jurors’ counties, neighborhoods and zip codes.
The basic message of the Fourth Circuit is that, yes, anonymous juries are permitted when (1) there is strong reason to decide that jurors need protection from interference or harm, or if without anonymity the integrity of the jury function will be compromised, and (2) the court takes safeguards to minimize interference with the rights of the defendant. The defendant’s rights needing protection are the right to an impartial jury, for which effective voir dire is essential, and the right to be presumed innocent, which can be affected by a suggestion that jurors need to be protected from the defendant.
Like the other federal circuits, the Fourth says the “Ross factors” — from United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994) — should be used to determine whether there is strong reason to believe an anonymous jury is needed:
“(1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.”
By statute, anonymous juries are allowed in federal capital cases only when it is shown by a preponderance of the evidence that disclosure of names and addresses will jeopardize someone’s life or safety. 18 U.S.C. § 3432. For non-capital cases, the test is whether “the interests of justice” require anonymity. 28 U.S.C. § 1863(b)(7). The Ross factors inform the decision in both kinds of cases.
Emphasizing that the Ross factors are not exclusive, and that the trial court must always engage in a context-specific inquiry, the Fourth Circuit found sufficient basis for an anonymous jury in the case before it. The defendants belonged to an extensive and violent drug trafficking organization; one of the charges was murdering a former gang member who had turned informant and was to be a witness against them; other gang members were at large; still other members were also being tried for murder; and defendants were facing potential sentences of death or life imprisonment.
To safeguard the defendants’ rights the trial judge had offered to give the jurors a non-prejudicial reason for the anonymity — that the court just wanted to protect them from unwanted media attention. Additionally, jurors were not told that biographical information was being withheld from the lawyers. And even though names, addresses and spouses’ and employers’ identities were withheld, the lawyers did get zip codes, neighborhoods and considerable other information, including the nature of jurors’ and spouses’ employment, from the jury questionnaires. Consequently, the Fourth Circuit said, the defendants’ rights were preserved. The trial court was ready to explain the anonymity in a way that avoided labeling the defendants as dangerous, and their lawyers were not unduly handicapped in conducting an effective voir dire.
Although there is no United States Supreme Court decision on anonymous juries, the circuit courts’ views are consistent with the high court’s approach to First and Sixth Amendment rights to open proceedings. The court has recognized both a First Amendment right of the public to attend jury voir dire (Press-Enterprise Co. v. Superior Court of California, 464 US 501 (1984)) and a Sixth Amendment right of the defendant to have voir dire be open (Presley v. Georgia, 558 US 209 (2010)), but allows the proceedings to be closed when necessary to serve an overriding governmental interest — e.g., protecting witnesses — so long as the narrowest available restriction is used.
While there is no North Carolina law, statutory or otherwise, approving anonymous juries there also does not seem to be anything that would prevent their use in the kind of circumstances described by the Fourth Circuit. The statutes on jury lists address only the master jury list prepared by the jury commission annually or biannually, depending on the county, and, as rewritten in 2012, provide that addresses are confidential. N.C. Gen. Stat. § 9-4, as amended by SL 2012-180, § 4. The statutes, therefore, would not seem a barrier to withholding information about jury panel members. And while state case law acknowledges a potential First Amendment right of access to court records, at least when the records in question historically have been open to the public, that right may be overridden by a higher interest such as protecting a defendant’s right to a fair trial or protecting witnesses. (For more information about the case law, see Access to Court Records in North Carolina and Judicial Privilege, Administration of Justice Bulletin No. 2012/01.)
It would seem, then, that North Carolina case law does not present a barrier to employing anonymous juries in the right circumstances. And it would seem that the Fourth Circuit’s decision in United States v. Dinkins is a good guide to the right circumstances — and to the precautionary steps that need to be taken to preserve the defendant’s rights.
I would be interested to hear from anyone who has experience with anonymous juries.
Can an officer’s visual estimate of a vehicle’s speed, uncorroborated by radar, pacing, or other techniques, support a speeding stop? The Fourth Circuit has been whipsawing back and forth on that question recently.
First, in United States v. Sowards, __ F.3d __, 2012 WL 2386605 (4th Cir. June 26, 2012), a case I discussed here, the court said that when the estimated speed is only slightly above the posted limit, a visual estimate isn’t good enough. Then last week, in United States v. Mubdi, __ F.3d __, 2012 WL 3243478 (4th Cir. Aug. 10, 2012), the court upheld a stop based on a visual estimate of speed.
In Mubdi, the defendant was driving on I-77, which happens to be the same highway involved in Sowards. Two Statesville police officers, parked alongside the highway, saw him pass and visually estimated his speed at between 63 and 65 m.p.h. in a 55 m.p.h. zone. The officers, in separate vehicles, pursued the defendant. One overtook the defendant, and the defendant changed lanes and pulled in two to three car lengths behind the officer’s cruiser. The officers then activated their blue lights and pulled the defendant over.
Suffice it to say that one thing led to another and the defendant was arrested and charged with federal gun and drug offenses. He moved to suppress, arguing, inter alia, that the officers lacked probable cause to make a traffic stop. (Remember that reasonable suspicion is the standard for traffic stops in state court.) The district court denied the motion and the defendant pled guilty and appealed. The Fourth Circuit affirmed, agreeing with the district court that there was probable cause for the stop based on the officers’ visual estimates of speed, even assuming that 63 to 65 m.p.h. in a 55 m.p.h. zone qualifies as slight speeding. Distinguishing Sowards, the court noted that here two officers independently made virtually identical estimates; it also observed that the officer in Sowards was “measurement-challenged,” as detailed in my prior post. The Mubdi majority generally seemed sympathetic to the Sowards dissent and appeared to want to soften the impact of Sowards.
The case includes several other legal issues, and features an interesting concurrence suggesting that the officers were overzealous, undertook a pretextual stop, and even perhaps engaged in racial profiling. (The concurring judge would have followed Sowards as to the speeding issue, but nonetheless would have upheld the stop on the basis of following too closely.) But I think that the visual estimate issue is the most significant: Mubdi and Sowards are of obvious importace to anyone connected to federal court, but I continue to believe that they are harbingers of similar issues arising in state court. Stay tuned.
The Fourth Circuit recently decided United States v. Sowards, an interesting case about a traffic stop. The case arose when an experienced traffic enforcement officer stopped the defendant on I-77 near Charlotte. The basis for the stop was the officer’s visual estimate that the defendant was driving 75 m.p.h. in a 70 m.p.h. zone. During the stop, the officer had a drug dog sniff the vehicle. The dog alerted, and the officer found 10 kilograms of cocaine in the car.
Charged with federal drug crimes, the defendant moved to suppress, arguing that the officer “lacked probable cause to initiate the traffic stop.” At the suppression hearing, the officer testified that
he was certified in the use of radar. . . . As a condition of obtaining . . . certification, [he] was required to visually estimate the speed of twelve separate vehicles and then have his visual speed estimates verified with radar. . . . [His] visual speed estimates could not vary from the radar by greater than a total of 42 mph for all twelve vehicles combined. . . . [F]or any one vehicle, his visual speed estimate could have been off by as much as 12 mph, so long as he did not exceed the 42 mph total for all twelve vehicles combined.
The officer testified that he did not use any particular technique to estimate speed, but relied on his training and experience. He also acknowledged that he did not verify his estimate of the defendant’s speed using radar, pacing, or any other means. Finally, he struggled to answer questions about basic measurements, variously opining that there are 12 feet in a yard, that there are 4 feet in a yard, and that there are 12 inches on a yardstick.
The district court denied the motion to suppress, finding that the officer’s estimate provided probable cause for the stop. The defendant pled guilty, reserving his right to appeal the ruling.
A split panel of the Fourth Circuit reversed, resulting in two rather testy opinions. The majority opinion was written by Judge Wynn, formerly of the North Carolina Court of Appeals. First, it noted that the officer received training on operating radar, but received no training on visually estimating speed. Second, it stated that the officer’s difficulty with inches, feet, and yards cast doubt on his speed estimate because “one cannot discern [the] speed of a vehicle . . . without discerning both the increment of distance traveled and the increment of time passed.” Ultimately, the court ruled that a visual estimate of speed can support a stop if the driver is traveling greatly in excess of the posted limit, but that if the driver is traveling only slightly in excess of the limit, corroborating evidence of speeding is needed. However, the court did not identify a bright dividing line between slight and great speeding.
The dissent, written by Chief Judge Traxler, argued that a trained officer’s estimate of a vehicle’s speed may, in some circumstances, be sufficient to support a stop even for “slight” speeding. The dissent argued first that the officer was experienced in traffic enforcement and had demonstrated, during the radar certification process, the ability to estimate vehicle speeds within a few miles per hour. Next, the dissent noted that even untrained witnesses may properly testify to their visual estimates of vehicle speed. In support of this claim, the dissent cited State v. Barnhill, 166 N.C. App. 228 (2004), a case in which the court of appeals ruled that an untrained officer’s visual estimate of a vehicle’s speed provided probable cause to stop the vehicle: “[I]f an ordinary citizen can estimate the speed of a vehicle, so can [an officer] . . . it is not necessary that an officer have specialized training to be able to visually estimate the speed of a vehicle.” (It’s worth noting that Judge Wynn was on the Barnhill panel, though the officer in that case estimated that the defendant was going 40 m.p.h. in a 25 m.p.h. zone, which likely qualifies as more than slight speeding.) Finally, the dissent noted that probable cause is a relatively low hurdle, and suggested that while a visual estimate may often be insufficient to convict a defendant of speeding, it may still be sufficient to provide probable cause to stop.
I don’t know what the prospects are for further review of the case. This isn’t a tremendously sexy issue, even if it is practically important. In the meantime, I tend to think that officers should follow Sowards. Admittedly, the case doesn’t bind state judges, and it concerns a different legal standard than is used in state court: it discusses probable cause rather than reasonable suspicion, which is all that is required for a vehicle stop under State v. Styles, 362 N.C. 412 (2008). So at least for officers who don’t expect to be building federal cases, the case doesn’t have much direct significance. But (1) an officer can’t know in advance when a traffic stop may result in the discovery of drugs, guns, or other items that may be of interest to federal authorities, so it’s probably wise to abide by federal standards when possible. Furthermore, (2) even if Sowards doesn’t bind state judges, it may persuade them. There’s something intuitively appealing about the idea that an officer can’t reliably distinguish relatively small differences in speed with the naked eye. So officers are probably better off verifying borderline cases of speeding with radar, pacing, or some other objective technique, at least when that’s feasible.
Those interested in reading more about various kinds of evidence of speeding might be interested in this post that Shea wrote a couple of years back.
The U.S. Supreme Court’s new Crawford confrontation clause rule has had significant impact in child victim prosecutions, largely because of problems with getting children to testify. One frequent Crawford question that arises in these cases is: Are a child’s statements to a social worker testimonial? In a paper here, I explore the testimonial analysis and other Crawford issues. However, on this particular question, there is no North Carolina law on point. Recently a former N.C. judge, now serving on the 4th Circuit, provided some guidance in United States v. DeLeon, __ F.3d ___ (4th Cir. May 15, 2012).
In DeLeon, the defendant was convicted for murdering and assaulting his eight-year-old stepson Jordan. Jordan died while under the defendant’s exclusive care. An autopsy showed that Jordan died from hemorrhaging due to a lacerated liver and that he had bruising on his face, torso, and buttocks. All of the injuries resulted from blunt force. The medical examiner determined that Jordan’s death was a homicide. The government’s theory was that the defendant—who had a history of using corporal punishment—struck Jordan, lacerating his liver.
At trial the government introduced extensive evidence of the defendant’s physical punishment of Jordan. It also presented evidence that about five months before his death, Jordan and his family met with Beth Thomas, a social worker and treatment manager at the Air Force Family Advocacy Program (FAP). A teacher referred Jordan to the FAP after noticing a bruise on his forehead. The FAP is a medical program; one of its purposes is preventing and treating child abuse. Jordan told Thomas that the defendant punished him by spanking him with a hand and belt and forcing him to hold a hammer for several minutes while leaning down. When Thomas asked about the forehead bruise, Jordan said that the defendant punished him by forcing him to lie on the floor while the defendant kneeled and stood on Jordan’s back. After meeting with Jordan and his family, Thomas concluded that only “minor physical” abuse had occurred. She had several subsequent meetings with the family to provide counseling and parenting advice.
After the defendant was convicted, he appealed arguing that his confrontation clause rights were violated when the trial court admitted Jordan’s statements to Thomas. The Fourth Circuit began by noting that whether there is an ongoing emergency is a key factor in the testimonial analysis. Here, it concluded, no emergency existed. It noted that Jordan’s forehead injury occurred several days earlier and there was no basis to conclude that either Thomas or Jordan intended to develop information to respond to an ongoing emergency. The court was careful to note however that it was not suggesting “that ensuring a child’s safety and removal from an abusive home could never present an ongoing emergency.” Instead it found that the facts presented did not support such a finding.
The court next rejected the defendant’s argument that nature of the FAP made Jordan’s statements testimonial. The court noted that although part of the force’s medical command, the FAP uses both medical and security personnel and requires reporting and investigation of allegations of family abuse. In fact, Thomas testified that she occasionally worked with law enforcement. However, the court rejected the argument that the FAP’s reporting requirements and security component were determinative of whether Jordan’s statements were testimonial.
The court then proceeded to an objective analysis of the primary purpose and circumstances of the interview. It noted that Thomas did not have, nor did she tell Jordan that she had, a prosecutorial purpose. Thomas was not employed as a forensic investigator but rather as a treatment manager. Additionally, there was no evidence that Thomas recorded the interview or sought to preserve Jordan’s answers for use at trial. Rather, Thomas used the information to develop a treatment plan and she continued to provide the family with counseling afterwards. These actions are consistent with her testimony that her “primary purpose [was] to provide the treatment and assistance that the family needs.” Acknowledging that an evaluation of the primary purpose of Jordan’s statement was more difficult, the court rejected the notion that a child’s age is determinative. Instead, it held that a child’s age is just one relevant factor. It found it significant that Thomas never told Jordan that his answers would be reported to the authorities, and there was no evidence that Jordan thought that would occur. It concluded:
[W]e are satisfied . . . that the primary purpose . . . [was] not . . . the preservation of evidence for a future criminal prosecution. A review of the circumstances of the meeting reinforces our conclusion. Jordan came to the meeting with his family . . . . Although protocol required that Thomas meet with each family member independently, no effort was made to separate Jordan from [the defendant] in the waiting area. Thomas also did not meet with Jordan in an interrogation room or at a police station but instead spoke with him in her office in a building that housed the FAP, as well as other mental health service providers. In short, the interview between Thomas and Jordan simply does not bear the hallmarks of a testimonial interrogation.
Importantly, the court noted, this was not a case where the social worker was an agent of law enforcement. Thomas did not respond to a law enforcement request and no criminal investigation was ongoing. Also there was no evidence that the discussion was videotaped or otherwise preserved as evidence or that anyone else listened in on or secretly observed the meeting.
For those involved in child abuse prosecutions, DeLeon is significant. It holds that notwithstanding the lack of an ongoing emergency and the fact a social worker may have a reporting requirement, statements made to a social worker still can be non-testimonial. This is big news.
The Fourth Circuit recently rejected a vagueness challenge to the federal stalking statute. Because of the similarity between the federal statute and North Carolina’s stalking law, I thought the decision was worth mentioning here.
The federal stalking statute makes it a crime to “engage in a course of conduct that causes substantial emotional distress to [the victim] or places [the victim] in reasonable fear of the death of, or serious bodily injury to, [the victim or his or her spouse, intimate partner, or immediate family member]” with the intent to kill, injure, harass, intimidate, or cause fear or emotional distress to the victim. 18 U.S.C. § 2261A(2). (Because it defines a federal offense, the statute also includes the jurisdictional requirement that the defendant used a facility of interstate commerce such as the mail or a computer network to commit the crime.)
The North Carolina stalking statute makes it a crime to harass a victim repeatedly or to engage in a course of conduct with respect to a victim knowing that a reasonable person in the victim’s place would, as a result, fear for the safety of himself or herself, or his or her “immediate family or close personal associates” or would suffer emotional distress due to fear of death, injury, or continued harassment. G.S. 14-277.3A.
You can see that the statutes are pretty similar, and that they’re both pretty elastic. In other words, they can encompass a wide range of conduct. Supporters of such laws argue that such flexibility is necessary because stalking may take many forms. Critics of such laws argue that they are vague and overbroad.
That leads us to the Fourth Circuit’s recent case, United States v. Shrader, __ F.3d __ (4th Cir. April 4, 2012). The facts are awful. The defendant and a woman identified in the opinion as D.S. dated while the latter was in high school. The relationship ended, but the defendant harassed and threatened D.S., eventually killing D.S.’s mother and a friend, and wounding a neighbor, during an armed invasion of D.S.’s home. The defendant was imprisoned for his crimes, but was later released, and resumed his efforts to terrorize D.S. I’ll spare you the details, but his conduct involved threatening to kill D.S., telling her that he hoped one of her children would be killed, and attempting to contact her children. He was charged with, inter alia, stalking D.S. under the federal stalking statute. He was convicted and appealed, arguing in part that the stalking statute was unconstitutionally vague. The Fourth Circuit rejected his argument, stating that “a common sense reading of the statute adequately defines the prohibited conduct,” and noting that the defendant’s conduct went far beyond any possible gray area.
I’m not aware of an appellate decision addressing a vagueness challenge to the current North Carolina stalking statute. The predecessor to the current statute was upheld against a vagueness challenge in State v. Watson, 169 N.C. App. 331 (2005). A few minutes on Westlaw suggests that vagueness challenges to other states’ laws have generally met the same result. See, e.g., State v. Bernhardt, 338 S.W.3d 830 (Mo. Ct. App. E.D. 2011); State v. Stockwell, 770 N.W.2d 533 (Minn. Ct. App.2009); State v. Haines, 213 P.3d 602 (Wash. Ct. App. Div. 1 2009); People v. Stuart, 797 N.E.2d 28 (N.Y. 2003).
The Fourth Circuit recently decided United States v. Ramos-Cruz, a case involving an MS-13 member who was convicted of assorted federal crimes, all generally tied to his gang membership and activity. The defendant appealed, inter alia, “the district court’s decision to permit two witnesses to testify against him without revealing their names or other identifying information.” I thought it was an interesting issue, so I looked into it a bit.
The two witnesses in question were police officers from El Salvador. The Government sought permission for them “to testify under pseudonyms and without revealing their dates and places of birth and home and work addresses,” arguing that the officers and their families would be endangered if it were known that they had testified. The Government submitted affidavits from the witnesses regarding the danger, and it “disclosed . . . in advance the substance of their proposed testimony,” which concerned MS-13 generally, not the defendant’s conduct specifically. The district court held an ex parte hearing and granted the Government’s motion. It also ruled that there was no Giglio impeachment information for the Government to disclose.
On appeal, the defendant argued that the trial court’s “ruling violated his Sixth Amendment right to confrontation, arguing that without the withheld information, he was not able to conduct independent research about the witnesses’ veracity.” The Fourth Circuit agreed that normally, “the Confrontation Clause guarantees a defendant the right to question an adverse witness about identifying information, including his full name and address,” citing Smith v. Illinois, 390 U.S. 129 (1968). However, it stated that identifying information may be withheld if the Government establishes an “actual threat” to the witness. The Fourth Circuit, after reviewing the affidavits filed by the witnesses, found no abuse of discretion in the district court’s determination that an actual threat existed. It further noted that the witnesses’ testimony did not concern the defendant directly, and that the Government revealed the witnesses’ testimony to the defense in advance in order to facilitate meaningful cross examination.
I couldn’t find any North Carolina cases on point. If you know of one, please let me know. Gang cases, including MS-13 cases, are regularly tried in North Carolina’s state courts, so it seems as though the issue could come up here as well. It’s somewhat similar in principle to the idea of granting protective orders limiting discovery based on danger to a witness under G.S. 15A-908, though it seems like a more extreme measure that should be taken only in quite unusual circumstances.
Those interested in further reading might look at the law review literature. A couple of articles that caught my eye were Mirjan Damas̆ka, The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals, 36 N.C. J. Int’l L. & Com. Reg. 365 (2011) (“[F]ew [nations] reject anonymous witness testimony out of hand. Most of them allow the use of anonymous testimony as a means of last resort in some circumstances, provided that anonymity is the only available measure to protect the witness.”), and Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation, 39 San Diego L. Rev. 1165 (2002) (principally discussing California law).
I’ve written about traffic stops at some length, in this paper. One of the areas in which the law is unsettled is the extent to which officers may engage in investigative activity during the stop that is not related to the purpose of the stop, especially if such investigative conduct prolongs the stop. Here’s what my paper says about that:
Whether an officer may briefly extend a stop in order to engage in the investigative techniques described immediately above is controversial. (A lengthy extension of the stop would plainly be improper, unless the officer had developed reasonable suspicion regarding another criminal offense.) The case law in North Carolina is inconsistent, with brief delays in order to conduct dog sniffs permitted under State v. Brimmer, 187 N.C. App. 451 (2007) (delay of approximately four minutes to allow a dog sniff to take place was de minimis), but brief delays associated with requests for consent to search arguably prohibited by [State v. Parker, 183 N.C. App. 1 (2007)], and brief delays for questions unrelated to the stop perhaps barred by State v. Jackson, 199 N.C. App. 236 (2009) (finding that an officer unreasonably extended a traffic stop when she asked just a handful of drug-related questions).
Most [recent] federal cases have allowed short delays for any of the investigative techniques under consideration. [Citations follow.]
The Fourth Circuit recently decided a major case on point. The case is United States v. Digiovanni, __ F.3d __ (4th Cir. 2011). The case began when a Maryland officer stopped the defendant on I-95 for a traffic violation. The stop began at 11:53, and for about ten minutes, the officer essentially conducted a drug investigation, asking the defendant about his travel plans, whether he had any drugs in the car, whether the officer could search the car (the defendant consented, but wasn’t able to open the trunk of the vehicle, so no search was completed), and so on. At 12:03, the officer began a license check, and at 12:08, the officer returned the defendant’s license, issued him a warning ticket, and told him he was free to go. Just moments later, however, the officer reminded the defendant that they “were talking about drugs,” and again asked the defendant whether he would consent to a search, reminding him that he had previously consented. The defendant consented again, and the officer was able to complete a search, finding over 34,000 pills of Oxycodone.
The defendant was charged with drug offenses. He moved to suppress, arguing that the officer’s conduct exceeded the permissible bounds of a traffic stop, and that his own consent to search was tainted by the officer’s overreaching. The district court granted the motion, and the government appealed.
The Fourth Circuit affirmed. The court acknowledged that an officer may ask questions unrelated to the purpose of a traffic stop if the questions do not extend the duration of the stop, or if the questions extend the duration by only a minimal amount. However, it noted that in this case, at least ten minutes of the fifteen-minute traffic stop were devoted to a drug investigation. The court concluded that the officer had effectively abandoned “the purposes of the stop and embarked on a sustained course of investigation into the presence of drugs,” thereby exceeding the proper scope of the stop.
The court rejected the government’s contention that the officer had reasonable suspicion to conduct a drug investigation, which would, of course, have justified the officer’s conduct. The officer testified about several facts that he viewed as indicative of drug activity, such as that “the car was clean” and that “two shirts were hanging in the rear passenger compartment.” The Fourth Circuit found nothing troubling about these facts, nor about the other, almost equally benign facts listed by the officer.
Finally, the court rejected the government’s argument that even if the stop was unduly prolonged, the defendant’s consent to search was given after the stop ended, and so was not a product of the Fourth Amendment violation. The court affirmed the district court’s finding that the defendant’s consent was involuntary, suggesting that the detention continued even after the officer returned the defendant’s license and told him that he was free to go, and noting that the officer falsely insinuated that the defendant was bound by his earlier consent.
A few thoughts about this case. First, I suspect that the fact that the stop was recorded made a difference in the outcome of this case. The court was able to identify exactly how much time was spent on each stage of the stop because it had a time-stamped recording. Second, the federal courts are moving toward a rough consensus about traffic stops: a little extracurricular investigation is OK, but not much. We’ll see if our appellate courts eventually fall in line with that, or chart their own course. Finally, while most of the court’s opinion is quite persuasive, the court’s analysis of the voluntariness of the defendant’s consent isn’t as convincing. If the government elects to seek further review, I would expect it to focus on that issue. As always, stay tuned.