Opinions – 3/6/14: 4th U.S. Circuit Court of Appeals

Constitutional Law

Freedom of speech 

BOTTOM LINE: North Carolina statute inviting citizens to “make a statement” and “promote themselves and/or their causes” with specialty license plates but limited invitation to only those citizens who agreed with North Carolina’s “Choose Life” stance violated First Amendment prohibition against any law abridging freedom of speech because statute restricted speech based on content of speech, allowing speech by some but not others.

CASE: American Civil Liberties Union v. Tata, No. 13-1030 (decided Feb. 11, 2014) (Judges Traxler, WYNN & Russell (Sitting by Designation)). RecordFax No. 14-0211-60, 28 pages.

COUNSEL: Kathryne Hathcock, North Carolina Department of Justice, Raleigh, NC, for Appellants. Christopher Brook, American Civil Liberties Union of North Carolina Legal Foundation, Raleigh, NC, for Appellees.

FACTS: In June 2011, North Carolina enacted a law “An Act to Authorize the Division of Motor Vehicles to Issue Various Special Registration Plates,” The law authorized the North Carolina Division of Motor Vehicles (“NC DMV”) to issue, among other specialty license plates, a “Choose Life” plate. By contrast, this law authorized no pro-choice specialty license plate. In fact, plates bearing slogans such as “Respect Choice” were suggested but repeatedly rejected by the North Carolina General Assembly.

Because North Carolina refused to allow a specialized plate to promote their cause, North Carolina vehicle owners who wanted a pro-choice specialty plate, along with the ACLU, filed suit in federal district court against the North Carolina Department of Transportation (“NC DOT”) and the NC DMV (collectively “North Carolina”) for First and Fourteenth Amendment violations. In December 2011, the district court granted a preliminary injunction blocking North Carolina from issuing the “Choose Life” plate. The district court subsequently granted summary judgment and permanently enjoined the “Choose Life” plate.

North Carolina appealed to the 4th Circuit, which affirmed the judgment of the district court.

LAW: North Carolina did not deny that it engaged in viewpoint discrimination by approving the “Choose Life” plate while refusing to allow a pro-choice plate. Instead, North Carolina contended that it was free to discriminate based on viewpoint because the license plate speech at issue was solely its own. And under the government speech doctrine, when the government speaks for itself, it can say what it wishes. Thus, determining whether the “Choose Life” specialty plate embodied pure government speech or something else was at the heart of this case.

Although the Supreme Court has not yet recognized that speech may be not purely government or private but instead implicate both, the 4th Circuit has. See Sons of Confederate Veterans, Inc. ex rel. Griffin v. Commissioner of the Virginia Department of Motor Vehicles (“SCV I”), 288 F.3d 610 (4th Cir. 2002). In SCV I, the Court held that Virginia’s barring the Sons of Confederate Veterans from obtaining a specialty license plate with a confederate flag logo constituted unconstitutional viewpoint discrimination. In a separate opinion regarding the denial of rehearing en banc, Judge Luttig presciently recognized that speech in fact can be, at once, that of a private individual and the government. Sons of Confederate Veterans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles (“SCV II”), 305 F.3d 241, 245 (4th Cir. 2002) (Luttig, J.). Two years later, in Planned Parenthood of S.C. Inc. v. Rose, a case strikingly similar to the present one, the 4th Circuit embraced the notion of mixed speech. Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 794 (4th Cir. 2004).

SCV I outlined four “instructive” factors, which remained appropriate tools for evaluating whether speech is government, private, or both. With regard to the first factor, the central purpose of the program in which the speech in question occurs, the purpose of North Carolina’s specialty license plate program was to allow North Carolina drivers to express their affinity for various special interests, as well as to raise revenue for the state. Thus, this first factor weighed in favor of private speech.

The second factor is the degree of editorial control exercised by the government or private entities over the content of the speech, the degree of editorial control exercised by the government or private entities over the content of the speech. In the present case, the legislature determined, and the governor approved, the “Choose Life” message. 2011 N.C. Sess. Laws 392. The parties themselves agreed that “complete editorial control” rested with North Carolina. Thus, this factor weighed in favor of the government.

The third factor, the identity of the literal speaker, weighed in favor of private speech, as the Supreme Court has deemed license plates a sphere of private “intellect and spirit” that implicates First Amendment protections from government control. See Wooley v. Maynard, 430 U.S. 705 (1977). Thus, the third factor weighed in favor of private speech. The fourth factor, the ultimate responsibility for the speech, likewise weighed in favor of private speech, because when a special license plate is purchased, it is really the private citizen who engages the government to publish his message. SCV II, 305 F.3d at 246 (Luttig, J.).

Applying SCV’s instructive factors to the facts at hand, three of the four factors indicated that the specialty plate speech at issue was private, while one suggested that the specialty plate speech was government. Thus, the district court correctly concluded that sufficient private speech interests were implicated by the specialty license plates to preclude a finding of purely government speech.

Accordingly, the judgment of the district court was affirmed.

Criminal Procedure

Speedy trial 

BOTTOM LINE: In defendant’s trial for charges related to credit and debit card fraud, district court did not err in denying defendant’s request to dismiss Government’s case against him pursuant to Speedy Trial Act because some of the time was excluded by ends of justice continuances, such that the case was brought within the 30-day speedy trial limit.

CASE: United States v. Keita, No. 12-4957 (decided Feb. 6, 2014) (Judges Niemeyer, WYNN & Flanagan (Sitting by Designation)). RecordFax No. 14-0206-60, 16 pages.

COUNSEL: Marc Hall, Law Office of Marc Hall, P.C., Rockville, MD, for Appellant. Sujit Raman, Office of the United States Attorney, Greenbelt, MD, for Appellee.

FACTS: On January 31, 2012, pursuant to a search warrant based on a credit card fraud investigation, federal agents searched the residence of the defendant, Mohammed Keita. There, they seized laptop computers containing stolen credit card information, credit and debit cards bearing Keita’s name but re-encoded with stolen credit card information, and other evidence. That same day, the agents arrested Keita.

On February 10, 2012, with Keita’s consent, the government moved for a continuance of the thirty-day time period to file an indictment under the Speedy Trial Act, 18 U.S.C. §§3161-3174, stating that the parties were engaged in plea negotiations. The district court granted the motion and extended the deadline for filing an indictment through March 15, 2012. The court later granted a second consent motion seeking a continuance to April 5, 2012, because an ongoing grand jury investigation and plea discussions were being conducted. Plea negotiations ultimately failed, and Keita was indicted on April 9, 2012, for three counts of access device fraud, three counts of aggravated identity theft, one count of possession of counterfeit access devices, and one count of possession of device-making equipment.

Following a jury trial, Keita was convicted on all counts. He was sentenced to total of 76 months’ imprisonment.

Keita appealed to the 4th Circuit, which affirmed the judgment of the district court.

LAW: On appeal, Keita argued that the district court erred in denying his motion to dismiss the indictment based on asserted violations of his rights under the Speedy Trial Act. The Speedy Trial Act provides that any information or indictment charging an individual with the commission of an offense shall be filed within 30 days from the date on which such individual was arrested or served with a summons in connection with such charges. 18 U.S.C. §3161(b). An indictment filed in violation of the 30-day time limit must be dismissed. 18 U.S.C. §3162(a)(1).

However, when calculating the 30-day time period, certain delays “shall be excluded.” 18 U.S.C. §3161(h). Two were relevant here. First, any period of delay resulting from other proceedings concerning the defendant shall be excluded. 18 U.S.C. §3161(h)(1). The phrase “other proceedings” has been interpreted to include plea negotiations. United States v. Leftenant, 341 F.3d 338, 3444-45 (4th Cir. 2003). Second, any period of delay resulting from a continuance, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial, shall be excluded. 18 U.S.C. §3161(h)(7); see Zedner v. United States, 547 U.S. 489, 498-99, 126 S. Ct. 1976, 164 L. Ed. 2d 749 (2006).

In the present case, Keita was arrested on January 31, 2012. Absent any excluded delay, the government was required under the Speedy Trial Act to file an indictment by March 1, 2012. However, the parties twice jointly requested additional time “to discuss a potential resolution of the case.” The district court accordingly granted two continuances: the first secured a continuance until March 15, 2012; and the second secured a continuance until April 5, 2012. Both orders granting the continuances specifically found that the ongoing grand jury investigation and plea discussions warranted the continuances and that the resulting periods of delay served the ends of justice. The periods of delay resulting from these continuances were therefore excluded in computing the 30-day time period. See 18 U.S.C. §3161(h)(1), (h)(7).

Applying the exclusions, the speedy trial clock began on February 1 (the day after Keita’s arrest) and stopped on February 10 (when the first continuance was granted). See United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996). It resumed on April 6 (when the second continuance lapsed) and stopped again on April 9 (when the indictment was filed). Thus, a total of 12 non-excluded days elapsed, well within the Speedy Trial Act’ 30-day limit. Consequently, the district court did not err in denying the motion to dismiss based on purported Speedy Trial Act violations.

Accordingly, the judgment of the district court was affirmed.