Please ensure Javascript is enabled for purposes of website accessibility

Law Digest — 4th US Circuit Court of Appeals — March 28, 2019

4th U.S. Circuit Court of Appeals

Evidence; Authentication: Officer’s testimony regarding informant’s out-of-court statement was not hearsay because it was not offered for its truth and district court did not abuse its discretion in determining that photos taken by officer were authentic. United States of America v. Joseph Howard Davis, No. 18-4095 (decided March 19, 2019).

Immigration Law; Appeals standard of review: Judgment of the Board of Immigration Appeals, which affirmed the Immigration Judge’s denial of petitioner’s petition for relief from removal, reversed and the case remanded because, while the Immigration Judge’s findings of fact were subject to clear error review, the application of those facts to the relevant legal standards constituted legal judgments subject to de novo review by the Board. Howard Egma Duncan, Jr. v. William P. Barr, Attorney General, No. 17-2423 (decided March 19, 2019).

Labor & Employment; Equal Pay Act: Where female professor alleged that university violated the Equal Pay Act because it paid her less than two particular male professors, judgment of the district court granting summary judgment to university affirmed because, while professor demonstrated that she did in fact earn less than the male professors, she failed to demonstrate that she performed “equal” work requiring “equal skill, effort, and responsibility as the two male professors, who had more duties and performed more work. Zoe Spencer v. Virginia State University, et al., No. 17-2453 (decided March 18, 2019).

Evidence

Authentication

BOTTOM LINE: Officer’s testimony regarding informant’s out-of-court statement was not hearsay because it was not offered for its truth and district court did not abuse its discretion in determining that photos taken by officer were authentic.

CASE: United States of America v. Joseph Howard Davis, No. 18-4095 (decided March 19, 2019) (Judges Wilkinson, NIEMEYER & King).

COUNSEL: Eric Jason Foster, Law Office of Rick Foster, Asheville, NC, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, NC, for Appellee.

FACTS: Joseph Howard Davis was indicted in four counts with methamphetamine trafficking and related violations in Charlotte, North Carolina, during the period from 2014 to 2016. Count I alleged that Davis participated in a conspiracy to distribute 50 grams or more of methamphetamine and 500 grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(A), and 846. Count II charged Davis with possession of a firearm in furtherance of the conspiracy, in violation of 18 U.S.C. §924(c). Count III alleged that Davis distributed 50 grams or more of methamphetamine on or about October 12, 2016, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(A). And Count IV charged Davis with possession of a firearm by a felon, in violation of 18 U.S.C. §922(g)(1).

At trial, the government offered evidence of an alleged conspiracy in which Reggie Shaw supplied Davis with substantial amounts of methamphetamine to sell to Roderick Roberts and Tangie Carroll. It also offered evidence of a controlled buy on or about October 12, 2016, in which Davis sold a confidential informant (hereafter “the Informant”), 54 grams of pure methamphetamine. That transaction took place at a mailbox cluster for the apartment complex where Davis lived and was witnessed by an undercover officer. Finally, the government offered evidence of Davis’s illegal possession of firearms.

The jury found Davis not guilty on Counts I and II, which charged Davis with conspiracy to traffic in methamphetamine and possession of a firearm in furtherance of that conspiracy, but found him guilty of distributing 50 grams or more of methamphetamine on or about October 12, 2016, and possession of a firearm by a felon. The district court imposed a downward-variance sentence of 260 months’ imprisonment, after calculating an advisory Guidelines range of 360 months’ to life imprisonment. In determining the offense level, the court affirmed the presentence report’s determination that Davis was responsible for 4.5 kilograms or more of methamphetamine based on the testimony given at trial by Davis’s alleged coconspirators, Shaw and Carroll.

Based on the jury’s acquittal on the conspiracy count, Davis objected to the district court’s use of the coconspirators’ testimony to determine drug quantities. The district court overruled the objection, finding that the alleged coconspirators testified “convincingly” as to drug amounts.

Davis appealed to the 4th Circuit, which affirmed.

LAW: Davis first contended that the district court erred in admitting an out-of-court statement of the Informant through the testimony of Officer Jenkins, who was explaining why he enlisted the Informant to make a controlled buy from Davis. Jenkins testified that the Informant had told him that she had previously purchased methamphetamine from Davis.

What was apparent from Officer Jenkins’s testimony, as well as Officer Barringer’s, was that both were explaining why they solicited the Informant as an informant. Because the Informant had told them that she had been purchasing methamphetamine from Davis, the officers concluded that she, as an informant, would work credibly in participating in a controlled buy from Davis. Thus, the testimony was offered not for the truth of whether the Informant had in fact purchased methamphetamine from Davis on prior occasions, but rather as an explanation — or a motive — for the officers’ using the Informant in setting up the controlled buy.

In these circumstances, the testimony was not even hearsay barred by Federal Rule of Evidence 802, as Davis claimed. Federal Rule of Evidence 801(c) defines hearsay as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” See also United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985). Since the Informant’s out-of-court statement was not offered for its truth, Davis’s challenge to this evidence was rejected.

Davis also contended that the district court abused its discretion in admitting photographs taken by Officer Jenkins of text messages on the Informant’s cellphone. Davis objected to the admission of the photographs, contending that it violated Federal Rule of Evidence 901, which provides, “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Davis argued that the government did not properly authenticate the photographs in that it did not provide any evidence to support a conclusion that it was in fact he who was sending the text messages to the Informant, such as by introducing evidence that his phone numbers matched the phone numbers for “Joseph Davis” and “Joseph Other.”

While the photographs themselves were authenticated by Jenkins as accurate portrayals of the texts he was photographing, he concededly could not link the texts to the defendant Davis by a phone number, even though the photographs did accurately reveal that the texts were coming from contacts labeled “Joseph Davis” and “Joseph Other.”

The district court’s role, as the presider over the trial, “is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009). But “the burden to authenticate under Rule 901 is not high”; the “court must merely be able to conclude that the jury could reasonably find that the evidence is authentic, not that the jury necessarily would so find.” United States v. Recio, 884 F.3d 230, 236–37 (4th Cir. 2018). Thus, only a prima facie showing that the “true author” is who the proponent claims it to be is required. Id. at 237. And the prima facie showing “may be accomplished largely by offering circumstantial evidence that the documents in question are what they purport to be.” Vidacak, 553 F.3d at 350.

Here, the record contained ample contextual evidence to create a prima facie showing that the Informant was, in fact, texting with the defendant Davis when her cellphone showed the texts to be from “Joseph Davis” or “Joseph Other.” First, the clear purpose manifested by the substance of the texts was to arrange the place of the controlled buy and to arrive at an agreed-upon price for the drugs. For example, the Informant texted, “Where am I going to[]” and “I’m riding in circles where do I go,” to which “Joseph Other” responded, “The mail box.” The Informant then drove to “the mail box” — the mailbox cluster for Davis’s apartment complex — and waited for ten minutes, after which Davis arrived and engaged in the controlled buy, as observed by witnesses. This context alone was sufficient to support the conclusion that the Informant was actually texting with Davis.

Finally, as broader contextual evidence, Officer Jenkins testified not only that he was with the Informant during the 12 hours before the controlled buy, as the Informant was sending and receiving text messages to set up the transaction, but also that he had knowledge of the entire investigation into Davis and the incidents referred to in the texts involving Davis, supporting Jenkins’s conclusion that the texts on the Informant’s cellphone were from Davis.

Thus, the government amply made the prima facie showing required by Rule 901 and the district court did not abuse its discretion in admitting the photographs that Jenkins took of the Informant’s cellphone screen. Any doubt remaining about whether the “Joseph Davis” or “Joseph Other” was actually the defendant Davis was appropriately left for the jury to resolve.

Accordingly, the judgment of the district court was affirmed.

Immigration Law

Appeals standard of review

BOTTOM LINE: Judgment of the Board of Immigration Appeals, which affirmed the Immigration Judge’s denial of petitioner’s petition for relief from removal, reversed and the case remanded because, while the Immigration Judge’s findings of fact were subject to clear error review, the application of those facts to the relevant legal standards constituted legal judgments subject to de novo review by the Board.

CASE: Howard Egma Duncan, Jr. v. William P. Barr, Attorney General, No. 17-2423 (decided March 19, 2019) (Judges Motz, DUNCAN & Quattlebaum).

COUNSEL: Michael S. DePrince, Pepper Hamilton LLP, Philadelphia, PA, for Petitioner. Lindsay Donahue, United States Department of Justice, Washington, for Respondent.

FACTS: Howard Egma Duncan, Jr. was a legal permanent resident of the United States who was born in Nigeria to a Nigerian mother and an American father. When Duncan was six years old, he and his grandmother moved from Nigeria to the United States to live with Duncan’s father. Duncan lived with his father and grandmother for three months before his father was incarcerated in April 1998. A few months later, Duncan’s grandmother filed a petition to become Duncan’s guardian, which was granted later that year.

Duncan’s father remained incarcerated until 2011, two years after Duncan’s eighteenth birthday. Throughout his father’s incarceration, Duncan and his father had limited physical contact with one another; Duncan visited his father approximately once a month and the two talked on the phone several times a week. Though Duncan’s father provided some financial support to Duncan and remained involved in certain aspects of his upbringing– e.g., deciding where he went to school, what shoes his grandmother could purchase for him, and whether he would play football–Duncan’s grandmother acted as his primary caretaker, driving him to and from school and providing him shelter, clothing, and consistent financial support.

Before his eighteenth birthday, Duncan applied for a certificate of citizenship on July 14, 2009. His application was denied in March 2010. Duncan appealed the denial of his application, which the Administrative Appeals Office (the “AAO”) affirmed in February 2015, finding that Duncan failed to establish that he was in the “legal custody” or “physical custody” of his father because he did not reside with his father during the relevant period.

After Duncan’s appeal was denied, the government initiated removal proceedings against him pursuant to 8 U.S.C. §1227(a)(2) based on his convictions for four crimes committed between October 2008 and January 2011. The government charged three grounds of removability: (1) his conviction of a crime of violence under 18 U.S.C. §16, which was an aggravated felony; (2) his conviction of two crimes involving moral turpitude that did not arise from a single scheme; and (3) his conviction for a firearm offense.

Duncan applied for relief under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), 8 C.F.R. §1208.16(c), and also moved to terminate the proceedings on the basis that he had derived citizenship from his father under the Child Citizenship Act of 2000 (the “CCA”), 8 U.S.C. §§1431–33.

The immigration judge (the “IJ”) determined that Duncan had failed to demonstrate the requisite governmental acquiescence for relief under the CAT and that he had not derived citizenship under the CCA because he was not in the “physical custody” of his father during the requisite time period. The Board of Immigration Appeals (the “BIA”) affirmed on both grounds, finding that the IJ did not clearly err in reaching either conclusion.

Duncan appealed to the 4th Circuit, which reversed.

LAW: Duncan first argued that the BIA applied the wrong standard of review in affirming the IJ’s determination that he is ineligible for relief under the CAT. Specifically, he argued that the BIA should have reviewed the IJ’s determination de novo rather than for clear error.

The 4th Circuit recently addressed this issue in Cruz-Quintanilla v. Whitaker, 914 F.3d 884 (4th Cir. 2019), which was controlling here. In Cruz-Quintanilla, it was held that the government acquiescence determination under the CAT is a mixed question of fact and law and that an IJ’s “determination that the evidence did not meet the relevant standard is a legal judgment subject to de novo review by the [BIA].” Id. at 885.

Here, neither party disputed that the BIA reviewed the IJ’s determination that Duncan did not establish a likelihood of government acquiescence for clear error rather than de novo. Accordingly, the Court remanded Duncan’s CAT claim so that the BIA may apply the correct standard of review.

Duncan also argued that the BIA applied the wrong standard of review in affirming the IJ’s determination that he has not derived citizenship from his father under the CCA such that he cannot be removed. Namely, he contended that the BIA erred in applying clear error review to the question of whether he was in the “physical custody” of his father under the CCA.

As this question was a matter of first impression, the Court first addressed the relevant regulations dictating the BIA’s standards of review of IJ decisions. The BIA’s review of an IJ’s decisions is governed by 8 C.F.R. §1003.1(d)(3). Prior to 2002, the regulations provided for de novo review by the BIA over all aspects of IJ decisions. Subsequently, however, new regulations established a standard of review under which the BIA reviews findings of fact for clear error. 8 C.F.R. §1003.1(d)(3)(i). But the BIA reviews de novo “all other issues,” id. § 1003.1(d)(3)(ii), “including, in cases involving mixed questions of law and fact, the application of the governing legal standard to the facts found by the immigration judge.” Cruz-Quintanilla, 914 F.3d at 889.

Guided by precedent in similar contexts, it was concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law. Mixed questions of fact and law require a review of two determinations–what the facts were in a particular case, and the legal conclusions to which those facts lead. Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012). The IJ’s determination of “what happened” is by its nature a factual finding giving rise to review for clear error by the BIA. See Upatcha v. Sessions, 849 F.3d 181, 185 (4th Cir. 2017). But applying the relevant legal standard to those facts and deciding whether that standard was met is a legal judgment subject to de novo review. Id.

The analytical steps that the IJ must take in determining whether a child was in the “physical custody” of her parent under the CCA underscore our conclusion that this determination is necessarily a mixed question. Under the CCA, a child born outside of the United States automatically becomes a citizen when, inter alia, the child is residing in the United States in the “physical custody of the citizen parent.” 8 U.S.C. §1431(a)(3). Congress has not defined “physical custody” in the CCA or its accompanying regulations. Rather, “it has long been a hallmark of our federalism principles that full authority over domestic-relations matters resides not in the national government, but in the several States.” Ojo, 813 F.3d at 540 (citing Ex parte Burrus, 136 U.S. 586, 593–94 (1890)).

In the absence of a federal definition, and because both the Supreme Court and 4th Circuit cases look to state law to determine legal relationships in the family context, the Court turned to state law to determine the meaning of “physical custody” under the CCA. See, e.g., De Sylva v. Ballentine, 351 U.S. 570, 580 (1956). “Physical custody” under the CCA therefore presumptively means “physical custody” as defined under the law of the state in question–in this case, Maryland.

Which state law governs the CCA’s physical custody determination is significant because states have appeared to adopt different approaches to determining physical custody, and the same set of facts may result in different legal outcomes depending upon where they occur.

Here, the physical custody determination under the CCA required a bifurcated approach. While the IJ’s findings of fact are subject to clear error review, the IJ’s application of the facts to the relevant state law in determining whether an individual satisfied the physical custody requirement under §1431(a) is a legal judgment subject to de novo review by the BIA. Thus, the BIA erred in reviewing for clear error the IJ’s legal judgment as to whether, pursuant to Maryland law, Duncan satisfied the CCA’s physical custody requirement.

Accordingly, because the BIA applied the wrong standard of review to this determination, the 4th Circuit remanded the case.

Labor & Employment

Equal Pay Act

BOTTOM LINE: Where female professor alleged that university violated the Equal Pay Act because it paid her less than two particular male professors, judgment of the district court granting summary judgment to university affirmed because, while professor demonstrated that she did in fact earn less than the male professors, she failed to demonstrate that she performed “equal” work requiring “equal skill, effort, and responsibility as the two male professors, who had more duties and performed more work.

CASE: Zoe Spencer v. Virginia State University, et al., No. 17-2453 (decided March 18, 2019) (Judges Wilkinson, Floyd & RICHARDSON).

COUNSEL: Noah Barnett Peters, Noah Peters Law, Washington, for Appellant. Jimmy F. Robinson, Jr., Ogletree Deakins Nash Smoak & Steward, PC, Richmond, VA, for Appellees.

FACTS: Dr. Zoe Spencer, a sociology professor at Virginia State University, sued the University under the Equal Pay Act and Title VII for paying her less than two male professors, allegedly because she is a woman. Spencer earned about $70,000 per year—a median salary when compared to the men who were also full professors in the Department of Sociology, Social Work, and Criminal Justice. But Spencer’s lawsuit proposed comparing her pay to that of two former University administrators, Drs. Michael Shackleford and Cortez Dial, who each earned over $100,000 per year as professors in other departments.

While Spencer asserted that the difference in pay was due to her sex, the University provided a different explanation: Shackleford’s and Dial’s jobs differed from Spencer’s and, as former administrators, their pay was set as a prorated portion of their previous salaries.

After discovery, the district court granted summary judgment for the University. Spencer appealed to the 4th Circuit, which affirmed.

LAW: The Equal Pay Act forbids the University and other employers from: “Discriminat[ing]…between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex…for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. §206(d)(1).

To prove a violation of the Act, Spencer needed to make an initial (i.e., prima facie) showing of three elements: (1) the University paid higher wages to an employee of the opposite sex who (2) performed equal work on jobs requiring equal skill, effort, and responsibility (3) under similar working conditions. EEOC v. Maryland Ins. Admin., 879 F.3d 114, 120 (4th Cir. 2018) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)).

This initial showing permits an inference that a pay disparity was based on sex discrimination. Maryland Ins. Admin., 879 F.3d at 120. The inference of discrimination stands even without the support of any evidence of discriminatory intent. Id. Only once this inference exists does the burden shift to the employer to show that the pay differential was based on a factor other than sex. Id.

Here, Spencer’s choice of Shackleford and Dial as comparators established the first element of her initial showing—the existence of a wage differential. By choosing two of the highest-paid professors at the University, Spencer ensured that her wages were much lower. Yet that same decision to pick Shackleford and Dial precluded her from establishing, as the second element requires, that she and they performed “equal” work requiring “equal skill, effort, and responsibility.”

Equality under the Act is a demanding threshold requirement. It requires a comparator to have performed work “virtually identical” (or the apparent synonym, “substantially equal”) to the plaintiff’s in skill, effort, and responsibility. Wheatley v. Wicomico Cty., 390 F.3d 328, 332–33 (4th Cir. 2004). Similarity of work is not enough; the Act explicitly distinguishes between the work itself (which must be “equal”) and the conditions of work (which need only be “similar”). 29 U.S.C. §206(d)(1).

The Act does not provide courts with a way of evaluating whether distinct work might have “comparable” value to the work the plaintiff performed. See Wheatley, 390 F.3d at 333; see also Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007) (explaining that, when trying to identify “comparable” pay for unequal work, there are “no good answers that are within the competence of judges to give”). Instead, the Act’s inference of discrimination may arise only when the comparator’s work is equal to the plaintiff’s.

In alleging this necessary equality, a plaintiff may not rely on broad generalizations at a high level of abstraction. Wheatley, 390 F.3d at 332. But Spencer attempted just such an impermissibly general comparison. In Spencer’s view, all University professors perform equal work because they all perform the same essential tasks: preparing syllabi and lessons, instructing students, tracking student progress, managing the classroom, providing feedback, and inputting grades. The performance of these tasks, Spencer posited, requires the same skills: studying, preparing, presenting, discussing, and so forth.

But these tasks and skills are shared by middle-school teachers and law-school professors, pre-algebra teachers and biomedical-engineering professors. This attempted comparison ultimately relies on the common title of “professor” plus some generalized responsibilities (e.g., teaching students). In Wheatley the Court rejected a similar claim, concluding that the plaintiffs, supervisors in a county’s emergency-services department, failed to meet their burden to show that supervisors in different departments performed equal work because they could not demonstrate that the different jobs were equal in skill and responsibility. 390 F.3d at 334. Spencer’s case suffered from a near-identical flaw.

In contrast to Spencer’s generalized tasks and skills, a litany of concrete differences underscored that Spencer did not perform work equal to that of Shackleford and Dial. First, Shackleford and Dial taught in different departments than Spencer did. While comparisons might be drawn between some departments, any such comparison requires the plaintiff to articulate with specificity why the work performed and skills needed by a professor in one department are virtually identical—and not just generally related or of comparable worth—to those in another. Precedents recognize, the differences between academic departments generally involve differences in skill and responsibility. See Strag v. Bd. of Trustees, Craven Cmty. Coll., 55 F.3d 943, 950 (4th Cir. 1995) (finding that the Biology and Mathematics departments required instructors to have different skills and responsibilities); Soble v. Univ. of Maryland, 778 F.2d 164, 167 (4th Cir. 1985) (finding that the specialized nature of certain university departments 8 called for distinct skills).

There were more differences. Along with serving in different departments, the three professors taught at different class levels at the University. Spencer taught mainly undergraduate courses, while Shackleford and Dial taught more graduate courses. And Shackleford also supervised doctoral dissertations. Contrary to Spencer’s assertion, the fact that the University credited hours spent supervising dissertations in a similar manner to hours spent teaching regular courses does nothing to establish the equivalency of supervising dissertations and teaching undergraduates. Nor did the professors work equal hours, as the record shows that Shackleford and Dial worked more than Spencer did week to week.

Thus, while Spencer established a pay disparity, she failed to present evidence that created a genuine issue of material fact that Shackleford and Dial were appropriate comparators. Accordingly, the judgment of the district court was affirmed.

 

1 of 1 article

0 articles remaining

Grow your business intelligence with The Daily Record. Register now for more article access.