Please ensure Javascript is enabled for purposes of website accessibility

Law Digest — 4th US Circuit — Aug. 25, 2022

U.S. Court of Appeals for the 4th Circuit

Civil Practice; dismissal without leave to amend: Where a district court dismisses a complaint or all claims without providing leave to amend, the order dismissing the complaint is final and appealable, and the time to appeal begins to run upon “entry” of the judgment. This rule overrules prior circuit precedent that applied a case-by-case methodology to determine whether a dismissal was final. Britt v. DeJoy, No. 20-1620 (filed Aug. 17, 2022).

Criminal; West Baltimore gang convictions: Where members of a West Baltimore gang challenged their convictions on numerous grounds, including that the Racketeer Influenced and Corrupt Organizations Act, or RICO, statute was void for vagueness, that their Sixth Amendment rights were violated or that there was insufficient evidence supporting the convictions, these challenges were rejected. United States v. Barronette, Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, 19-4562, 19-4726 (filed Aug. 18, 2022).

Civil Practice

Dismissal without leave to amend

BOTTOM LINE: Where a district court dismisses a complaint or all claims without providing leave to amend, the order dismissing the complaint is final and appealable, and the time to appeal begins to run upon “entry” of the judgment. This rule overrules prior circuit precedent that applied a case-by-case methodology to determine whether a dismissal was final.

CASE: Britt v. DeJoy, No. 20-1620 (filed Aug. 17, 2022) (Judges GREGORY, Wilkinson, Niemeyer, Motz, King, Agee, Wynn, Diaz, Thacker, Harris, Richardson, Quattlebaum, Rushing, Heytens)

FACTS: The court takes the opportunity to summarize its guidance regarding appellate jurisdiction under § 1291, examines the inconsistency that flows from a case-by-case determination of finality when a complaint is dismissed without prejudice and—ultimately—establishes a new rule governing such cases.

LAW: It is well-established that dismissals made without prejudice when leave to amend is denied are final and appealable, and it is equally well-established that dismissals made without prejudice when leave to amend is granted are not. But what happens when a district court dismisses a complaint or all claims within a complaint without prejudice yet remains silent as to the possibility of amendment?

In these cases, to determine whether an order is final, this court has adopted a case-by-case methodology. That methodology emerged from Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1994), which concluded that dismissals without prejudice are not appealable “unless the grounds for dismissal clearly indicate that no amendment in the complaint could cure the defects in the plaintiff’s case.”

By contrast, the D.C. Circuit imposes a bright-line rule, explaining that “[t]hough it may be possible in some cases to discern an invitation to amend the complaint from clues in the district court’s opinion, . . . anything less than an express invitation is not a clear enough signal to overcome the presumption of finality.” The Sixth Circuit has adopted a similar bright-line rule whereby a dismissal without prejudice is final in cases where the district court enters a final order and does not grant the plaintiff an opportunity to amend her complaint.

The court today thus holds that when a district court dismisses a complaint or all claims without providing leave to amend, the order dismissing the complaint is final and appealable. By requiring the district court to state whether a plaintiff has leave to amend and concluding that an order is final when a district court does not, the court no longer speculates about what the district court meant when stating “without prejudice” or what the parties may do in the future.

The court recognizes that recognize that unwary litigants may find themselves entrapped where a district court dismisses a complaint without prejudice and without giving leave to amend but a plaintiff would nonetheless like to amend her complaint. Under the rule adopted today, such a dismissal is final and appealable, and the time to appeal begins to run upon “entry” of the judgment.  Thus, a plaintiff may only amend her complaint by first filing a motion to reopen or to vacate the judgment under Rule 59 or Rule 60. Once a party timely files such a motion, the time to appeal will restart from “the entry of the order disposing of the last such remaining motion.”

A second area of confusion may emerge when a district court grants a plaintiff leave to amend but she chooses not to do so. Under the new rule, this decision would not be final and, thus, not appealable. A plaintiff who decides not to amend her complaint may still seek appellate review by electing to stand on her complaint. To do so, however, the plaintiff must waive her right to amend the complaint by requesting that the district court take further action to finalize its decision.

An additional layer of confusion may arise regarding the interplay between leave to amend and the plaintiff’s deadline to do so. In granting a plaintiff leave to amend her complaint, the district court may have: (1) provided the plaintiff with a specified number of days during which she could seek to amend or (2) stated that the plaintiff could seek to amend but remained silent as to a deadline by which she was required to do so. A decision granting leave to amend, however, is not final.

Therefore, the court now clarifies that a plaintiff in either instance must obtain an additional, final decision from the district court finalizing its judgment before she may appeal. Accordingly, a district court may not attempt to preemptively avoid issuing such a final decision by stating that the initial dismissal granting leave to amend will automatically become final at the expiration of the stated time period.

So ordered.

Criminal

West Baltimore gang convictions

BOTTOM LINE: Where members of a West Baltimore gang challenged their convictions on numerous grounds, including that the Racketeer Influenced and Corrupt Organizations Act, or RICO, statute was void for vagueness, that their Sixth Amendment rights were violated or that there was insufficient evidence supporting the convictions, these challenges were rejected.

CASE: United States v. Barronette, Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, 19-4562, 19-4726 (filed Aug. 18, 2022) (Judges Niemeyer, Diaz, FLOYD).

FACTS: Montana Barronette, Brandon Wilson, Linton Broughton, John Harrison, Terrell Sivells, Taurus Tillman, Timothy Floyd and Dennis Pulley operated an enterprise known as “Trained to Go,” or TTG, within one of West Baltimore’s neighborhoods. Appellants distributed drugs and engaged in countless acts of violence using firearms. They now bring numerous challenges to their convictions and sentences.

LAW: Appellants argue that the phrases “pattern of racketeering activity” and “enterprise” are unconstitutionally vague. But this court has twice rejected void-for-vagueness challenges to RICO statute. Appellants ask the court to reconsider those decisions in light of three void-for-vagueness cases from the Supreme Court. But none of those cases justifies such reconsideration, as they focus only on the residual “crime of violence” or “residual clause” definitions other statutes.

Appellants next contend that the district court violated their Sixth Amendment rights to a public trial when it limited the number of people who could gather in the public gallery to 25 people. The court disagrees.

First, the district court advanced overriding interests of maintaining order and preventing witness intimidation by ordering the partial closure. Second, the partial reduction in capacity was no broader than necessary. Further, the court set up an overflow room for spectators once the number of spectators in the courtroom reached the capacity limit. Third, the district court both considered and implemented reasonable alternatives to closing the courtroom. Finally, the district court made adequate factual findings to support the capacity limitation.

Sivells and Floyd appeal the court’s denial of their motions to suppress. The court finds that there is ample probable cause supporting the tracking and wiretap orders for TT4 and TT5, as well as the search warrant for 2307 Avalon Avenue.

Sivells also challenges the admission of statements he made to law enforcement after his arrest on Oct. 27, 2016. He contends that officers improperly continued questioning him after he invoked his right to counsel. But the officers made clear that they would stop the questioning if he wanted to have an attorney present. But instead of asking for an attorney, Sivells simply signed the waiver-of-rights form voluntarily, relinquishing his rights and continuing to speak with law enforcement.

Wilson and Pulley assert that their § 922(g)(1) convictions should be reversed after the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). With respect to Pulley, while his misdemeanors placed him into the category of people prohibited from possessing firearms, there is a lack of record evidence that Pulley knew that he was convicted of a state crime for which the punishment was for more than two years. Therefore, the court agrees that the Rehaif error affected his substantial rights.

Unlike Pulley, Wilson had been convicted of robbery with a dangerous weapon, which is a felony under Maryland law. Thus, the presumption that he would ordinarily know he was a felon applies. Because Wilson offers no argument to rebut that presumption, his conviction is affirmed.

Montana Barronette and Pulley contend that the district court abused its discretion by denying their motion for a mistrial because a government witness stated during cross-examination that he saw a news report that Barronette was the “number one gun puller in Baltimore.” They have not established how this witness statement is an “extraordinary circumstance” that prejudiced them. First, the statement only concerned Barronette, not Pulley. Second, while the statement was related to Barronette’s guilt, the district court gave a curative instruction, and there is no overwhelming probability that the jury was unable to heed it.

Appellants argue the jury lacked sufficient evidence to find that (1) the alleged RICO conspiracy substantially affected interstate commerce; (2) Wilson possessed a firearm in furtherance of a drug conspiracy; (3) the drug conspiracy involved one kilogram or more of heroin; (4) Sivells and Floyd conspired to murder Antonio Addison and (5) Broughton conspired to murder unknown individuals. The court disagrees and finds that there was sufficient evidence for the jury’s verdicts.

Harrison challenges the district court’s admission of statements that Markee Brown made prior to his death to police and a grand jury, in which Brown stated that Harrison robbed him and Dominique Harris and then Harrison murdered Harris. The district court found that Brown’s testimony was admissible under the forfeiture-by-wrongdoing exception to the Confrontation Clause and to the hearsay rule because it found by a preponderance of the evidence that TTG members murdered Brown to prevent him from testifying and Harrison acquiesced in that murder.

Even if the district court erred in allowing Brown’s testimony, that error is harmless as Harrison’s convictions and the guidelines range would have been the same. Finally, while Sivells, Broughton and Floyd assert that their sentences are procedurally and substantively unreasonable, the court disagrees.

Pulley’s § 922(g)(1) conviction vacated and reversed. Remaining convictions and sentences affirmed.