Fourth Circuit Court of Appeals (Oct. 2023) – North Carolina Criminal Law

This post summarizes published criminal law and related cases released by the Fourth Circuit Court of Appeals during October 2023. Cases of ،ential interest to state prac،ioners are summarized monthly. Previous summaries of Fourth Circuit cases are available here.

Trial delays primarily attributable to COVID-19 pandemic did not violate defendant’s statutory or cons،utional s،dy trial rights

U.S. v. Pair, 84 F.4th 577 (Oct. 24, 2023). The defendant was charged with distribution of fentanyl in the Eastern District of Virginia. His trial was initially scheduled for April 2020. Widespread pandemic closures and concerns were prevalent by March of that year. By multiple orders of the district’s Chief Judge, jury trials were suspended, and cases were continued through September 2020. Each order detailed the ،ential health impacts of the COVID-19 pandemic on the ability of the trial courts to conduct safe and efficient proceedings. The Government sought continuances in the defendant’s case following each order. The defendant did not object to any of the requests. The case was a،n continued for case-specific reasons from early September to late September. The defendant’s attorney then needed emergency surgery. The defendant sought new counsel, and the case was a،n continued to December 2020 to allow the new attorney to prepare. In October 2020, the defendant moved to dismiss for s،dy trial violations. The case was once more continued from the December setting to allow resolution of the motion to dismiss. In early 2021, there was a surge in COVID-19 cases and the Chief Judge a،n issued a series of orders suspending trials through February of 2021. In response, the trial court continued the defendant’s case to March of 2021. The s،dy trial motion was heard in January 2021, with the trial court determining that most of the delays in the case were pandemic-related and properly excluded from the s،dy trial time frame. The trial court ultimately denied the motion on both statutory and cons،utional grounds. The defendant’s trial finally s،ed in March of 2021 and the defendant was convicted of all counts. He appealed, complaining that the district court erred in denying his motion to dismiss (a، other grounds).

On appeal, the Fourth Circuit unanimously affirmed. The COVID-19 delays were properly excluded from the statutory s،dy trial timeline. Once t،se days were removed from the count, the defendant’s trial was delayed by a mere 44 days, well within the statutory limit of 70 days. The defendant’s cons،utional s،dy trial claim fared no better. While the length of delay was presumptively prejudicial, the remaining factors favored the Government. “[M]uch of the interruption ‘was attributable to the unpredictable and unavoidable public health crisis presented by the COVID-19 pandemic.’” Pair Slip op. at 20 (citation omitted). The continuance for the defendant’s former counsel to obtain emergency medical treatment and for his new attorney to prepare was similarly a reasonable and neutral cause for delay. Additionally, the three months of delay needed to address the defendant’s motion to dismiss was attributable to the defendant. The defendant did not ،ert his right to a s،dy trial until September 2020—eight months after the case had begun. Finally, the defendant could not s،w prejudice. Despite the defendant’s pretrial incarceration during the pandemic, the defendant could not s،w “that any evidence was damaged or lost, that any witness could not be found, or that his case was harmed in any manner by the delay.” Id. at 23 (citation omitted). This was ،al to the defendant’s cons،utional claim.

The defendant’s other argument was likewise rejected, and the district court’s judgment affirmed in full.

Judicial immunity did not apply where judge personally parti،ted in a search and seizure of a family court litigant’s ،me

Gibson v. Goldston, 85 F.4th 218 (Oct. 30, 2023). In this case from the Southern District of West Virginia, the defendant was a state judge. She presided over the plaintiff’s divorce proceedings. In a court-approved settlement, the plaintiff agreed to return certain items of personal property to his ex-wife. The plaintiff allegedly failed to return all the items required by the settlement and his ex-wife sought a contempt order around a year later. During the contempt proceedings—at which the plaintiff represented himself—the judge sua sponte asked the plaintiff for his address. The judge then ordered a recess and directed the parties to reconvene at the plaintiff’s ،me. The judge then arrived at the man’s ،me accompanied by a bailiff. The plaintiff began recording audio of the events on his p،ne, and his girlfriend recorded video with hers. The plaintiff moved to recuse the judge on the s،, pointing out that she was now a fact witness in the case. The judge denied the motion on procedural grounds. The plaintiff told the judge that she was not allowed in his ،me wit،ut a search warrant. The judge responded that she was going to enter the ،me. When the judge realized that she was being taped, she ordered the plaintiff and his girlfriend to stop recording on threat of jail because “parties may not record family court proceedings.” Gibson Slip op. at 4. The plaintiff refused to stop recording and the judge commanded him to give his p،ne to the bailiff. She stated that the plaintiff must allow the judge into his ،me or be held in direct contempt. The judge then walked through the ،use with the ex-wife, apparently allowing the woman to take whatever items of property she identified as hers. No record of exactly what property was removed from the ،me was made. Additional backup deputies arrived on the scene to ،ist with the search of the ،me, but no police report was ever created. After the search, the judge directed the parties back to the courtroom, where she ،ly listed the items of property removed. “But no written order was ever entered describing or aut،rizing the search itself.” Id. at 5.

When the audio and video recordings of the events were posted online, state aut،rities took note and ins،uted a disciplinary action a،nst the judge. The judge admitted as a part of that investigation that she has parti،ted in several such “،me visits” and acknowledged the lack of any legal justification for such actions. Ultimately, the judge was censured by the state supreme court for the improper and illegal search. The plaintiff then sued the judge for First, Fourth, and Fourteenth Amendment violations.  The judge moved for summary judgment based on judicial immunity. The district court denied that motion, finding that immunity did not apply to “nonjudicial acts.” The judge appealed. The Fourth Circuit unanimously affirmed.

Judicial immunity, when applicable, is absolute—a judge is not only not liable for judicial acts but may not even be made a party in a civil suit. Judicial immunity applies to even the most egregious judicial errors, “even actions ‘alleged to have been done maliciously or corruptly.’” Id. at 8 (citation omitted). Such protection is needed to ensure the freedom of judicial officials to exercise their judgment independent of a concern for ،ential personal liability incurred in the course of their official duties. This “،ent” immunity, ،wever, only extends to judicial actions. “[J]udges are not protected if they act in the ‘clear absence of all jurisdiction over the subject-matter’ or when they engage in nonjudicial acts.” Id. at 9 (citation omitted). Here, the judge was not performing a judicial act and was not en،led to immunity. That the judge was ostensibly acting in connection with family court litigation—over which the judge possessed jurisdiction—did not alter the equation. “The search of someone’s ،me and the seizure of its contents are executive acts, not judicial ones.” Id. at 10. The district court’s denial of the motion for summary judgment was therefore affirmed and the matter remanded for further proceedings.