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FFOURTH C IRCUIT R EVIEW OURTH CIRCUIT REVIEW Essential Updates and Expert Commentary on the U.S. Court of Appeals for the Fourth Circuit Essential Updates and Expert Commentary on the U.S. Court of Appeals for the Fourth Circuit

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May 23, 2011 Verbatim Case Digests Opinions Rendered: April 19 - 27, 2011

Topics Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Corporate Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . 11 Employment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Healthcare Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Law and Education . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONSTITUTIONAL LAW Sixth Amendment; Right to Speedy Trial To establish a Sixth Amendment violation of his right to a speedy trial, a defendant must show that the Barker v. Wingo factors weigh in his favor, which are: (1) whether the delay was uncommonly long; (2) what the reason was for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether prejudice resulted to the defendant. 27 FCR 11-1 United States v. Shealey No. 09-4653 Argued: January 28, 2011 Decided: April 25, 2011 USDC for the ED of North Carolina 2011 U.S. App. LEXIS 8433 ARGUED: Jeffrey Michael Brandt, Covington, KY, for Appellant; Michael Gordon James, Raleigh, NC, for Appellee BEFORE: Niemeyer, King, and Gregory, Circuit Judges AFFIRMED

GREGORY, Circuit Judge: Appellant challenges his drug convictions for violations of the Speedy Trial Act and of the Fifth and Sixth Amendments as well as sentencing errors. We affirm because we find that the district court properly granted a continuance, rightly denied Appellant’s motion to sever, and properly calculated his sentence. ... Appellant argues that the district court erred in denying his motion to dismiss for Speedy Trial Act violations as a result of denying his motion for severance. Appellant maintains, as he did at trial, that this prejudiced him because the Government “acquired, perfected and put into ‘trial form’ much of its evidence after the Court’s [original] January 20th [trial date].” ... Namely, Appellant points out that at least nine Government witnesses did not sign or enter into plea agreements until after January 20, 2009. The Speedy Trial Act generally requires a defendant be tried within 70 days of either the filing of an indictment or appearing before a judge, whichever is later. ... “All defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant.” ... If one co-defendant files a motion to continue and the district court grants

it, then that time is excluded as to all co-defendants regardless of whether a motion to sever has been filed. ... The Speedy Trial Act excludes certain delays “if the judge granted [a] 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.” ... Courts are required to provide their reasoning about the “ends of justice,” 18 U.S.C. § 3161(h)(7)(A), and consider various factors, including: (i) whether the failure to grant a continuance would result in a miscarriage of justice; (ii) whether the case is so unusual or complex that counsel cannot adequately prepare for trial within established time limits; (iii) whether there was delay in filing the indictment because of the nature of the arrest or grand jury proceedings; or (iv) whether denial of continuance would otherwise infringe upon the time to obtain or maintain counsel or prepare for trial. ... With respect to severance, “there is a preference in the federal system for joint trials of defendants who are indicted together.” ...Severance is warranted when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” ... A defendant must “establish that actual prejudice would result from a joint trial . . . and not merely that a separate trial would offer a better chance of acquittal.” ... The district court did not abuse its discretion in denying Appellant’s motion to sever. We start with a strong presumption in favor of joint trials. ... Here, Appellant’s theory of injury is indirect at best, since it assumes that the delay strengthened the Government’s case and, in turn, weakened his own case. But that fails to articulate any injury to “a specific trial right,” ... or some other “actual prejudice [that] would [have] result[ed] from a joint trial,” ... Indeed, it is insufficient to vaguely assert “that a separate trial would offer a better chance of acquittal.” ... Rather, “a defendant is not entitled to severance merely because separate trials would more likely result in acquittal, or because the evidence against one defendant is not as strong as that against the other.” ... This is unaffected by the fact that some co-defendants may have entered into plea agreements after the superseding indictment and original trial date. The text and precise timing of the plea agreements do not appear in the Joint Appendix. But even if we assume several of the agreements were signed after the original January 20 trial date, that does not necessarily impinge upon a specific trial right or show actual prejudice. Nothing in the record suggests that the co-defendants’ motions for continuances were expressly or implicitly aimed at extending plea negotiations. That materially distinguishes this case from the Ninth Circuit’s outcome in United States v. Hall, where a co-defendant moved for a continuance with an explicit aim “to complete [plea] negotiations.” .... Hall excluded the delay which resulted from that co-defendant’s motion because “an underlying aim was to eliminate the need for a joint trial by achieving a plea agreement between [co-defendant] and the government.” ... Finally, once the district court here granted the continuance, the Government could well have taken longer to finalize plea agreements because it had more time — not because it had planned to manipulate the trial schedule all along. ...

Ruth Coleman, Editor • M. Lee Smith, Publisher • Jason Bohanan, Editorial Assistant

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Appellant contends that by delaying the filing of a superseding indictment, the Government violated Appellant’s Fifth Amendment right to due process as well as his Sixth Amendment right to a speedy trial. Specifically, Appellant alleges he was prejudiced by the last-minute superseding indictment because it gave the Government time to negotiate plea deals with Appellant’s co-defendants. “[T]he Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” ... “This is a heavy burden because it requires not only that a defendant show actual prejudice, as opposed to mere speculative prejudice, but also that he show that any actual prejudice was substantial — that he was meaningfully impaired in his ability to defend against the state’s charges to such an extent that the disposition of the criminal proceeding was likely affected.” ... Here, Appellant’s Fifth Amendment claim turns on the existence of “substantial prejudice.” Again, Appellant’s theory of prejudice is largely circuitous and speculative, since it hypothesizes that the Government delayed the superseding indictment to provide more time to secure plea agreements. That, according to Appellant, lessened the relative strength of his own case. But even assuming that constituted prejudice, it was not necessarily “substantial” since it at best strengthened the Government’s case on the margins, but did not “meaningfully impair[ ]” Appellant’s own case. To establish a Sixth Amendment violation, a defendant must show that the Barker v. Wingo factors weigh in his favor. 407 U.S. 514 (1972). Those factors are: (1) whether the delay was uncommonly long; (2) what the reason was for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether prejudice resulted to the defendant. 407 U.S. at 530. A one year delay is generally treated as presumptively prejudicial. ... With respect to the Sixth Amendment, Appellant concedes that the delay was not uncommonly long (Barker factor 1). But he contends that the reason for the delay was to secure tactical advantage (factor 2), that he raised this issue early (factor 3), and that this delay prejudiced him (factor 4). In the alternative, Appellant argues the Government acted in bad faith. Here, the Barker factors do not weigh in Appellant’s favor. This issue comes

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down to why the delay occurred and whether it prejudiced Appellant. Once more, Appellant fails to point to any specific prejudice beyond a generalized assertion that the superseding indictment gave the Government more time to prepare for trial. Nothing in the record or procedural history suggests that the Government expressly delayed the superseding indictment solely to obtain more plea deals or otherwise strengthen its case. Nor does the superseding indictment here add so little as to suggest it was a transparent pretext for delay. Rather, the superseding indictment here appears to add, in good faith, new defendants and charges related to the FMF’s overall drug activities. We conclude that there was no constitutional violation in how the Government handled the superseding indictment. ... Appellant challenges the reasonableness of his life sentence and argues essentially that twenty years would have been sufficient but not greater than necessary to punish, deter, or rehabilitate him. Here, the district court considered that Appellant had distributed voluminous quantities of drugs, was a career offender, and was the leader and organizer of criminal activity which involved five or more participants and used violence to advance its goals. The district court duly considered the advisory guidelines range as well as the 18 U.S.C. § 3553(a) sentencing factors. It concluded that Appellant’s adjusted offense level was 48 — five levels higher than the maximum permitted by the Guidelines. The district court then determined Appellant’s total offense level was 43. We find Appellant’s sentence to be procedurally and substantively reasonable, per United States v. Hughes, 402 F.3d 540, 54647 (4th Cir. 2005). Appellant himself does not point to any specific flaws in his sentencing. Moreover, the district court found that the FMF, under Appellant’s leadership, used violence to advance its goals. We can discern no abuse of discretion. ... For these reasons, the decision of the district court is AFFIRMED.

CORPORATE LAW False Advertising; Lanham Act The district court did not abuse its discretion in its admission of expert opinion testimony and evidence of prior litigation between the parties in this case under the Lanham Act. 27 FCR 11-2 PBM Products, LLC v. Mead Johnson & Co.

May 23, 2011 No. 10-1421 Argued: January 27, 2011 Decided: April 20, 2011 USDC for the ED of Virginia 2011 U.S. App. LEXIS 8084 ARGUED: Stephen Blake Kinnaird, Washington, D.C., for Appellant; Harold Paul Weinberger, LLP, New York, NY, for Appellees BEFORE: Niemeyer, Davis, and Keenan, Circuit Judges AFFIRMED

DAVIS, Circuit Judge: Appellee PBM Products, LLC (PBM) filed this action pursuant to the Lanham Act, 15 U.S.C. §1125(a), against Appellant Mead Johnson & Company, LLC (Mead Johnson) alleging that Mead Johnson distributed more than 1.5 million direct-to-consumer mailers that falsely claimed PBM’s baby formula products were inferior to Mead Johnson’s baby formula products. After a jury found that Mead Johnson had engaged in false advertising, the district court issued an injunction prohibiting Mead Johnson from making similar claims. On appeal, Mead Johnson presents three clusters of issues: (1) whether the district court erred in its dismissal of Mead Johnson’s counterclaims; (2) whether the district court abused its discretion in its admission of expert opinion testimony and evidence of prior litigation between the parties; and (3) whether the district court erred or abused its discretion in issuing the injunction. We have fully considered all of the issues presented, and we reject Appellant’s contentions. Accordingly, we affirm. ... We first address Mead Johnson’s contention that the district court erred in rejecting its defamation counterclaim and its Lanham Act counterclaims as a matter of law. ... Mead Johnson argues that the district court erred in granting summary judgment in favor of PBM on Mead Johnson’s defamation claim. ... Under Virginia Law, a defamation plaintiff “first must show that a defendant has published a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation.” ... The district court found the statement “Mead Johnson Lies About Baby Formula ... Again” was substantially true because “false advertising is substantially synonymous with lying.” ... Mead Johnson claims that the ordinary meaning of a “lie” implies a deliberate intent to deceive or an “intentional untruth.” ... Mead Johnson asserts that it is possible to violate the Lanham Act absent any intentional falsehoods. Thus, Mead Johnson asserts that

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the district court wrongly concluded that false advertising is substantially synonymous with lying. We disagree. The meaning of the word “lie” includes to “tell an untruth” or to “speak or write falsely.” ... Mead Johnson did not dispute that it distributed false statements concerning PBM’s formulas on prior occasions. Accordingly, the statement is substantially true. In addition, the statement, read in context, makes clear that the “lies” referred to prior false advertising. Consequently, summary judgment was warranted. ... The district court also disposed of Mead Johnson’s Lanham Act counterclaims as a matter of law; it granted PBM’s motion for judgment at the close of all the evidence. ... The Lanham Act prohibits the “false or misleading description of fact, or false or misleading representation of fact, which . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” ... Thus, a plaintiff asserting a false advertising claim under the Lanham Act must establish that: (1) the defendant made a false or misleading description of fact or represent at io n o f f a ct i n a co m m e rc i a l advertisement about his own or another’s product; (2) the misrepresentation is material, in that it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products. ... For liability to arise under the false advertising provisions of the Lanham Act, “the contested statement or representation must be either false on its face or, although literally true, likely to mislead and to confuse consumers given the merchandising context.” ... “Where the advertisement is literally false, a violation may be established without evidence of consumer deception.” ... But if “a plaintiff’s theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged [advertisements] tend to mislead or confuse consumers.” ... “In analyzing whether an advertisement ... is literally false, a court must determine, first, the unambiguous claims made by the advertisement . . . , and second, whether those claims are false.” ... “A literally false message may be either explicit or conveyed by necessary implication when, considering the

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advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” ... Further, as courts have long held, it is proper to use the analogous state limitations period for Lanham Act suits because the Act provides no express statute of limitations. ... In Virginia, the analogous state limitations period is two years. ... As a result, the district court concluded that since Mead Johnson filed its counterclaim on May 18, 2009, Mead Johnson’s counterclaims concerning PBM’s routine and gentle formulas that accrued before May 18, 2007 are time-barred by limitations, and Mead Johnson’s counterclaims concerning PBM’s routine and gentle formulas that accrued thereafter were barred by laches. ... The district court’s conclusion that the statute of limitations barred Mead Johnson’s false advertising claim concerning PBM’s routine and gentle formula for all ads issued prior to May 18, 2007 was proper. Mead Johnson filed its counterclaim on May 18, 2009. Therefore, claims that accrued before May 18, 2007 are time-barred by the two year statute of limitations. The district court found that PBM first made the “Compare to Enfamil” claim for its routine product no later than 2003 and for its gentle product in 2006. As such, the statute of limitations barred Mead Johnson’s counterclaim for advertisements published before May 18, 2007. As for allegations concerning advertisements for products published after May 18, 2007, the district court’s application of laches regarding PBM’s routine and gentle products is neither “guided by erroneous legal principles” nor based “upon a clearly erroneous factual finding.” ... Estoppel by laches generally applies to preclude relief for a plaintiff who has unreasonably “slept” on his rights. ... In other words, laches bars false advertising claims where a defendant is prejudiced by a plaintiff’s unreasonable delay in bringing suit after the plaintiff knew of the defendant’s violation. ... When a false advertising plaintiff files suit outside of the statute of limitations, both elements of laches—unreasonable delay and prejudice—are strongly presumed. ... Here, Mead Johnson’s delay was unreasonable because Mead Johnson knew about the “compare to” claim since at least 2006 when the parties were involved in trademark litigation over a label that contained the exact same claim. As the district court noted, the unreasonable delay prejudiced PBM because of PBM’s continued use of the advertisement on all of its formulas in over a dozen retail stores for years. “Indeed, by alleging that PBM has been unjustly enriched by over $27 million as a result of the ‘compare to’ ads, [Mead Johnson] must concede that permitting this suit to go forward would enable it to benefit from its own unreasonable delay.” ... Finally, the district court did not err in granting judgment as a matter of law on Mead Johnson’s Lanham Act counterclaim

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concerning PBM’s rice starch formula advertisements. Mead Johnson claimed that the “compare to” ad impliedly communicated the false message that the performance of PBM’s products have been tested and verified as equivalent to Mead Johnson’s counterpart formula. To support its claim, Mead Johnson offered the testimony of Dr. Ravi Dhar, who conducted two consumer surveys. However, Dhar assumed that respondents who stated “same” meant “identical,” even though he admitted that some respondents who thought the products were nearly the same would have chosen “same” instead of “different.” ... As the district court concluded, “[t]estimony at trial showed that the ingredients of the parties’ products are very similar, but not identical, and that it is likely that the nutritional value of the parties’ products is nearly the same.” ... Because the surveys failed to account for the actual allegations in the case, they failed to provide the required evidence of falsity. Similarly, the district court concluded that Mead Johnson failed to show that other alleged false statements were actually false. As to the allegations that the “compare to” language impliedly communicated that the products had been tested against each other, PBM’s marketing director testified that the products have, in fact, been tested against each other. ... In addition, Mead Johnson alleged that PBM’s label stated its gentle formula contains “partially broken down whey protein” but presented no evidence to suggest otherwise. As a result, the alleged implied message could not be proven false. In any event, even if PBM’s “compare to” messages were false, the district court correctly concluded that Mead Johnson cannot prove that the “compare to” language caused any damages. ... The fatal flaw in Mead Johnson’s economic information was that its expert assumed that every sale PBM made was attributable to the “compare to” statement on the product. As a result, Mead Johnson failed to show that it suffered damages that were caused by the statement. ... We now turn to Mead Johnson’s contention that the district court erred by admitting (1) expert survey evidence and (2) evidence of prior Lanham Act litigation between the parties. The exclusion or admission of evidence is reviewed for abuse of discretion. ... A court “has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” ... Pursuant to Federal Rule of Evidence Rule 702, expert testimony is admissible if it will assist the trier of fact and is (1) “based upon sufficient facts or data,” (2) “the product of reliable principles and methods,” and (3) “the principles and methods [have been applied] reliably to the facts of the case.” ... As the Supreme Court has explained, evidence is admissible under Rule 702 if “it rests on a reliable foundation and is relevant.” ...

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Because “expert witnesses have the potential to ‘be both powerful and quite misleading,” the court must “ensure that any and all scientific testimony . . . is not only relevant, but reliable.” ... A Lanham Act plaintiff “asserting an implied falsehood claim must establish that the advertising tends to deceive or mislead a substantial portion of the intended audience.” ... That fact is typically shown by the use of consumer surveys. “While there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact and therefore inadmissible, such situations will be rare.” ... Usually, objections based on flaws in the survey’s methodology are properly addressed by the trier of fact. ... Here, Mead Johnson contends that the surveys conducted by Schoen and Ridgeway, PBM’s consumer experts, were inherently unreliable and irrelevant, and their testimony should have been excluded because they both surveyed the wrong universe of respondents. A “universe” is “that segment of the population whose perceptions and state of mind are relevant to the issues in the case.” ... A “survey of the wrong ‘universe’ will be of little probative value in litigation.” ... We are persuaded that in this case, while the survey sample may not exactly match the audience that received the advertisement, it is a sufficiently close approximation of the recipient pool to be admissible. Accordingly, the district court did not abuse its discretion in admitting the expert testimony. Schoen conducted his survey by presenting an online survey to a group of participants located by a third party. The survey participants were pre-screened to ensure that they were (1) new parents or expecting a baby in the next six months, (2) were open to considering purchasing infant formula, (3) were not participating in the Women, Infants, and Children Nutrition Program, and (4) were or would be the primary or shared decision maker in choosing infant formula brands. The Ridgway survey was based on interviews conducted among four groups of consumers, two of which were exposed to the disputed advertisement and two of which were exposed to a “control mailer” that contained similar, but more accurate statements about Mead Johnson’s infant formula. All participants were new and expectant mothers. After viewing either the disputed advertisement or the control advertisement, participants dialed a toll free number and were questioned about the material. The district court concluded that “while Mead Johnson has pointed out numerous ways in which it would have conducted Ridgeway’s survey differently, its arguments do not demonstrate that the methods used were not of the type considered reliable by experts in Ridgway’s field.” ... Specifically, the court concluded that Ridgway’s control “was one appropriate method to investigate how alleged ‘non-misleading’ statements would effect [sic] recipients in comparison to

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the alleged misleading statements.” ... In addition, the court concluded that Mead Johnson’s objections to the testimony went to the weight of the evidence, not admissibility, because “the facts of this case did not mandate one approach over another.” ... Mead Johnson’s argument that Ridgway and Schoen surveyed the wrong universe bears directly on the weight accorded to the survey, not to its admissibility. We conclude without difficulty that the district court did not abuse its discretion by admitting the expert testimony. ... Mead Johnson also contends that the district court erred in admitting evidence of the 2001 and 2002 Lanham Act lawsuits filed by PBM. Mead Johnson argues that the evidence lacked relevance under Federal Rule of Evidence 401 and was more prejudicial than probative under Federal Rule of Evidence 403. These contentions lack merit. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ... In addition to its relevance, the probative value of evidence must not be substantially outweighed by the danger that it will cause unfair prejudice. ... The “mere fact that the evidence will damage the defendant’s case is not enough—the evidence must be unfairly prejudicial, and the unfair prejudice must substantially outweigh the probative value of the evidence.” ... Evidence is unfairly prejudicial “when there is a genuine risk that the emotions of a jury will be excited to irrational behavior, and . . . this risk is disproportionate to the probative value of the offered evidence.” ... We have previously noted that “[i]t is not an easy thing to overturn a Rule 403 ruling on appeal.” ... Where the evidence is probative, “the balance under Rule 403 should be struck in favor of admissibility, and evidence should be excluded only sparingly.” ... Put simply, a district court’s decision to admit evidence over a Rule 403 objection “will not be overturned except under the most extraordinary circumstances, where that discretion has been plainly abused.” ... Here, Mead Johnson contends that the prior litigation was not probative and its admission was “designed simply to paint Mead Johnson as a serial lawbreaker so that PBM counsel could inflame the jury both at opening and closing by pitching this case as one in which a lawless out-of-town corporation sought to ‘crush’ the small hometown defendant.” ... We disagree. The evidence of prior litigation between the parties in regards to baby formula advertisement is relevant because it speaks to Mead Johnson’s intent in making its misleading claims. In particular, the Fourth Circuit has “assume[d], without deciding, that a defendant’s history of false advertising could, in a proper case, operate to relieve the plaintiff of presenting extrinsic

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evidence of consumer confusion created by an impliedly false advertisement.” ... Mead Johnson attempts to distinguish Scotts by claiming that “[i]ntent to deceive is not a corporate attribute; only individual corporate agents have intent (which may be imputed to the corporation for purposes of respondeat superior liability).” ... However, this argument is inconsistent with Scotts because Scotts, like the case before us here, involved a major corporation. Apart from its relevance, the probative value of the evidence was not substantially outweighed by the danger that it will cause unfair prejudice. Any unfair prejudice was limited by the court’s exclusion of specific evidence regarding the settlements in the cases. Further, a jury limiting instruction was never sought. Contrary to Mead Johnson’s allegation, the prior litigation was relevant to the instant case and its probative value was not substantially outweighed by any danger of unfair prejudice. Therefore, we conclude the district court did not abuse its discretion by admitting the evidence. ... We turn now to the propriety and scope of the district court’s injunction. ... Mead Johnson first argues that the district court abused its discretion by issuing an injunction because PBM failed to establish any risk of recurrence of the violation and because the mailer had been discontinued prior to trial. Second, Mead Johnson argues that even if the district court properly invoked its authority to enjoin Mead Johnson’s advertising claims, that the district court abused its discretion by enjoining conduct that is beyond the harm PBM sought to redress and proved at trial. We address each argument in turn. ... When a violation has been established, the Lanham Act vests district courts with the “power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to . . . prevent a violation under [§ 1125(a)].” ... Before an injunction may issue, however, the party seeking the injunction must demonstrate that (1) it has suffered an irreparable injury; (2) remedies available at law are inadequate; (3) the balance of the hardships favors the party seeking the injunction; and (4) the public interest would not be disserved by the injunction. ... We readily conclude in the case before us, mindful of the principles set forth in eBay, that injunctive relief was proper. The district court concluded that PBM suffered from irreparable harm based primarily on the fact that Mead Johnson’s advertising misled customers. ... In addition, the court concluded that “trial testimony by representatives of both parties established that in addition to lost sales, false advertising also inflicts substantial harm on a company’s reputation and

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goodwill.” As the Second Circuit explained in Coca-Cola Co. v. Tropicana Products, Inc.: [T]he most difficult element to demonstrate when seeking an injunction against false advertising is the likelihood that one will suffer irreparable harm if the injunction does not issue. It is virtually impossible to prove that so much of one’s sales will be lost or that one’s goodwill will be damaged as a direct result of a competitor’s advertisement. Too many market variables enter into the advertising-sales equation. Because of these impediments, a Lanham Act plaintiff who can prove actual lost sales may obtain an injunction even if most of his sales decline is attributable to factors other than the competitor’s false advertising. In fact, he need not even point to an actual loss or diversion of sales. 690 F.2d 312, 316 (2d Cir. 1982) ... Here, we cannot say the district court abused its discretion in finding irreparable harm and in issuing a permanent injunction; not only did the jury conclude that Mead Johnson misled consumers, the evidence at trial demonstrated that PBM’s reputation was, and potentially continues to be, damaged. In fact, the entire goal of the 2008 mailer was to “deter moms from considering evaluating commodity brands” and to influence them to not even “consider a switch to a store brand formula.” ... The Lanham Act plaintiff must, however, offer something more than a mere subjective belief that he is likely to be injured as a result of the false advertising, he must submit proof which provides a reasonable basis for that belief. The likelihood of injury and causation will not be presumed, but must be demonstrated in some manner. Furthermore, PBM demonstrated that remedies at law are inadequate. While the jury awarded PBM substantial damages, the damages judgment compensates PBM for harm that flowed directly from the mailer. As the district court aptly noted, the injunction prevents Mead Johnson from “infecting the marketplace with the same or similar claims in different advertisements in the future.” ... This perspective is consistent with the view that the mere fact that a plaintiff may recover damages does not negate his right to injunctive relief. ... Tellingly, Mead Johnson’s own brief acknowledges that its appeal is to provide it with the opportunity to make the same claims again. ... We further agree with the district court that the balance of the hardships favors PBM. As the district court recognized, Mead Johnson “simply has no equitable interest in perpetuating the false and misleading claims in the Mailer . . . . Mead Johnson’s main contentions concern the nature of injunctive relief, not whether that relief should be granted in the first instance, and therefore do not mandate a different conclusion.” ... As the litigation history of the parties demonstrates, despite having twice been restrained from

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disseminating misleading advertising, Mead Johnson continued to do so. PBM cannot fairly compete with Mead Johnson unless and until Mead Johnson stops infecting the marketplace with misleading advertising.

light of the record viewed in its entirety, its factual findings are not clearly erroneous. ... For the foregoing reasons, the judgment of the district court is AFFIRMED.

Finally, the district court did not err in its finding that the public interest heavily favors injunctive relief. As the district court concluded, “it is self evident that preventing false or misleading advertising is in the public interest in general.” ... “There is a strong public interest in the prevention of misleading advertisements.” ... This interest is perhaps heightened when, as is the case here, the misleading information pertains to issues of public health and infant well-being. Accordingly, we conclude the district court did not abuse its discretion by issuing the injunction.


... We next address the scope of the injunction. “It is well established that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” ... In other words, the court will vacate an injunction if it is “broader in scope than that necessary to provide complete relief to the plaintiff” or if an injunction does “not carefully address only the circumstances of the case.” ... Here, the district court enjoined the two express claims made in the mailer and concluded that the record supported an injunction including the express claims because such an injunction would not be inconsistent with the jury’s verdict. ... Mead Johnson’s primary contention is that because the general jury verdict did not specify which of the four statements in the mailer the jury found to be false and/or misleading, the injunction must be limited only to the mailer or other advertisements not colorably different from the mailer. We disagree. We are persuaded that the injunction is not overbroad because it only reaches the specific claims that the district court found to be literally false. If the injunction were limited to the mailer and did not enjoin the false claims made therein, Mead Johnson would be free to use false statements in future advertisements, contrary to the very purpose of injunctive relief under the circumstances shown here. As the district court noted, to make its claim that only Enfamil has been clinically proven to promote infant development, Mead Johnson relied primarily on a group of government funded clinical studies. However, the court concluded that Mead Johnson’s reliance was unjustified because trial testimony established that the studies’ conclusion was not limited to Mead Johnson formula, but to any formula that contained similar amounts of the same ingredients. In addition, since the studies it relied upon were completed, the Mead Johnson formula at issue had undergone at least 19 changes. Consequently, the district court concluded, the “only clinically proven” claim was misleading. Because the district court’s account of the evidence is plausible in

Armed Career Criminal Act; Predicate Offenses The government satisfied its burden to establish that the defendant’s 1976 burglary conviction in state court qualified as a predicate offense under the Armed Career Criminal Act. 27 FCR 11-3 United States v. Baxter No. 10-4080 Argued: March 25, 2011 Decided: April 26, 2011 USDC for the WD of Virginia 2011 U.S. App. LEXIS 8476 ARGUED: Randy Virlin Cargill, Roanoke, VA, for Appellant; Jean Barrett Hudson, Charlottesville, VA, for Appellee BEFORE: King, Davis, and Keenan, Circuit Judges AFFIRMED

DAVIS, Circuit Judge: Earnest Robert Baxter pled guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Baxter was sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to the mandatory minimum period of incarceration: 180 months. Baxter appeals his sentence, contending, as he did before the district court, ... that the government failed to satisfy its burden to establish that his 1976 burglary conviction in state court qualifies as a predicate offense under the ACCA. Like the district court, ... we conclude that the government satisfied its burden; accordingly, we affirm. Under the ACCA, a defendant may be sentenced as an armed career criminal (and thus subject to a fifteen-year mandatory minimum sentence) if he violates 18 U.S.C. § 922(g) and has at least three prior convictions for violent felonies and/or serious drug offenses. 18 U.S.C. § 924(e)(1). ... To determine whether an offense under state law falls within the definition of a violent felony, courts generally employ a categorical approach, under which consideration is given only to the essential elements of the offense and the fact of conviction. ... Burglary is a “violent felony” under the ACCA. ... Interpreting the ACCA, the Supreme Court has held that “a person has been convicted of burglary . . . if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” ... While a sentencing court normally may look only to the statutory elements of an offense and the fact of the conviction, because some statutes (like the Virginia provisions at issue here) define burglary broadly to

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encompass enclosures other than “a building or structure,” the categorical approach “may permit the sentencing court to go beyond the mere fact of conviction” in certain cases. ... Thus, an offense will constitute burglary if the jury was required “to find all the elements of generic burglary in order to convict the defendant,” and “the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building,” so “the jury necessarily had to find an entry of a building to convict.” ... In cases where, as here, the defendant pled guilty to the prior offense, a federal sentencing court may consider certain court documents, including but not limited to the indictment, a transcript of the plea colloquy and/or the written plea agreement. ... Baxter correctly argues that the Virginia statute under which he was convicted in 1976 contains a definition of burglary that is broader than the Taylor definition of generic burglary: it encompasses not only unlawful entry into “a building or structure,” but, under some circumstances, an automobile, truck, ship, or railroad car, as well. ... At sentencing, the government produced to the district court three relevant documents: (1) the indictment, which charged Baxter with breaking and entering into a “shop”; (2) the order memorializing Baxter’s guilty plea; and (3) the order imposing sentence. ... Baxter did not object to the court’s consideration of these documents. Rather, seizing on the use in the indictment of the term “shop” to describe the premises where he committed the challenged burglary offense, he contends before us (as he did below) that the term is too ambiguously expansive to support a finding that his entry was into “a building or structure” as required by Taylor. He essentially contends that, for all that appears, a “shop” could be operated out of a “railroad car, or any automobile, truck or trailer.” ... As the district court correctly concluded, however, Baxter’s contention founders on the definitive construction of the Virginia statute by the Virginia Supreme Court in Graybeal v. Commonwealth, 324 S.E.2d 698, 700 (Va. 1985). In Graybeal, the court reversed a conviction under the statute because the proof at trial established at most that the defendant had entered a “trailer.” ... Proof that a trailer was entered could only support a conviction if the trailer were used for human habitation. ... The evidence at trial failed to establish this. ... Significantly, the prosecution sought to salvage the conviction by reliance on the theory that a “trailer” might be deemed an “other house” within the meaning of the statute. .... In rejecting the prosecution’s alternative argument, the court reasoned as follows: The Commonwealth argues that even if the convictions cannot be upheld on the basis of breaking and entering twelve trailers, they can be upheld because the structures fall under the category “other house” that is set forth

27 FCR 11

in Code § 18.2-90. We find no merit in this argument. The phrase “other house” is a general phrase placed at the end of a list of specific references to various structures [i.e., any office, shop, manufactured home, storehouse, warehouse, banking house, church ...]. Those specific structures share the common element of being improvements affixed to the ground, that is, they are realty. Under the doctrine ejusdem generis, the general phrase “other house” must look for its meaning to the specific items which precede it. See Martin v. Commonwealth, 224 Va. 298, 295 S.E.2d 890 (1982). The structures into which Graybeal entered were not realty. Thus, they do not fall within the scope of “other house.” In our opinion, it would violate sound principles of statutory construction and strain the clear intendment of the statute to hold that a trailer not used as a dwelling nevertheless falls under the definition of “other house.” Id. (emphasis added). As can be seen, therefore, the grand jury’s use of the term “shop” in the indictment to which Baxter pled guilty in 1976 did not take his conviction outside of the sweep of the Taylor holding on the meaning of “burglary” under the ACCA. To the contrary, as the district court correctly found, the reference to “shop” in the indictment “necessarily established” that Baxter’s burglary conviction was based on his entry into a structure that was “affixed to the ground,” ... namely, “a building.” ... For the reasons set forth, the judgment of the district court is AFFIRMED.

CRIMINAL LAW Newly Discovered Evidence; DNA Testing The district court erred in assessing the newly discovered evidence of a former Deputy U.S. Marshal by taking an overly restrictive view of what constitutes the “evidence as a whole,” and further erred in renouncing jurisdiction over the DNA claim in this murder case, thus the court vacated the Opinion and remanded for further consideration of both claims. 27 FCR 11-4 United States v. MacDonald No. 08-8525 Argued: March 23, 2010 Decided: April 19, 2011 USDC for the ED of North Carolina 2011 U.S. App. LEXIS 7914 ARGUED: Joseph Edward Zeszotarski, Jr., Raleigh, NC, for Appellant; John F. De Pue, Washington, D.C., for Appellee BEFORE: Michael, Motz, and King, Circuit Judges VACATED AND REMANDED

KING, Circuit Judge:

May 23, 2011

In 1979, Jeffrey R. MacDonald was convicted in the Eastern District of North Carolina of the 1970 murders of his pregnant wife and their two young daughters in the family’s Fort Bragg home. MacDonald — who has steadfastly maintained that he is innocent of those horrific crimes — ultimately failed to have his convictions overturned on direct appeal and has since filed numerous motions for postconviction relief. As part of his most recent effort, MacDonald secured pre-filing authorization from this Court in January 2006 for a successive 28 U.S.C. § 2255 motion (the “§ 2255 motion”), which asserted a Fifth Amendment due process claim based on the newly discovered evidence of former Deputy U.S. Marshal Jim Britt (the “Britt claim”). Shortly after MacDonald presented the § 2255 motion to the district court, the results of DNA testing previously authorized by this Court in 1997 became available. Consequently, in March 2006, MacDonald moved in the district court — without seeking or obtaining further prefiling authorization — to add a second claim to the § 2255 motion premised on the DNA test results. More specifically, MacDonald sought in his March 2006 motion (the “DNA motion”) to raise a freestanding actual innocence claim (the “DNA claim”). Additionally, the DNA motion urged the district court to consider the DNA test results as part of the “evidence as a whole” in assessing the Britt claim under § 2255. See § 2255(h)(1) ... MacDonald also proffered additional evidence — some excluded at trial, some submitted in prior unsuccessful postconviction proceedings, and some more recently obtained — for the district court to consider in its analysis of both the Britt claim and the DNA claim. By its decision of November 4, 2008, the district court denied the DNA motion, on the ground that the court lacked jurisdiction as a result of MacDonald’s failure to secure additional prefiling authorization from this Court. See United States v. MacDonald, No. 75-CR26 (E.D.N.C. Nov. 4, 2008) (the “Opinion”). The district court also refused to consider the DNA test results and other evidence proffered by MacDonald as part of the “evidence as a whole” relevant to the Britt claim. And finally, after performing its more searching assessment of the Britt claim than we had conducted for purposes of prefiling authorization, the district court denied MacDonald leave to file the § 2255 motion. ... The district court erred in assessing the Britt claim by taking an overly restrictive view of what constitutes the “evidence as a whole,” and further erred in renouncing jurisdiction over the DNA claim. Accordingly, without expressing any view on the proper ultimate disposition of either claim, we vacate the Opinion and remand for further consideration of both the Britt claim and the DNA claim. ... In an appeal from the denial of authorization to file a successive 28 U.S.C. § 2255

May 23, 2011

motion — just as we do in an appeal from the denial of a first or successive § 2255 motion once filed — we review a district court’s conclusions of law de novo. ... Similarly, our review is de novo where a district court construes a motion as a successive § 2255 motion and dismisses it for failure to obtain prefiling authorization from a court of appeals. ... In resolving the first issue before us under MacDonald’s COA — whether the district court erred in assessing the Britt claim — we begin with the threshold question of whether the court erred by applying the standard of 28 U.S.C. § 2244(b)(2)(B)(ii), rather than § 2255(h)(1). We then turn to whether the court erred by prohibiting expansion of the record to include evidence received after trial and after the filing of MacDonald’s § 2255 motion. Finally, we focus on whether the court erred by excluding, and thus ignoring, relevant evidence or by drawing flawed conclusions from the evidence it did consider. ... On the threshold question with respect to the Britt claim, we conclude that the district court erred by applying the standard of 28 U.S.C. § 2244(b)(2)(B)(ii), rather than § 2255(h)(1). As we explained in United States v. Winestock, § 2244(b)(2) sets forth the controlling standard for state prisoners, and § 2255(h) spells out the standard applicable to those in federal custody. ... Nonetheless, the standards of § 2244(b)(2)(B)(ii) and § 2255(h)(1) are quite similar. ... Because of the similarities between § 2244(b)(2)(B)(ii) and § 2255(h)(1), ... the district court’s error in identifying the controlling standard was probably harmless. We do not concern ourselves with the harmlessness question, however, because (as next explained in this decision) the court committed prejudicial error by taking an overly restrictive view of what constitutes the “evidence as a whole” for purposes of either § 2244(b)(2)(B)(ii) or § 2255(h)(1). Thus, in any event, we must remand for a proper § 2255(h)(1) assessment of the Britt claim.

27 FCR 11

reviewability of abusive and procedurally defaulted federal habeas corpus claims. For example, in McCleskey v. Zant, the Supreme Court recognized that, under the doctrines of abuse of the writ and procedural default, a prisoner seeking to have his abusive or procedurally defaulted claims heard is required to show either “cause and prejudice” or factual innocence implicating a “fundamental miscarriage of justice.” ... Of particular relevance here, the exception for a fundamental miscarriage of justice requires a showing that “a constitutional violation probably has caused the conviction of one innocent of the crime.” ... In Sawyer v. Whitley, the Court refined the fundamental miscarriage of justice exception for situations in which the prisoner asserted innocence of the death penalty, rather than the offense of conviction. ... The Sawyer Court held that, in those circumstances, “one must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” ... Thereafter, the Supreme Court clarified in Schlup v. Delo “that the Carrier ‘probably resulted’ standard rather than the more stringent Sawyer standard must govern the miscarriage of justice inquiry when a petitioner who has been sentenced to death raises a claim of actual innocence [of a crime] to avoid a procedural bar.” ... Expounding on the Carrier “probably resulted” standard, the Schlup Court explained that such standard requires the petitioner to “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” ... With respect to both the Carrier and Sawyer standards, the Court observed that “[i]t is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do.” ...


The Schlup Court was careful to distinguish the claim of innocence before it — “‘a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits’” — from a freestanding actual innocence claim. ... And, the Court observed that, “[t]o be credible, [a gateway innocence] claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” ...

Significantly, the § 2244(b)(2)(B)(ii) and § 2255(h)(1) standards — including their “evidence as a whole” provisions — were added to § 2244 and § 2255 with the enactment of AEDPA in 1996. ... Plainly, those standards derived from pre-AEDPA decisions of the Sup reme Cou rt rega rd ing the

Explaining the proper assessment of a gateway innocence claim, the Schlup Court recognized that, because “[t]he Carrier standard is intended to focus the inquiry on actual innocence, . . . the district court is not bound by the rules of admissibility that would govern at trial.” ...

... Turning to the district court’s prior assessment of the Britt claim, we conclude that, as a result of its flawed interpretation of the “evidence as a whole,” the court erred by prohibiting expansion of the record to include evidence received after trial and after the filing of MacDonald’s § 2255 motion. Simply put, the “evidence as a whole” is exactly that: all the evidence put before the court at the time of its § 2244(b)(2)(B)(ii) or § 2255(h)(1) evaluation.

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Following the enactment of AEDPA, the Supreme Court had occasion in House v. Bell — because it involved claims asserted in a first § 2254 habeas corpus petition that were procedurally barred under state law — to invoke its decision in Schlup. ... The House Court emphasized that, although “a gateway claim requires ‘new reliable evidence,’” the district court’s assessment “is not limited to such evidence.” ... Indeed, as the Court recognized, Schlup makes plain that the habeas court must consider “all the evidence,” old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under “rules of admissibility that would govern at trial.” Id. at 538 ... The § 2244(b)(2)(B)(ii) and § 2255(h)(1) standards clearly incorporate features of the standards spelled out in the pre-AEDPA decisions in Carrier, Sawyer, and Schlup. Focusing specifically on the standard applicable here, § 2255(h)(1) — like Schlup — obliges the prisoner to proffer some new evidence in support of his habeas corpus claim. ... Both § 2255(h)(1) and Schlup also require the prisoner, in order to pass through the innocence gateway to have his claim heard, to show “that no reasonable factfinder would have found the movant guilty of the offense,” § 2255(h)(1), or, in other words, “that no reasonable juror would have found petitioner guilty beyond a reasonable doubt,” ... Moreover, § 2255(h)(1)’s standard of proof is that imposed by Sawyer: “clear and convincing evidence.” ... Consequently, we cannot ignore the preAEDPA precedent in interpreting what constitutes the “evidence as a whole.” Indeed, by its plain language, “the evidence as a whole” means, in the equivalent language of Schlup, “all the evidence... Thus, a court must make its § 2244(b)(2)(B)(ii) or § 2255(h)(1) determination — unbounded “by the rules of admissibility that would govern at trial” — based on “all the evidence, including that alleged to have been illegally admitted [and that] tenably claimed to have been wrongly excluded or to have become available only after the trial.” ... Or, to say it another way, the “court must consider ‘all the evidence,’ old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under [evidentiary rules].” ... That is not to say, however, that the petitioner is to be accorded the benefit of every doubt. To the contrary, the court must give “due regard to any unreliability of” the evidence, ... and “may have to make some credibility assessments,” ... “Because a [gateway innocence] claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record.” ... We must reject the district court’s conflicting view, also espoused by the government,

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of what constitutes the “evidence as a whole.” In accordance with that view, the court confined its assessment of the Britt claim to the newly discovered evidence of former Deputy U.S. Marshal Jim Britt and the pre-existing record. ... The court refused to consider evidence obtained following our grant of prefiling authorization for the § 2255 motion containing the Britt claim — specifically, the DNA test results and the affidavit of the elder Helena Stoeckley — in the absence of our further prefiling authorization for that evidence or additional claims premised on it. The court also declined to take into account evidence that had been submitted with MacDonald’s prior unsuccessful postconviction motions, including evidence of the blond synthetic hair-like fibers found on a hairbrush in the MacDonald home, apparently on the theory that to consider such evidence would be to improperly relitigate the earlier claims. And, the court refused to consider evidence obtained since the filing of the prior postconviction motions, including the three affidavits attached to the § 2255 motion describing confessions made by Greg Mitchell, on the grounds that it simply mirrored evidence previously rejected and was, in any event, untimely. The government endorses the district court’s narrow interpretation of the “evidence as a whole” by contending that a broader reading would effectively nullify three AEDPA provisions: the requirement of § 2244(b)(3) for prefiling authorization from a court of appeals for “a second or successive application” brought by a state prisoner under § 2254 or by a federal prisoner under § 2255; the prohibition in § 2244(b)(1) against entertaining any claim presented in a second or successive § 2254 petition “that was presented in a prior application”; and the oneyear limitations periods found in § 2244(d) and § 2255(f) for § 2254 and § 2255 applications. The district court and the government, however, misapprehend the operation of AEDPA’s statutory scheme. When we granted prefiling authorization for the § 2255 motion, it contained a single claim: the Britt claim. In accordance with § 2244(b)(3)(C), we determined that the § 2255 motion made “a prima facie showing” that it satisfied the requirements of § 2255(h)(1), i.e., that the Britt claim was based on “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [MacDonald] guilty of the [murders of his wife and daughters].” It was then incumbent on the district court to conduct a more searching assessment of the Britt claim to determine whether it passed muster under § 2255(h)(1). ... Additionally, the court had to be concerned with whether the Britt claim complied with § 2255(f)’s oneyear limitations period — which runs, in pertinent part, from “the date on which the facts supporting the claim . . . could have been

27 FCR 11

discovered through the exercise of due diligence,” § 2255(f)(4)) — a question that the court essentially answered when it accepted that MacDonald had acted with due diligence in discovering the underlying evidence of former Deputy U.S. Marshal Jim Britt. ... The court might also have been concerned with § 2244(b)(1)’s prohibition against successive claims raised in second or successive applications, except that the Britt claim was never before presented in any of MacDonald’s prior postconviction motions. The district court clearly went too far, however, when (at the government’s urging) it applied the constraints of § 2244(b)(3), § 2255(f), and § 2244(b)(1) to substantially limit the evidence it would consider as part of the “evidence as a whole” in conducting its assessment of the Britt claim. In so doing, the court wrongly conflated MacDonald’s proffered evidence with his claim for relief. That is, the court viewed the various items of proffered evidence — such as the DNA test results, the affidavit of the elder Helena Stoeckley, the blond synthetic hair-like fibers, and the three affidavits describing confessions made by Greg Mitchell — as being submitted in support of claims separate and distinct from the Britt claim and each other. The district court instead should have treated the proffered evidence as part of the “evidence as a whole” in evaluating the Britt claim under § 2255(h)(1). That is, the court should have considered the proffered evidence — with due regard for “the likely credibility” and “the probable reliability” thereof, ... to determine if it, in combination with the newly discovered Britt evidence, would be sufficient to establish that no reasonable juror would have found MacDonald guilty. If so, MacDonald would merely pass the procedural bar to having the Britt claim considered on its merits, and he would yet be obliged to prove the constitutional violation alleged in that claim before obtaining any § 2255 relief thereon. ... In light of the district court’s overly restrictive view of what constitutes the “evidence as a whole,” we conclude that the court erred in its analysis of the Britt claim by excluding and, thus, ignoring relevant evidence — necessitating remand for a fresh analysis of whether the Britt claim satisfies the applicable standard of § 2255(h)(1). Such assessment must include the previously excluded evidence discussed herein, and may also include other evidence not mentioned, if it is part of the “evidence as a whole” properly put before the court. In these circumstances, we need not reach an additional matter encompassed in MacDonald’s COA: whether the court erred in assessing the Britt claim by drawing flawed conclusions from the evidence it did consider. We emphasize, however, that today’s decision is not intended to signal any belief that the Britt claim passes muster under § 2255(h)(1) or ultimately entitles MacDonald to habeas corpus relief.

May 23, 2011

Indeed, the standards of § 2255(h)(1) and its predecessor, the fundamental miscarriage of justice exception, were designed to ensure that they could be satisfied only in the “rare” and “extraordinary case.” ... Nonetheless, we recognize that MacDonald is entitled to a procedurally valid assessment of the Britt claim. ... On the second issue before us under MacDonald’s COA — whether the district court lacked jurisdiction over the freestanding DNA claim as a result of MacDonald’s failure to obtain additional prefiling authorization — we conclude that the court erred in deeming itself to be without jurisdiction. Simply put, because we granted 28 U.S.C. § 2244(b)(3) pre-filing authorization for the § 2255 motion raising the Britt claim, the district court possessed jurisdiction over the separate DNA claim insofar as MacDonald had timely and appropriately sought to add it to the pending § 2255 motion. ... As we recognized in Winestock, when deciding whether to grant prefiling authorization, we inspect “the application” — that is, the entire § 2255 motion — “to determine whether it contains any claim that satisfies” the § 2255(h) standard. ...If any one claim satisfies such standard, we “authorize the prisoner to file the entire application in the district court, even if some of the claims in the application do not satisfy the applicable standard[].” ... It is then the responsibility of the district court to more closely scrutinize “each claim and dismiss those that are barred under [§ 2255(h)].” ... We agree with the Hazel court’s analysis and utilize it herein: Under Winestock, the lack of additional prefiling authorization was no obstacle to MacDonald’s pursuit of the DNA claim in the district court; rather, the real potential barrier was Rule 15(a). Accordingly, we vacate the district court’s denial of the DNA claim and remand for further proceedings. In so doing, we could instruct the district court to conduct a belated Rule 15(a) assessment of MacDonald’s request to add the DNA claim to the pending § 2255 motion, presumably to be followed by an evaluation of the DNA claim under the standard of § 2255(h)(1). It is a more efficient use of judicial resources, however, to simply grant MacDonald prefiling authorization for the DNA claim so that the district court may proceed directly to the § 2255(h)(1) evaluation. ... Thus, we do just that. Here, the district court deemed Winestock inapposite because MacDonald sought to add the DNA claim to the § 2255 motion only after our prefiling authorization for the motion was granted and it was submitted to the district court. ... In analogous circumstances, however, another district court within this Circuit relied on Winestock in concluding that our permission was not required to add additional claims to a previously authorized successive § 2255 motion. ... There, the prisoner had “sought and received certification from the Fourth Circuit” for a proposed motion raising a single claim and

May 23, 2011

then, after presenting the motion in the district court, asserted two additional claims. ... The Hazel court concluded that, under Winestock, the prisoner could raise the additional claims “even though he did not receive express certification from the Fourth Circuit to do so.” ... Nonetheless, the court recognized that the question remained whether the proposed amendments to the § 2255 motion were proper. ... And, in addressing the propriety of the proposed amendments, the court looked to Federal Rule of Civil Procedure 15(a), which spells out the standards for amending pleadings. ... Finally, without expressing any view on the proper disposition of the DNA claim, we acknowledge that MacDonald has a daunting burden ahead in seeking to establish that he is eligible for habeas corpus relief solely because of his “actual innocence.” The Supreme Court has only “assume[d], for the sake of argument . . . , that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” ... The Court has yet to come across any prisoner who could make the “extraordinarily high” threshold showing for such an assumed right. ... In any event, MacDonald is entitled at least to the prefiling authorization for his DNA claim that we grant herein, as well as the more searching § 2255(h)(1) evaluation of such claim that the district court must conduct on remand. ... Pursuant to the foregoing, we vacate the Opinion and remand for such other and further proceedings as may be appropriate. VACATED AND REMANDED

27 FCR 11

counts and other related electronic communications offenses, in violation of 18 U.S.C. § 371. In Counts 2 and 4, she was convicted of obtaining information through unauthorized access to computers, in violation of 18 U.S.C. § 1030(a)(2)(C). Her convictions on Counts 2 and 4 also included charges of committing the offenses “in furtherance of” a violation of 18 U.S.C. § 2701(a) (obtaining access to communications in electronic storage), thus elevating her convictions on those counts from misdemeanors to felonies. In Count 5, she was convicted of making harassing telephone calls, in violation of 47 U.S.C. § 223(a)(1)(C). And in Count 6 she was convicted of obtaining access to communications in electronic storage, in violation of 18 U.S.C. § 2701. Again in this count, her conviction included charges of committing the offense “in furtheran ce of” a violat ion of 47 U.S.C. § 223(a)(1)(C) (making harassing telephone calls), thus elevating her conviction from a misdemeanor to a felony. The government dismissed Count 3 before trial. The district court sentenced Cioni to a 15month term of imprisonment, followed by 2 years of supervised release. Cioni challenges her convictions and sentence on numerous grounds. As we more fully explain in our opinion, with respect to Counts 2 and 4, we agree with Cioni that the offenses were improperly elevated from misdemeanors to felonies, and we vacate the convictions on those two counts and remand for entry of misdemeanor convictions. In view of that conclusion, we also vacate Cioni’s sentence and remand for resentencing. With respect to her other challenges, we affirm the judgment of the district court. ...

CRIMINAL LAW Unauthorized Access to Computers; Misdemeanors The offenses of obtaining information through unauthorized access to computers, in violation of 18 U.S.C. § 1030(a)(2)(C), charged to the defendant were improperly elevated from misdemeanors to felonies. 27 FCR 11-5 United States v. Cioni No. 09-4321 Argued: January 28, 2011 Decided: April 20, 2011 USDC for the ED of Virginia 2011 U.S. App. LEXIS 8085 ARGUED: Jenifer Wicks, Washington, D.C., for Appellant; Jay V. Prabhu, Alexandria, VA, for Appellee BEFORE: Niemeyer, King, and Gregory, Circuit Judges AFFIRMED IN PART, VACATED IN PART, AND REMANDED

NIEMEYER, Circuit Judge: Elaine Cioni was convicted of five electronic communications offenses. In Count 1, she was convicted of conspiracy to commit the offenses charged in the remaining four

For her most substantial argument, Cioni contends that Counts 2 and 4 improperly charged her with felony offenses, when those counts could only have charged, based on the facts alleged, misdemeanors. She bases this claim on the way in which those counts were factually structured: each charged her with committing a misdemeanor computer fraud offense under 18 U.S.C. § 1030 and each elevated that offense to a felony by alleging that she had done so “in furtherance of” the separate crime of accessing, without authorization, communications in electronic storage under 18 U.S.C. § 2701. Although Cioni accepts that she committed the misdemeanor offenses, she contends that the indictment relied on the same conduct to elevate those offenses to felonies, thereby violating the Double Jeopardy Clause. In other words, Cioni argues that Counts 2 and 4 “are multiplicitous in that each count charged her twice with a single offense.” If the elevating allegations in Counts 2 and 4 were ineffective because they violated double jeopardy principles, then, as Cioni claims, she should have been punished only for misdemeanor offenses, not felonies. She requests that we “remand [those counts] for entry of judgment on the lesser included misdemeanor charges.”

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Count 2 charges that Cioni accessed a computer in interstate commerce without authorization and thereby obtained information from the computer, in violation of 18 U.S.C. § 1030(a)(2)(C). Standing alone, that offense is punishable as a misdemeanor by a fine or imprisonment for not more than one year. Count 2 also alleges that the offense was committed in furtherance of criminal and tortious acts . . . [in that] Cioni accessed and attempted to access, without authorization, a protected computer operated by AOL within the Eastern District of Virginia and obtained and attempted to obtain information (i.e., [Maureen E n g e r ’s ] u n o p e n e d e l e c t r o n i c communications) stored on that protected computer, by means of elect r o n i c c o m m u n ic a t io n s f r o m Tennessee and elsewhere, in furtherance of a violation of Title 18, United States Code, Section 2701. (Emphasis added). If the violation of 18 U.S.C. § 2701 involved the commission of a distinct crime, the “in furtherance of” allegation would elevate the misdemeanor alleged in Count 2 to a felony. ... The crimes described in 18 U.S.C. § 1030 and § 2701 are similar, and a violation of § 1030 may be a lesser included offense of a violation of § 2701, since a person usually must obtain information through access to a computer in order to obtain access to communications in electronic storage. Nonetheless, the two crimes are distinct and different. Section 1030(a)(2)(C) punishes the obtaining of information through the unauthorized access to a computer, whereas § 2701(a) punishes accessing without authority a “facility through which an electronic communication service is provided” and thereby obtaining communications that are “in electronic storage. ... Thus, proof of a § 2701(a) offense requires proof of facts that are not required for a violation of § 1030. Cioni argues, however, that the conduct of accessing Maureen Enger’s e-mail account and viewing her e-mail there was used to charge both the underlying violation of § 1030(a)(2)(C) as well as the elevating violation of § 2701, so that the same conduct supported both crimes. This overlap that Cioni identifies is essentially a “merger problem,” “tantamount to double jeopardy,” ... where the facts or transactions alleged to support one offense are also the same used to support another. ... Looking simply at the allegations of Count 2, it does appear that the government charged Cioni with unauthorized access or attempted access to information in Maureen Enger’s e-mail account and sought to elevate that charge to a felony by alleging that the access to Maureen Enger’s e-mail also constituted a violation of § 2701. Moreover, the facts that the government offered into evidence in support of Count 2 confirm this reading.

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The government concedes the problem, ... We thus conclude that a merger problem did arise, implicating double jeopardy principles, and that therefore the felony conviction on Count 2 must be vacated, and, as requested by Cioni, the count remanded for entry of a simple misdemeanor conviction, under § 1030(a)(2)(C). The circumstances of Count 4 are no different, although the government argues that Count 4 does not suffer from the same problem as does Count 2. Count 4 charges that § 1030(a)(2)(C) was violated in furtherance of criminal acts committed in violation of the laws of the United States; that is, CIONI intentionally attempted to access, without authorization, a protected computer operated by AOL within the Eastern District of Virginia and obtain information contained in [Patricia Freeman’s] electronic mail account by means of interstate electronic communications from Tennessee and elsewhere, in furtherance of violations of Title 18, United States Code, Section 2701. Count 4 alleges that this conduct occurred on March 10, 2008. While the government argues that Count 4 does allege two separate and distinct crimes, one for attempting to obtain information through unauthorized access to a computer, in violation of § 1030(a)(2)(C), which was allegedly committed in furtherance of a second crime for attempting to obtain Patricia Freeman’s unopened e-mail, in violation of § 2701, the indictment does not allege facts sufficient to indicate that the two crimes were based on distinct conduct. The full recitation of facts (contained in the description of overt acts in Count 1), which is the basis for Count 4, states: On or about March 10, 2008, the Defendant and/or another member of the conspiracy attempted to access, without authorization, from an Internet connection at the Defendant’s then-residence in Tennessee information contained within the AOL electronic mail account of [Patricia Freeman]. This information was stored on a protected computer operated by AOL within the Eastern District of Virginia. This attempt in 2008 failed. Thus, Count 4, which claims two crimes, one in furtherance of the other, is actually based on Cioni’s single unsuccessful attempt to access Patricia Freeman’s AOL electronic e-mail account. Moreover, this is all that the government proved at trial. If the government had proven that Cioni accessed Freeman’s email inbox and then used the information from that inbox to access another person’s electronic communications, no merger problem would have arisen. But the government charged and attempted to prove two crimes

27 FCR 11

using the same conduct of attempting, but failing, to access only Patricia Freeman’s email account. This creates a merger problem, implicating double jeopardy principles. Just as fatal to Count 4 is the fact that the indictment, as well as the evidence, failed to establish any crime under § 2701. While § 1030 criminalizes attempts to the same degree as completed access, ... section 2701 does not, ... Section 2701 requires that the person actually access a facility without authorization and obtain, alter, or prevent authorized access to a communication while in electronic storage. ... Thus, while Cioni clearly violated § 1030(a) on March 10, 2008, by attempting to access Patricia Freeman’s email account, her failed attempt could not have formed the basis for a violation of § 2701(a). For these reasons, we conclude that the felony convictions on Counts 2 and 4 must be vacated and that the district court must reduce those convictions to misdemeanors—i.e., simple violations of § 1030(a)(2)(C). ... Cioni also contends that the government’s evidence in support of its convictions on Count 1 (conspiracy, in violation of 18 U.S.C. § 371) and Count 6 (unauthorized access of an electronic communication service, in violation of 18 U.S.C. § 2701, committed in furtherance of harassing telephone calls, in violation of 47 U.S.C. § 223), was insufficient. In considering this argument, we view the evidence in the light most favorable to the government and determine whether substantial evidence supported the convictions. ... As to Count 1, Cioni contends that the government offered no evidence that she conspired with anyone else to access e-mail accounts in violation of § 1030(a), committed in furtherance of a violation of § 2701(a). This argument challenges the proof of conspiracy and repeats the argument that Cioni made as to Counts 2 and 4. But the scope of conduct alleged in Count 1 is significantly broader than that alleged in Counts 2 and 4, alleging conspiracy to commit numerous other electronic communications crimes, and the proof of record supports the broader allegations. Count 1 alleged and the evidence showed that Cioni, in concert with Sharon Thorn, hired and thus conspired with hackers to surreptitiously obtain passwords to various e-mail accounts; that these hackers did in fact provide Cioni with the passwords; and that Cioni used the passwords successfully to access several e-mail accounts. In one instance, Cioni used a hacker-provided password to download a third party’s e-mail inbox and sent e-mail folders that contained unread e-mails. Thorn participated in the conspiracy by permitting Cioni to use Thorn’s credit card to purchase the passwords and thereby enabling Cioni to “hide the paper trail.” In addition, Count 1 alleged that Cioni conspired to access e-mail accounts and voice mail messages, in furtherance of accessing unread email messages and making telephone calls to

May 23, 2011

“harass, annoy, and harm” Enger and his family. And the evidence again showed that Cioni did, without authorization, access Enger’s voicemail, including unopened messages, and thereby obtained information that she used to taunt Enger and his family, for instance, referring to the Engers’ recent travel and to Cioni’s feigned surveillance of them. Viewing this evidence in the light most favorable to the government, it was sufficient to show that Cioni conspired unlawfully to access computers and electronic storage facilities containing unopened e-mails for the purpose of accessing other computers and harassing, annoying, and harming Enger and his family. And because the objects of this conspiracy included felony offenses that would have violated 18 U.S.C. § 1030; ... § 2701; and 47 U.S.C. § 223, the conspiracy was also a felony violation. ... As to Count 6, Cioni contends that while she did illegally access unopened voicemails, as alleged, in violation of § 2701(a), the record contains no proof that she did so “in furtherance of” making harassing telephone calls, in violation of 47 U.S.C. § 223. Again, this contention is belied by the record, which shows clearly that Cioni made harassing telephone calls to Bruce Enger and his family, taunting them with facts about their recent travel and her alleged surveillance of them, information that she obtained by her unlawful access to Enger’s voicemail. The illegal access to voicemail thus facilitated the harassing telephone calls by supplying the ammunition that made the calls harassing and threatening. ... Cioni next contends that in waiving her right to counsel at sentencing, she did not do so knowingly and intelligently, and that the district court thus erred in granting her request to proceed pro se. After Cioni was arraigned, she hired private counsel to represent her. Before trial, however, a conflict arose between Cioni and her counsel, prompting counsel to file a motion to withdraw and Cioni to file a motion for leave to proceed pro se. During the hearing on these motions, Cioni’s counsel remarked that Cioni was “certainly competent under [Indiana v.] Edwards,” ... to represent herself. Eventually, however, Cioni withdrew her motion, stating that she was “emotionally incapab[le] of representing [herself] because [she was] so emotionally involved in th[e] matter,” and counsel stayed on to represent Cioni throughout the trial. Before sentencing, however, the issue again arose as Cioni indicated that she was dissatisfied with her counsel and wished to proceed pro se. Once more, counsel filed a motion to withdraw and Cioni filed a motion to represent herself pro se. Addressing the motions at the beginning of the sentencing hearing, the court engaged Cioni in a dialogue regarding her stated desire to proceed pro se, making sure that she (1) had thought about representation “very carefully”; (2) had

May 23, 2011

performed “extensive[ ]” legal research; (3) was aware of the Sentencing Guidelines and the factors under 18 U.S.C. § 3553(a); (4) understood “what would take place at sentencing”; and (5) had no further questions for the court. When the court then asked her if she preferred to go forward without counsel, Cioni indicated that she did not but that financial difficulties forced her to do so. The court replied that it could appoint counsel if Cioni qualified as indigent. Cioni responded that she did not qualify, given the availability of funds in her 401(k) account and that she preferred to reserve those funds for her son. Following this dialogue, the district court found that Cioni had knowingly and intelligently waived her right to counsel and granted her request to proceed pro se. Cioni now argues that her waiver was not voluntary, due to either her financial duress or her emotional instability. Based on her dialogue with the district court, we conclude that Cioni’s waiver was a “‘knowing, intelligent act done with sufficient awareness of the relevant circumstances.’” ... Her claim of financial duress was simply her unwillingness to make the decision to use her assets for legal representation in lieu of some other purpose. And as to her claim of emotional instability, made for the first time on appeal, the record provides insufficient evidence from which to conclude that Cioni was incapacitated by any emotional inability to represent herself. Indeed, the record reveals that she actively provided her own defense in a rational manner. Accordingly, we reject Cioni’s argument that her Sixth Amendment rights were violated when the district court granted her request to represent herself. ... Cioni’s remaining arguments do not merit extensive discussion, and we address them briefly. ... First, Cioni contends that the district court erred in denying her motion to suppress evidence that the FBI seized during the execution of a search warrant. She argues that the affidavits submitted to the magistrate judge in support of the warrant left out information regarding when various acts occurred, thus suggesting that the acts were stale. But the nature of Cioni’s conduct and the content of the affidavits belie her claim. Her unlawful activity extended over a substantial period of time so that the affidavits necessarily included a broad range of factual information, including records of Internet service providers and telephone companies linking her directly to the e-mail intrusions and harassing calls. Moreover, much of the information was, in any event, tied to specific and relatively recent dates. We find that Cioni’s claim in this regard lacks merit. ... She also contends that the affiants omitted known exculpatory details from the affidavits, demonstrating their reckless disregard for the

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truth. ... Although omissions can, in certain circumstances, give rise to a Franks hearing, Cioni has not made the “substantial showing” necessary under Franks to demonstrate that FBI agents acted recklessly in preparing the affidavits in her case. ... Indeed, Cioni points to no specific evidence of recklessness. Moreover, even if the additional facts cited by Cioni were included in the affidavits, the probable cause calculus would nonetheless have remained unchanged. Under these circumstances, Franks is inapplicable. ... Finally, she contends that the affidavits did not indicate that evidence would be found at her home and her office regarding access to unopened e-mails. While access to unopened e-mails is a requirement for proving a violation of 18 U.S.C. § 2701(a), such evidence is not required to establish “a fair probability that . . . evidence of” unauthorized access to communications in electronic storage would be found at her office and home, particularly in light of the considerable circumstantial evidence regarding access to e-mail accounts in the affidavits. ... All the evidence to prove a crime need not have been sought or obtained for the affidavits to be valid. ... Cioni also contends that her case should be dismissed because the prosecution engaged in misconduct before the grand jury. Specifically, she claims that the prosecutor read the indictment verbatim to FBI Special Agent Born and then asked if the facts stated therein were “correct,” without obtaining any other evidence from Born through individualized questions. Cioni does not, however, provide any authority for the proposition that the procedure in using such a broad, leading question was improper. More importantly, she has failed to establish that she was prejudiced by any irregularity. ... The district court rejected this argument, and we affirm its ruling. ... Challenging an evidentiary ruling made by the district court, Cioni contends that the court abused its discretion in relying on Federal Rule of Evidence 412 to exclude evidence she attempted to offer concerning Enger’s affairs with other women. While she is correct in asserting that Rule 412 applies only to “civil or criminal proceeding[s] involving alleged sexual misconduct” and that no sexual misconduct was at issue in her case, the error was harmless. First, the evidence Cioni sought to introduce was cumulative, inasmuch as evidence of two affairs had already been admitted into evidence. And second, the excluded evidence could not possibly have affected the verdict in light of the otherwise overwhelming evidence of guilt, including Cioni’s own admissions. Cioni contends for the first time on appeal that the statutes under which she was convicted are unconstitutional because their enactment exceeded Congress’ powers under the Commerce Clause. This argument lacks any merit. It is well established that Congress has the

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power to regulate interstate communications networks, which generally fall under the “instrumentalities of interstate commerce” category described in Gonzales v. Raich, 545 U.S. 1, 16 (2005). ... Finally, Cioni contends that her sentence was procedurally unreasonable because the district court failed to rule on some of her objections to the presentence report and also failed to consider all of the factors set forth in 18 U.S.C. § 3553(a). These arguments, however, are also without merit. Before beginning an evaluation of the parties’ objections, the district court assured itself that Cioni had an opportunity to review the presentence report and to file any objections that she had to it. Then the court took the time to hear and rule upon the parties’ objections to the presentence report. ... In sentencing Cioni, the court also conducted an individualized assessment of the relevant § 3553(a) factors. Indeed, the court heard extensive argument from both sides regarding sentencing, during which Cioni herself spoke, uninterrupted, for approximately 15 minutes. The court then commented on the nature of her crimes, the impact that they had on various victims, the Sentencing Guidelines, and related factors before announcing Cioni’s sentence. ... In short, we reject Cioni’s sentencing arguments. ... For the foregoing reasons, we vacate the felony convictions on Counts 2 and 4 and remand those counts for entry of misdemeanor convictions, as requested by Cioni. We also vacate Cioni’s sentence and remand for resentencing in light of the changes to the convictions on Counts 2 and 4. In all other respects, we affirm. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS

CRIMINAL PROCEDURE Ineffective Assistance of Counsel; Suppression of Confession The court correctly decided that the defendant was deprived on retrial of the assistance of counsel to the minimum degree of effectiveness contemplated by the Sixth Amendment to the Constitution when his counsel failed to have his confession suppressed at trial. 27 FCR 11-6 Tice v. Johnson No. 09-8245 Argued: September 21, 2010 Decided: April 20, 2011 USDC for the ED of Virginia 2011 U.S. App. LEXIS 8012 ARGUED: Stephen R. McCullough, Richmond, VA, for Appellant; Christopher Todd Handman, Washington, D.C., for Appellee

Page 12 BEFORE: Niemeyer and King, Circuit Judges; and Conrad, Chief District Judge AFFIRMED

KING, Circuit Judge: William Bosko, stationed aboard the frigate USS Simpson following Navy basic training, debarked to the pier in Norfolk, Virginia, during the afternoon of July 8, 1997, having spent the week at sea. Bosko hoped to reunite at the pier with his bride of three months, Michelle. When Michelle failed to show up, Bosko supposed that his wife had started her new job and was unable to meet him as arranged, so he took a taxicab to the apartment they shared. Bosko called out to Michelle as he entered the apartment, but he received no response. He looked for a note but found none. Bosko decided to shower, change clothes, and surprise Michelle at work. As he strode into the bedroom, Bosko discovered his lifeless wife on the floor, clad only in a black T-shirt and lying in her own blood. Someone had strangled Michelle while using a steak knife to stab her several times in the chest. The police found the bloody knife under a chest of drawers, the serrated blade bent at nearly a right angle to its handle. Two weeks earlier, another woman living nearby had been severely beaten. Ten days after Michelle’s murder and scarcely more than a mile away, a 14-year-old girl was raped. On March 22, 2000, Omar Ballard, who was by then serving a long prison sentence for both of those crimes, pleaded guilty to the rape and murder of Michelle Bosko. In return for Ballard’s guilty pleas, prosecutors agreed to forgo any attempt to have him put to death. Ballard had confessed to the Bosko murder not long after being confronted with a letter he wrote a female acquaintance from prison: And one last thing you Remember that night i went to Mommie’s house and the Next morning Michelle got killed guess who did that, Me HA, HA. It wasn’t the first time . . . . if i was out i would have killed that Bitch down the street from you too. Upon being forwarded the letter, the police had a forensic lab compare DNA extracted from Ballard’s blood to that derived fro m biological samp les tak en from Michelle’s vagina and beneath her fingernails, and from a blanket used to cover her. In each and every instance, the DNA found at the crime scene was highly correlative to that of Ballard. For his despicable acts against Michelle Bosko, Omar Ballard was sentenced to serve the rest of his life in prison. ... Section 2254 of Title 28 of the United States Code authorizes the federal courts, upon application, to issue a writ of habeas corpus compelling the release of a person imprisoned pursuant to state law “on the ground that [the prisoner] is in custody in violation of the Constitution or laws . . . of the United States.” ... Tice no longer contends that he is entitled to relief on the alternative

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bases set forth in his habeas application and dismissed by the district court; hence, the sole issue on appeal is whether the court correctly decided that Tice was deprived on retrial of the assistance of counsel to the minimum degree of effectiveness contemplated by the Sixth Amendment to the Constitution. ... Strickland announced a two-prong test to analyze a Sixth Amendment claim of ineffectiveness. A defendant seeking postconviction relief must demonstrate both that counsel’s performance was deficient, and that the defense was thereby prejudiced. ... Lawyers who represent criminal defendants are accorded considerable latitude with respect to proper strategy; as a result, counsel’s performance will not be deemed deficient except in those relatively rare situations where, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” ... A criminal defense attorney routinely faces thorny tactical decisions that may heavily bear on the defendant’s life or liberty. Lacking complete, verifiable information, the lawyer must often make those decisions based on educated surmise and conjecture. For that reason, a court asked to engage in detached, dispassionate, after-the-fact review “must indulge a strong presumption” that counsel’s decisions were within the broad spectrum of reasonableness. ... Even if the defendant manages to rebut the presumption and establish that counsel performed unreasonably, the result of the proceeding will stand “if the error had no effect on the judgment.” ... The defendant must prove more than “some conceivable effect,” but need not demonstrate that counsel’s deficiency “more likely than not altered the outcome in the case.” ... Instead, it must be shown “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ... Our analysis of Tice’s claim and its disposition by the Supreme Court of Virginia is tempered by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Because the asserted ground for relief centers on the application of the law to undisputed facts, and not upon the facts themselves, we may grant the writ only insofar as the state’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” ... The rule and analytical framework announced by the Supreme Court in Strickland “unquestionably qualifies as ‘clearly established’ federal law under § 2254(d).” ... Be that as it may, the Supreme Court of Virginia’s application of Strickland is entitled to considerable deference. It is not enough for us to say that, confronted with the same facts, we would have applied the law differently; we can accord Tice a remedy only by concluding

May 23, 2011

that the state court’s application of the law in his case was objectively unreasonable. ... At the risk of stating the painfully obvious, our perception of how reasonably another court applies the law in a particular case is best informed by conducting our own, independent application so that we may gauge how the two compare. We shall therefore analyze, under Strickland’s first prong, whether counsel performed short of constitutional expectations by not moving to suppress Tice’s confession. If we resolve that question in the affirmative, we shall proceed to consider whether Tice must nevertheless be denied habeas relief under Strickland’s second prong, in that he suffered no cognizable prejudice either because the confession would not have been suppressed or because he would have been convicted in any event. ... Our method of analysis diverges in one subtle respect from that employed by the other courts which have considered Tice’s claim. The state habeas court and the district court each made the threshold determination that a motion to suppress would have been granted, and only then decided whether counsel’s failure to so move constituted deficient performance, moving on finally to determine whether counsel’s deficiency resulted in unacceptable prejudice to Tice. The Supreme Court of Virginia, which relied solely on Strickland’s prejudice prong to evaluate Tice’s case, assumed from the outset that counsel performed deficiently, and, perhaps as part of that assumption, took for granted that the confession would have been suppressed. Mindful of Justice O’Connor’s admonition on behalf of the Court in Strickland that “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight,” 466 U.S. at 689, we think the more prudent course is to omit from our review of counsel’s performance in this case any supposed disposition of the hypothetical motion to suppress. Of course, as a general proposition, the likelihood of success appropriately bears on the decision to take a particular act in litigation. It is enough to say for purposes of measuring counsel’s performance, however, that a motion to suppress Tice’s confession would have carried some substance, without opining further as to its ultimate fate until it becomes necessary to assess the prejudice, if any, stemming from counsel’s inaction. ... Detective Crank’s notes of his conversation with Tice were on record with the state circuit court for more than three years prior to Tice’s retrial, and Mr. Broccoletti had a copy of the notes in his case file. As with any record of an accused’s statements made in police custody, and especially a statement volunteered without the benefit of a lawyer’s advice, the notes should have been parsed to ascertain not only the havoc the accused might have wreaked upon his defense, but

May 23, 2011

also any boon he may have unwittingly bestowed. Strickland itself established in no uncertain terms that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” ... Nowhere in Justice O’Connor’s opinion for the Court, however, is there the slightest indication that the duty to investigate applies only to facts yet unknown, as opposed to those already in the litigation file. A reasonable investigation of the file in this case would have revealed Detective Crank’s notes of Tice’s statement that “he decide[d] not to say any more.” ... On its face, such a declaration ought to give pause to even the greenest of criminal defense lawyers. Mr. Broccoletti, certainly no neophyte, candidly admitted at the state habeas hearing that “[t]he one part of the notes that do concern me is where [Crank] said, ‘[Tice] told me he decided not to say any more.’ As I go back and look at that now, that statement may have generated something, may have generated a motion.” ... Mr. Broccoletti expressed his belief that “[t]here must have been some reason I didn’t file it,” ... but, on the witness stand, he could not conceive of one. The Director suggests that the reason may have been that, had Tice’s confession been suppressed, the Commonwealth would have sought to introduce, on rebuttal, inculpatory statements Tice made at subsequent interviews, during plea negotiations, and as a witness for the prosecution at Danser ’s preliminary hearing. In order to prevent the jury from considering those statements, the Director surmises, Tice would have been constrained to present no defense case at all, which, in light of the extremely favorable DNA evidence placing Omar Ballard (and only Omar Ballard) at the crime scene, amounted to a Hobson’s choice for counsel. The Director speculates that Mr. Broccoletti deliberately and reasonably chose instead to take his chances with the confession, which he could (and did) argue to the jury was forcefed by the police. One might think that such an important and irrevocable decision concerning trial tactics would have left an indelible imprint upon the memory of the strategist. But Mr. Broccoletti could not independently recall seeing Detective Crank’s notes in the first place, let alone remember evaluating Tice’s statement or predicating a litigation plan thereon. It seems far more probable that, as the district court suspected, “counsel simply overlooked Detective Crank’s notes as a basis for suppressing Tice’s confession.” ... We are therefore disinclined to accept the Director’s invitation to engage in after-thefact rationalization of a litigation strategy that almost certainly was never contemplated. Instead, we follow our own advice that “courts should not conjure up tactical decisions an attorney could have made, but plainly did not.” ... It is a difficult enough task for a reviewing court to pass judgment upon

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what was, without straying into a nebulous supposition of what might have been. ... Considering only those events that actually transpired, Judge Martin concluded that Tice had made a sufficient showing under Strickland of deficient performance. On appeal, Tice contends that we should defer to Judge Martin on that issue, because his was “the ‘last reasoned’ state court decision” with respect to the performance prong, ... in that the Supreme Court of Virginia did not address that prong and therefore interposed no barrier to our review de novo. ... Tice contends that Judge Martin’s determination of counsel’s deficiency “is a factual finding” entitled to a presumption of correctness pursuant to § 2254(e)(1). ... Subsection (e)(1) provides, in pertinent part, that in federal habeas corpus proceedings initiated by state prisoners, “a determination of a factual issue made by a State court shall be presumed to be correct.” ... Contrary to Tice’s contention, however, Strickland explicitly instructs that “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” ... As such, a state court’s resolution of the Strickland predicates are plainly outside the ambit of § 2254(e)(1)’s application to purely “factual issues,” as is the ultimate issue of effectiveness. ... Even were we to suppose that counsel’s performance presents a pure question of fact, it is by no means clear that we should consider Judge Martin’s decision to be the Commonwealth’s final word on the matter, notwithstanding that the Supreme Court of Virginia declined to take up the issue. In Ylst v. Nunnemaker, the Supreme Court of the United States held that, in order to ascertain whether a state had refused relief upon a federal habeas claim because of a state law procedural bar (which would ordinarily foreclose federal review) or because it had rejected the claim on the merits under federal law (thus permitting the federal courts to consider it), the Court would “look through” any intervening summary decisions to the “last reasoned decision” of a state court addressing the claim. ... Whether Tice’s lawyers performed deficiently at trial is not a “claim,” but merely constitutes a necessary component of one — the allegation that Tice did not receive the effective assistance of counsel guaranteed by the Sixth Amendment. The Supreme Court of Virginia manifestly reached the merits of that claim, denying it on the ground that Tice had not demonstrated sufficient prejudice attributable to counsel’s presumably deficient performance. Tice cites no instances of our having previously applied the “look through” rule of Ylst where a state procedural bar is not at issue, and we have discovered none ourselves. We shall not embark on that journey today. ... Having conducted our own independent examination of counsel’s performance with

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no deference to the state habeas court, we nonetheless arrive at the same conclusion as Judge Martin. There is simply nothing we can discern from the record that would excuse the defense team’s failure to move to suppress Tice’s confession. The error was of sufficient magnitude that we cannot help but conclude that counsel’s performance in this singular instance was constitutionally deficient within the meaning of Strickland. Our only reluctance in so saying is that, based on our review of the record, the assistance provided Tice by Messrs. Broccoletti and Russell throughout both trials and the first appeal was otherwise laudably effective and competent. However, “‘even an isolated error’ can support an ineffective-assistance claim if it is ‘sufficiently egregious and prejudicial.’” ... Such is the case here. ... It is our opinion that, had the motion to suppress been made, the trial court would have had little choice but to grant it. The analytical framework is clear: If Tice “indicate[d] in any manner, at any time prior to or during questioning, that he wishe[d] to remain silent,” the Norfolk police were required to stop interrogating him. ... If Tice’s statement that “he decide[d] not to say any more” was sufficient to cease the interrogation, his subsequent confession could not be admitted at trial unless “his ‘right to cut off questioning’ was ‘scrupulously honored.’” ... Inasmuch as Detective Ford resumed questioning Tice a scant thirteen minutes after Detective Crank had finished, did not at that time issue fresh Miranda warnings, and continued to inquire of Tice regarding the same subject matter that prompted him to attempt to stop answering, it is plain that the Norfolk Police Department did not scrupulously honor Tice’s request to break off the interrogation. ... Consequently, the trial court could only have denied suppression of the confession by concluding that Tice’s statement (from the first-person perspective) “I have decided not to say any more” did not invoke his right to silence to begin with. We are dubious that the trial court might have ruled in such a manner. Tice’s statement was as least as definite and unambiguous as the one in Mosley that served to cease the questioning in that case, and as clear and unequivocal as similar invocations bearing on the same issue and cited by other courts. ... A reasonable police officer under the circumstances would have understood Tice’s statement to mean that he no longer wished to answer questions involving the crimes against Michelle Bosko, and, therefore, that the officer should stop asking them. In Burket, we considered a habeas petitioner’s claim that he was unconstitutionally convicted of capital murder and sentenced to death based in part on his confession made following what he contended were valid invocations of his Fifth Amendment right to remain silent. In analyzing the claim, we observed that the rule of Davis v. United

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States, 512 U.S. 452, 459 (1994), regarding invocations of the Sixth Amendment right to counsel requires that the suspect “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” We acknowledged then that “[w]e have not determined whether Davis is applicable to invocations of the right to remain silent,” ... That issue has now been resolved in the affirmative by the Supreme Court. ... We conclude that Tice’s invocation in this case was clear and unambiguous enough to satisfy the strictures of Davis. ... The final hurdle for Tice to clear in order to demonstrate his entitlement to federal habeas relief is, by any measure, the most daunting. Tice need satisfy not merely the ordinary Strickland test for prejudice, namely, that a reasonable probability existed, absent evidence of his confession, that the jury would have acquitted him, but also meet the more stringent burden imposed by § 2254(d)(1): that the Supreme Court of Virginia’s judgment to the contrary was itself objectively unreasonable. Mindful of the deference owed under AEDPA, we will not discern an unreasonable application of federal law unless “the state court’s decision lies well outside the boundaries of permissible differences of opinion.” ... The prejudice inquiry conducted by the Supreme Court of Virginia thus proceeded on dual paths. It strove to dispel doubts surrounding Dick’s credibility while seeking to harmonize the physical and contextual evidence with the Commonwealth’s theory of the case. With regard to the first path, the Supreme Court of Virginia indicated that Dick’s testimony was unwavering, even on cross-examination, as to his and Tice’s involvement; Dick had no motive to lie, inasmuch as he was already serving two life sentences; and there was no evidence that Dick otherwise bore any animus toward Tice. As to the second path, the court pointed out that evidence of Williams’s obsession with Michelle admitted of ready imputation to his network of acquaintances, including Tice and Dick; Michelle’s fledgling friendship with Ballard supported the notion that she opened her apartment door to him on behalf of the group she had earlier rejected; and the expert testimony was consistent with the notion that Michelle could have been gang-raped with only Ballard leaving behind DNA evidence of his involvement. Judge Martin scoured the trial record for any proof beyond Tice’s confession that might support the jury’s verdict, and he identified only Dick’s testimony and the inconclusive physical evidence. Though rejecting Judge Martin’s legal conclusion as to prejudice, the Supreme Court of Virginia accepted his statement of the record. The district court concurred, observing that, aside from the confession, “Dick’s testimony was

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the only significant evidence of Tice’s guilt.” ... With all respect to the Supreme Court of Virginia and our learned colleagues that comprise that august body, we simply cannot subscribe to its assessment of Dick’s credibility. The facts and inferences that might cause one to lend credence to his sworn utterances seem rather less in number and substance than those supporting disbelief. Mr. Broccoletti pointed out to the jury via his thorough crossexamination that, as Dick’s story evolved, he at first denied all involvement in the crimes, then acknowledged merely being present, and thereafter confessed to stabbing Michelle in defense of Williams. After Dick was excluded as a contributor of the DNA samples, he maintained that Williams alone killed Michelle but that Wilson was also there; after Wilson was likewise excluded, Dick implicated Tice and two then-unknown persons as additional participants. Though he denied at the preliminary hearing that a seventh man, one of African-American descent, had been present, Dick testified at Tice’s retrial that, in fact, a total of eight men had been involved. The eight included Ballard, who is AfricanAmerican, together with Pauley, Farris, and Danser, all three of whom were eventually cleared of wrongdoing. In between the preliminary hearing and the retrial, Dick wrote a letter insisting that Pauley and Farris had acted alone. Two days before the retrial, Dick confided to Tice’s lawyers that he had not been in Michelle’s apartment at all. The Supreme Court of Virginia hardly mentioned any of the waves and troughs that made Dick’s ever-changing story so difficult to stomach, referring to them as “other inaccuracies” lumped in with Dick’s inability to nail down a few factual details. The district court took issue with the state court’s characterization, opining that it “only hints at how s u b s t a nt i a l ly D i c k ’s t e s t i m o n y wa s impeached.” District Court Opinion 30. Indeed, Judge Martin volunteered that Mr. Broccoletti’s cross-examination seemed “quite damaging,” Circuit Court Habeas Opinion 9, an observation that the district court termed “an understatement.” ... Similarly, the Supreme Court of Virginia’s observation, ... that evidence of Danser’s and Pauley’s alibis were “of questionable relevance” to the defense — because the men’s whereabouts “did not relate to Tice’s activities on the date of the offense” — failed to address the thrust of that evidence, namely, that it tended to disprove Dick’s testimony that both men were present in Michelle’s apartment. We concur with the district court that in light of “the variety of accounts Dick had provided and the lack of any significant corroboration of his testimony . . . , a reasonable jury would have grave doubts as to Dick’s veracity regarding Tice’s participation in the crime.” District Court Opinion 41. That Dick resolutely stuck to the most recent version of his story during his relatively short stint on the

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witness stand offers small solace in the broader context of the interminable metamorphosis and refinement that Dick’s account of the facts underwent on its long, strange trip to the jurors’ ears. We also share the district court’s skepticism of Dick’s supposed impartiality, in that Dick managed to foreclose the possibility of being executed by agreeing to testify against Tice and others. The district court recounted Dick’s testimony on cross-examination, during which he “conceded that he had entered into a plea agreement with the prosecution wherein his charge of capital murder, with a possibility of a sentence of death, was reduced to a charge of first degree murder.” ... While the Supreme Court of Virginia’s statement that Dick “was not subject to any additional penalties” for his crimes against Michelle was, probably, technically true, we do not know whether the Commonwealth would have sought rescission of Dick’s plea agreement had he testified differently or not at all. Perhaps more importantly, Dick testified that he did not know, either. Given his overriding motivation to support the Commonwealth’s case by living up to his end of the plea bargain, the question of whether Dick happened to harbor a personal grudge against Tice seems almost trivial by comparison, with a finding in the negative a slender reed indeed on which to posit Dick’s overall truthfulness. We do not mean to say that a juror choosing to ignore Dick’s obvious flaws as a witness and credit his testimony that Tice helped to commit the awful crimes against Michelle would be unreasonable in so doing. A juror could look to the physical and contextual evidence to plausibly buy into the Commonwealth’s theory that Williams, fueled by his preoccupation with Michelle, talked Tice and the others into barging their way into the Boskos’ apartment by way of Ballard’s subterfuge, where the situation devolved into tragedy. Eight men could have raped Michelle, just as Dick recounted, if Ballard was the only one who ejaculated and the only one who Michelle scratched with her fingernails. Certainly, the Supreme Court of Virginia perceived Tice’s case through the eyes of the foregoing hypothetical juror, see supra Part II.B, and not the one who just as reasonably could have thought that Dick made everything up, that Ballard gained access to Michelle’s apartment for solely his own nefarious purposes, and that Ballard’s was the only DNA found because he was the only one there. ... We are not bound in this case, however, to view the facts in the light most favorable to the prosecution. The familiar sufficiency-ofthe-evidence analysis centering on whether a reasonable jury could have convicted an adequately represented defendant is considerably more deferential than the Strickland test for prejudice in an ineffective-assistance case, which seeks only to discover whether the absence of error would have given rise to a

May 23, 2011

reasonable probability of acquittal, such that confidence in the verdict is undermined. ... In Kyles v. Whitley, 514 U.S. 419, 432-41 (1995), the Supreme Court addressed a Brady challenge to certain undisclosed evidence favorable to the accused, citing United States v. Bagley, 473 U.S. 667, 682 (1985), for the proposition that such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Court clarified that, in Bagley, it adopted the same formulation for assessing materiality as it had for gauging prejudice in Strickland, confirming that “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” ... The Court emphasized that the reasonable-probability analysis for materiality under Bagley, as for prejudice under Strickland, “is not a sufficiency of evidence test.” ... In examining the rationale given by the Supreme Court of Virginia to support its reversal of Judge Martin’s grant of habeas relief, it is apparent that the court misapprehended the Strickland standard in evaluating the inculpatory force of the legitimate evidence against Tice when juxtaposed with the evidence that the jury should not have considered. The relative persuasiveness of Dick’s testimony vis-a-vis Tice’s admission of guilt was not lost on the prosecution, which argued strenuously to the jury that “[w]hat it comes down to in this case, ladies and gentlemen, is the confession given by the Defendant.” ... The jury indicated through its question to Judge Poston toward the end of deliberations, ... that it was struggling to accord the proper weight to Tice’s confession. It is generally a tricky business to try to divine a jury’s thought processes by considering only its questions and speculating as to the reasons therefor, but it seems safe to say that the jury here did not consider Dick’s testimony to be conclusive evidence of Tice’s guilt. Applying the standard properly, we cannot deny within the parameters of reason that the jury, without Tice’s confession before it, would necessarily have considered the Commonwealth’s remaining evidence to be so lacking as to seriously jeopardize the prospects for conviction. Had the confession been suppressed, there was a reasonable probability that the jury would have returned a different verdict, and we do not see how we could reasonably conclude otherwise. ... Defense counsel, though generally able and competent, were constitutionally deficient in the discrete, though crucial, instance of failing to have Tice’s confession suppressed. That single mistake rendered suspect the jury’s verdict. The Supreme Court of Virginia’s opposite conclusion constituted an unreasonable application of federal law, as clearly established by the Supreme Court of the United States in Strickland v. Washington.

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Thus, in accordance with 28 U.S.C. § 2254, Tice is entitled to the writ of habeas corpus issued by the district court, whose judgment is hereby affirmed. AFFIRMED

EMPLOYMENT LAW Harassment; Remedial Action The district court erred in granting summary judgment in this harassment claim since a genuine issue of material fact existed as to whether the employer had notice of the alleged racial slurs and pranks in the workplace prior to February 2006, but failed to respond with any remedial action. 27 FCR 11-7 Equal Employment Opportunity Commission v. Xerxes Corp. No. 10-1156 Argued: December 9, 2010 Decided: April 26, 2011 USDC for the District of Maryland 2011 U.S. App. LEXIS 8481 ARGUED: Elizabeth Ellen Theran, Washington, D.C., for Appellant; Robert C. Castle, Minneapolis, MN, for Appellee BEFORE: Traxler, Chief Judge; Wilkinson and Motz, Circuit Judges AFFIRMED IN PART, VACATED IN PART, AND REMANDED

TRAXLER, Chief Judge: This appeal arises from an action brought by the Equal Employment Opportunity Commission (“EEOC”) on behalf of Albert Bernard Pearson, Keith Wilson, and Gradian Graham, present or former African-American e m p l o y e e s o f X e rxe s C or p o r a t i on (“Xerxes”), alleging a hostile work environment on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”). The district court granted summary judgment for Xerxes. We affirm in part, vacate in part, and remand. ... In July 2008, the EEOC initiated this action on behalf of Pearson, Wilson, “and a class of black individuals,” alleging a hostile work environment. ... Graham was identified as the only additional complainant during litigation. The district court granted summary judgment to Xerxes, based on its conclusion that Xerxes’ responses to the reports of harassment were reasonable as a matter of law. Specifically, the district court held that “whenever Xerxes learned of harassment, it acted quickly and reasonably effectively to end it.” ... With regard to Graham, the district court noted its “doubts that the sporadic instances of harassment experienced by Mr. Graham would meet [the] threshold” of severe or pervasive harassment, J.A. 846, and held that Graham’s complaints about Shifflett were not actionable because there was insufficient evidence that the incidents were based on race.

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... Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Because “an employee’s work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.” ... To survive summary judgment on a claim of a racially hostile work environment, the EEOC “must demonstrate that a reasonable jury could find [the] harassment (1) unwelcome; (2) based on race; and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.” ... In addition, the EEOC must present “sufficient evidence of a fourth element: that there is some basis for imposing liability” for the harassment on the employer. ... Where an employee has been harassed by a coworker, “the employer may be liable in negligence [under the fourth element] if it knew or should have known about the harassment and failed to take effective action to stop it.” ...Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” ... “The institution and enforcement of [an anti-harassment] policy, in conjunction with an adequate complaint procedure, aid the employer in establishing that it has exercised reasonable care to prevent discrimination.” ... “However, the mere promulgation of an antiharassment policy, no matter how well-conceived, will not suffice to show the requisite level of care where the employer has administered the policy in bad faith or has rendered it ineffectual by acting unreasonably.” ... In this case it is undisputed that Xerxes’ anti-harassment policies “provide[d] reasonable procedures for victims to register complaints.” ... Thus, for purposes of the fourth element, we need only inquire as to whether the EEOC presented sufficient evidence to demonstrate that Xerxes’ responses to the complaints made under its policies were not reasonably calculated to end the harassment and, therefore, that liability for the harassment may be imputed to it. There is no “exhaustive list” or “particular combination” of remedial measures or steps that an employer need employ to insulate itself from liability. ... Among other things, we have considered the promptness of the employer’s investigation when complaints are made, whether offending employees were counseled or disciplined for their actions, and whether the employer’s response was actually effective. However, the mere fact that harassment reoccurs in the workplace, either by the same offender or different offenders, does not, ipso facto, allow a jury to conclude that an employer’s response was not reasonably calculated to end the harassment. ... The cessation of “harassment shows effectiveness, which in turn evidences such reasonable

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calculation.” ... But “this is not the sole factor to be considered. Because there is no strict liability and an employer must only respond reasonably, a response may be so calculated even though the perpetrator might persist,” ... or, as in this case, harassment reoccurs in the workplace. “A remedial action that effectively stops the harassment will be deemed adequate as a matter of law. On the other hand, it is possible that an action that proves to be ineffective in stopping the harassment may nevertheless be found reasonably calculated to prevent future harassment and therefore adequate . . . as a matter of law.” ... In such cases, [courts] consider the timeliness of the plaintiff’s complaint, whether the employer unduly delayed, and whether the response was proportional to the seriousness and frequency of the harassment. . . . By way of example, responses that have been held reasonable have often included prompt investigation of the allegations, proactive solicitation of complaints, scheduling changes and transfers, oral or written warnings to refrain from harassing conduct, reprimands, and warnings that future misconduct could result in progressive discipline, including suspension and termination. The employer is, of course, obliged to respond to any repeat conduct; and whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before, will be effective. Repeat conduct may show the unreasonableness of prior responses. On the other hand, an employer is not liable, although [harassment] persists, so long as each response was reasonable. It follows that an employer is not required to terminate a [particular] perpetrator except where termination is the only response that would be reasonably calculated to end the harassment. Adler, 144 F.3d at 676-77 (10th Cir. 1998) ... We begin with the district court’s grant of summary judgment on the hostile work environment claims advanced by the EEOC on behalf of Pearson and Wilson. The EEOC contends that the district court erred in granting summary judgment to Xerxes as to these claims because a reasonable jury could find (1) that Xerxes was placed on actual notice of racial harassment by coworkers of Pearson in June 2005 and of Wilson in November 2005, when they first complained to Shifflett, respectively; (2) that Xerxes failed to respond to their complaints at all until February 2006; and (3) that Xerxes failed to respond to their complaints thereafter with remedial action reasonably calculated to end the harassment. ... Viewing the evidence in the light most favorable to the EEOC, we conclude that a

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genuine issue of material fact exists as to whether Xerxes had notice of the alleged racial slurs and pranks in the workplace prior to February 2006, but failed to respond with any remedial action. Pearson and Wilson each testified that prior to February 2006, they were subjected to the repeated use of racial slurs by Gatrell and Myers, as well as to various pranks by unknown coworkers that they believed were racially motivated. In addition, Wilson testified that Tammy Smith used racially-tinged names when addressing him. If the facts are as asserted by Pearson and Wilson, they would constitute racial harassment sufficient to “alter the conditions of employment and create an abusive atmosphere.” ... The men also testified that they first reported this harassment to Shifflett in June 2005 and November 2005, respectively, and continued as the incidents occurred thereafter, up to and including the complaints they made on February 3, 2006 about Gatrell and Myers. However, Xerxes did nothing in response to their complaints until February 2006. At the time of the prior complaints, Xerxes’ Compliance Program Guide advised employees that they “may report a violation [of the Program] by approaching or telephoning [their] supervisor, Plant Manager, . . . or a member of Xerxes’ Compliance Committee, as the circumstances dictate.” ... As the direct supervisor of Pearson and Wilson, therefore, Shifflett was specifically designated as an appropriate person to receive such complaints. Xerxes disputes that complaints of racial harassment were made to Shifflett prior to the February 3, 2006 incident with Gatrell and Myers, but a jury could reasonably credit the testimony of Pearson and Wilson and conclude otherwise. Accordingly, we hold that a reasonable juror could find that the complaints by Pearson and Wilson to Shifflett prior to February 2006 were sufficient to place Xerxes on actual notice of the racial slurs and pranks in the plant and that Xerxes’ response was unreasonable. Accordingly, we vacate the district court’s award of summary judgment for any alleged racial harassment of Pearson and Wilson occurring before February 2006, and we remand for further proceedings as to this time period. ... With regard to the incidents of racial harassment that were reported on February 3, 2006 and beyond, however, we hold that Xerxes’ response to each reported incident was reasonably calculated to end the harassment and, therefore, reasonable as a matter of law. Accordingly, we affirm the district court’s award of summary judgment for the alleged racial harassment as to this time period. ... As of February 2006, Xerxes had in place extensive anti-harassment policies consistent with Title VII that directed plant employees

May 23, 2011

to immediately report any racial harassment to their supervisor and the plant manager. The employees were assured that their complaints would be promptly investigated and that appropriate remedial action would be taken. On February 3, 2006, when Shifflett and Green were made aware of the incident involving Gatrell and Myers, Xerxes’ response was prompt and proportional to the seriousness of the offense. Gatrell and Myers were individually counseled and they apologized. In addition, Green held a meeting with the shift employees to review Xerxes’ antiharassment policies and warn that future misconduct would result in disciplinary action. The fact that formal disciplinary action, such as suspension or termination, was not taken against Gatrell and Myers at that time is an insufficient basis for concluding that Xerxes’ response was unreasonable. ... As the EEOC has argued, Green apparently believed that, because Gatrell and Myers had apologized and the anti-harassment training had been reinforced, they would not continue to use offensive language in the workplace. His assumption was correct. While Myers and Gatrell were disciplined for their prior conduct in July 2006, there is no evidence that either of them engaged in acts of racial harassment after February 3, 2006. In May 2006, Pearson complained to Shifflett and Carty about other coworkers using racially-offensive terms to describe music being played in the plant. Pearson also told Carty about his previous problems with Myers and Gatrell, and told Carty that he wanted the racial slurs to stop. When Green learned of Pearson’s complaint, he notified the corporate office, and an escalated response ensued. Bachmeier immediately traveled to the plant to conduct a formal investigation and employee interviews. At the conclusion of the investigation, Xerxes imposed written disciplinary action upon Myers and Gatrell, including two-day unpaid suspensions from work, and issued a final, written warning that any future violations of the anti-harassment policies would result in their termination. Bradley received a written disciplinary warning for his use of a raciallyoffensive term to describe music, and he was advised that he faced possible termination for future violations as well. Tammy Smith was verbally counseled for her use of a racial nickname during her conversation with another African-American employee, presumably Wilson. In addition, Bachmeier conducted refresher training of all supervisory and nonsupervisory employees in their respective obligations under Xerxes’ antiharassment policies. In sum, Xerxes’ response to the complaints of racial harassment in 2006, taken in consultation with the Union representatives for the victims and the accused, was prompt, proportional to the seriousness and frequency of the various offenses, and employed “increasingly progressive measures to address the harassment” that had occurred in

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the workplace. ... This included employee counseling and disciplinary action, suspensions of two employees, and warnings that future misconduct could result in progressive discipline, up to and including termination. It was not only “reasonably calculated to end the harassment” as a matter of law, ... it was actually effective. There were no reported incidents of racial slurs for over two years, and no incidents of pranks for nearly a year thereafter. ... In April and June 2007, Pearson and Wilson each found an anonymous, raciallycharged message in his locker. The messages were unquestionably abhorrent. However, they were of a much different character than the racial slurs and pranks that had been the subject of the complaints the previous year. There was no reason to believe that the employees disciplined in 2006 were involved in the incidents in 2007. And the EEOC failed to present any evidence that the two incidents occurred because the disciplinary action and training implemented in response to the 2006 complaints were inadequate. Xerxes’ response to these new incidents was also prompt and reasonably calculated to put a stop to any further such activity in the workplace. Indeed, we can think of nothing further that Xerxes could have done to convey to the perpetrators how seriously Xerxes viewed these incidents and how aggressively it would pursue disciplinary action if it succeeded in identifying the culprits. In addition to conducting internal investigations, Xerxes reported the incidents to the local Sheriff’s Office. Green held a plant-wide meeting and notified all employees (which would, of course, have included the perpetrators if they were employees) that law enforcement had been notified and a full investigation requested. The employees were advised that anyone with information was “expect[ed] to come forward,” ... and they were warned that the perpetrators, if identified, would face probable termination and possible criminal prosecution. Xerxes’ EEO Coordinator also traveled to the plant to personally investigate the incidents, interview employees, and review the company’s efforts to address the situation. In the meantime, Green routinely checked on Pearson to ensure that he was experiencing no further incidents of racial harassment and, if he was, that Xerxes was being made aware of them. It was through this proactive enforcement of Xerxes’ anti-harassment policy that Green learned of the single, but also anonymous, toolbox prank that occurred in the midst of the two locker incidents. Green assured Pearson that the training had been done and that Xerxes would continue to respond aggressively to known offenders, and reminded him to immediately report any such violations to him. For their part, neither Pearson nor Wilson offered any suggestions of additional steps Xerxes should have taken to identify the

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perpetrators or otherwise respond in a more reasonable or effective manner. And the EEOC, in response to Xerxes’ interrogatory asking it to “identify all actions that [Xerxes] should have taken but did not that would have demonstrated an exercise of reasonable care to prevent and correct promptly racial harassment or race discrimination,” responded simply that Xerxes “ha[d] not effectively stopped or prevented racial harassment in its workplace.” ...That, however, is not the standard for imputing liability on Xerxes. We conclude that Xerxes’ response in 2007 was also “reasonably calculated to end the harassment” as a matter of law, ... and that it was effective in doing so. No further racially-charged threats or workplace pranks occurred after Xerxes’ response. The single reported violation of Xerxes’ anti-harassment policy was the racial joke that was told by a white coworker in August 2007, which resulted in the employees reporting the offense in accordance with the anti-harassment policies and the offending employee being fired. ... Finally, the EEOC claims that, despite this demonstrable effectiveness, a reasonable jury could find that Xerxes’ responses in 2006 and 2007 were unreasonable based upon Pearson’s testimony that he was subjected to two isolated racial slurs in August 2007, and Wilson’s testimony that he was subjected to a single racial slur in August 2008. Pearson testified that in August 2007, coworker Sam Crone referred to AfricanAmerican women as “nappy headed hos,” and Tammy Smith told him that he looked like “Curious George” as he was climbing a ladder. Pearson did not, however, report these alleged incidents to Xerxes at the time and he resigned a few months later. Accordingly, Xerxes was given no opportunity to investigate the complaints or respond appropriately. Wilson testified that, in August 2008, after this lawsuit was filed, Tammy Smith said to him, “I hope this does not offend you, but I’m not trying to be nobody’s white n*****,” as she was cleaning up a work area. ... Wilson claims that he reported the comment to Shifflett, but does not claim that he reported it to Green or any other management employee as he had been instructed. Xerxes contends that it first learned of the alleged incident several weeks later, when the EEOC attorney reported it to Xerxes’ attorney. When Green investigated the claim, he was unable to corroborate it. Wilson advised Green that there were no witnesses to Smith’s alleged statement. Smith “absolutely denie[d] having made the statement” and “state[d] that she never used the N_____ word” to Wilson. ... Wilson also claimed that he reported the incident to the Union representative, but the Union representative told Green that he thought he heard it “‘through the grapevine.’” ... Accordingly, Green notified Wilson that he had been unable to substantiate the allegation and took no further action.

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The EEOC makes much of these alleged, albeit isolated, racial remarks, particularly the unreported and uncorroborated accusations against Smith, as evidence from which a jury could reasonably conclude that Xerxes’ previous disciplinary action against her and the others was unreasonable. We disagree. As an initial premise, we note that “an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists” under its reasonable procedures. ... Thus, “employee[s] claiming harassment by a coworker bear[ ] significant responsibility in notifying the employer.” ... Here, both Pearson and Wilson inexplicably failed to avail themselves of Xerxes’ available procedures to report these additional instances of racial slurs in the workplace, procedures of which they were undeniably aware and had effectively used in the past. This principle finds particular significance in this case, where Xerxes bore responsibility to investigate its employees’ complaints of racial harassment by their coworkers and an obligation to fairly investigate and only discipline offending coworkers, including Smith, in a manner consistent with the protections the Union afforded to all nonsupervisory employees in the workplace. As the district court aptly noted below, “[g]iven Xerxes’ collective bargaining agreement with the employees’ union, it is difficult to imagine what further steps Xerxes might have taken to discipline [its] employees or to prevent future instances of harassment.” ... Even if the alleged racial slurs by Smith had been properly reported, however, this would be an insufficient basis upon which to conclude that Xerxes’ discipline of Smith or the others in 2006 was too light to be reasonable. Plaintiffs often feel that their employer “could have done more to remedy the adverse effects of the employee’s conduct. But Title VII requires only that the employer take steps reasonably likely to stop the harassment.” ... The standard “in no way requires an employer to dispense with fair procedures for those accused or to discharge every alleged harasser. And a good faith investigation of alleged harassment may satisfy the . . . standard, even if the investigation turns up no evidence of harassment. Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred.” ... In the end, the crux of the EEOC’s claim on appeal is the same as its answer to Xerxes’ interrogatory at the outset of this litigation: that a reasonable jury could conclude that Xerxes’ response to the reports of harassment in the workplace was not “reasonably calculated to end the harassment,” ... because subsequent incidents of harassment, albeit isolated and temporally distant, occurred. This, however, is but a variation of strict liability, which employers do not bear for claims of coworker harassment. ... “While employers can and should be required to adopt reasonable policies aimed at

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preventing illegal conduct and to take reasonable measures to enforce these policies, they cannot be held to a standard under which they are liable for any and all inappropriate conduct of their employees.” ... “Employers cannot be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, irrespective of their knowledge of such conduct or the remedial measures taken in response to such conduct.” ... So long as the employer’s response to each known incident of coworker harassment is reasonably prompt, and the employer takes remedial measures that are reasonably calculated to end the harassment, liability may not be imputed to the employer as a matter of law. Here, Xerxes’ responses to each reported incident of harassment as of February 2006 were “prompt and either effective or proportional to the seriousness and frequency of the incidents, and therefore [they] were reasonably calculated to end the harassment.” ... When harassment reoccurred, Xerxes “t[ook] increasingly progressive measures to address [it].” ... Where the alleged offenders were known and the offenses could be corroborated, Xerxes took disciplinary action, in the form of counseling, written reprimands, final warnings, suspensions, and, in one instance, termination, and conducted refresher training of the workforce in its anti-harassment policies. Where the perpetrators were unknown and could not be identified, Xerxes enlisted the assistance of the local police department and warned its entire workforce of the serious consequences that would ensue if the perpetrators were identified. Holding Xerxes “liable under these circumstances would be tantamount to imposing strict liability on an employer . . . regardless of the employer’s . . . response,” ... and “would make employers insurers against future [racial] harassment by coworkers after an initial employee response, regardless of the nature of the response taken. This is liability without end,” ... Because the EEOC has failed to present sufficient evidence upon which a jury could find that Xerxes’ responses to the reported incidents of racial harassment beginning in February 2006 were not reasonably calculated to end the harassment, liability for the subsequent, isolated acts of coworker harassment of Pearson and Wilson may not be imputed to Xerxes. Accordingly, we affirm the district court’s award of summary judgment as it pertains to this time period. ... This brings us to the district court’s grant of summary judgment to Xerxes on the racial harassment claims advanced by the EEOC on behalf of Graham. In addition to granting summary judgment to Xerxes based upon its conclusion that Xerxes’ responses to the reports of harassment were reasonable, the district court expressed doubt that Graham had satisfied the threshold requirement of demonstrating that he was subjected to severe or pervasive harassment, and held that there

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was insufficient evidence that Shifflett’s alleged actions were based on race. The determination of whether “race-based harassment was so severe or pervasive as to alter the conditions of” employment includes “both subjective and objective components.” ... The employee must demonstrate that he “did perceive, and a reasonable person would perceive, the environment to be abusive or hostile.” ... “[W]hen determining whether the harassing conduct was objectively severe or pervasive, we must look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” ... The EEOC “‘must clear a high bar in order to satisfy the severe or pervasive test.’” ... Thus, we have held that “conclusory statements, without specific evidentiary support, cannot support an actionable claim for harassment,” ... and that allegations “[un]substantiated by accounts of specific dates, times or circumstances,” are too “general” to suffice, ... Here, the EEOC has failed to present sufficient evidence upon which a jury could conclude that Graham was subjected to a racially hostile work environment. Graham’s testimony consists of general statements that Churchey used a racial slur “a bunch of different times,” ... and, later, that it was “[n]ot one occasion,” ... However, his “best recollection” was only that this occurred at some point during his “time of employment” at Xerxes, which spanned from August 2004 until April 2007. Graham’s testimony is wholly unsupported by any detail, context, examples, or time frame. “Such [general] assertions, standing alone, are [simply] insufficient to sustain an actionable Title VII claim.” ... Similarly, Graham’s uncorroborated testimony that Churchey trained him poorly during the first two weeks of his employment, before he was reassigned to Carolyn Reed for training, is insufficient to establish a Title VII claim. There is insufficient evidence to show that Churchey’s poor training of Graham was based on his race and insufficient evidence that Graham’s “environment was [so] pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, [as to] creat[e] an abusive atmosphere.” ... Finally, we agree that Graham’s allegations regarding Shifflett’s conduct in January 2007 fail to support an actionable Title VII claim. Graham complains that Shifflett stared at him strangely and looked at him when he was in a bathroom stall. However, there is no evidence that Shifflett’s actions, even if they occurred, were motivated by Graham’s race, ... sustain summary judgment on hostile work environment claim), and Xerxes’ responses to Graham’s complaints about Shifflett were reasonable. Accordingly, we affirm the

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district court’s grant of summary judgment for Xerxes as it pertains to Graham. ... Because there is a genuine issue of material fact as to whether Xerxes was on notice of racial harassment of Pearson and Wilson prior to February 2006, and took no action reasonably calculated to end the harassment, we vacate the district court’s award of summary judgment as it pertains to that time period, and remand for further proceedings consistent with this opinion. The remainder of the district court’s decision is affirmed. AFFIRMED IN PART, VACATED IN PART, AND REMANDED WILKINSON, Circuit Judge, concurring: ... The court is right to recognize that the company for the most part did not sit on its hands. As the district court has documented, Xerxes took the reports of rank prejudice in its midst quite seriously. I can hardly fault the able judge for believing that taken as a whole, the company’s response was reasonably calculated to end the harassment. ...

HEALTHCARE LAW Definition of Emergency Services; Statutory Structure The district court erred in granting summary judgment to the authority and failing to grant summary judgment to Healthkeepers. The plain meaning of the word outpatient and the structure of the statute support a finding in favor of Healthkeepers in determining whether ambulance services are encompassed within the definition of “emergency services” as articulated in 42 U.S.C. § 1396u (2011). 27 FCR 11-8 Healthkeepers, Inc. v. Richmond Ambulance Authority No. 10-1508 Argued: January 27, 2011 Decided: April 25, 2011 USDC for the ED of Virginia 2011 U.S. App. LEXIS 8431 ARGUED: Gilbert Everett Schill, Jr., Richmond, VA, for Appellant; Edwin Ford Stephens, Richmond, VA, for Appellee BEFORE: Gregory and Agee, Circuit Judges; and Berger, District Judge REVERSED AND REMANDED

GREGORY, Circuit Judge: This case addresses whether ambulance services are encompassed within the definition of “emergency services” as articulated in 42 U.S.C. § 1396u (2011). Plaintiff-Appellant Healthkeepers, Inc. (hereinafter “Healthkeepers”) brought this action seeking a declaratory judgment that Defendant-Appellee Richmond Ambulance Authority (hereinafter the “Authority”) is required to comply with the rules laid out in § 1396u-2(b)(1)(D) since it is a provider of “emergency services” as defined by the statute. The appeal raises two main issues: (1) whether the definition of emergency services in § 1396u-2(b)(2)(B) applies

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to § 1396u-2(b)(2)(D) and (2) whether § 1396u-2(b)(2)(D) covers the services provided by the Authority to members of Healthkeepers’ Medicaid program. The district court granted summary judgment in favor of the Authority. The court read the definition of emergency services in § 1396u-2(b)(1)(D) as not encompassing ambulance services. Thus, it found that the Authority is entitled to set its own rates for the ambulance services it provides members of Healthkeepers’ Medicaid program. Because we disagree and find that the definition of emergency services in the statute includes emergency services provided by ambulance, we reverse. ... The outcome of this case rests solely on statutory interpretation. ... We must decide, using the text of the statute, whether ambulance services are included within the definition of “emergency services.” At first blush, relying solely on this question in the abstract, this Court is inclined to answer affirmatively since an ambulance is often used to provide emergency services as understood in common vernacular. However, we must try to discover the plain meaning of this statute using both the text and structure since “statutory construction . . . is a holistic endeavor.” ... “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme— because the same terminology is used elsewhere in a context that makes its meaning clear.” ... In order to decide this case, the Court must address two questions of statutory interpretation. First, the Court must decide whether the term emergency services in § 1396u2(b)(2)(D) should be governed by the definition in § 1396u2(b)(2)(B). Second, this Court must determine whether the appropriate definition for emergency services encompasses ambulance services. When conducting statutory analysis, we must first determine whether the meaning of the statute is ascertainable through the text alone. ... “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” ...This includes employing various grammatical and structural canons of statutory interpretation which are helpful in guiding our reading of the text. ... Addressing the first question, we look to whether the definition in § 1396u-2(b)(2)(B) applies to all references to emergency services within the text. Healthkeepers argues that the definition of emergency services in § 1396u-2(b)(2)(B) does not apply to § 1396u2(b)(2)(D) since the definition in § 1396u2(b)(2)(B) begins with “[i]n subparagraph 2(A)(i), the term “emergency services” means . . . .” This phrase suggests that the preceding d e f ini t ion on ly a p p l i e s t o t h e te r m

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“ e m e rg e n c y s e r vi c e s ” i n § 1 3 9 6 u 2(b)(2)(A)(i) and might not apply in other sections or subsequently added sections. The Authority argues that the definition in § 1396u-2(b)(2)(B) should apply to all parts of the statute since terms of art used in a statute should be given similar meaning throughout the statute. To determine which of these analyses is correct, we rely on canons of statutory construction –- two of which were identified by the district court. The first canon, which supports limiting the definition in § 1396u-2(b)(2)(B) to the term emergency services in § 1396u2(b)(2)(A)(i), is that all language in the statute should be given full effect. ... “In interpreting a statute, we should strive to give effect to every word that Congress has used” to avoid surplusage. Id. This concept represents courts’ “deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.” ... This canon favors limiting the scope of the definition in § 1396u-2(b)(2)(B) to subparagraph § 1396u2(b)(2)(A)(i). Otherwise, the directive “[i]n subparagraph 2(A)(i)” would be surplus language in the statute without any effect. The second statutory interpretation canon identified by the district court is that “identical words used in different parts of the same act are intended to have the same meaning.” ... Generally, there is a presumption of consistent usage. ... This canon is bolstered by an axiomatic canon of statutory interpretation which states that “to the extent possible, [a court’s interpretation should] ensure that the statutory scheme is coherent and consistent.” ... Here, were emergency services given two different meanings in two parts of the statute, there would be inconsistencies in its application to various services. Furthermore, there is another canon of statutory interpretation which applies by analogy. It is generally assumed that where “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” ... If that is true, then it logically follows that where Congress employs identical language multiple times such as “emergency services,” it is also deliberate. Weighing the various canons of interpretation and reading the statute for plain meaning, we find that applying different definitions to a single term of art within this one statute would be both cumbersome and illogical. The incongruity of this result on the one hand overwhelms any concerns we have over the unsubstantial surplusage on the other hand. Therefore, we affirm the district court’s reading of the statute and find that the definition of emergency services found in § 1396u2(b)(2)(B) applies to § 1396u-2(b)(2)(D).

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... After finding that emergency services in § 1396u2(b)(2)(D) is defined by § 1396u2(b)(2)(B), we turn to whether the services provided by the Authority fit that definition: In subparagraph (A)(i), the term “emergency services” means, with respect to an individual enrolled with an organization, covered inpatient and outpatient services that— (i) are furnished by a provider that is qualified to furnish such services under this subchapter, and (ii) are needed to evaluate or stabilize an emergency medical condition (as defined in subparagraph (c)). § 1396u-2(b)(2)(B). The district court correctly determined that the operative question is whether the phrase “covered inpatient and outpatient services” encompasses ambulance services. However, this is where we part ways with the district court. The district court determined, relying in-part on various dictionary definitions, that the plain meaning of “outpatient” services does not encompass ambulance services.... We disagree and find that ambulance services are encompassed in the term outpatient emergency services. The term outpatient is not defined within the statute; where a word is not defined within the statute, we turn to its common usage. ... First we turn to the plain meaning of the term outpatient emergency services. The Authority argues that the term outpatient is meant to encompass only emergency services delivered at a hospital which do not require an overnight visit – relying on the length of the stay as the sole basis to differentiate inpatient and outpatient services. This reasoning infers that all covered emergency services happen within a hospital. However, this is not supported by a close reading of the text of the definition, which makes no reference to location. Had the statute intended to limit the types of covered services based on location, it would have made clear that emergency services, both inpatient and outpatient, are only delivered once a patient crosses the threshold of the hospital. If that was true, then the distinction between inpatient and outpatient services would be superfluous since they only differentiate the length of stay, which is not relevant to the definition of emergency services. The definition makes clear that the type of service and who performs the service are the most important factors in determining whether it is an emergency service or not. The first line of the definition is: “the term “emergency services” means, with respect to an individual enrolled with an organization, covered inpatient and outpatient services” and then goes on to highlight the main points of the definition by breaking them into subsections. The two subsections of the definition focus on who is providing care and what type of care is being delivered. The focus is on the

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service being provided, not location. Thus, the structure of the definition reveals which parts of the definition were meant to be highlighted. Furthermore, the fact that the statute makes clear that the services need to be performed by “a provider that is qualified to furn i sh s u c h s e r v i c e s” im p l i e s th a t i t contemplated delivery of services outside a hospital where a non-qualified provider might be providing care. § 1396u-2(b)(2)(B). Since only qualified providers administer services within the four walls of the hospital, this concern would not be necessary if emergency services were only contemplated within a hospital. The structure of the definition supports a reading of the statute which encompasses services outside the hospital. Courts often employ tools which interpret the structure of the statute to discern its true meaning. ... Here, the definition states that “covered inpatient and outpatient services” apply, which suggests that the spectrum of services fall within its definition. There is no enumerated list of services which would lead the Court to consider a more limited definition of the services. Instead, the statute’s structure invites the Court to adopt a broader reading. Therefore, this Court finds that the term outpatient emergency services encompasses patients being treated outside of the hospital as long as the medical provider and type of service fall within the definition of emergency services. Next, since we find that the term emergency services must have meant more than services which were rendered at the hospital, we are hard pressed to imagine what might be included in outpatient emergency services if not ambulance services. The services provided by the Authority go to the very heart of the language highlighted in a subsection of the definition. As the Authority conceded at oral argument, the Authority provides services necessary to “evaluate or stabilize an emergency medical condition.” ... Therefore, we find that outpatient services must encompass ambulance services. Finally, we note that a contrary finding would have an inconsistent result and this Court has an obligation to construe statutes as being reasonable. ... The logical conclusion of the Authority’s argument would compel this court to determine that the other provisions of § 1396u-2(b) do not apply to ambulance services. This would mean, for example, that the Authority would be required to seek preapproval from Healthkeepers before rendering life saving emergency services in order to be reimbursed. This result is incongruous with the Balanced Budget Act of 1997 which sought to eliminate the need for pre-approval. Therefore, the plain meaning of the word outpatient and the structure of the statute support a finding in favor of Health-keepers. The district court thus erred in granting summary judgment to the Authority and failing to grant summary judgment to Healthkeepers. Accordingly, we reverse the judgment of the

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district court and remand for entry of summary judgment in favor of Healthkeepers. REVERSED AND REMANDED WITH INSTRUCTIONS

LAW AND EDUCATION IDEA; Home Schooling The district court correctly found that the school district had failed to provide a free and appropriate public education to a child and that the program established by the child’s parents to educate him at home was appropriate. 27 FCR 11-9 Sumter County School District 17 v. Heffernan No. 09-1921 Argued: December 8, 2010 Decided: April 27, 2011 USDC for the District of South Carolina 2011 U.S. App. LEXIS 8548 ARGUED: David Thomas Duff, Columbia, SC, for Appellant; Erik T. Norton, Columbia, SC, for Appellees BEFORE: Traxler, Chief Judge; Wynn, Circuit Judge; and Faber, Senior District Judge AFFIRMED

TRAXLER, Chief Judge: In this action under the Individuals with Disabilities Education Act (the “IDEA”), Sumter County School District #17 (the “District”) appeals from the district court’s order finding that the District had failed to provide a free and appropriate public education to T.H. and that the program established by T.H.’s parents to educate him at home was appropriate. For the reasons set forth below, we affirm. ... The IDEA requires states receiving federal funds for education to provide disabled schoolchildren with a “free appropriate public education.” ... A FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” ... Although the IDEA requires an appropriate education, it “does not require a perfect education.” .... Instead, “a FAPE must be reasonably calculated to confer some educational benefit on a disabled child.” ... Given the relatively limited scope of a state’s obligations under the IDEA, we agree with the District that the failure to perfectly execute an IEP does not necessarily amount to the denial of a free, appropriate public education. However, as other courts have recognized, the failure to implement a material or significant portion of the IEP can amount to a denial of FAPE. ... Accordingly, we conclude that a material failure to implement an IEP, or, put another way, a failure to implement a material portion of an IEP, violates the IDEA. The District contends that its failure to completely implement the 2005-06 IEP was not material because, as determined by the LHO, T.H. in fact received some educational

May 23, 2011

benefit during that school year. According to the District, the district court erred by failing to give proper deference to the LHO’s factual findings on this point. We disagree. Preliminarily, we note that it is not entirely clear whether the LHO concluded that the District failed to provide a FAPE for the 2005-06 school year. Portions of the LHO’s opinion seem to indicate that it found a denial of FAPE — the LHO stated that the District “den[ied] T.H. a FAPE for the approximately 5.0 to 7.5 hours each week he was to be provided ABA therapy and didn’t receive it in the [f]all of 2005,” ... and that the District’s “violations of T.H.’s IEPs did interfere somewhat with T.H.’s access to a FAPE,” ... However, the LHO also stated that T.H. had made progress and that T.H. received more than minimal educational benefit during the 200506 and 2006-07 school years, ... statements that, when considered in light of the scope of a state’s obligation under the IDEA, suggest the District’s failings did not deny T.H. a FAPE. ... There is, however, no need for us to decide whether the LHO determined that the District did not deny T.H. a FAPE, as the District argues, or that the District did deny T.H. a FAPE, as the parents argue, because the district court gave sufficient deference to the LHO’s decision. A district court considering a challenge to a state administrative decision in an IDEA case makes an independent decision based on its view of the preponderance of the evidence. ... The district court must give “due weight” to the administrative proceedings, but the findings of fact and ultimate decision as to whether the state has complied with the IDEA are made by the district court. ... “Due weight” means that administrative findings “are entitled to be considered prima facie correct, akin to the traditional sense of permitting a result to be based on such fact-finding, but not requiring it.” ... In this case, the district court explicitly recognized that the LHO’s factual findings were “regularly made” and thus did not fall within the exception to the due-weight requirement articulated in Doyle. ... The district court acknowledged and accepted the LHO’s factual findings, but the court believed that the evidence considered as a whole pointed to a different legal conclusion than that reached by the LHO. This was entirely appropriate and consistent with the district court’s obligation to make its own independent determination of whether the District had provided T.H. with a FAPE. Moreover, when arguing that the court failed to give proper deference to the LHO’s findings, the District largely ignores the significance of the SRO’s findings. Like the district court, the SRO was obligated under the IDEA to review the record and make an independent decision based on his view of the preponderance of the evidence. The SRO weighed the evidence differently than did the LHO and drew different conclusions from the evidence, but the SRO did not improperly

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reject credibility findings made by the LHO or otherwise depart from the accepted norm of fact-finding. Because the SRO’s findings were regularly made, they, too, were entitled to due weight by the district court. ... The question, then, is whether the district court committed clear error when making its independent determination that the District’s failure to implement the 2005-06 IEP constituted a denial of FAPE. ... We believe that question must be answered in the negative. The evidence in the record shows that the 2005-06 school year was an extraordinarily difficult one for T.H. In the fall of 2005, he was “very aversive to the teaching situation,” would not sit still “for more than a second or two,” ... and was engaging in harmful behaviors like biting himself and wiping his face until it bled. Painter, the board-certified ABA therapist who worked in the classroom in 2005-06, testified that T.H.’s problems were caused by the failure of the lead teacher and the classroom aides to properly understand and implement ABA techniques, and that it took her until July 2006 to bring T.H. back to the point where he previously should have and would have been if the teachers had understood and properly implemented the ABA methodology. While there is evidence showing that T.H. made some gains in certain skill areas tested in the spring of 2006, these gains were not so significant as to require a conclusion that received some non-trivial educational benefit from the 2005-06 IEP as implemented by the District. When the evidence of T.H.’s small improvements in a few tested areas is considered against the District’s conceded failure to provide the 15 hours of ABA therapy required by the IEP, the evidence that the lead teacher and aides (other than Painter) did not understand or use proper ABA techniques, and the evidence that it took Painter months of working with T.H. to correct the problems caused by the improper implementation of ABA techniques, we cannot say that the district court erred, much less clearly erred, by concluding that the District’s failure to properly implement material portions of the IEP denied a FAPE for the 2005-06 school year. ... Although the District now concedes that it did not provide a FAPE for the first part of the 2006 school year, it contends that as of the date of the due process hearing (December 6, 2006), it had remedied the problems with its autism program. The District thus argues that the district court should have held that the District was capable of providing a FAPE as of December 6, 2006. The District contends that such a conclusion is relevant to the determination of the scope and extent of the remedy to be imposed for the District’s failure to provide a FAPE. We agree as a general matter that postremoval changes or improvements to a school’s educational program can be relevant in the remedial context, ... and we will assume that the District’s post-removal capability to properly implement an IEP would be relevant

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to the remedial question in this case. Even with that assumption, however, we cannot conclude that the district court erred by not finding that the District was capable of providing a FAPE at the time of the due process hearing. The evidence of the District’s improved capabilities was far from concrete. The evidence established that the District had entered into a contract with MaySouth, Inc., to provide ABA consultation services, technical assistance, and training as needed by the District. As of the time of the hearing, however, a MaySouth consultant had observed the autism classroom, but there had been no ABA training or supervision, nor had MaySouth and the District even yet settled on a schedule for visits by a consultant. (A MaySouth consultant testified that he expected a consultant would probably visit the school about once a week, but certainly no less than once every two weeks.) The District had also engaged the services of Dr. Eric Drasko, a professor from the University of South Carolina and an acknowledged expert in the field, but again, the evidence of the services he was to provide was far from certain or specific.This evidence certainly shows that the District was taking seriously the need to improve its program for educating autistic students. We cannot say, however, that the District’s evidence so compellingly established the District’s capability at the time of the due process hearing that the district court committed clear error by not finding the District capable of providing a FAPE to T.H. ... We turn now to the District’s challenge to the determination that the home placement was appropriate and therefore would serve as the “stay put” placement until the District established an adequate program. According to the District, the home placement is not appropriate because it is too restrictive and because the parents failed to present sufficient evidence that the home placement was reasonably calculated to provide an educational benefit to T.H. The IDEA requires states seeking education funding to ensure that [t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C.A. § 1412(a)(5)(A) (West 2010). The LHO applied this statutory preference for “mainstreaming” to T.H.’s home placement, concluding that the home placement was not

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the least restrictive environment and therefore was not appropriate. As the district court noted, however, this circuit has “never held that parental placements must meet the least restrictive environment requirement.” ... while a parental placement is not inappropriate simply because it does not meet the least-restrictiveenvironment requirement, it is nonetheless proper for a court to consider the restrictiveness of the private placement as a factor when determining the appropriateness of the placement. ... The evidence established that the parents were well aware of the need for T.H. to interact with non-disabled children. To meet this need, the line therapist who provided ABA therapy to T.H. regularly took T.H. to parks and into the community for social interactions, and T.H.’s father likewise took T.H. into the community on a daily basis. The district court properly considered this evidence and the restrictiveness of the home placement as a factor, but not the dispositive factor, in its determination of the appropriateness of the home placement. While more detailed evidence of the nature of the community outings and the manner in which the parents were using the outings to improve T.H.’s social skills would have been preferable, we cannot say that the evidence was so thin that the district court clearly erred by considering it. The District’s claim that the more restrictive nature of the home placement and its more limited opportunities for social interaction makes the home placement inappropriate is in reality a complaint about the weight the district court gave this factor when determining the appropriateness of the placement. We see no basis in the record, however, for concluding that the district court’s determination about the relative weight to be given to this factor amounted to clear error. And on the broader question of whether the parents’ evidence was sufficient to support the district court’s conclusion that the home placement was appropriate, we again find no clear error. A parental placement is appropriate if the placement is “reasonably calculated to enable the child to receive educational benefits,” ... or stated somewhat differently, if “the private education services obtained by the parents were appropriate to the child’s needs,” ... T.H.’s mother, herself board-certified in ABA therapy, testified that T.H. was receiving approximately 30 hours per week of ABA services provided by an experienced ABA line therapist; that the parents and the ABA therapist made sure T.H. had sufficient opportunities to interact with other children; and that T.H. was progressing both educationally and behaviorally under the home program, in that he was happier, learning more, and was no longer engaging in the problematic behaviors like wiping his face until it bled. The SRO, applying the correct legal standard, considered the parents’ evidence and

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concluded that the home placement was appropriate, and the district court properly gave weight to the SRO’s analysis. And after considering all of the evidence and the SRO’s views, the district court likewise determined that the home placement was appropriate. The parents’ evidence about the home placement was not very extensive, and it was short on details and specifics. Nonetheless, the evidence established that T.H. was receiving intensive ABA therapy, the kind of therapy that the District through its IEPs had concluded was necessary to provide T.H. with an appropriate education, and that T.H. was responding well to the program. Under these circumstances, we believe the evidence was sufficient, if barely, to support the district court’s conclusion. We therefore cannot conclude that the district court clearly erred by determining that the home placement was reasonably calculated to enable T.H. to receive educational benefits. ... Accordingly, for the foregoing reasons, we hereby affirm the decision of the district court. AFFIRMED WYNN, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that Sumter County School District 17 (“the School District”) failed to provide T.H. with a free appropriate public education. However, I write separately to dissent from the majority’s holding that there was sufficient evidence in the record to show that home-placement was appropriate. In light of this lack of evidence, I would remand this matter to the district court for additional fact finding. ...

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May 23, 2011

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