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Criminal Practice – Judge Should Have Provided Jury Instructions

U.S. v. Clarke (Lawyers Weekly No. 001-164-16, 20 pp.) (Wynn, J.) No. 15-4299, Nov. 18, 2016; USDC at Alexandria, Va.; 4th Cir.

Holding: A district court did not err in refusing to suppress evidence found in an inventory search of defendant’s vehicle, which police impounded after arresting defendant when he met an undercover agent at a restaurant for the purpose of having sexual relations with the agent’s fictitious nine-year-old daughter and eight-year-old son, as the evidence indicated the officers completed the search in accordance with standard criteria in the Virginia State Police’s inventory search policy; although the district court should have provided counsel with jury instructions prior to closing arguments, the error was not prejudicial, the 4th Circuit holds.

Jury Instructions

By refusing to provide its jury instructions to counsel before closing argument, the district court violated Fed. R. Crim. P. 30(b). This violation placed defendant’s counsel in the difficult position of having to argue to the jury without knowing how the court would ultimately instruct the jury. The violation also deprived the parties of the opportunity to lodge objections to the proposed instructions and thereby give the court the opportunity to correct any errors before instructing the jury.

Nevertheless, although the court violated Rule 30(b), we may reverse only if defendant demonstrates that the violation resulted in actual prejudice. We have not yet had occasion to consider what constitutes prejudice when a district court violates Rule 30(b) by failing to provide counsel with jury instructions before closing arguments. However, this court’s decision in U.S. v. Horton, 921 F.2d 540 (4th Cir. 1990) – which dealt with the related question of whether a district court reversibly erred by failing to give counsel additional time for argument after the court provided a supplemental instruction – is instructive.

Here, as in Horton, defendant fails to demonstrate actual prejudice because the district court’s error did not inhibit defendant’s counsel from making his “essential” argument to the jury: that the government had to prove defendant intended to transform or overcome the will on the part of the minor.

Because defendant’s counsel was able to make all arguments essential to his case, because those argument reflected the instructions ultimately provided by the court and because the government introduced sufficient evidence to convict defendant under the correct legal standard, we conclude the district court’s violation of Rule 30(b) did not prejudice defendant.

We also hold the district court’s instruction fairly and accurately reflected the applicable law on the definition of “induce” under 18 U.S.C. § 2422(b).

Finally, there was sufficient evidence to convict defendant under § 2244(b) without his having communicated directly with a minor, and his having communicated only through an adult intermediary. Our sister circuits have uniformly concluded that § 2422(b) extends to adult-to-adult communications that are designed to persuade the minor to commit the forbidden acts. We agree and therefore hold that communications with an intermediary aimed at persuading, inducing, enticing or coercing a minor to engage in sexual activity fits within the common understanding of a criminal attempt that is prohibited by § 2422(b).

Conviction affirmed.

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