In criminal cases, the Fourth Circuit defines a “plain error” as one that is obvious, detrimentally affects the rights of the defendant, and is so egregious as to implicate the “fairness, integrity, or public reputation of judicial proceedings. . .” United States v. Bellamy, 264 F.3d 448, 445 (4th Cir. 2001), cert. denied, 543 U.S. 1143 (2002). This very strong language makes it clear that plain error is not a term used by the Circuit to describe harmless or justifiable mistakes. Rather, a plain error is one that clearly contradicts the law, compromises the rights of the defendant, and involves a serious lapse of judgment. In a number of cases, the conservative Fourth Circuit found that Boyle had committed “plain error,” usually harming an individual litigant’s rights.
One egregious instance in which Judge Boyle was reversed for committing plain error occurred in U.S. v. Garrison, CR-94-138-MU (W.D.N.C. 1996), rev’d, 1996 U.S. App. LEXIS 5827 (4th Cir.1996). As part of a plea agreement with a criminal defendant, the government agreed to request a downward departure from the sentencing guidelines. The government further agreed that any information learned from the defendant pursuant to the plea agreement would not be used in determining the guideline sentence. The government breached the agreement, however, by using evidence learned as a result of the plea agreement in drafting its presentence report. This improperly-included evidence resulted in a much higher guideline sentence than would have been calculated had the improper evidence not been used. It was from this higher guideline sentence that the government then asked Judge Boyle to depart.
When defense counsel objected to use of the presentence report, Judge Boyle forced the defendant to choose between having the objection resolved and imposition of the lighter sentence. Boyle told defense counsel, “I can either give him a guideline sentence, which I would be glad to do, or depart . . . You don’t get both, do you follow me?” 1996 U.S. App. LEXIS 5827 at 4 (4th Cir.1996). The Court of Appeals found that forcing the defendant to chose between resolution of his objections to the presentence report and receiving the downward departure constituted “plain error,” and the sentence was vacated and remanded. Id. at 9.26
In U.S. v. Adams, 2001 U.S. App. LEXIS 14572 (4th Cir. 2001), the Fourth Circuit held that Judge Boyle had committed “plain error” twice in the same case. First, he ordered the defendant, who was convicted of videocassette piracy, to pay restitution to the copyright holders, despite the fact that the defendant’s illegal videocassettes had been seized before he had the opportunity to sell any of the videos. The Fourth Circuit cited a number of cases, including Fourth Circuit precedent (Walker v. Forbes, Inc., 28 F.3d 409, 411-12 (4th Cir. 1994)) and a United States Supreme Court decision (Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 567 (1985)), in explaining that restitution is not a proper remedy when the copyright infringer has made no profit and his victims have suffered no diminution in the values of their copyrights. Id. at 3-4.
The second plain error in the Adams case resulted from Judge Boyle’s order foreclosing the defendant’s eligibility for federal benefits for a period of five years. Id. at 5. The Fourth Circuit explained that the statute allowing foreclosure of federal benefits is only applicable to drug traffickers and possessors. Id. Indeed, as the Court of Appeals noted, the statute is actually entitled “Denial of Federal benefits to drug traffickers and possessors,” making it obvious that copyright infringers are not among the class of criminals to which the statute applies. Id. Notwithstanding President Bush’s frequent claim that he wants to appoint judges who will interpret and not make the law, this is clearly an example of Judge Boyle seeking to, in effect, rewrite a specific federal statute. The court of appeals held that Judge Boyle’s application of the statute to a copyright infringer constituted a “plain error,” and vacated and remanded the case. Id. at 5-6.
Other cases in which the Court of Appeals held that Judge Boyle had committed “plain error” include:
- U.S. v. Barry, 2002 U.S. App. LEXIS 23237 (4th Cir. 2002), in which the Fourth Circuit found that Judge Boyle erred in upwardly departing from the guideline sentence of 84 months, nearly tripling the sentence to 240 months, without giving the defendant any notice. In its decision, the Fourth Circuit chided Judge Boyle, saying that “apparently, the court believed there was no specific Guideline sentence for Barry’s handgun conviction and that Barry could be sentenced anywhere within the statutory range of seven years to life.” Id. at 7. The court pointed out that, in fact, there was a guideline sentence, making Boyle’s significant upward departure without notice or explanation a “plain error.” Id. at 7, 9. The Fourth Circuit remanded the case for re-sentencing. Id. at 11.
- U.S. v. Williams, 2002 U.S. App. LEXIS 696 (2002), in which the Fourth Circuit reversed a sentence imposed by Judge Boyle as “plain error,” id. at 13, because Boyle had wrongly departed upwardly in sentencing by miscalculating the defendant’s offense level for sentencing purposes. The Fourth Circuit pointedly stated that “[n]o court of justice would require a man to serve . . . undeserved years in prison when it knows the sentence is improper.” Id. at 25 (quoting U.S. v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996)).
- U.S. v. Corbett, 1998 U.S. App. LEXIS 999 (4th Cir. 1998), in which the Fourth Circuit held that Judge Boyle had committed “plain error” by ordering a defendant to pay restitution without making any findings regarding the defendant’s ability to pay. Id. at 5. In so ruling, the Court of Appeals cited two Fourth Circuit precedents (United States v. Molen, 9 F.3d 1084 (4th Cir. 1993) and United States v. Bruchey, 810 F.2d 456 (4th Cir. 1987)) making it clear that a district court must take into account a criminal defendant’s ability to pay before the court may order restitution. Id. at 6.
- U.S. v. Livingston, 1994 U.S. App. LEXIS 6435 (4th Cir. 1994), in which Judge Boyle was found to have committed plain error when he enhanced a guideline sentence he imposed on a convicted defendant who had made a death threat during an armed robbery. The guidelines expressly state that when the defendant has used a gun in a robbery, the sentence cannot be enhanced for making a verbal death threat. United States Sentencing Commission, Guidelines Manual (Nov. 1992), guideline 2B3.1(b)(2)(A-F). In this case, the government itself expressly conceded that the sentence imposed by Judge Boyle was “plain error,” and the Fourth Circuit reversed. 1994 U.S. App. LEXIS 6435 at 2.
- U.S. v. Arrington, 1998 U.S. App. LEXIS 17088 (4th Cir. 1998), in which Judge Boyle was criticized by the Fourth Circuit for committing a “clear error” and abusing his discretion in denying a motion for reconsideration brought by a man who was sentenced for “using” a firearm during the commission of a drug-related crime, even though the weapon had not actually been used. As the appellate court pointed out, Supreme Court precedent plainly requires that in order for a defendant to be convicted for “using” a firearm in a drug crime, “active employment” of the weapon must have occurred. Bailey v. U.S, 516 U.S. 137, 144 (1995). The Supreme Court has described “active employment” as “brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm.” Id. at 148. However, Judge Boyle determined in Arrington that it was sufficient that the accused personally knew firearms were available to him at the scene to protect and embolden him. The Fourth Circuit rejected Boyle’s holding and found it to be a “clear error of law.” 1998 U.S. App. LEXIS 17088 at 5. The Fourth Circuit also concluded that “the [district] court abused its discretion” in denying Arrington’s motion for reconsideration. Id.27
- U.S. v. Hanno, 21 F.3d 42 (4th Cir. 1994), in which the Fourth Circuit found Boyle erred when he empanelled a jury to hear Hanno’s trial and then, before the trial began, removed six jurors from the Hanno jury, presumably to put them on another case, without notice to Hanno’s counsel or an opportunity for counsel or Hanno to be present during this action. The court, finding “plain error,” vacated the sentence and remanded for a new trial. Id. at 49.