Special thanks to Alicia Kapolis and Primrose Mungwari for helping prepare these materials.
Fed. R. Civ. P. 1001(1) - Writings and recordings include computers and photographic systems.
Fed. R. Civ. P. 26(a)(1)(C)- Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party's possession, custody, or control.
Fed. R. Civ. P. 34 - Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email, and social media. These and other miscellaneous information can be found on hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smartphones and virtually any electronic source.
(1) Produce and permit the party making the request, or someone acting on the requesting party's behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, electronic records, and other data compilations from which information can be obtained, translated, if necessary, by the requesting party through detection devices into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served; (emphasis added).
request text and email evidence through the use of a Request for Production. It is certainly appropriate as well to inquire about text and email evidence through written Interrogatories. Further, a properly obtained text or email could be attached to a Request for Admission where the other party is asked to admit or deny the authenticity of the communication. It is certainly possible as well to make a request pursuant to Rule 58.01 or Federal Rule of Civil Procedure 34 for a forensic computer expert to inspect the hard drive of a computer, smartphone or tablet for relevant text or email evidence (provided that safeguards are put into play, where appropriate, for the protection of privileged and confidential communication through a special master or otherwise).
The use of email by opposing spouses falls within the interplay of wiretapping and electronic stored communications laws, and consequently, courts have had some difficulty in determining which laws, if any, apply. The predominant approach seems to be that emails prior to being sent or once received do not fall within wiretapping statute.
Take for example a case from the North Carolina Court of Appeals, Evans v. Evans, where sexually explicit emails offered by the husband in a divorce action did not violate ECPA where interception of emails was not contemporaneous with transmission. The emails were recovered from the hard drive of the family computer.
In Gurevich v. Gurevich, a wife sought to introduce as evidence emails she obtained from her estranged husband's email account, in a divorce proceeding. The wife contends that the husband gave her the password and never revoked her from accessing his email account. The court references CPLR 4506 Penal Law section 250.05, which states that "[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication." The court took the position that even if the husband's facts were true, the wife may have unlawfully retrieved information from his computer but there was no interception, which does not violate CPLR 4506. The emails were admissible at trial as long as the email did not violate the attorney-client privilege.
In White v. White, the wife hired a computer expert to find and copy her husband's e-mails that were stored on the hard drive of the computer in the family home. The court held that the wife did not violate the SCA, because it determined the e-mail was not in electronic storage when it was accessed because the computer hard drive was not electronic storage. They also determined that the access was not without authorization.
With further regard to the discovery of emails, subpoenaing internet service providers will typically only generate the sender and recipient of a message. ISP's, like cell phone providers, often delete this information quickly. However, certain service providers retain the data. Thus, it may be worth the attempt.
Further, it is vitally important that any email evidence is obtained in an appropriate and ethical manner. In, In re: Joel B. Eisenstein, which was a litigated divorce, an attorney received emails contained privileged and confidential information after his client hacked into the opposing parties' personal email account without permission. In particular, Husband obtained and delivered to his attorney Wife's most current payroll documents and a list of direct examination questions e-mailed to her in preparation for trial. Attorney did not "immediately disclose the receipt of the information to opposing counsel," but instead improperly obtained payroll information during a pre-trial settlement conference. Attorney also sent a "[t]hreatening" email to opposing counsel to "avoid an ethics complaint." The OCDC filed an Information charging the attorney with violating Rules 4-4.4(a) for using methods of obtaining evidence in violation of the rights of a third person; 4-8.4(c) and (d) for reviewing and using improperly obtained evidence; and 4-3.4(a) for unlawfully concealing a document having evidentiary value. The attorney admitted that he had viewed the information and that he did not immediately disclose his receipt of this information to the opposing party. The Missouri Supreme Court held that this was misconduct warranted such suspension of his law license, under Standards 6.1 and 6.12., for a minimum period of six months.
Most email systems, for instance, allow a person forwarding an email to edit the message being forwarded. Such alteration would not be discernible to the recipient. Emails are also more prone to a kind of hearsay-within-hearsay problem: an "email chain" attaches to an email every email that came before it in a discussion. It isn't enough to get the most recent email into evidence when that email attaches a string of previous emails. All of the prior emails may need to be separately authenticated and found admissible.
A court might deem attachments to authenticated emails are themselves authenticated. However, it is important to not take this for granted at the same time. In Madison Holdings, LLC v. Punch Int'l, Plaintiffs objected to documents attached to Maes' executed declaration filed on June 30, 2008. Specifically, Plaintiffs objected to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and two marked-up drafts of the APA, which were attachments to the email. Although these documents were not originally attached to Maes' unexecuted declaration when it was first filed on June 13, 2008, the Court, in its discretion, allowed them. Defendants contend that Maes discovered, upon final review of the materials, that these documents were missing and, as such, produced them when he executed the declaration. Additionally, Plaintiffs contended that Defendants failed to properly authenticate the email attachments. The Court, however, disagreed. These documents were attachments to an email that was authenticated by Maes' declaration. Accordingly, Plaintiffs objections were overruled.
Images and photos are often attached to email and text communication and can present admissibility challenges. Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph. Videos are typically authenticated in the same manner as a still photograph. I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.
Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial courts admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of facts evaluation of non-demeanor evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review, but this more stringent approach is often not strictly applied. However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.
That there are inaccuracies or defects in the photograph does not necessarily render it inadmissible as long as there is an explanation of these imperfections so that the jury is not misled.
However, in Kaps, the Alaska Supreme Court excluded the photograph in question because the defendant's accident reconstruction expert was attempting to use the photograph, in conjunction with a reconstructive technique known as perspective analysis, to establish how far across the highway centerline the Plaintiff had alleged strayed. In order to use a photograph as a basis for perspective analysis reconstruction, the focal length used to take the photograph and the conditions under which the photograph was taken must be known with a substantial degree of precision, which the Defendant could not show. In this case, the photograph was to be used to provide actual data about the accident scene rather than merely illustrating the area. Hence, it was subject to a more rigorous authentication process which it ultimately failed.
Similarly, where a photograph is offered to prove that some condition did not exist, a court will look closely at the time frame when a photograph was purportedly taken. but still use a common-sense case by case analysis. For example, if a photograph is offered of criminal defendants' hands purporting to show that there was no gunshot residue, and then the offering party must establish that the photograph was taken at a time when gunshot residue would still be apparent. Absent that showing, the photograph may not be admitted. On the other hand, where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.
Videos and photos can also often be attached to email and text communication and can, likewise, present admissibility challenges. One of the questions we are asked more often than any other is "can you tell me if this audio or video recording has been edited?" It is always best to preserve the original recording to remove all doubt about the genuineness of the recording. In other words, the original evidence is only original if it has not been copied or cloned for analysis.
In the realm of cell phones and tablets lurk two significant federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and the Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without the consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones. As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate, a woman had a cause of action against her lover's wife who was intercepting phone conversations and recording voicemail messages.
The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing, but that is changing. Text messages or Short Message Service (SMS) messages may be worth tracking down because a lot may be said in the 224 characters that some phones now allow. SMS messages may also transmit photos, sounds, and videos. As many people now communicate far more frequently through text message than phone calls, these may provide an excellent source of information when it comes to proving the behavior of the opposing party.
Outside of intercepting telephone conversations or voicemails, smartphone data and tablets are akin to a computer.
Typically, subpoenaing cell phone records through providers is much easier than subpoenaing social media or email providers. This is because unlike social media websites, cell phone providers, at least more likely than not, do business in your state. Therefore, you simply serve a subpoena on a registered agent if they have one within the state. If they do not have a registered agent, physically serve the subpoena on a company store. Like any subpoena, it must be calculated to produce relevant evidence, and remember, if you decide to subpoena the provider, you are unlikely to receive the content of any text message conversations. If text messages or emails are what you seek, you are likely better off trying to get them from the opposing party via appropriate discovery mechanisms. However, you might be able to subpoena email records from a business located in your state.
Thus, the SCA only prohibits an electronic communications service from knowingly divulging communications that are either in temporary storage (such as a message waiting to be delivered) or kept for the purposes of backup protection.
Several courts disagree when to classify certain types of communications with respect to these two categories. As a general rule of thumb, however, it is safe to assume that if a message has not been opened by its recipient, it operates as part of an electronic communication service. If the recipient has opened and retained the message, however, it operates as a remote computing service.
Thus, in order to work with phone companies (and social media companies), you should always first check that company's website and/or terms of service to understand their approach to responding to third-party discovery requests. Depending on a company's terms of service and the extent of SCA protection, a service provider may be able to quash even a subpoena for relevant information. Therefore, it is best to try and first procure voluntary consent, since the SCA stipulates that a service provider may divulge communications where the originator or recipient of the communication gives their consent. Notice that the consent of the originator or recipient is required-meaning if consent is denied from one, you may be able to procure it from the other. Once this consent is obtained, there should be no trouble in procuring the relevant data from the service provider. Otherwise, attempt to seek a court order compelling the consent or a subpoena.
Keep in mind that negotiating for consent takes time and that digital information may be lost before consent can be obtained. Therefore, it is important you put the service provider on notice that you will be seeking their voluntary or compelled consent to obtain the sought-after information and request that they preserve that information for the purposes of litigation. Afterward, follow up with them and seek assurance that the information is being preserved, and offer to compensate them for any reasonable expenses incurred in preserving that information. Note that most jurisdictions hold that such a request does not create a real duty in a third-party to preserve any information. That is why it is extra important that you offer the service provider as much accommodation as you can afford to ensure their cooperation. One way around would be to obtain a preservation subpoena-but that would require that your court have jurisdiction over the non-party. However, the jurisdictional requirement harshly limits the usefulness of this strategy.
Once a subpoena has been issued, perhaps the most common defense is that it violates the rights to privacy. In State v. Clampitt, it was held that individuals have a reasonable expectation of privacy in their text messages and anything else on their phones including emails. Unlawful access to cell logs or text messages breaches that right to privacy under the Fourth Amendment, and that getting such records requires a search warrant. In this case, the police sought to get text message logs via investigative subpoenas that did not specify which particular recipient messages were needed, and which were extended each time the time period specified lapsed. This meant in effect police went through his all incoming and outgoing text messages searching for an admission or something to use against him, and if they found none, applied for an extension of the dates in the hope of getting such information. This was held to be a violation of, inter alia, his Fourth Amendment rights.
Consistent also with the ruling in Clampitt is United States v. Warshak, which spoke specifically on email messages, and held emails were similar to telephone calls and letters and, therefore, require the same protections traditionally afforded to telephone and letters under the Fourth Amendment. Third parties, such as service providers who have the capacity to monitor these communications are not compelled to hand over email and text messages without a warrant showing probable cause.
Generally, courts have a broad discretion on ruling on admission or exclusion of any evidence at trial including email and text messages. Electronic messages, particularly emails give rise to the difficulty of authenticating their actual author; even if they have been sent from one's email address. This is because it is possible that anyone can send an email from someone else's email address. Additional proof is therefore needed to establish authorship.
[T]he proponent of such evidence must present some proof that the message[s] were actually authored by the person who allegedly sent them.
This rule was also applied in State v. Francis where the court examined the admissibility of non-testifying third-party text messages sent to Appellants phone, and text messages sent allegedly by the Appellant from that phone. The Appeals Court held there must be evidence that the messages were actually authored by the person alleged to have sent them. This includes admissions by the person who sent them or circumstantial evidence such as testimony by the recipient that they have in the past received messages or calls from the alleged author from that number. There could also be something which shows the author wrote the message, such as a personalized signature. Mere ownership of the phone or possession, does not presume authorship of all outgoing messages. Further, for non-testifying third party texts (incoming texts), which are ordinarily regarded as hearsay, to be admissible, they must fall under any identified exception to the hearsay rule. Such evidence is also only admissible to give contextual meaning to the reply.
The Missouri Court of Appeals, Eastern District in T.R.P v. B.B. , recently (June 2018) confirmed the foundational requirements as stated in Harris on the authorship of the message, and highlighted that evidence of authorship can be circumstantial and need not be onerous. In this case, Respondent testified that the Appellant in addition to sending text messages from that number had also previously called and identified himself and this was enough to determine that Appellant had indeed sent the text message.
Recently, courts have not had great difficulty in accepting the fact that a printout or a screen shot is an accurate representation of various online communications. In United States v. Catraban, the defendant contended that the computer printouts used against him were inaccurate, and he was able to show the inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence as opposed to the issue of authentication. One court has even stated that the computer printouts "have a prima facie aura of reliability." Increasingly, the only bar to admission of ESI is identifying the author and/or finding the applicable hearsay exceptions.
Similarly, in United States v. Tank, it was held that chat room transcripts and printouts, much like e-mails, could be authenticated by the testimony of one of the participants in the online chat. However, the level of proof to authenticate ESI varies from jurisdiction to jurisdiction. In People v. Charlery, there was a detective who retrieved and printed Hotmail messages. He testified as to the process of retrieval and this satisfied the authenticity requirement. Other jurisdictions will require more strenuous proof on the reliability of the computer processing system. Some jurisdictions have allowed distinctive characteristics to authenticate ESI, such as profile pictures on social media accounts.
A common objection to ESI evidence is found under Fed. R. Evid. 901 that the material is not authentic. The attorney should then proceed to various authentication techniques. These techniques include asking the owner or creator of the account if they sent the questioned content under Fed. R. Evid. 901(b)(1); formulating requests for admission with printout of the desired communication attached; third, you can bring in an expert to testify under 901(b)(3) or maybe even 901(b)(0); fourth, you can use distinctive characteristics under 901(b)(4); and finally, you could potentially use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating electronic evidence, the practitioner should be prepared to meet the most exacting standards.
Specifically, e-mails can be authenticated by an admission secured by the author or the sender of the communication that they drafted or sent the communication. It will be given more weight to authenticity if a recipient or non-recipient of the communication had knowledge of it. Additionally, a witness with the knowledge of how the communication carrier sends and receives the information could help authenticate it, as well as information about how it might be stored.
Chat room communications or transcripts may be authenticated if the proponent demonstrates that: (1) the alleged sender had access to the appropriate computer; (2) the chats were conducted at the same time as the person in question admitted to communicate; (3) the chats were being conducted using a screen name created by the person in question; and (4) the content of the chats were similar to what the person in question admitted.
In Campbell v. State, the court upheld the admission and authentication of Facebook messages in a domestic assault case. The court asserted that Facebook presents an authentication concern that is twofold. First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate. The second concern is that any person may gain access to another person's account by obtaining the user's name and password. The person viewing the profile cannot be certain that the author is, in fact, the profile owner. However, the most appropriate method for authenticating electronic evidence, as with any kind of evidence, will often depend on the nature of the evidence and the circumstances of the particular case. The appellate court held that the contents of the Facebook messages provide circumstantial evidence supporting the trial court's ruling.
Rule 902(13): Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
Rule 902(14): Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).
Without a doubt, the addition of these two rules potentially allow for a more uniformed approach to authenticating electronic evidence and smoother trials where: (a) experts are utilized; and (b) there is no dispute over the authenticity of the records. There is the potential concern, however, that there is too much overlap with existing rules. Specifically, that the new rules 902(13) and 902 (14) may create problems with other provisions of 902, 901, 104 (a) and 104 (b).
When there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission; thus, authenticating a text message or e-mail may be done is much the same way as authenticating a telephone call. An e-mail may be authenticated by circumstantial evidence that allows the finder of fact to determine that the e-mail is what the proponent claims it to be.
The possibility of alternation does not and cannot be the basis for excluding ESI as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation's population and is of particular importance in the professional world. A party is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are submitted to a jury. In United States v. Safavian, the court found that absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done. The take away from Safavian is that the court in most cases will recognize that manipulation is possible, but there is still the evidence that is required to show that it was. And even then, if it is not overly, convincing, courts have said that information goes to the weight of the evidence, to be considered by the trier of fact.
White v. White, 781 A.2d 85 (N.J. Super. Ch. 2001).
Conner v. Tate, 130 F. Supp. 2d 1370, 1373 (N.D. Ga. 2001).
18 U.S.C. § 2702(a)(1); (b)(3).
See The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 229-230 (2013).
board 'generally speaking' last 'from minutes to hours to a few days at maximum.'").
People v. Charlery, 2014 WL 5396166, at 4-5 (V.I. Super. Oct. 22, 2014).
Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)).


text: perfective participle of খাওয়া: খাওয়া [ khāōẏā ] v to eat; to drink (জল খাওয়া); to take or enjoy (চা খাওয়া, ওষুধ খাওয়া, হাওয়া খাওয়া); to smoke (সিগারেট খাওয়া); to chew (পান খাওয়া); to accept or take (ঘুষ খাওয়া); to take or receive, to suffer (মার খাওয়া, কিল খাওয়া); to cause to lose, to cause to be dismissed from (চাকরি খাওয়া); to spoil or ruin (মাথা খাওয়া); to consume or absorb (লণ্ঠনটা খুব তেল খায়); to eat away, to wear away, to corrode. ☐ a. eaten or drunk or taken or smoked or chewed completely or incompletely (পাখিতে খাওয়া ফল); used by one whilst eating or drinking and yet unwashed (খাওয়া থালা); partly eaten away or worn away or corroded. কিল খাওয়া v. to receive a blow; to be buffeted. কুরে খাওয়া v. to scrape or gnaw away, to eat away. গালি খাওয়া v. to be rebuked or rated. চরিত্র খাওয়া n. character-assassination. বকুনি খাওয়া v. to be rebuked or abused or reprimanded, to be taken to task. খাওয়া খাওয়ি n. mutual entertainment at tables; mutual feasting; (idiom.) mutual quarrelling (খাওয়া-খাওয়ি করা). খাওয়া-দাওয়া n. eating and drinking. খাওয়া-দাওয়া করা v. to eat and drink. খাওয়ানো v. to feed; to cause to eat or drink or take or smoke or chew; to cause to accept (ঘুষ খাওয়ানো); to cause to receive or suffer (মার খাওয়ানো); to cause to spoil or ruin (মাথা খাওয়ানো); to cause to consume or absorb (তেল খাওয়ানো); to cause to be eaten or worn away; to cause to be corroded.

matches: v. v. v. v. v. v.


Alewine v. Southern Ry. Co.
Appeal from the Circuit Court, Colbert County, N. Pride Tompkins, J.
S. Shay Samples and Richard D. Stratton of Hogan, Smith, Alspaugh, Samples Pratt, William R. Hovater, Birmingham, for appellant.
Steve A. Baccus and David K. Howard of Almon, McAlister, Ashe, Baccus Tanner, Tuscumbia, for appellees.
Plaintiff Henry Alewine's automobile collided with a Southern Railway train. His wife Roxie, a passenger in his car, was killed; Henry was injured. He sued Southern Railway and other defendants, individually and as administrator of his wife's estate, and is appealing from a judgment entered on a jury verdict for the defendants.
The sole issue presented is whether the trial court erred to reversal by refusing one of the plaintiff's requested jury instructions. We affirm that portion of the judgment in favor of Southern Railway and against Henry Alewine, individually. We reverse that portion of the judgment in favor of Southern Railway et al. and against Henry Alewine as administrator of the estate of Roxie Alewine.
The defendants contend that the plaintiff failed to preserve this issue for review by not objecting with enough specificity to point out to the trial court its alleged error in refusing the charge.
The suit charged negligence on the part of the defendants and one of the defenses was contributory negligence on the part of the driver and the passenger.
"We would respectfully except to the court's failure to give requested jury charges numbers 2, 6, 12, 13, 16, 18, 19, and 20. We also except to the court's failure to charge the jury that the contributory negligence, if any, of Mr. Alewine, is not a bar to recovery to the estate of Roxie Alewine."
"Negligence, if any, of a husband driving an automobile in which the wife was riding as a guest does not bar the wife's right to recover against a third party if the wife is otherwise entitled to recovery."
In its oral charge to the jury, the trial court made several references to the fact that a finding of contributory negligence on the part of Mr. Alewine would bar his right to recover against the defendants. The court had also instructed the jury that Mrs. Alewine, as a passenger in the automobile, had a duty to use reasonable care to avoid injury to herself. Nowhere in the court's oral charge is there any mention of how a finding that the driver was negligent would affect the passenger's right to recover. The plaintiff's requested charge number 26, which the court refused, contained a correct statement of the law on that issue.
The question is: Was the plaintiff's objection sufficient to call the deficiency to the trial court's attention? We hold that it was in this case. Contributory negligence was a major issue in the case. There was abundant evidence from which the jury could find contributory negligence on the part of the driver. The passenger's representative was entitled to have the jury instructed on the effect of such a finding on a passenger's right to recover. The court did not so instruct the jury, and reversal is required if the issue was preserved.
"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. . . ."
"Specificity has been regarded as extremely important by federal cases interpreting FRCP 51. Most cases draw a distinction between objections which recite portions of instructions and those which simply refer to instructions by number. An example is Delancey v. Moticheck Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970). There an objection in the form, `In regard to defendant's submitted special charges 5 and 6 we would like to object to the court having given those charges', was held insufficient to preserve error, while an objection specifically pointing out the `failure of the court to instruct, or define the term "wilful misconduct'" was within Rule 51, even though no grounds were stated.
"This is not to say that the practice of specifically reciting objectionable portions of a charge will normally relieve a party from stating grounds for objections; however, this case is an exception because of the error involved. The trial Judge's instruction in the instant case misstated a point of substantive law. Federal courts, in narrow and limited circumstances, have held that misstatements of substantive law in jury instructions can be preserved for review without specifically stating grounds for objection."
"It is true that we have construed Rule 51 to proscribe general objections. This Court has often held that a party has waived appellate review based upon the `grounds' requirement of Rule 51. See Burnett v. Martin, 405 So.2d 23 (Ala. 1981), Wright v. Waters, 367 So.2d 960 (Ala. 1979). We have also said, however, that an overly rigid enforcement of Rule 51 should not be permitted. Hosey v. Siebles Bruce Group, S.C. Ins. Co., 363 So.2d 751 (Ala. 1978). `Rule  [will] not be so technically construed as to obliterate its spirit.' Odom v. Lindsey, 365 So.2d 664 (Ala. 1978). The essential purpose of Rule 51 is to give the trial court an opportunity to correct its instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remediable mistakes. See Hosey, at 753, Gardner v. Dorsey, 331 So.2d 634 (Ala. 1976), Crigler v. Salac, 438 So.2d 1375 (Ala. 1983). That being the purpose, we have held that where an oral charge is misleading or confusing, strict adherence to the grounds-stating requirement of Rule 51 is necessary to achieve the essential spirit of the Rule. . . ."
Under the circumstances presented by this case, the plaintiff's objection was not so general as to violate the spirit of Rule 51. The trial court could not have misunderstood the point being made by the objection to its refusal to charge the jury on this issue. It was a major issue in the case, and the plaintiff's objections to the court's charge referred to it expressly.
"Surely, the Rule does not contemplate that the objecting party, in order to preserve for review an erroneous instruction, is required to deliver a discourse before the trial judge on the applicable law of the case."
Gardner v. Dorsey, supra, at 637.
"It is the duty of the trial judge to educate the jury on the trial of the case. Raines v. Williams, 397 So.2d 86 (Ala. 1981), Health Maintenance Group of Birmingham v. Rutledge, 459 So.2d 889 (Ala.Civ.App. 1984). We agree with the Fifth Circuit Court of Appeals: `It is the inescapable duty of the trial judge to instruct the jurors fully and correctly on the applicable law of the case, and to guide, direct and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth.' McClendon v. Reynolds Electrical Engineering, 432 F.2d 320 (5th Cir. 1970), quoting from 2B Barron and Holtzoff, Federal Practice and Procedure, § 1105 at 470 (1961)."
Grayco Resources, Inc. v. Poole, supra, at 1033.
We hold that the trial court erred in failing to charge the jury on the legal effect a driver's negligence would have on a passenger's right of recovery. We also hold that the objection was sufficient to comply with Ala.R.Civ.P. 51 under the circumstances of this case. Accordingly, that portion of the judgment of the trial court in favor of defendant Southern Railway et al. and against Henry Alewine, individually, is affirmed. The judgment of the trial court in favor of Southern Railway et al. and against Henry Alewine as administrator of the estate of Roxie Alewine, deceased, is reversed and the cause is remanded.
TORBERT, C.J., and JONES, ADAMS and STEAGALL, JJ., concur.


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Colorado Law And Unfair Insurance Claim Practices | Fuicelli & Lee, P.C.
2. An insurer should give equal consideration to the interests of the insured as it does to its own interests with neither interest being superior. Bailey v. Allstate Insurance Co., 844 P.2d 1336 (Colo. App. 1992), Egan v. Mutual of Omaha Insurance Company, 598 P.2d 452 (Cal. 1979), cited with approval in Farmers Insurance Group, Inc. v. Trimble, 805 P.2d 419 (Colo. 1993).
3. An insurer should not deny a claim based on speculation or conjecture. Rawlings v. Apodaca, 726 P.2d 565, 572 (Ariz. 1986).
4. An insurer’s decision to deny a claim should be based on information known at the time of denial, not information later discovered. Pfeiffer v. State Farm Mutual Auto Insurance Company, 940 P.2d 967 (Colo. App. 1996).
5. An insurer should exercise a quasi-fiduciary duty to its insured in the context of the a claim for uninsured or underinsured motorist benefits. Peterman v. State Farm Mutual Auto Insurance Co., 961 P.2d 487 (Colo. 1998). Handling uninsured or underinsured motorist claims should not be adversarial.
6. An insurance company should not deny a claim without substantial justification. Giampapa v. American Family Mutual Auto Insurance Company, 64 P.3d 230 (Colo. 2003).
7. A willful and wanton breach is a refusal to pay insurance benefits when due. This is established when an insurer acts without justification and in disregard of the plaintiff’s rights. Pham v. State Farm Mutual Auto Ins. Co., 70 P.3d 567, 572 (Colo. App. 2003). An insurer is responsible for non-economic damages caused by its willful and wanton denial of an insured’s claim for first-party benefits. Giampapa v. American Family Mutual Auto Insurance Company, supra.
8. An insurer must keep an insured reasonably apprized of the status of the insured’s claim for benefits. C.R.S. Section 10-3-1104(1)(h)(II)(V)(VI)(XIV).
9. An insurer should not investigate, evaluate or deny a claim based on biased, one-sided information. Rawlings v. Apodaca, supra, Mariscal v. Old Republic Life Insurance Co., 50 Cal.Rptr. 224, 227, (Cal. App. 1996).
10. An insurer must be honest with its insured and third-party claimants. Weigel v. Hardesty, supra.
11. An insurer’s attorney may be liable to the insured if the attorney engages in fraudulent or malicious conduct toward the insured. Weigel v. Hardesty, supra.
12. An insurer should provide its insured with factual reasons for why the insurer is denying or delaying payment of an insured’s claim for benefits. C.R.S. Section 10-3-1104(1)(h)(XIV).
14. An insurer should tender to its insured the amount of benefits to which the insurer agrees the insured should be paid for which the insurer does not dispute. Borland v. Safeco Insurance Co., 147 Ariz. 195, 709 P.2d 552 (1985).
16. An insurer should compensate an insured for financial losses, including interest on the benefits, caused to the insured by the insurer’s unreasonable delay in investigating and evaluating an insured’s claim. Bowen v. Farmers Insurance Exchange, 929 P.2d 14 (Colo. App. 1996).
17. An insurer should not take advantage of the insured’s vulnerable condition after experiencing a covered loss. Zilisch v. State Farm, supra.

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Medicare and Medicaid providers and suppliers have always had an obligation to refund overpayments from federal healthcare programs. However, Section 6402 of the ACA (42 U.S.C. § 1320a-7k(d)) creates liability under the Federal False Claims Act for persons who fail to disclose and refund Medicare or Medicaid overpayments within the later of 60 days after the date the overpayment is identified or the date the next applicable cost report is due. Section 6402 is self-implementing. Therefore, all providers, suppliers and other persons covered by the Act have an obligation to report and refund overpayments within the timeframe set out in the statute.
In February 2012, the Center for Medicare and Medicaid Services (“CMS”) proposed a regulation implementing Section 6402 for Medicare providers and suppliers. Although, this regulation has not been finalized it provides useful insight into how CMS is likely to interpret providers’ obligations under Section 6402. The proposed regulation defines key statutory terms and provides guidance as to how overpayments should be handled once they are identified. Importantly, the proposed regulations acknowledge the overlap between the Section 6402 requirement to report and refund overpayments and existing avenues for resolving overpayment liability under Office of Inspector General (“OIG”) Self-Disclosure Protocol and the CMS Self-Referral Disclosure Protocol (collectively, the “SDPs”).
In its commentary to the proposed regulation, CMS acknowledged that, “the provider’s initial decision of where to refer a matter involving non-compliance with program requirements should be made carefully.” This is something of an understatement given that reporting and refunding an overpayment under Section 6402 cannot resolve any potential liability under the Federal False Claims Act, or other fraud and abuse laws, that might arise from the conduct that led to the overpayment. Disclosure pursuant to one of the SDPs, on the other hand can lead to settlement agreements in which the provider is released from civil and administrative liability arising from the overpayment and related conduct.
notify the Secretary, the State, intermediary, carrier or contractor to whom the overpayment was returned in writing of the reason for the overpayment.
42 U.S.C. § 1320a-7k(d)(1). The overpayment must be reported and returned within 60 days after the date on which it was identified or the date any corresponding cost report is due. 42 U.S.C. § 1320a-7k(d)(2).
Overpayment means “any funds that a person receives or retains under [Medicare] or [Medicaid] to which the person, after appropriate reconciliation is not entitled.” 42 U.S.C. § 1320a-7k(d)(4)(B). Person means a provider or supplier, a Medicaid managed care organization, a Medicare Advantage organization or a PDP sponsor, but does not include a beneficiary under Medicaid or Medicare. 42 U.S.C. § 1320a-7k(d)(4)(C).
The statute further provides that an overpayment retained by a person after the deadline for reporting and returning the overpayment is an obligation for purposes of Section 3729 of the Federal False Claims Act, 31 U.S.C. § 3729. Section 3729(a)(1)(G) provides for civil penalties of up to $11,000 plus three times the amount of the government’s damages against a person who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” When an overpayment results from numerous claims, the Government could seek to impose a separate penalty for each claim that resulted in an overpayment.
Section 6402 also defines the words “knowing” and “knowingly” at 42 U.S.C. § 1320a-7k(d)(4(A) as having the same meanings set forth in the Federal False Claims Act. In other words, a person acts with knowledge if the person has actual knowledge of information or acts in reckless disregard or deliberate ignorance of the truth or falsity of such information. 31 U.S.C. § 3729(b).
In its commentary to the Proposed Regulation, CMS recognized that there are “intersections” between the obligation to report and return overpayments under Section 6402 and the Self-Referral Disclosure Protocol (“SRDP”) and OIG Self-Disclosure Protocol (“OIG SDP”). As noted at the outset, CMS has acknowledged that the decision whether to report overpayments under Section 6402 or under the SRDP or OIG SDP “should be made carefully.” This is in part because, other than liability that would have arisen if the provider had retained the overpayment, providers cannot resolve any False Claims Act or Civil Money Penalty liabilities solely by reporting and returning overpayments under Section 6402. In contrast, the SRDP and the OIG SDP both offer providers an opportunity to resolve potential civil and administrative liabilities in addition to resolving the resulting overpayment.
Providers and suppliers may use the SRDP to report potential violations of the Federal Physician Anti Self-Referral Law (“Stark Law”) and any resulting overpayments. Under the SRDP, CMS may reduce the amount due and owing for potential violations of the Stark Law. Accordingly, providers and suppliers who have identified a potential “pure” Stark violation should carefully consider whether to report the resulting overpayment solely under Section 6402, or whether to use the SRDP to attempt to resolve any Stark liability as well as the overpayment liability. CMS proposes that if a provider makes a disclosure under the SRDP, it will still be required to report the overpayment to the MAC, but the obligation to return the overpayment within 60 days would be suspended.
The OIG SDP allows providers and suppliers an opportunity to resolve civil and administrative liabilities arising from violations of the False Claims Act and Civil Money Penalties Law that do not arise from violations of the Stark Law. Importantly, a provider that enters the OIG SDP may enter a settlement agreement with the OIG that results in a release of liability for civil money penalties as well as the OIG’s permissive exclusion authority. CMS proposes that a provider’s obligation to return an overpayment is suspended when the OIG acknowledges that the provider has submitted a disclosure under the OIG SDP. Moreover, unlike the SRDP, a provider’s disclosure under the OIG SDP satisfies the provider’s obligation to report the overpayment under Section 6402.
However, providers should be aware that MACs have the discretion to refer a voluntary refund under Section 6402 to the OIG if the MAC believes the circumstances warrant a referral. Accordingly, a provider may disclose an overpayment appropriately under Section 6402 only to face additional investigation and possible enforcement actions based upon a referral of the matter to the OIG. Thus, if a provider wishes to obtain certainty regarding the possibility of any future enforcement actions (e.g., where the provider believes that there could be a potential whistle blower, or where a buyer wishes to have potential liability fixed prior to closing a transaction), the provider may wish to make a submission through the applicable SDP.
CMS will now have up to five years to recoup Medicare overpayments resulting from coding mistakes or other claims errors. The increase in the statute of limitations for recovery of non-fraudulent Medicare overpayments was part of the American Taxpayer Relief Act of 2012 – signed into law by President Obama January 2 and commonly known as the “fiscal cliff” legislation – which also extended existing income tax rates for many Americans and delayed planned cuts in numerous federal programs.


UNITED STATES OF AMERICA, Plaintiff - Appellee, v. IRA TAYLOR, Defendant - Appellant.
Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for Appellant. Rod J. Rosenstein, United States Attorney, Scott A. Lemmon, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Ira Taylor was convicted, following a jury trial, of possessing a firearm after sustaining a felony conviction, in violation of 18 U.S.C. § 922(g)(1) (2012) ("Count One"); distribution of, and possession with intent to distribute, a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1) (2012) ("Count Two"); and possessing and brandishing a firearm in furtherance of a drug trafficking offense (particularly, Count Two), in violation of 18 U.S.C. § 924(c) (2012) ("Count Three"). The district court sentenced Taylor to 180 months' imprisonment, consisting of ninety-six months on Counts One and Two (concurrent), and a consecutive eighty-four-month term of imprisonment on Count Three. Taylor timely noted this appeal.
Taylor presents five issues in his opening brief and one issue in his reply brief. As discussed in detail below, we reject these arguments and affirm the amended criminal judgment.
Specifically, in the reply brief, Taylor asserts a challenge to the computation of his Sentencing Guidelines range. We reject counsel's contention that he preserved the propriety of the underlying Guidelines calculation by citing to Gall v. United States, 552 U.S. 38 (2007), in the opening brief. Accordingly, we conclude that Taylor has waived this argument by raising it for the first time in his reply brief. See Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010); United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008).
The record, taken in the light most favorable to the Government, see United States v. Washington, 743 F.3d 938, 940 (4th Cir. 2014), establishes the following facts.
On November 13, 2012, George Spradlin, who was using his personal vehicle as an unauthorized taxi, drove two people to a residential neighborhood in Baltimore. Spradlin asked his passengers if they knew anyone from whom he could buy marijuana. One of the passengers indicated that Taylor, who was on the street, could sell Spradlin marijuana. Spradlin did not then know Taylor's identity.
Taylor approached Spradlin's vehicle, spoke briefly with Spradlin, and gave Spradlin a small bag of marijuana. Before Spradlin paid for it, Taylor lifted up his shirt and displayed a firearm. Taylor removed the gun and demanded that Spradlin give him all of his money — $85 — as well as the marijuana he had just provided Spradlin. Taylor pointed the gun at Spradlin's head, and Spradlin complied. Also on Taylor's order, Spradlin exited his car and began to walk down the street. Spradlin repeatedly asked Taylor not to harm or kill him. At some point, Taylor discharged his firearm, but did not hit Spradlin.
Immediately thereafter, an unmarked police car turned down the street. Spradlin flagged down the police car and told the officers that Taylor had robbed him and tried to kill him. Spradlin identified Taylor, who was standing in the middle of the street, as the man who had robbed him.
Taylor ran, and the officers gave chase. Within a few moments, one of the officers, Detective Steven Rosier, exited the car and pursued Taylor on foot. The other officer, Michael Riser, continued the pursuit in the car. While Taylor was running, Riser saw a firearm in Taylor's left hand. Once they came together again, Riser warned Rosier that Taylor was armed.
The officers later found Taylor lying face down against a row of shrubs. Taylor initially resisted Riser's directive to put his hands on his head, but he eventually capitulated. Pursuant to a search incident to arrest, Riser seized two small baggies of a plant-like substance (which the parties later stipulated was marijuana); $85 in cash, balled up; and $19 in cash, folded neatly and placed along side Taylor's identification card and credit cards.
After Taylor was in custody, Spradlin again identified Taylor as the man who had robbed him and threatened him with a firearm. Rosier later returned to search the shrubs and found a firearm lying 10-15 feet from where Taylor was apprehended. There were four live rounds and one spent shell casing in the chamber.
Taylor moved to suppress all statements and admissions he purportedly made, the evidence seized by Riser and the firearm found by Rosier, and Spradlin's identification of Taylor as his assailant. The district court denied the motions.
Rosier, Riser, and Spradlin were among the witnesses that testified at trial. At the close of the Government's evidence, defense counsel made a Fed. R. Crim. P. 29 motion for a judgment of acquittal, which the court denied. The jury convicted Taylor on the three charged counts and found, beyond a reasonable doubt, that Taylor had brandished a firearm during the course of the underlying drug trafficking crime.
At sentencing, the district court varied downward from the advisory Guidelines range applicable to Counts One and Two and imposed a ninety-six-month sentence on these counts, to be followed by an eighty-four-month sentence on Count Three.
Taylor first challenges the denial of his motions to suppress. We review factual findings underlying a district court's denial of a motion to suppress for clear error and legal conclusions de novo. United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). Because the district court denied the motions, we construe the evidence in the light most favorable to the Government, the party prevailing below. United States v. Black, 707 F.3d 531, 534 (4th Cir. 2013).
Taylor first contends that the district court should have suppressed a statement that he purportedly made on his arrest, but Taylor does not identify when, if ever, this statement was offered into evidence. Thus, any error in the pre-trial ruling is of no consequence.
Taylor next challenges the denial of his motion to suppress the evidence seized pursuant to Taylor's warrantless arrest. This evidence, which consisted of two small bags of marijuana and $85 in balled up cash, was discovered on Taylor's person during the search incident to arrest conducted by Riser. The Supreme Court has long since approved such searches. See United States v. Robinson, 414 U.S. 218, 234-35 (1973) (holding that, upon lawful warrantless arrest, police may conduct a full search of an arrestee's person and personal items in his possession and control, without any additional justification). A warrantless arrest is valid so long as "there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Our review of the hearing transcript reveals that the officers had ample cause to arrest Taylor, thus undermining Taylor's claim that the seizure was unconstitutional.
Taylor also contests the denial of his motion to suppress the recovered firearm. However, Taylor abandoned any privacy interest he may have had in that firearm (or the ammunition) by discarding it in the shrubs. Therefore, the abandoned gun was not the fruit of a seizure, and need not have been excluded. California v. Hodari D., 499 U.S. 621, 629 (1991); see United States v. Stevenson, 396 F.3d 538, 546 (4th Cir. 2005) ("When a person voluntarily abandons his privacy interest in property, his subjective expectation of privacy becomes unreasonable, and he is precluded from seeking to suppress evidence seized from it.").
Finally, Taylor challenges the court's denial of his motion to suppress Spradlin's identification of Taylor as the perpetrator. "Due process principles prohibit the admission at trial of an out-of-court identification obtained through procedures 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). But it is clear from the record that both times Spradlin identified Taylor as the person who robbed and threatened him were entirely spontaneous, unprompted by any questions or statements from either Rosier or Riser. Thus, the court properly ruled that they were not the result of an impermissibly suggestive identification process.
Taylor next argues that the district court erred in denying his Rule 29 motion for a judgment of acquittal on Counts Two and Three. We review this ruling de novo. United States v. Hickman, 626 F.3d 756, 762 (4th Cir. 2010).
"A defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden." United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). The jury verdict must by sustained when "there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction." United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation marks omitted).
In reviewing a case for substantial evidence, we evaluate "both circumstantial and direct evidence, and allow the government all reasonable inferences that could be drawn in its favor." United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). We do not weigh the credibility of the evidence or resolve any conflicts in the evidence. Beidler, 110 F.3d at 1067. "Reversal for insufficient evidence is reserved for the rare case where the prosecution's failure is clear." Id. (internal quotation marks omitted).
Count Two charged Taylor with knowingly distributing, and possessing with intent to distribute, a quantity of marijuana. Taylor argues that, because he possessed only 1.18 grams of marijuana, there was no basis for the jury's finding of an intent to distribute. We disagree. Although "[p]ossession of a small quantity of drugs by itself is an insufficient basis from which intent to distribute may be inferred[,]" United States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990), this fact did not stand alone. The Government's evidence established that the (admittedly small) quantity of marijuana that Taylor possessed was individually packaged in a manner consistent with the street-level distribution of drugs, Taylor engaged with Spradlin in a manner consistent with selling drugs, and Taylor possessed a loaded firearm. Taken together, these facts satisfied the Government's burden to show an intent to distribute. See United States v. Collins, 412 F.3d 515, 518-19 (4th Cir. 2005) (affirming conviction for possession with intent to distribute 2.59 grams of crack cocaine because, even in cases involving relatively small drug quantities, an intent to distribute can be inferred from the totality of the circumstances).
Taylor next asserts that the Government's evidence as to Count Three was legally insufficient. But Spradlin's testimony established that (1) the men were engaged in a drug trafficking offense in that Spradlin was attempting to purchase marijuana from Taylor; (2) prior to paying Taylor, but after Taylor gave the marijuana to Spradlin for his inspection, Taylor lifted his sweatshirt to display his firearm; and (3) Spradlin felt scared and intimidated. This testimony thus demonstrated that Taylor brandished his firearm in furtherance of the drug trafficking crime of distributing marijuana. See 18 U.S.C. § 924(c)(4) (defining "brandish" as "to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person").
We note, briefly, that the Sixth Circuit's decision in United States v. Gibbs, 182 F.3d 408, 426 (6th Cir. 1999), does not command a different result. Unlike the defendant in Gibbs, who did not possess a firearm during either of the two actual drug sales he completed with the undercover agent, Taylor possessed the firearm while engaged in selling drugs to Spradlin. To be sure, the sale of marijuana was not consummated and quickly evolved into a robbery, but the jury could have reasonably concluded that, at the moment he initially displayed the firearm, Taylor "considered the firearm to be critical to his drug-trafficking activities, including the drug deal that he was conducting with [Spradlin] that day." United States v. Pineda, ___ F.3d ___, 2014 WL 5462658, at *3 (4th Cir. Oct. 29, 2014). Accordingly, we affirm the jury's guilty verdict on Count Three.
Taylor next maintains that his sentence is illegal in light of Alleyne v. United States, 133 S. Ct. 2151 (2013), and unduly excessive given the scope of his criminal conduct, in violation of the Eighth Amendment. But Alleyne is not implicated here, because the jury made the factual finding necessary to support the increased mandatory minimum. See 18 U.S.C. § 924(c)(1)(A)(ii).
Taylor's Eighth Amendment claim fares no better. The Eighth Amendment forbids cruel and unusual punishments and implicitly requires that a criminal sentence be proportionate to the crime or crimes of conviction. Solem v. Helm, 463 U.S. 277, 284 (1983). As this court recently clarified, proportionality review is available for a term-of-years sentence. United States v. Cobler, 748 F.3d 570, 579 (4th Cir.), cert. denied, 135 S. Ct. 229 (2014).
In analyzing a claim that a sentence violates the Eighth Amendment, we first decide whether a threshold comparison of the gravity of a defendant's offenses and the severity of his sentence leads to the inference that his sentence is grossly disproportionate to his crimes. Id. at 579-80. Taylor makes no effort to show that his sentence, which included a downward variance from the Guidelines range applicable to Counts One and Two, presents the "rare case" sufficient to raise an inference of gross disproportionality. Graham v. Florida, 560 U.S. 48, 60 (2010) (internal quotation marks omitted). And Taylor's recidivism, which was set forth in the presentence report and was a clear concern to the district court, undermines Taylor's claim that the sentence is disproportionate. See Ewing v. California, 538 U.S. 11 (2003) (holding sentence of twenty-five years to life for theft of three golf clubs, valued at approximately $1200, was not violative of the Eighth Amendment, given defendant's prior felony convictions). We thus reject Taylor's Eighth Amendment argument.
We turn, finally, to Taylor's claim that the district court should have sua sponte dismissed Count One because it amounts to an unconstitutional infringement on his Second Amendment right to bear arms. This argument is raised for the first time on appeal, and we conclude that Taylor cannot show any error, let alone plain error, see Fed. R. Crim. P. 52(b), in the district court's failure to sua sponte dismiss Count One.
This court has ruled that "§ 922(g)(1) is constitutionally valid on its face." United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012). But we left open the possibility that presumptively lawful measures could be unconstitutional if confronted with a proper as-applied challenge. Id. To rebut this presumption of lawfulness, Taylor "must show that his factual circumstances remove his challenge from the realm of ordinary challenges." Id.
Taylor alleges that he was not participating in any criminal conduct at the time of his arrest, but this contention, which is contrary to the jury's factual findings, is simply inadequate to remove Taylor's situation from the run-of-the-mill challenge to the constitutionality of § 922(g)(1). Further, a review of Taylor's criminal history reveals that he "undoubtedly flunks the law-abiding citizen requirement" of the Second Amendment, which the Supreme Court recognized in Heller. Id. at 320 (internal quotation marks omitted). Accordingly, we reject Taylor's claim of error on this point.
For the foregoing reasons, we affirm the amended criminal judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.


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Any personal data entered in the contact forms’ input screen are used solely to process your contact request.
The contact form offers the possibility to contact all business units of Interroll. Your contact request will therefore be forwarded to the Interroll company whose business area and / or territory your contact request concerns. Depending on which business area or territory your inquiry concerns, this may also involve a transfer of your contact request to another country or to a distribution partner of Interroll if Interroll does not cover the desired territory itself.
The legal basis for the processing of the data of your contact request, including any transfer to another Interroll company or a distribution partner of Interroll including a transfer to another country, is our legitimate interest in the processing of the data (Art. 6 (1) point f GDPR). In case of the consent of the user, the consent is the legal basis for the processing pursuant to Art. 6 (1) point a GDPR. If the objective of the contact is to enter into a contract, Article 6 (1) point (b) GDPR is an additional legal basis for processing.
The other personal data processed during the sending process serve to prevent misuse of the contact form and to ensure the security of our information technology systems. The legal basis for this processing is our legitimate interest (Article 6 (1) point (f) GDPR).
The data will be erased, should they no longer be necessary to achieve the purpose for which they were collected. Personal data entered into the contact form’s input form and any data sent by email will be erased upon termination of the respective conversation with the user. A conversation is terminated where it can be inferred from the circumstances that the issue has been conclusively resolved.
Any additional personal data collected in the course of transmission will be deleted after 7 days at the latest.
If the user contacts us through a contact form or by email, he has the right object at any time to the processing of his personal data. The conversation can then not be continued. If the user gave his consent to the processing, such consent can be withdrawn at any time with effect for the future.
When the respective contact form is sent, the following data are also stored: IP address, date and time of registration.
The data collected during the registration process enable us to provide you with the desired service (periodic sending of industry information, newsletters or magazines). With respect to the industry information, newsletters or magazines subscribed to by the user, the legal basis for processing is the performance of a contract concluded between Interroll and the user regarding the sending of this information (Article 6 (1) point (b) GDPR).
Collection of additional personal data as part of the registration process serves to prevent abuse of the services or of the provided email address. Our legitimate interest pursuant to Article 6 (1) point (f) GDPR serves as legal basis.
If the user gave separate consent to receive information, Article 6 (1) point (a) GDPR serves as legal basis.
The data will be erased, should they no longer be necessary to achieve the purpose for which they were collected. This means that the user's contact details required for sending out the information will be stored as long as the subscription to the newsletter is active.
Subscription to the newsletter, industry information, and magazines can be cancelled at any time. If the user has consented to receive information, such consent can be withdrawn at any time with effect for the future.
When the respective contact form is sent, the following additional data are also stored: IP address, date and time of registration. If required for the performance of Interroll's services requested by the user, the data will be passed on to the respective technical or content-related Interroll company, e.g. for admission tickets to trade fairs, which are administered locally, or for CAD downloads, about which the nearest sales office is informed.
The data collected during the registration process enable us to provide you with the desired service (e.g. download of information, use of the product configurator, providing you with an admission ticket to a trade fair). Article 6 (1) point (b) GDPR (performance of a contract) serves as legal basis in this respect.
Furthermore, contact details provided to us during the registration process are used to provide you with information on our products and services that is tailored to your interests. If legally required, we obtain your consent for this. The legal basis for processing your data in order to provide you with such information (direct marketing) is our legitimate interest (Article 6 (1) point (f) GDPR) or, if you have given us your consent, Article 6 (1) point (a) GDPR.
Collection of the mentioned additional personal data as part of the registration process serves to prevent abuse of the services or of the provided email address. Our legitimate interest pursuant to Article 6 (1) point (f) GDPR serves as legal basis.
Contact details of the user required for sending out further information will be stored as long as the user does not object to the sending, does not withdraw his consent in this regard, or maintains it upon a corresponding request by Interroll.
The user can object to the sending of information on our products and services at any time. If the user has consented to receive information, such consent can be withdrawn at any time with effect for the future.
The data collected during the registration process are required for the initiation and performance of the contract initiated or concluded in the online shop. Article 6 (1) point (b) GDPR (performance of a contract) serves as legal basis in this respect.
Interroll also stores the contact details in order to provide the user with promotional information from Interroll Group companies and their business partners. The user's consent is obtained for this. Article 6 (1) point (a) GDPR (consent) serves as legal basis in this respect.
The data will be erased after the legal retention periods for contract data have expired. Contact details of the user required for sending out information will be stored as long as the user does not withdraw the consent given in this respect.
The user can withdraw his consent to receive promotional information at any time with effect for the future.
Your information will be transferred directly to the competent HR department of Interroll in your country of residence and will be processed by that company.
The data you submit with the application will be processed for the purpose of reviewing your application. The legal basis for this is the initiation of an employment relationship (Article 6 (1) point (b) GDPR or the respective national regulations.
The data will be erased, should they no longer be necessary to achieve the purpose for which they were collected, i.e. if the application does not result in employment, subject to longer statutory retention periods.
Your data are not sold to, exchanged with or passed on to third parties by us. We only share generically aggregated, demographic information that cannot be linked to your personal data or our business partners.
We use external service providers as processors within the meaning of Article 28 GDPR for the administration of our websites and other activities. Our website is hosted by K1 Internet Service Hanno Kirchhoff, Birkenstraße 65, 40233 Düsseldorf. To send newsletters, mailings, or surveys we use the technical platform of HubSpot, Inc, [25 1st St. Cambridge MA 02141, USA]. We also use Google Analytics of Google, LLC [1600 Amphitheatre Parkway Mountain View, CA 94043, USA] for analysis.
Our processors are bound by contract to comply with the applicable legal provisions on data protection and data security. Transfers to HubSpot, Inc. and Google LLC are registered with Privacy Shield.
Each data subject has the right to information under Art. 15 GDPR, the right of rectification under Art. 16 GDPR, the right to erasure under Art. 17 GDPR, the right to restriction of processing under Art. 18 GDPR and the right to data portability under Art. 20 GDPR. To exercise the aforementioned rights, you may turn to the entities mentioned in section 1 (Responsibility for data processing and contact details).
You have the right at any time, for reasons arising out of your particular situation, to object to the processing of personal data relating to you which is based on Article 6 (1) point (f) GDPR (data processing based on the legitimate interest) takes an objection; this also applies to any profiling based on this provision within the meaning of Article 4 No. 4 GDPR. If you object, we will no longer process your personal data unless we can establish compelling legitimate grounds for processing that outweigh your interests, rights and freedoms, or the processing is for the purposes of asserting, exercising or defending legal claims.
If we process your personal data for direct marketing purposes, you have the right to object at any time to the processing of your personal data for that purpose. If you object to the processing for direct marketing purposes, we will no longer process your personal data for these purposes.
The objection can be made in a form-free manner and should be directed to the entities mentioned in section 1 (Responsibility for data processing and contact details).
If you have given us consent to the processing of your personal data, you may withdraw this consent at any time. The legality of the processing carried out on the basis of the consent until the revocation remains unaffected.
Pursuant to Article 77 (1) GDPR, you have the right to lodge a complaint with a supervisory authority, in particular in the member state you live in, work in or suspect the infringement to have taken place in, if you believe that processing of your personal data is not in line with legal provisions, in particular with the GDPR.
Interroll reserves the right to amend this privacy statement from time to time. Interroll will update the date at the top of this page whenever changes are made. Interroll recommends that you consult this statement regularly so that you are always aware of the privacy statement in its currently applicable form. If you continue to use our website after amendments to the privacy statement have been published, you thereby agree to any amendments made to the privacy statement.

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