On rehearing, indictment properly dismissed

US v. Vinson:  Vinson filed a petition for rehearing after a Fourth Circuit panel earlier (see here) vacated the district court’s order granting his motion to dismiss the indictment against him, asserting a new basis for affirming the dismissal of his indictment.  On rehearing, the Fourth Circuit changed course, affirming the district court’s order dismissing the indictment.

The Fourth Circuit begins its analysis here by stating that Vinson did not raise the issue it finds dispositive in his opening brief to the Fourth Circuit or the district court; the rule precluding consideration of issues for the first time on appeal to the Fourth Circuit is prudential, not jurisdictional, so the Fourth Circuit determined that under the circumstances presented in this case, it would exercise its discretion to consider the issues Vinson raised in his petition for rehearing.

Vinson raised the issue of whether Vinson’s conviction under North Carolina’s assault and battery statute qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”).  The Fourth Circuit held here that none of the categories of assault under North Carolina law have elements matching the elements of an MCDV under 18 U.S.C. §921(a)(33)(A), so the district court properly dismissed the indictment against Vinson.