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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4178
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
EVERETT LEE MAYNARD,
Defendant – Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Irene C. Berger, District Judge. (2:21−cr−00065−1)
Argued: October 27, 2023 Decided: January 11, 2024
Before DIAZ, Chief Judge, WILKINSON, Circuit Judge, and Robert S. BALLOU, United
States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge Diaz wrote the opinion in which Judge
Wilkinson and Judge Ballou joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Barbara Ann Schwabauer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Wesley P.
Page, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Kristen Clarke, Assistant Attorney General, Erin
H. Flynn, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; William S. Thompson, United States Attorney, Nowles
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Heinrich, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
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DIAZ, Chief Circuit Judge:
Everett Maynard was tried on one count under 18 U.S.C. § 242 for his use of force
against an arrestee. At trial, the district court required witnesses to testify wearing opaque
face masks because of the COVID-19 pandemic. The jury found Maynard guilty, and the
district court sentenced him to 108 months’ imprisonment.
Maynard asks us to vacate his conviction on the ground that the mask requirement
violated his Sixth Amendment right to confront the witnesses against him at trial.
Alternatively, he asks that we vacate his sentence because the district court erred in
applying sentencing enhancements for obstruction of justice and for causing “serious
bodily injury.”
Finding no error, we affirm Maynard’s conviction and sentence.
I.
A.
Maynard was an officer with the Logan Police Department in West Virginia. In
October 2020, he and another officer, Andrew Bias, arrested Robert Wilfong for public
intoxication and having outstanding warrants. Audio and video evidence from the trial
shows that at the police station, Wilfong asked repeatedly to use the bathroom. After Bias
and Maynard ignored several requests, and Bias yelled at Wilfong to “shut the fuck up,”
Maynard eventually agreed to escort him. When Wilfong entered the bathroom, Maynard
put on a pair of black gloves and turned to Bias telling him that “tonight’s the night.”
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Maynard then raised his middle finger to the security camera before walking over to the
bathroom door to supervise Wilfong.
Maynard began to yell at Wilfong: “Remember I said you don’t make demands of
me?” Maynard then entered the bathroom, out of view of the camera. The audio captured
a series of loud noises, along with Maynard yelling, “Do you remember it?” When Wilfong
reappeared in the video, he was on the ground, and Maynard was dragging him out of the
bathroom. Maynard lifted him off the ground and yelled, “You were big and brave just a
minute ago weren’t you, you were making fucking demands of me.”
Maynard carried Wilfong into the other room, slamming his head into a doorframe
on the way. Maynard then dropped him, instructed Bias to call an ambulance, and stated,
“I went too fucking far.” Wilfong remained on the ground motionless for several minutes
while a pool of blood formed around his head.
Wilfong was transported to a hospital, where he was diagnosed with a broken nose
and lacerations to his upper head. He received seven staples to close the head laceration
and was referred to a maxillofacial surgeon.
B.
Maynard was indicted on one count of deprivation of rights under color of law
pursuant to 18 U.S.C. § 242. Before trial, the district court ordered all persons, including
witnesses, to “wear a face covering or mask, which covers both the wearer’s nose and
mouth, at all times.” J.A. 12. Maynard challenged the order, arguing that it violated his
right under the Sixth Amendment to confront witnesses. In lieu of face masks, Maynard
asked the court to permit the use of a clear face shield.
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The district court denied the motion, finding that the mask requirement was
“necessary to ensure the safety of those present,” J.A. 23, and that “face shields have not
proven as effective as masks that cover the nose and mouth and seal around the wearer’s
face,” J.A. 23 (footnote omitted).
C.
At trial, the government played the audio and video recording of the incident. And
both Bias and Logan Police Chief Paul Clemens testified for the government while wearing
face masks.
Bias testified that the “hard-knuckle” gloves Maynard put on are used “whenever
you are cuffing somebody, if you are in a fight with somebody, if you get into a hot
situation.” J.A. 139. While Maynard and Wilfong were in the bathroom, he heard “what
sounded like punches being thrown or something, some type of fighting.” J.A. 126. Bias
didn’t see Maynard trip or lose his balance before he slammed Wilfong into the doorframe,
and thought that Maynard’s action was “an aggressive move.” J.A. 146.
Bias and Clemens testified about statements Maynard made after the incident.
According to Bias, Maynard stated, “Motherfuckers want to talk shit until they’re laying
in a puddle of their own blood.” J.A. 160. He also testified that Maynard told the EMTs
that Wilfong fell. And Clemens testified that Maynard called him after the incident, stating,
“I think I really screwed up this time. I think I’ve hurt him bad or I may have killed him.”
J.A. 62.
Maynard testified in his own defense. He claimed that while in the bathroom,
Wilfong grabbed for Maynard’s gun. Maynard also claimed that he lost his balance while
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he carried Wilfong from the bathroom, and that he knocked Wilfong into the doorframe by
accident.
The jury returned a guilty verdict.
D.
The presentence investigation report recommended a five-level sentencing
enhancement under guideline 2A2.2(b)(3)(B), which applies if the victim sustained
“serious bodily injury.” The report also recommended a two-level enhancement under
guideline 3C1.1 for obstruction of justice on the ground that Maynard perjured himself by
testifying that he injured Wilfong accidentally.
At sentencing, Maynard objected to the “serious bodily injury” enhancement. The
district court overruled his objection, explaining that “[Wilfong] was knocked unconscious
and was bleeding profusely from his head. He was taken to the hospital for emergency
medical treatment, including seven staples to his scalp, and he suffered a broken nose that
resulted in a referral to a specialist for reconstruction.” J.A. 528. The court concluded that
“[Wilfong’s] injuries would have caused extreme physical pain and he needed to be taken
to the hospital in an ambulance for treatment.” J.A. 529.
Maynard didn’t object to the report’s recommendation that the obstruction of justice
enhancement applied. And the district court applied it, finding that Maynard committed
perjury when he testified that the incident was an accident.
The district court calculated the advisory guideline range of 108 to 135 months in
prison, and sentenced Maynard to 108 months.
This appeal followed.
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II.
Maynard challenges his conviction on the ground that requiring witnesses to testify
while wearing masks violated his rights under the Sixth Amendment’s Confrontation
Clause. We review such challenges de novo. United States v. Mouzone, 687 F.3d 207, 213
(4th Cir. 2012) (cleaned up).
A.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The clause guarantees defendants the right to a
“face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487
U.S. 1012, 1016 (1988) (cleaned up). This right is “essential to a fair trial in a criminal
prosecution,” id. at 1017 (cleaned up), because it makes it more difficult for a witness to
lie and preserves the opportunity for cross-examination, see id. at 1017, 1019.
Applying these principles in Coy, the Supreme Court held that the defendant’s
confrontation right was violated where witnesses were permitted to testify behind a screen,
such that the defendant could hear the witnesses and “dimly” see them, but the witnesses
couldn’t see the defendant. Id. at 1014–15, 1022. There, the Court declined to consider
whether any exceptions to the face-to-face requirement existed. Id. at 1021.
But the Court later recognized that the right to confrontation isn’t absolute. In
Maryland v. Craig, the Court held that the right is satisfied “absent a physical, face-to-face
confrontation” where two conditions are met. 497 U.S. 836, 850 (1990) (cleaned up). First,
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the denial of such confrontation must be “necessary to further an important public policy.”
Id. Second, the “reliability of the testimony” must be “otherwise assured.”
Id.
Applying this test, the Court considered the constitutionality of a procedure where
child witnesses were permitted to testify out of the defendant’s presence via one-way,
closed-circuit video. Id. at 840. The Court held that if the state on remand made an
“adequate showing of necessity, the state interest in protecting child witnesses from the
trauma of testifying in a child abuse case is sufficiently important to justify” the procedure.
Id. at 855. And it explained that such testimony would “preserve all of the other elements
of the confrontation right,” including that the witnesses would be competent to testify,
under oath, subject to cross-examination, and the judge, jury, and defendant could view the
witness’s demeanor. Id. at 851.
B.
Relying on Craig, the district court determined that the witnesses’ testimony while
wearing masks didn’t violate the Confrontation Clause. We agree.
Protection against the spread of COVID-19 is no doubt an “important public policy”
interest. Craig, 497 U.S. at 850 (cleaned up). By the time of Maynard’s trial in November
2021, more than 700,000 people in the United States had died from COVID-19. Covid
Data Tracker, Ctrs. for Disease Control & Prevention, https://covid.cdc.gov/covid-data-
tracker/ - trends_select_select_00 [https://perma.cc/3ZAB-G7WG] (select “cumulative
deaths” from “View (left axis)” dropdown). In West Virginia alone, nearly 5,000 people
had died. Id. (select “West Virginia” from “Select a geographic area” dropdown and
“cumulative deaths” from “View (left axis)” dropdown). And West Virginia was dealing
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with more than 350 new hospitalizations, id. (select “West Virginia” from “Select a
geographic area” dropdown and “Weekly COVID-19 New Hospital Admissions per
100,000” from “View (right axis)” dropdown), and 100 deaths, each week, id. (select
“West Virginia” from “Select a geographic area” dropdown and “Weekly Deaths” from
“View (left axis)” dropdown).
At that time, the Centers for Disease Control and Prevention (CDC) recommended
that even vaccinated people wear masks indoors when in public in areas with substantial
transmission. Nat’l Ctr. for Immunization & Respiratory Diseases, Interim Public Health
Recommendations for Fully Vaccinated People, Ctrs. for Disease Control & Prevention,
https://stacks.cdc.gov/view/cdc/110779 [https://perma.cc/SU2S-UMDS] (last updated
Oct. 15, 2021). It also recommended that those who were immunocompromised wear
masks regardless of the level of community transmission. Id. And earlier CDC guidance
advised against the use of face shields as substitutes for masks because there wasn’t enough
evidence to support their effectiveness. Considerations for Wearing Masks, Ctrs. for
Disease Control & Prevention,
http://web.archive.org/web/20200810031416/https:/www.cdc.gov/coronavirus/2019-
ncov/prevent-getting-sick/cloth-face-cover-guidance.html (last updated Aug. 7, 2020).
Against this backdrop, we think the district court’s mask order was “necessary to
further an important public policy.” Craig, 497 U.S. at 850 (cleaned up). The court could
have permitted the use of clear face shields as Maynard requested. But considering the
CDC guidance and the number of COVID-19 related deaths and hospitalizations at the
time, it would be “the worst kind of hindsight” to say that the district court needed to do
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so. See United States v. Pair, 84 F.4th 577, 585 (4th Cir. 2023) (holding that COVID-19
risks justified trial delays under the Speedy Trial Act).
Maynard insists that Crawford v. Washington, 541 U.S. 36 (2004), undermined
Craig’s holding. We cannot agree.
In Crawford, the Supreme Court held that testimonial hearsay statements couldn’t
be admitted at trial absent unavailability and a prior opportunity for cross-examination. Id.
at 68. This abrogated the Court’s decision in Ohio v. Roberts, which held that an
unavailable witness’s hearsay statement could be admitted at trial so long as it had
“adequate ‘indicia of reliability.’” 448 U.S. 56, 66 (1980).
Crawford rejected this test, explaining that the Sixth Amendment requires that
reliability “be assessed in a particular manner: by testing in the crucible of cross-
examination.” 541 U.S. at 61–62. Craig, in turn, relied heavily on Roberts. Still, because
Crawford didn’t overrule Craig, we’re bound to treat it as good law. Bosse v. Oklahoma,
580 U.S. 1, 3 (2016) (per curiam) (explaining that Supreme Court decisions “remain
binding precedent . . . regardless of whether subsequent cases have raised doubts about
their continuing vitality” (cleaned up)).
Importantly, the reliability of the witnesses’ testimony in this case was “otherwise
assured.” Craig, 497 U.S. at 850 (cleaned up). As in Craig, the witnesses were under oath,
cross-examined, and the jury could observe their demeanor.
And that’s not all. The witnesses were physically present in the courtroom and
could see and be seen by both the defendant and the jury. Thus, Maynard’s trial was even
“more protective of the defendant’s interests” than was the case in Craig. See United States
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v. Abu Ali, 528 F.3d 210, 241–42 (4th Cir. 2008) (finding no Confrontation Clause violation
where government played deposition testimony taken outside the defendant’s physical
presence via two-way video conference).
Maynard protests that the masks hindered the jury’s ability to assess the witnesses’
credibility. But jurors assess credibility not only by facial expressions, but also by “the
words the witnesses said . . . how they said them . . . their body language, their pauses, their
mannerisms[,] and all the other intangible factors that are present in a trial.” Burgess v.
Goldstein, 997 F.3d 541, 554 (4th Cir. 2021). So we can’t say that a mask covering only
a witness’s nose and mouth violates the Confrontation Clause.
Finally, we note that the masking procedure at Maynard’s trial is unlike any the
Supreme Court has considered in the Confrontation Clause context. Prior cases involved
a screen separating the witness and defendant, Coy, 487 U.S. at 1014, testimony by one-
way video, Craig, 497 U.S. at 840, and out-of-court statements introduced at trial, Roberts,
448 U.S. at 58; Crawford,
541 U.S. at 38.
By contrast, the witnesses here testified live, in person, under oath, subject to cross-
examination, and could see and be seen by the defendant and jury. In short, Maynard’s
trial preserved the Confrontation Clause’s core principles—physical presence and the op-
portunity for cross-examination. See Coy, 487 U.S. at 1017–20.
We therefore affirm the district court’s ruling rejecting Maynard’s Confrontation
Clause challenge.
III.
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Next, we consider Maynard’s claim that the district court erred in applying a
sentencing enhancement for causing “serious bodily injury.” Because Maynard objected
to this enhancement at sentencing, we review the district court’s factual findings for clear
error and legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir.
2012) (cleaned up).
A.
In calculating a defendant’s offense level, the sentencing guidelines contemplate a
five-level increase if the victim sustained “serious bodily injury.” U.S.S.G.
§ 2A2.2(b)(3)(B). The guidelines define “serious bodily injury” as injury “involving
extreme physical pain or the protracted impairment of a function of a bodily member,
organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization,
or physical rehabilitation.” U.S.S.G. § 1B1.1 app. n.1(M).
B.
Recall that Wilfong was knocked unconscious and was bleeding profusely from the
head. He was taken to the hospital where he was diagnosed with a broken nose and
lacerations to the upper head. He received seven staples to his scalp and was referred to a
maxillofacial specialist for further treatment.
Maynard contends that these injuries didn’t involve “extreme” pain, and that the
district court’s finding otherwise was the “sole basis” for increasing his offense level. Not
so.
The district court didn’t rely solely on its finding that Wilfong suffered extreme
pain. Rather, it noted that Wilfong’s injuries “would have caused extreme physical pain
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and he needed to be taken to the hospital in an ambulance for treatment.” J.A. 529
(emphasis added). That Wilfong required medical intervention is itself an independent
basis to support the enhancement. U.S.S.G. § 1B1.1 app. n.1(M) (defining “serious bodily
injury” as suffering extreme pain “or requiring medical intervention such as surgery,
hospitalization, or physical rehabilitation” (emphasis added)); see also United States v.
Flores, 974 F.3d 763, 766 (6th Cir. 2020) (finding the need for sutures was sufficient
“medical intervention” to support the offense level increase).
We’ve affirmed the application of the five-level increase when a defendant inflicted
less severe injuries. In United States v. Saint Louis, the victim was “beaten extensively”
around her face, sustained a broken blood vessel in her eye, and was bleeding from her arm
and nose. 889 F.3d 145, 158 (4th Cir. 2018). Yet we affirmed application of the increase
even though the victim didn’t seek medical help and didn’t suffer “protracted impairment”
of her eye. Id.
Because Maynard’s victim suffered more severe injuries that did require medical
attention, we have little trouble concluding that the district court didn’t err, much less
clearly err, in applying the five-level increase.
IV.
Finally, Maynard challenges the district court’s application of a sentencing
enhancement for obstruction of justice. Because Maynard didn’t object to this
enhancement at sentencing, we review for plain error. Strieper, 666 F.3d at 292 (cleaned
up).
A.
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Sentencing guideline 3C1.1 authorizes a two-level enhancement if the defendant
(1) “willfully obstructed or impeded . . . the administration of justice with respect to the
. . . prosecution . . . of the instant offense of conviction and (2) the obstructive conduct
related to . . . the defendant’s offense of conviction and any relevant conduct.” U.S.S.G.
§ 3C1.1.
The guideline’s commentary provides a non-exhaustive list of conduct covered by
the guideline, including committing perjury. U.S.S.G. § 3C1.1 app. n.4(B). Generally, a
guideline’s commentary is “authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” United
States v. Campbell, 22 F. 4th 438, 443 (4th Cir. 2022) (cleaned up).
B.
Maynard contends that the commentary’s inclusion of perjury as covered conduct
contradicts the guideline. That’s not correct.
We addressed a perceived conflict between a guideline and its commentary in
Campbell. There, we considered whether a “controlled substance offense” under guideline
4B1.1(a)(3) included an attempt to deliver a controlled substance. Id. at 440.
The guideline defined “controlled substance offense” to include offenses
prohibiting the “manufacture, import, export, distribution, or dispensing of a controlled
substance,” or possession of the substance with intent to do any of those things. Id. at 441
(quoting U.S.S.G. § 4B1.2(b)). The commentary provided that a “controlled substance
offense” included attempts to commit the crimes identified in the guideline. Id. (quoting
U.S.S.G. § 4B1.2 app. n.1). And because the commentary added a crime that wasn’t
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included in the guideline’s text—attempt—we held that it conflicted with the guideline and
vacated the sentence. Id. at 444, 449.
The obstruction enhancement applied to Maynard is different. Unlike the guideline
in Campbell, which defined “controlled substance offense,” the obstruction enhancement
here doesn’t define “obstruct[]” or “impede[].” Thus, unlike in Campbell, the commen-
tary’s interpretation of the guideline as including perjury doesn’t expand the guideline’s
reach beyond what’s explicit in its text.
Still, Maynard contends that the commentary’s interpretation conflicts with the
guideline because perjury and obstruction are different crimes. When a guideline term is
undefined, we’ve relied on the interpretation of a statute criminalizing the same conduct.
See United States v. Spring, 305 F.3d 276, 280 (4th Cir. 2002) (interpreting the word
“threat” in the guideline consistently with cases interpreting statutes criminalizing
“threats”). And we’ve recognized that proof of perjury isn’t enough to convict someone
of obstruction. United States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993).
But the rationale for treating perjury and obstruction as separate crimes doesn’t
apply in the sentencing context. In United States v. Dunnigan, the Supreme Court
summarized its decisions recognizing that “simple perjury was not so much an obstruction
of justice as an expected part of its administration” given that the “ordinary task of trial
courts is to sift true from false testimony.” 507 U.S. 87, 93 (1993) (cleaned up). But (as
the Court explained) this line of cases was decided “against the background rule that the
contempt power was to be confined to the least possible power adequate to protect the
administration of justice against immediate interruption of its business.” Id. (cleaned up).
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By contrast, guideline 3C1.1 is “part of a sentencing scheme designed to determine
the appropriate type and extent of punishment after the issue of guilt has been resolved.”
Id. at 94. And perjured testimony is “of obvious relevance in this regard, because it reflects
on a defendant’s criminal history, on her willingness to accept the commands of the law
and the authority of the court, and on her character in general.” Id. Critically, “the fact
that the meaning ascribed to the phrase ‘obstruction of justice’ differs in the contempt and
sentencing contexts would not be a reason for rejecting the Sentencing Commission’s
interpretation of that phrase.” Id.
Relying on Dunnigan, we and every other circuit have acknowledged that guideline
3C1.1 can apply when a defendant perjures himself at trial. See, e.g., United States v.
Perez, 661 F.3d 189, 193 (4th Cir. 2011).
Maynard argues that Dunnigan’s analysis was dicta given that neither party
contested the guideline’s interpretation of obstruction as including perjury. True enough.
But Dunnigan persuasively explains why courts treat perjury differently in the sentencing
context, and we have no cause to doubt its reasoning. Thus, the district court’s application
of the obstruction enhancement wasn’t plain error.
…
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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