PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4508

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

AGHEE WILLIAM SMITH, II,

Defendant – Appellant.

No. 22-4521

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DAVID ALCORN,

Defendant – Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:19-cr-00047-RAJ-LRL-3; 2:19- cr-00047-RAJ-LRL-2)

ARGUED: May 10, 2024 Decided: September 17, 2024 USCA4 Appeal: 22-4508 Doc: 153 Filed: 09/17/2024 Pg: 2 of 51

Before KING, AGEE, and HEYTENS, Circuit Judges.

Appeal No. 22-4508 affirmed, and Appeal No. 22-4521 affirmed in part, vacated in part, and remanded, by published opinion. Judge King wrote the majority opinion. Judge Agee wrote an opinion concurring in part and concurring in the judgment. Judge Heytens wrote a dissenting opinion.

ARGUED: Michael E. Rayfield, SHOOK, HARDY & BACON L.L.P., New York, New York, for Appellants. Elizabeth Marie Yusi, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Andrew W. Grindrod, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia; Luke L. Hartman, SHOOK, HARDY & BACON L.L.P., Kansas City, Missouri, for Appellant Aghee William Smith II. Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant David Alcorn. Jessica D. Aber, United States Attorney, Richmond, Virginia, Daniel J. Honold, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

2 USCA4 Appeal: 22-4508 Doc: 153 Filed: 09/17/2024 Pg: 3 of 51

KING, Circuit Judge:

We herein resolve the consolidated appeals of defendants Aghee William Smith, II

(No. 22-4508) and David Alcorn (No. 22-4521). Smith and Alcorn appeal from their

convictions and sentences in the Eastern District of Virginia for their involvement in long-

running illegal schemes that defrauded multiple investors of millions of dollars. In

February 2022, during the COVID-19 pandemic, they were tried together before a jury in

Norfolk. On appeal, Smith and Alcorn pursue a total of three contentions of error that

relate to their trial and sentencing proceedings. They first assert a joint constitutional

challenge to their various convictions — that is, that the district court’s implementation of

the district-wide COVID-19 trial protocol denied them their rights under the Public Trial

Clause of the Sixth Amendment. Second, defendant Smith separately contends that the

court fatally erred by its admission into evidence of court-authorized videotaped

depositions of three of the fraud victims, in violation of the Sixth Amendment’s

Confrontation Clause. 1 Finally, defendant Alcorn separately maintains that the court

committed a reversible sentencing error, by failing to properly impose his conditions of

supervised release.

1 The Sixth Amendment provisions that underlie the public trial and witness confrontation issues — which we refer to as the “Public Trial Clause” and the “Confrontation Clause” — provide in pertinent part as follows: