The “Intentional-Withdrawal Waiver” Doctrine
Fourth Circuit confirms that a party who withdraws proffered evidence cannot challenge its exclusion on appeal
(United States v. Bernard K. Breeland, Jr., No. 23-4689, 14 Aug 2025)

1. Introduction

The unpublished decision in United States v. Breeland arises from a felon-in-possession prosecution under 18 U.S.C. § 922(g)(1) following a 2020 shooting in Columbia, South Carolina. Bernard Kentrell Breeland, Jr. was convicted by a jury of possessing .45-caliber ammunition after a prior felony conviction. On appeal he mounted a multipronged attack:

• a facial Second-Amendment challenge to § 922(g)(1) under NYSRPA v. Bruen,
• claims of evidentiary error tied to (i) lay identification testimony by two police investigators and (ii) the district court’s refusal to admit ballistics and booking records that ostensibly pointed to an alternative perpetrator,
• a request for mistrial based on alleged violation of a limiting instruction,
• a challenge to jury instructions on eyewitness identification, and
• a procedural-reasonableness challenge to his 120-month sentence, focused on the Guideline cross-reference for attempted murder.

The Fourth Circuit (Judges Niemeyer, Richardson, and Senior Judge Floyd) rejected each argument. Although the opinion is unpublished (and thus non-precedential under local rules), it articulates and refines several doctrinal points—most notably that a defendant who affirmatively withdraws previously proffered exhibits at trial waives any right to complain on appeal about their exclusion. This commentary concentrates on that clarified “intentional-withdrawal waiver” principle, while also surveying the panel’s treatment of lay identification evidence, Rule 902 authentication, sentencing cross-references, and post-Bruen firearms litigation.

2. Summary of the Judgment

The Court of Appeals affirmed in full:

1. Section 922(g)(1) remains facially constitutional post-Bruen under circuit precedent (United States v. Canada);
2. The district court did not abuse its discretion by admitting lay identification testimony from Investigators Fortner and McIntyre, denying a mistrial, or giving standard eyewitness-identification instructions;
3. Because Breeland expressly withdrew the Lexington County Sheriff’s Department (LCSD) / NIBIN documents after the court indicated they would be admitted with a records custodian, any appellate challenge to their exclusion was waived;
4. The sentence was procedurally reasonable—application of the § 2K2.1(c) cross-reference to § 2A2.1 (attempted murder) was supported by a preponderance of the evidence; and
5. None of the alleged errors, taken singly or collectively, warranted reversal.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• United States v. Canada, 123 F.4th 159 (4th Cir. 2024) – binding panel decision upholding § 922(g)(1) after Bruen; foreclosed Breeland’s facial Second-Amendment attack.
• United States v. Smith, 962 F.3d 755 (4th Cir. 2020) and Johnson, 617 F.3d 286 (4th Cir. 2010) – delineate the boundary between Rule 701 lay opinion testimony and Rule 702 expert testimony; guided approval of Fortner/McIntyre identifications.
• United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997) – sets “most extraordinary circumstances” standard for mistrial; supported denial of Breeland’s request.
• United States v. Robinson, 744 F.3d 293 (4th Cir. 2014) & Olano, 507 U.S. 725 (1993) – define waiver as intentional relinquishment; undergirded the new waiver holding.
• United States v. Grubbs, 585 F.3d 793 (4th Cir. 2009) & Medley, 34 F.4th 326 (4th Cir. 2022) – confirm preponderance standard for sentencing fact-finding.
• United States v. Ellis, 130 F.4th 442 (4th Cir. 2025) – recent authority on attempted-murder cross-reference; relied on to uphold Breeland’s sentence.

3.2 Legal Reasoning

3.2.1 Lay Identification Testimony under Rule 701

The panel held that both investigators’ opinions were:

• (a) rationally based on personal perception—each officer had prior face-to-face dealings with Breeland and viewed the surveillance footage; and
• (c) not based on specialized or scientific techniques—contrasting with expert video analysis.

Therefore, the testimony fell squarely within Rule 701. The Court emphasized that the officers’ law-enforcement status (sanitized for McIntyre) neither rendered the testimony expert nor unduly prejudicial under Rule 403.

3.2.2 Authentication: Rules 901 & 902

The LCSD booking reports, firearm recovery report, and NIBIN lead lacked traditional “self-authenticating” hallmarks:

• Rule 902(1) – requires a seal or official signature; the district court deemed LCSD letterhead “ordinary” rather than a sealing device.
• Rule 902(5) – applies to publications “by a public authority” (think bulletins, pamphlets); the court found investigative worksheets outside that category.

Nevertheless, the judge signaled readiness to authenticate through custodian testimony—an invitation Breeland rejected when he voluntarily withdrew the exhibits.

3.2.3 The “Intentional-Withdrawal Waiver” Principle

Distinguishing forfeiture (mere failure to object) from waiver (affirmative abandonment), the panel ruled that Breeland’s explicit withdrawal of the exhibits, after the judge had green-lit their admission upon minimal foundation, constituted waiver. Under Olano and Robinson, waived issues are unreviewable—not merely subject to plain-error review. The opinion synthesizes earlier dicta into a crisp rule:

A defendant who proffers evidence, then affirmatively withdraws it after the court outlines a path to admissibility, waives any subsequent claim that its exclusion was error.

3.2.4 Sentencing – § 2K2.1(c) Cross-Reference to Attempted Murder

The court applied the cross-reference because Breeland:

• initiated the confrontation (“clearly the aggressor”),
• shot the victim at point-blank range in the torso, and
• fired additional rounds after the victim fell, evidencing specific intent to kill.

These factual findings satisfied attempted-murder elements under a preponderance standard. The panel rejected calls for a higher evidentiary burden, citing long-standing circuit precedent.

3.3 Impact of the Judgment

Though unpublished, the decision is likely to influence trial practice and plea-bargaining in the Fourth Circuit and beyond:

1. Waiver Doctrine Clarified. Litigators must beware withdrawing proffered exhibits to “avoid confusion”; doing so annihilates appellate leverage. Judges may cite Breeland to dispose of similar complaints.
2. Lay Identification Bolstered. The ruling reinforces that officers (or civilians) familiar with a defendant may identify that person in video evidence without crossing into expert territory, so long as testimony is anchored in personal perception.
3. Rule 902 Boundaries. The decision underscores that investigative reports and ballistic leads typically need witness authentication; letterhead alone will not suffice.
4. Sentencing Cross-References. Prosecutors can confidently seek § 2A2.1 cross-references in § 922(g) cases involving shootings, relying on Ellis and Breeland.
5. Post-Bruen Stability. By adopting Canada without reservation, the panel signals continued stability of felon-in-possession prosecutions unless/until the Supreme Court intervenes.

4. Complex Concepts Simplified

• Forfeiture vs. Waiver – “Forfeiture” is forgetting to assert a right; the appellate court can still review for plain error. “Waiver” is intentionally giving up the right; the court will not review it at all.
• Rule 701 vs. 702 – Rule 701 allows lay opinions based on everyday perception (e.g., recognizing a face). Rule 702 covers expert opinions requiring specialized skill or methodology.
• Authentication – Before a document or video can be shown to a jury, the proponent must show it is what it purports to be. Some documents (sealed public records) are automatically accepted; others need a witness or custodian.
• Guideline Cross-Reference – In firearms cases, if the same gun was used to commit a more serious act (like attempted murder) the sentencing court can “cross-reference” to the higher Guideline for that act, leading to a longer sentence.

5. Conclusion

United States v. Breeland is a primer on trial-level tactical decisions and their lasting consequences. The Fourth Circuit’s unequivocal stance—that an express withdrawal of evidence waives any appellate challenge to its exclusion—adds clarity to an area often blurred by distinctions between waiver and forfeiture. Combined with reaffirmations on lay identification admissibility, Rule 902’s limits, and the robustness of sentencing cross-references, the decision offers a roadmap for both bench and bar. While unpublished, its analytical rigor makes it a persuasive authority for future litigants navigating similar evidentiary and sentencing terrain.