Maryland Criminal Defense Lawyers

Fourth Circuit Comes Close to Addressing FSA Questions

2011-05-10T17:20:00.000-04:00

In an opinion released last week, the U.S. Court of Appeals for the Fourth Circuit came close to addressing the applicability of the Fair Sentencing Act of 2010 to certain defendants pending sentencing. Ultimately, the opinion is noteworthy only for a footnote on page 18. (Available here)

In Bullard, the court was faced with the question of whether the Fair Sentencing Act, which reduced mandatory sentencing disparities between defendants convicted of powder cocaine offenses and defendants convicted of crack cocaine offenses, applied retroactively to defendants sentenced before the FSA's enactment. As every other circuit confronted with this issue has done, the court refused to apply the FSA's changes retroactively to the defendant.

However, in footnote 5, the court noted:

"We do not address the issue of whether the FSA could be found to apply to defendants whose offenses were committed before August 3, 2010, but who have not yet been sentenced, as that question is not presented here."

Many defense attorneys, federal prosecutors and district judges await the Fourth Circuit's guidance on this important issue for defendants pending sentencing.

Posted by Brennan Sullivan and McKenna

Bill Brennan to Testify Before U.S. Sentencing Commission

2011-03-17T13:05:00.000-04:00

Bill Brennan will testify today before the United States Sentencing Commission on behalf of the Practitioner's Advisory Group. The subject of Bill's testimony will be proposed amendments and draft language to certain sentencing guidelines related to arms trafficking (Sections 2K2.1 and 2M5.2).

The Commission's hearing agenda is here and Bill's proposed comments are here.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Reverses Conviction Because of Illegal Seizure

2011-03-05T14:10:00.000-05:00

United States of America v. David Foster, No. 09-5161 (4th Cir. March 2, 2011). Available here.

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded a case involving the warrantless seizure and search of a man in North Carolina. The facts of the case are straight-forward, as is the court’s analysis: two young black men were sitting in a parked SUV outside of a local restaurant. A police officer walked by the men and noticed that one of them mouthed something to the other. The man in the passenger seat sat up straight, and then began moving his arms, as though he was doing something with his hands. The officer called his headquarters and was informed that one of the young men was “under investigation.” After a few minutes, the officer approached the men, seized them and searched their vehicle.

Of course, in order to stop or seize a person, police must have a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.” The court of appeals any suspicion in this case to be more of a hunch (the officer himself told the young men prior to the search that he “knew they were up to something”) than an articulable suspicion.

The significance of this opinion, from a defense attorney’s perspective, is not in the underlying facts or the court’s analysis. Rather, it is the following passage:

“We also not our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. . . . we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous. . . . Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. . . . the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”

Posted by Brennan Sullivan and McKenna

Supreme Court Widens Sentencing Courts' Discretion on Remand

2011-03-03T12:00:00.001-05:00

Pepper v. United States, No. 09-6822 (March 2, 2011)

In an opinion filed yesterday, the Supreme Court held that upon the resentencing of a defendant in federal court, the sentencing court may--and should--take into account the defendant's post-sentence rehabilitation. Prior to this ruling, there was confusion among federal courts as to the types of considerations that are relevant for a court to take into account on resentencing. This opinion will not impact many offenders, but will serve to assist those defendants fortunate enough to have their sentences vacated and remanded on appeal, and who have made strides at self-betterment since their original sentence. Of course, as is noted by the Court, a court on resentencing is not limited to only consider the positive post-sentencing conduct of the defendant, but also the negative. The opinon is available here.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Faults All Parties, Vacates and Remands

2011-02-04T10:50:00.000-05:00

United States v. Lorenzo Martez Lewis, No. 09-4467 (4th. Cir. Feb. 2, 2011) (available here)

In a case decided this week, the U.S. Court of Appeals for the Fourth Circuit took issue with either mistakes made, or arguments advanced by all parties.

In the district court below, the defendant entered into a plea agreement with the government pursuant to Rule 11(c)(1)(C) (a "C" plea). Unlike most plea agreements entered in federal courts, a C plea is binding upon the judge -- so long as the court accepts the plea and the terms of the agreement. Should the court reject any of the terms of the agreement, the defendant is given the opportunity to withdraw his plea of guilty.

In Lewis, the court below accepted the defendant's plea of guilty, but refused to abide by the terms of the plea agreement -- namely, that any sentence imposed would run concurrent to the state court sentence the defendant was already serving. While the court had discretion to reject the plea agreement, it had no discretion to alter the terms of the agreement without giving the defendant the opportunity to withdraw his plea. In the end, the court sentenced the defendant to a term of imprisonment to run consecutive to any other sentence the defendant was already serving.

On appeal, the defendant's appellate counsel filed a brief pursuant to Anders v. California, essentially submitting that there were no meritorious issues for appeal, but requesting that the Court of Appeals consider whether the district court had erred in sentencing the defendant to a consecutive term of imprisonment. The defendant also submitted a pro se submission to the Court stating that the plea agreement was supposed to be binding on the Court, if the Court accepted it. The government's appellate counsel argued that the parties never "intended or understood the concurrent sentence provision to be an agreement for a specific sentence under Rule 11(c)(1)(C).

The Court had little difficulty in analyzing the issue presented. The government and the defendant entered into a sort of contract which, if accepted by the district court, would be binding. The agreement specifically stated that "the sentence of imprisonment shall be served concurrent with the state sentence." The district court in this case, however, never explicitly rejected (and tacitly accepted, albeit partially) the plea agreement. The defendant was not given an opportunity to withdraw his guilty plea. And notably, "the prosecutor failed to correct the court's misunderstanding of the concurrent sentence provision." The Court noted that the government's failure to uphold its obligations under the agreement constituted a breach.

"The government's contention that the parties actually intended and understood the concurrent sentence provision to be a mere recommendation is - put mildly - nearly frivolous."

The Court vacated the defendant's conviction and sentence, and remanded the case. The defendant himself is the only person that came out of this decision without drawing major criticism from the Court of Appeals.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Vacates Improper Leadership Enhancement

2011-01-28T13:52:00.000-05:00

United States v. Kevin M. Slade, No. 08-4932 (Decided Jan. 27, 2011).

In an opinion filed yesterday (available here), the Fourth Circuit vacated and remanded a case for sentencing where a district court erroneously applied an aggravating leadership enhancement to a defendant in a drug conspiracy.

At the time of sentencing, the district court applied a three-level enhancement to the defendant's guidelines calculation because of his aggravating role as a manager or supervisor of other participants in the drug conspiracy. (U.S.S.G. 3B1.1). This enhancement is reserved for defendants who "control the activities of other participants" or exercise managerial responsibility.

The district court applied the enhancement, to which the defendant did not object, on the basis of the following factors: the defendant sold powder and crack cocaine to other co-conspirators (who in turn sold it to others), the defendant was driven around by a co-conspirator during the course of the drug conspiracy, and some of the co-conspirators sold drugs "for" the defendant. However, the Fourth Circuit held that there was insufficient evidence in the record that the defendant actually directly supervised anyone, or managed the operations.

The Court of Appeals remanded the case for re-sentencing, at which time the district court will have the opportunity to find facts that may increase the defendant's sentencing exposure under this enhancement, anyway.

Posted by Brennan Sullivan and McKenna

Maryland High Court Affirms Common Law Prohibition on Improper Inducements

2011-01-26T14:43:00.000-05:00

Enoch Jermaine Hill v. State of Maryland, No. 149, September Term, 2009 (Maryland Court of Appeals) (Filed Jan. 26, 2011).

In an opinion filed today (available here), the Court of Appeals held that a detective's statement to a suspect constituted an improper inducement. The case was one of child sexual abuse, where a former youth pastor was the suspected abuser and the victim was a former member of the pastor's congregation.

During an interrogation, a detective told the suspect that the victim "and his mother do not want to see you get into trouble, but they only want an apology." Believing the detective was hinting that if he wrote an apology note, the suspect would not be further prosecuted, the suspect wrote a (nonsensical) letter of apology to the victim. Because the suspect in the case relied on the indirect inducement, the suspect's subsequent confession and letter of apology will be inadmissible in a new trial.

This case is important in that it reaffirms the place that Maryland's common law prohibition on improper inducements has in today's justice system.

Posted by Brennan Sullivan and McKenna

Court of Special Appeals Declines to Extend Ott to Third Parties

2010-09-07T10:50:00.000-04:00

In an opinion published last week, (available here), the Court of Special Appeals decided whether a police department’s reliance on incorrect information provided by a third party should be subject to the exclusionary rule.

Previously, in State v. Ott, the Court of Appeals held that the good faith exception to the exclusionary rule did not apply when police officers relied on incorrect internal records of their own department. In Ott, a Sheriff’s Department had kept inaccurate records on the status of warrants, and a police officer who relied on these records was prohibited from invoking the good faith exception to the exclusionary rule. The Court stated that knowledge of the validity of a department’s internal records is imputed to officers of the police department, and that without exclusion, a department may have less of an incentive to keep accurate records (or to actually falsify records).

In this case, police officers pulled the defendant over after running his license plate number through their MVA records database, and finding that the tag was invalid. In fact, the tag was not invalid (or so it seems from the sparse record alluded to on appeal). The defendant argued that the stop was illegal because, under Ott, the police relied on inaccurate records and could not rely on the good faith exception to the exclusionary rule. The state argued that Ott did not apply, and that two recent Supreme Court cases, Evans and Herring, were more on point.

The Court held that the good faith exception to the exclusionary rule should apply to a police department’s reliance on inaccurate MVA records, because police departments have no control over the accuracy of these records, and the MVA has no conceivable interest in maintaining inaccurate records.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Vacates Sentence – Alford Plea to Second Degree Assault Not ACCA Predicate

2010-07-07T10:26:00.000-04:00

The opinion in United States v. Alston is available here.

In an opinion published last week, Judge Niemeyer wrote a unanimous opinion holding that where a defendant has previously been convicted of second-degree assault in Maryland state court, by way of an Alford plea, that conviction may not be used as an ACCA predicate.

There are other posts about ACCA on this blog, but in summary – certain crimes do not, on their face, qualify as violent felonies, because there are non-violent ways to commit the crimes. In Shepard and later cases, the Supreme Court has tailored the types of information courts can look to in determining whether a conviction qualifies as a “violent felony” so that it can be used as a predicated under the Armed Career Criminal Act. Generally, “Shepard prevents sentencing courts from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant.”

In Alston, the district court permitted the United States Attorney’s Office to prove that the defendant’s Alford plea satisfied the “violent felony” requirement by introducing the plea colloquy, during which the state court prosecutor laid out the evidence the state would have presented had the case proceeded to trial. Importantly, because the plea was made pursuant to Alford, the defendant did not admit guilt, nor did the defendant admit any of the facts the prosecutor said they could prove. The defendant simply admitted that the evidence the prosecutor claimed they would present, would be the evidence they presented – without any assertion as to whether the defendant agreed with the truth of such evidence.

The Fourth Circuit reversed the decision of the district court and held that in a case where the defendant entered an Alford plea to a crime that may or may not be a violent felony, this plea itself may not be used as a mechanism to qualify the crime as a predicate under the ACCA.

Posted by Brennan Sullivan and McKenna

Failure to Request Informant Instruction = Ineffective Assistance

2010-07-06T12:17:00.000-04:00

This past week, in United States v. Luck, the Fourth Circuit held that where the outcome of a criminal case might hinge on the credibility of the government's cooperating witnesses, a defense attorney's failure to request an "informant" jury instruction is ineffective assistance.

The opinion is available here.

During the defendant-appellant's trial, the government called to the stand a number of cooperating witnesses who testified that the defendant was a crack dealer, and that he had sold them crack. In addition to this testimony, there was evidence of a search warrant that had been executed at the defendant's house - where paraphernalia, but no drugs were recovered - and a grainy video allegedly depicting the defendant engaged in a drug transaction.

During his cross-examination of the government's cooperating witnesses, the defendant brought the witnesses' biases to the attention of the jury - the witnesses were receiving consideration for their testimony in the form of reduced sentences and monetary compensation. However, at the close of trial, the judge did not read the special "informant instruction" to the jury. This instruction highlights to a jury the need to carefully examine the testimony and credibility of informant witnesses, as these witnesses may have an incentive to tell a version of events that the government wants them to testify to - even if it is not the truth.

For some unknown reason, the defense attorney never requested that the judge instruct the jury in this manner -- even though the judge likely would have given such an instruction (probably without any objection from government, as such an instruction was clearly warranted).

In the end, the court held that the defendant's attorney was ineffective under Strickland, vacated his conviction and remanded his case for a new trial.

Posted by Brennan Sullivan and McKenna

No LWOP for (non-homicidal) Juveniles

2010-05-17T16:35:00.001-04:00

Graham v. Florida (08-7621)

The Supreme Court of the United States held today that a sentence of life without the possibility of parole (LWOP), for a juvenile defendant, violates the Eight Amendment as a cruel and unusual punishment. Justice Kennedy noted in the last portion of the Court's opinion that a sentence of less than LWOP gives offenders "a chance to demonstrate maturity and reform" over time.

"Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. . . . A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term."

"A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term."

The most interesting passage in the opinion (from a defense attorney's perspective) is the following:

"Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to to work effectively with their lawyers to aid in their defense. . . . Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense."

The opinion is available here. Discussion on Graham elsewhere here.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Affirms Convictions for Wire Fraud and District Court’s Calculation of Loss

2010-02-08T14:45:00.000-05:00

Last week, the Fourth Circuit issued an opinion in United States v. Jiten Mehta. The opinion is available here.

The defendant was charged with a variety of crimes relating to the preparation of false tax returns, including wire fraud. At trial, the government presented evidence that the defendant was a tax-preparer for many immigrant clients. He “repeatedly fabricated or exaggerated deductions” on many of the Schedule A returns for his clients. This produced less tax liability for his clients, and, according to the government, a loss to the IRS.

Mehta challenged his conviction and sentence on three grounds: (1) that the evidence offered at trial was insufficient to convict him, or that there was a variance of proof at trial, such that the evidence offered prejudiced him, (2) that the district court’s denial of his motion for Rule 17(c) subpoenas prejudiced him, and (3) that the district court’s tax-loss calculation was in error, and caused the miscalculation of his sentencing guidelines.

The Court’s discussion of the sufficiency and variance issues are brief and straight forward. The more important parts of the opinion are the other issues.

In affirming the defendant’s convictions for wire fraud, the Court states in a footnote:

Mehta also challenges the district court’s denial of his motion for a Rule 17(c) pre-trial subpoena of tax returns filed [during the three year period prior to the returns covered by their testimony] by the taxpayers who testified [against him]. [Mehta] failed to provide any support for his speculation as to the contents of the tax returns sought, [the Court affirms].

The Court resolved the defendant’s entire argument regarding Rule 17(c) subpoenas in a footnote. The defendant, it seems, hoped that by using trial subpoenas for the tax records filed by testifying witnesses in the years prior to the defendant’s conduct, he could show that the clients had themselves claimed the same “fraudulent” deductions prior to his involvement. Because the defendant failed to meet the Nixon standard (the defendant provided “no support” and only “speculation” as to the contents of the returns sought), the Court held, the district court did not err in denying his motion for these subpoenas.

The remainder of the opinion details the vagaries of tax-loss calculation and models that are acceptable – or not – of estimating tax loss under the guidelines. Ultimately, the Court affirms the loss calculation under the harmless error standard.

Posted by Brennan Sullivan and McKenna

Trial Court's Denial of a Motion for Mistrial Constituted Abuse of Discretion

2010-01-04T17:51:00.000-05:00

“We conclude that the case before us presents one of those rare instances in which the denial of the motion for mistrial constituted an abuse of discretion.”

In an opinion filed last week, the Court of Special Appeals vacated a defendant’s conviction for retaliation against a witness and remanded the case for a new trial. The court’s decision recognizes the severe prejudice a defendant must endure when facts about the defendant’s criminal history are elicited to a jury. The opinion in Parker v. State, No. 1351, September Term, 2006. (Filed November 30, 2009) is available here.

The defendant was on trial for the crime of retaliation against a witness. He was convicted by a jury in Washington County, Maryland, and appealed. On appeal, he argued that the trial court erred by refusing to grant a mistrial. Here’s what happened at trial:

Prior to trial, defense counsel (who if I remember correctly was Brian Hutchison or Steve Musselman from the OPD) made a motion in limine to prevent the state from inquiring into the nature of the defendant’s previous “legal proceedings” (the defendant had been convicted of a drug conspiracy). The court granted the motion. Later, the state attempted to cross-examine the defendant on the nature of his prior criminal contacts. The court denied the state’s request.

During the state’s cross-examination of the defendant, this exchange took place:

Q:    In fact, Detective Dunkle had investigated you, isn’t that true?
A:    That’s correct.
Q:    And that investigation led to you being convicted, isn’t that right?

Defense counsel promptly objected and moved for a mistrial. The objection was sustained, but the motion for a mistrial and request to approach the bench to argue the motion were denied.

The Court of Special Appeals held: the defendant’s “request for a mistrial was plainly stated, and the court’s refusal to permit counsel to approach the bench to argue the motion in greater detail effectively denied the motion.”

The Court specifically noted that the reference to the defendant’s prior conviction was an isolated statement intentionally made by the prosecutor despite the trial judge’s instructions and rulings on defense counsel’s motions in limine. In addition, although no curative instruction was requested, the prosecutor “making the reference was person of significant influence in the case.” Because the bulk of the jury’s findings would hinge on the defendant’s credibility, the court held that it could not “conclude beyond a reasonable doubt that the prosecutor’s reference to a prior conviction did not in any way unfairly influence the verdict.”

(This opinion is also notable for the court’s holding that a prosecutor’s cross-examination of a defendant using the “so the other witnesses are lying?” technique is not permitted. This is because these questions ask the defendant-witness to “stand in place of the jury by resolving contested facts.”)

Posted by Brennan Sullivan and McKenna

Sentence Vacated Under Plain Error Standard: Government Breached Plea Agreement

2009-12-04T08:33:00.000-05:00

United States v. Dawson, No. 08-4000 (4th Cir. Dec. 3, 2009). PDF available here.

Yesterday, the Fourth Circuit issued an opinion vacating a defendant’s sentence because, under a plain error standard of review, the government breached its plea agreement with the defendant.

The facts: the defendant’s plea agreement stated that the government would argue for a two-level minor participant reduction in the defendant’s offense level. (See U.S.S.G. § 3B1.2). The PSR prepared for the defendant did not discuss this provision of the plea agreement. At sentencing, neither defense counsel nor government counsel argued for the two-level minor participant reduction found in the plea agreement. (It is unclear why the defendant chose not to argue for this reduction).

The interesting turn in the case is that the defendant did not object at the district court level. Because of this, the Fourth Circuit had to review the government’s breach of the plea agreement for plain error. Generally, plain error is a high standard of review where the defendant bears the burden of satisfying four elements: an error – that is plain – that affects the defendant’s substantial rights – and that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

In Dawson, the court found plain error. The court focused its analysis on the last two prongs of the standard. Dawson found that the government’s breach of the plea agreement violated the defendant’s substantial rights because 1) the court below was influenced by the government’s argument that the defendant was not a minor participant in determining its sentence, 2) the defendant did nothing after the plea agreement was signed that might have altered any party’s view of his role in the offense, and 3) the underlying facts in the PSR indicated that the defendant was a minor participant and an “unreliable” member of the drug conspiracy.

With regard to the last prong, Dawson noted that when the government breaches a plea agreement, “the integrity of the system may be called into question,” but there may also be countervailing factors that justify the breach. In Dawson’s case, the court found none. “A government that lives up to its commitments is the essence of liberty under law, [and] the harm generated by allowing the government to forego its plea bargain obligations is one which cannot be tolerated.”

Posted by Brennan Sullivan and McKenna

Juror's Grandmother Dies, Juror Tells Chambers, COSA Reverses

2009-12-01T13:00:00.001-05:00

In an opinion filed yesterday, the Court of Special Appeals reversed a defendant’s murder conviction and remanded the case for a new trial. At the heart of the court’s decision was a concern about ex parte communications that occur between judges, chambers staff, and jurors. The opinion in Harris v. State, No. 581, September Term, 2008 (Filed November 30, 2009) is available here.

The defendant was convicted of second-degree depraved heart murder in the Circuit Court for Baltimore County. From the earliest stages of the trial, one of the jurors made clear to the court that he potentially had family issues that might impair the juror’s ability to serve. (The juror’s grandmother was seriously ill, and the juror suspected that she might die.) "We do not know whether the juror whose grandmother died or other jurors failed to deliberate properly or rushed to reach a verdict.”

At the close of the trial, and once the jury began deliberating, a note was sent to the court. The note indicated a juror’s request to be excused from further deliberations so that the juror might assist with family funeral preparations. It said: “If you can exchange me for an alternate jury member without disrupting anything, that will be great. If it is a big deal, please discuss with me.”

On the record, the court explained that the judge’s secretary had been contacted by this juror before the jury began deliberations. She asked if the juror was all right to continue deliberating, and the juror answered that he was. Counsel was not alerted to this communication until after it had occurred, and after deliberations had begun and the alternate jurors were discharged.

Maryland Rule 4-326 provides that a court must notify the defendant and the State’s Attorney’s office of the receipt of any communication from the jury pertaining the action at hand before responding to the communication. In Harris, the court found that the trial court’s failure to notify the parties of the communication before responding to it amounted to reversible error. If the court had alerted the parties of the communication, it would have provided the parties with an opportunity to help the court determine whether the juror would be able to exercise his duties in deliberating).

The court noted that “courts should err on the side of caution when dealing with jury communications.” The court also decided that, although the juror’s communication with the secretary related only to a family funeral (and not to the substance of the case), the communication was did pertain to the case: “In determining whether a communication is a ministerial matter, the best practice is for the trial court to confer with counsel for both sides and, if there is any doubt, to err on the side of concluding that it is not.”

The court was especially troubled that the secretary’s communication was ex parte, “thus disturbing the integrity of the record and preventing us and appellant from scrutinizing effectively the improper communications on appeal.” This, coupled with defense counsel’s assertion to the trial court on the record that, had the communication been disclosed before the alternates were discharged, she would have requested the juror be replaced with an alternate, persuaded the court to conclude that the trial court’s error was not harmless.

Posted by Brennan Sullivan and McKenna

Fourth Circuit Scrutinizes ACCA Predicate and Holds in Favor of Defendant

2009-11-17T19:17:00.000-05:00

Today, the Fourth Circuit held in favor of a defendant in a case involving whether an offense can be deemed an ACCA predicate. The opinion in United States v. Harcum, No. 07-4890 (Decided November 17, 2009) is available here.

First, some background on ACCA:

The Armed Career Criminal Act (“ACCA”) requires defendants to serve a mandatory minimum fifteen-year prison sentence if they have been convicted of unlawful possession of a firearm and have had three previous convictions for violent felonies or serious drug offenses. (The offenses also must have been committed on separate occasions.)

ACCA defines a “violent felony” as (1) a crime punishable by more than one year imprisonment (except for state misdemeanor offenses carrying a maximum penalty of two years – those don’t count) (2) that has as an element “the use, attempted use, or threatened use of physical force against the person of another.”

Given the severe mandatory minimum at stake for defendants potentially subject to ACCA, a court’s determination of whether an offense qualifies as a predicate is often a hotly contested issue. Courts can engage in two types of analysis to determine whether a conviction is an ACCA predicate: First, courts determine whether the elements of given crime, on the books, qualify an offense as a serious drug offense or a violent felony under ACCA. Second, if a court is unable to determine whether an offense qualifies as an ACCA predicate by examining the statutory language of the count of conviction, a court may be entitled to examine underlying charging documents and jury instructions.

Without going in to too much detail, a sentencing court cannot look to just any type of underlying document to determine whether an offense is an ACCA predicate, but only to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”

This second type of analysis – dubbed the “modified categorical” approach – underlies the problems addressed in Harcum.

Here’s what happened:

Harcum had previously been convicted of second degree assault in Maryland state court. In Maryland, second degree assault is a misdemeanor, but one that carries a maximum sentence of imprisonment of 10 years. In Maryland, the statutory definition for second degree assault prohibits a person from “commit[ting] an assault.” By itself, this definition is insufficient to qualify an offense as an ACCA predicate.

Before his conviction for second degree assault, the defendant had been charged in the district court with second degree assault, and the statement of charges filed in district court contained facts that would have made the offense, if he had been convicted, an ACCA predicate.

At the defendant’s federal sentencing, the government argued that the statement of charges that had been filed in the district court corresponded to the charge that the defendant had pled guilty to in the circuit court. As such, the government argued, the conviction for second degree assault was an ACCA predicate. The sentencing court agreed.

On appeal, the Fourth Circuit held that because the statement of charges was never incorporated into the Information (that the defendant pled guilty to), there was not enough information for the sentencing court to conclude that the offense was an ACCA predicate. The Fourth Circuit recognized that in Maryland, a statement of charges may be supplanted by the filing of a criminal information – as it was in Harcum’s case.

What is worth noting is that the crime described in the Information that the defendant pled guilty to seemed to be the same crime as laid out in the statement of charges – the dates and the offenses were the same. The Fourth Circuit, however, said that this could have been a coincidence, and was not sufficient to rely upon to qualify the offense for ACCA.”Mere similarities in such documents . . . fail to explicitly incorporate their contents, and they do not authorize a sentencing court to bypass the “court of conviction” requirement” of the Supreme Court in Shepard and Taylor, two cases dealing with ACCA predicate offenses.

Congratulations are owed to Sapna Mirchandani and (probably) Paresh Patel for this victory.

Posted by Brennan Sullivan and McKenna

Voir Dire is Not Foolproof, But Gives Meaning to Constitutional Rights

2009-11-17T11:59:00.003-05:00

Edwin Wright v. State of Maryland, No. 6, September Term, 2009.

The opinion is available here (pdf).

While “voir dire is not a foolproof process,” . . . “it is better that we should use an overabundance of caution, and assume that the judicial system as a whole is better served by a more careful process. . . . Certainly, that is not too high a price to pay to give meaning to a right guaranteed by our Constitution.”

In an opinion filed November 16, 2009, the Maryland Court of Appeals reversed the judgment of the Court of Special Appeals, and remanded the case for a new trial. At issue before the Court was whether a trial court in Baltimore City had abused its discretion by conducting voir dire by way of posing a roster of questions in quick succession.

During jury selection, the trial court conducted a voir dire of a fifty-person venire panel. (Voir dire is the process that trial courts and attorneys use to question prospective jurors and determine whether they could be fair and impartial.) The trial court conducted the voir dire by posing a litany of seventeen questions to the panel. After the questions were read, each juror was asked to approach the bench and state whether they had information to provide in response to the questions posed.

Counsel for the defendant objected to this methodology of voir dire, and argued that the jurors would be unable to remember all of the questions posed so as to fairly respond to them by the time they approached the judge. At trial, the defendant was convicted, and on appeal his conviction was affirmed in the Court of Special Appeals.

In the Court of Appeals, the petitioner argued that the trial court’s method of conducting voir dire failed to reasonably ensure that the court received accurate responses to its questions. The Court of Appeals agreed, and held that the trial court abused its discretion by conducting voir dire in this “cursory” and “unduly limited” manner.

The right to a fair and impartial jury is guaranteed by the United States Constitution and the Maryland Declaration of Rights. The essential purpose of voir dire in a criminal case is to ensure that this right is protected. While trial courts have broad discretion in the way they conduct voir dire, an appellate court will not defer to a lower court’s judgment when the voir dire method employed by the court “fails to probe juror biases effectively.”

The Court of Appeals took care to note that the questioning part of the voir dire process took about five minutes and thirty seconds. In addition, some of the jurors who were ultimately selected for the jury approached to answer the questions nearly one hour after the questions had been read. “Information presented in the courtroom is most accessible when divided into small, discrete segments.” By failing to allow jurors time to absorb the questions that were being posed to them, the Court of Appeals held, the trial court limited the jurors’ opportunity to provide accurate information to the court.

“An incomplete voir dire necessarily means an incomplete investigation into potential juror biases, which in turn leads to the very real possibility that the venire members failed to disclose relevant information.”

Posted by Brennan Sullivan and McKenna

Court of Appeals of Maryland Finds No Bad Faith, Reverses Circuit Court's Dismissal of Second Indictment

2009-11-12T16:57:00.002-05:00

Posted by Brennan Sullivan and McKenna

State v. Huntley, Record No. 157 (Court of Appeals of Maryland, Sept. Term, 2008)

In an opinion filed November 12, 2009, the Court of Appeals of Maryland held that Mr. Huntley’s right to be tried within 180 days (pursuant to Md. Rule 4-271 (a) (1) and State v. Hicks, 285 Md. 310 (1979)) was not violated where, after the circuit court denied its motion to amend the indictment, the State “nol prossed” and re-indicted the case.

Mr. Huntley was indicted for child sexual abuse. The parties appeared for trial one day before the Hicks deadline. The State, proffering that it had just recently learned that the offense dates set forth in the indictment were incorrect, moved to amend the dates on the indictment. The circuit court denied the request.

The State therefore entered the charges nolle prosequi and re-indicted the defendant outside of the original “Hicks date.” Mr. Huntley filed a motion to dismiss the second indictment, arguing that the re-indictment violated Hicks and Rule 4-271. The circuit court granted the motion and the State appealed. The Court of Appeals took certiorari on the issue from the Court of Special Appeals.

Citing Curley v. State, 299 Md. 449 (1984), the Court noted that a nolle prosequi and re-indictment of a defendant does not implicate Hicks unless its purpose or its necessary effect “is to circumvent the statute and rule governing time limits for trial…” The Court went on to hold that, where the State “nol prosses” an indictment because its motion to amend the indictment was denied, Curley, Hicks, and Md. Rule 4-271 do not require dismissal of the subsequent indictment unless the State proceeded in bad faith. Finding the record devoid of bad faith, the Court reversed and remanded the case to the circuit court to determine whether the State had proceeded in bad faith.

Chief Judge Bell and Judge Greene dissented to the opinion, essentially arguing that, because the State had other options (e.g., asking the administrative judge for a postponement) and didn’t exercise them, bad faith on the part of the State was apparent from the record.

For now at least, the Court of Special Appeals finds no Second Amendment protection against Maryland's firearm regulations.

2009-11-05T11:41:00.003-05:00

Williams v. State of Maryland, Record No. 01999, (Court of Special Appeals, Sept. Term, 2008)

In an opinion filed October 30, 2009, the Court of Special Appeals held that – for now at least - Maryland’s prohibition on transportation of a handgun (Md. Crim. Law Code Ann. § 4-203) is not subject to Second Amendment analysis and therefore does not violate a defendant’s right to keep and bear arms under the United States Constitution.

The crux of the opinion (authored by Judge Matricciani) is simply that the Second Amendment of the United States Constitution (“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed”) does not apply to the states. Moreover, the Maryland Constitution contains no “corollary of the federal constitutional right codified in the Second Amendment.”

Therefore, according to the holding, the argument that carried the day in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) is of no avail against Maryland’s statute regulating firearms. As the Court of Special Appeals noted, the United States Supreme Court has recently taken up this very question in McDonald v. City of Chicago, No. 08-1521 (September 30, 2009) and is likely to decide it by June or July, 2010.

In the meantime, the Court of Special Appeals held, “Until the Supreme Court rules definitively on incorporation of the Second Amendment, we must assume, without deciding, that it has not been incorporated.”

Posted by Brennan Sullivan and McKenna

Greenbelt Court Interprets Melendez-Diaz

2009-10-02T19:25:00.001-04:00

United States of America v. Clark Darden, Case No. 09-602M

The opinion is available here (pdf).

Last week, Judge DiGirolamo signed an opinion interpreting the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2537 (2009). In Melendez-Diaz, the Court held that state forensic analysts’ “certificates of analysis” performed on seized substances, and prepared for use in criminal prosecutions are testimonial evidence, and subject to confrontation as set forth in Crawford: “Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Very generally, Melendez-Diaz held that the government may not prove the contents of a printed forensic analysis record without the presence of the analyst.

In Darden, the defendant argued that the Government was required to produce the testimony of two lab technicians who conducted tests on the seized substances, and who produced the raw data, upon which the supervising toxicologist relied in forming his opinion as to the alcohol content of the sample.

The defendant argued that under the Supreme Court’s decision in Melendez-Diaz, the Government was required to produce the testimony of each of the lab technicians, and not only the testimony of the supervising lab technician. The Government argued that the data gathered and recorded by the lab technicians, which was eventually used by the supervisor, were not “statements” of the lab technicians, were not “hearsay” statements, and were not “testimonial.”

The Court disagreed with the defendant. It held that the inculpating “statements” of the lab technicians were not statements at all, but rather “printed data generated by the testing machines.” The Court stated that “[The supervising technician] did not simply conduct a technical review” of the findings and conclusions of the underlying testing individuals. He reviewed the raw data in order to form his own conclusions and findings. . . . [The] technicians did not generate their own conclusions but simply ran the tests which generated the data.”

In the end, Darden is an interpretation of Melendez-Diaz that the presence of the technicians involved in the chain of custody of a sample is not required for cross-examination regarding the reliability of the data generated from the sample.

Posted by Brennan Sullivan and McKenna

Child Likes the Color Red, Court of Appeals Upholds Competency to Testify

2009-09-22T12:11:00.002-04:00

Jones v. State of Maryland, No. 3, September Term, 2008.

The opinion is available here (pdf).

In an opinion filed today, the Court of Appeals upheld the finding of a Circuit Court judge that a six-year old child was competent to testify in a trial of child sexual abuse and second-and-third degree sexual offense charges.

In Maryland, trial judges have no discretion to admit the testimony of a witness who is not competent to testify. The traditional standard for competency is this: a witness must have an understanding and appreciation of the nature and obligation of an oath to tell the truth, and an ability to observe and describe the facts the witness is called to testify about. This test has been articulated in a variety of ways, but at its core it has four components: 1) that the witness understand the concept of “telling the truth”; 2) that the witness have a capacity to observe (at least at the time of the underlying event); 3) that the witness have a capacity to recollect the facts observed; and 4) that the witness have an ability to communicate, including the ability to respond to questions about facts in the witness’s testimony itself.

In cases where children are alleged to be victims of crime, their competency to testify is often disputed at trial. It is essential for defense attorneys to closely scrutinize the potential incompetency of a child to testify, particularly in cases tried before juries, where members of the jury may be sympathetic to a child’s inability to precisely recall an event.

As with all determinations of witness competency, and as Jones makes clear, trial judges have broad discretion to admit a child’s testimony as competent. The age of a child is not the test in Maryland for competency. Instead, the test is whether the child has enough intelligence to provide testimony of any value, and whether the child feels a duty to tell the truth.

In Jones, the trial court conducted a lengthy hearing to determine if the child was competent to testify. During the examination, the child was presented with slides of people holding various objects. The child was told what the people holding the objects were saying, and was asked to state which person was telling the truth. Without fail, the child chose the person in the picture wearing red. The trial judge recognized that “he has a very strong preference to red . . . [and] he did poorly.”

In its ruling, the trial court noted that “quite frankly . . . the slide show presentation . . . I’m not being derogatory, but the bell and whistle presentation, quite frankly did poorly.” However, the trial judge determined that the child’s performance on another part of the examination was sufficient to convince him that the child was competent to testify.

Applying the “clearly erroneous” standard of review, the Court of Appeals upheld the Circuit Court’s finding that the child passed the “truth v. lie” and “ability to observe and relate” portions of the competency test, and had a strong understanding of his obligation to tell the truth.

Posted by Brennan Sullivan and McKenna

Court of Appeals Reverses – Defendant Improperly Advised Before Waiving Counsel

2009-09-21T16:58:00.001-04:00

Brye v. State of Maryland, No. 127, September Term, 2008.

The opinion is available here (pdf).

In an opinion filed September 18, 2009, the Maryland Court of Appeals reversed the judgment of the Court of Special Appeals, and remanded the case for trial. The Court reversed because the defendant was improperly and inconsistently advised of the allowable penalties of the crimes he was charged with, prior to accepting the defendant’s waiver of counsel. The Court stated that this case exceeded its tolerant for insufficient advisements to a defendant before acceptance of a waiver of counsel.

As a background note, Rule 4-215 governs a defendant’s waiver of counsel. One provision of this rule specifically states that a judge shall “[a]dvise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.”

In Brye, the defendant appeared at trial with his attorney. When the defense attorney requested that the trial date be continued, the defendant objected and fired his attorney. His case was tried later that day, and he was convicted of second-degree assault, and sentenced to 10 years imprisonment.

The issue before the Court of Appeals was whether, having been inconsistently advised of the maximum penalty for the offenses with which he was charged (that is, two judges told him different things regarding the allowable penalties for his charges), the defendant’s waiver of counsel was valid, given that he was not convicted of any offenses whose penalties were improperly advised to him.

Below, the Court of Special Appeals had held that any error that may have been committed was of no harm to the defendant, given that he was properly advised of the allowable penalties for second-degree assault, the only crime for which he was convicted. The Court disagreed.

“Incorrect advisements commingled with correct ones, rendered by a series of judges, cannot be ignored simply because a defendant is not convicted of the implicated charge or charges. . . . The analytical focus of a Rule 4-215 argument is at the point in the proceeding when the waiver is accepted . . . not what happened at trial.”

Posted by Brennan Sullivan and McKenna