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Latest Criminal Law News    
 IN THIS ISSUE

SUPREME COURT OPINIONS

Luis v. United States - pretrial restraint of untainted assets unconstitutional

Lockhart v. United States - prior conviction used to aggravate child pornography sentence

Wearry v.Cain - failure to disclose exculpatory evidence

OPINIONS FROM THE MARYLAND COURT OF APPEALS/COURT OF 
SPECIAL APPEALS

 Bowling v. State - despite decriminalization of possession of less than 10 grams of marihuana, odor or marihuana supports search of vehicle

Riley v. State - evidence sufficient to sustain first degree assault where police officer shot a fleeing, handcuffed suspect  

Bowers v. State - 10 year sentence for involuntary manslaughter legal

Anderson v. State - warrant required for real-time tracking device

Twigg v. State - merger of child abuse & sex offenses

Seal v. State - recording not done under supervision of law enforcement officer

Sharpe v. State - court did not improperly consider in sentencing the fact that defendant rejected plea offer and elected to go to trial

OPINIONS FROM THE UNITED STATES COURT OF APPEALS FOR FOURTH CIRCUIT

United States v. Under Seal - order denying juvenile transfer to adult jurisdiction affirmed

United States v. McNeal - bank robbery is a crime of violence

United States v. Ragin - ineffective assistance of counsel where trial counsel is asleep during trial

Matherly v. Andrews - application of Adam Walsh act was not being applied retroactively; remand to determine if defendant was in custody

United States v. Alvarado - conviction for heroin dealing resulting in death affirmed
 
 

All case summaries are hot linked to the full opinion
Odor of marihuana supports search of vehicle despite the decriminalization of less than 10 grams of marihuana

The CSA rejected Bowling's contention that inasmuch as the General Assembly decriminalized the possession of less than 10 grams of marihuana that a K-9 alert on a vehicle for the presence of marihuana no longer justified a search of the vehicle.  

Supporting, in part, its reasoning, the CSA noted that marihuana was still contraband and that the General Assembly made clear in the legislation decriminalizing marihuana that it did not intend to alter the law regarding search and seizure. 

Evidence sufficient to support 1st degree assault conviction of police officer who shot suspect who was fleeing, where offense was minor and suspect presented no threat

The CSA rejected Officer Riley's assertion that the evidence was insufficient to convict him of first degree assault and use of a firearm. The suspect was not only running away from Riley after being arrested for a relatively minor offense, but had his hands handcuffed behind his back when Riley shot him. 

The CSA also rejected Riley's position that because he was a police officer there was a malice element that needed to be proven before he could be convicted of first degree assault.  It similarly rejected his contention that he could not be convicted of the use of a firearm because he was a police officer carrying out his police duties.

10 year sentence for involuntary manslaughter conviction is not an illegal sentence

Bowers filed a motion to correct an illegal sentence pursuant to Md. Rule 4-345 arguing that because the manslaughter sentencing statute, Md. Code (2002, 2012, Repl. Vol.), Criminal Law Article ("CR") § 2-207, is ambiguous, he is subject to the rule of lenity which requires that CR § 2-207 be read in his favor. Bowers asserted that CR § 2-207 should be read as imposing two separate maximum sentences for voluntary and involuntary manslaughter and that since he was convicted of involuntary manslaughter he should be subject to a maximum of 2 years in a local facility and, therefore, his 10-year sentence is illegal. 

The CSA rejected Bowers position that the rule of lenity should be applied because the penalty provisions of the statute were ambiguous.  

The CSA held that the statutes were not ambiguous.

Warrant required for use of real-time cell phone tracking device

This 73 page opinion is a "must-read."  The case presents a Fourth Amendment issue of first impression in this State: "whether a cell phone-a piece of technology so ubiquitous as to be on the person of practically every citizen-may be transformed into a real-time tracking device by the government without a warrant."

The Baltimore City Police Department used an active cell site simulator, without a warrant, to locate Andrews who was wanted on charges of attempted murder. The cell site simulator, known under the brand name "Hailstorm," forced Andrews's cell phone into transmitting signals that allowed the police to track it to a precise location inside a residence located at 5032 Clifton Avenue in Baltimore City. The officers found Andrews sitting on the couch in the living room and arrested him pursuant to a valid arrest warrant. The cell phone was in his pants pocket. After obtaining a warrant to search the residence, the police found a gun in the cushions of the couch. 

The CSA concluded that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and stated that the Fourth Amendment protects people and not simply areas-that people have an objectively reasonable expectation of privacy in real-time cell phone location information. The CSA held that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies. 

The State argued that the cell site simulator used in this case merely "detects the signal emitted by the cell phone, just as a regular cell tower would[,]" and, therefore, "the police used data that Andrews voluntarily shared with third parties-specifically his cell phone provider-to locate his phone." The State maintained that no Fourth Amendment "search" occurred because Andrews had no reasonable expectation of privacy in information he voluntarily transmitted to a third party. The State contends that, by carrying and using a cell phone that regularly communicates with nearby cell towers, Andrews assumed the risk that the information transmitted to the cell towers would be revealed to the police. 

The CSA noted that it joined in the view shared by other courts that, "[t]he fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected." 

The CSA made clear that a pen register order was not sufficient to meet the warrant requirement to justify the use of the real-time tracking device.

The CSA also rejected the State's standing challenge holding that Andrews had a reasonable expectation of privacy in his aggregate and real-time location information contained in his cell phone. 

Carrying a concealed weapon is not an impeachable offense 

Anderson argued that the trial court erred in declining to permit him to impeach a witness with a prior conviction for carrying a concealed weapon. Anderson contended that had the jury had information regarding that convictionit would have served to impeach the witness' credibility because carrying a concealed weapon is a crime involving deception and shows a willingness to lie under oath.

The CSA noted that Maryland's appellate courts have not specifically determined whether carrying a concealed weapon is an offense that may be admissible for impeachment purposes pursuant to Rule 5-609.  It then held hat the crime of carrying a concealed weapon is neither an infamous crime nor a crime relevant to credibility and, therefore, held  that a conviction for carrying a concealed weapon is not an impeachable offense. 
Only one of three sex offenses merges into child abuse conviction; remand for re-sentencing proper remedy

Twigg presented several issues relating to merger of sentences in criminal cases under the "required evidence test" of Blockburger v. United States, 284 U.S. 299 (1932). The issues had their genesis in Twigg's conviction of child abuse, second degree rape, third degree sexual offense, and incest against his daughter. As charged, any one of the three sexual offenses could have provided the basis for the child abuse conviction. The trial court sentenced Twigg to a total of forty years' incarceration: consecutive terms of twenty years for second degree rape, ten years for third degree sexual offense, and ten years for incest; for child abuse, the court imposed a fifteen year sentence, but suspended the entirety of that time in favor of five years' probation. The COA noted that it had to decide whether all, or only one, of the sexual offenses merge for sentencing purposes with the sentence for child abuse and whether Maryland law permits a remand to afford the trial court the opportunity to consider re-sentencing on the child abuse conviction and, if so, the limits within which the court must operate when considering a new sentence for that crime. 

The COA held that only the sentence Twigg received for second degree rape must be vacated, by application of State v. Johnson, 442 Md. 211 (2015) and further held that Maryland Rule 8-604(d) authorizes a remand for a new sentencing hearing and, at that hearing, the sentencing court has the discretion to re-sentence Twigg to a term of active incarceration on the child abuse conviction. 

Twigg argued before the Court of Special Appeals that he was entitled to have the "separate convictions and/or sentences" for the three sexual offenses vacated as lesser included offenses of that crime.

Where Twigg was convicted of child sexual abuse and three statutory sexual offenses (incest, second degree rape, and third degree sexual offense) - any one of which supports a conviction for child sexual abuse - the COA held that only one of the statutory sexual offenses merge for purposes of sentencing, rather than all three.

The COA noted that because it could not discern which of the three sexual offenses the jury relied upon in finding Twigg guilty of child abuse, it would resolve that ambiguity by holding that Twigg was entitled to have the crime that carries the greatest maximum sentence merge for sentencing purposes with the child abuse sentence. Twigg was entitled to have vacated the twenty year sentence for second degree rape.  

Addressing the issue of a possible increased sentence upon remand, the COA stated that a defendant's sentence will be considered to have increased only if the total sentence imposed after retrial or on remand is greater than the originally imposed sentence. Accordingly, if on remand in the present case the Circuit Court were to exercise its discretion to impose on the child abuse conviction any period of active incarceration, even if it were the maximum of fifteen years' incarceration available at the time of Twigg's crime, such a sentence would not violate § 12-702(b) because, when added to the combined twenty years of incarceration for third degree sexual offense and incest, Twigg's total sentence would not be greater than the total forty-year sentence originally imposed.

Recording violated the statute requiring that recording occur under the supervision of a law enforcement officer

In Seal the COA answered the question as to whether, when a Maryland law enforcement officer provides a West Virginia resident with a recording device to be used at the resident's pleasure, does use of the device constitute "acting . . . under the supervision of a . . . law enforcement officer" pursuant to the Maryland Wiretap Statute.

The central point of contention between the parties was whether the person who recorded the conversation was acting "under the supervision of an investigative or law enforcement officer" as required by the statute. CJP § 10-402(c)(2)(ii).  Seal argued that the call was not recorded under the supervision of a police officer because all the detective did was give the person the recording equipment with limited instructions about how to operate it.

The detective provided the person with recording equipment so he could conduct the recording himself in his home state of West Virginia. The detective did not listen in on the conversation as it took place. There was no contact between the detective and the person who made the recording for at least two weeks and it was not until after the person used the equipment to record a conversation with Seal that the detective came into contact with the victim to retrieve the recording

The COA pointed that it was not holding that law enforcement must be present or listening remotely at the time of the recording nor was it holding that there can never be a two-week gap between communications when the police are supervising a person who is taping conversations. It continued that it was mindful of the fact-specific nature of the inquiry involved but the COA found in this case a complete absence of supervision such that when all of the above facts are considered in the aggregate, it becomes clear that there was no supervision at all. 


Trial court did not improperly consider defendant's decision not to plead guilty in imposing sentence after trial

The COA described this case as one concerning "the worrisome issue of whether, in imposing a sentence, a trial court impermissibly considered the defendant's election not to plead guilty, and, more specifically, whether the trial court impermissibly considered the fact that the defendant declined the "court's offer" of a plea agreement." 

At sentencing, Sharp's counsel asked the circuit court to impose the sentence that was part of the circuit court's plea offer. Sharp's counsel stated: "[N]othing is anything different because we went to trial[.]" Soon afterward, the circuit court stated: "So you don't believe that putting [the] State's witnesses, the victim through, reliving that and testifying in Court is no different than if he would have admitted what he did and pled guilty in front of me?" 

The COA observed that this case illustrates one of the myriad of issues that may occur where a trial court makes a "court's offer" of a plea agreement-namely, an allegation that, during sentencing, a trial court might have been motivated by the impermissible consideration of a defendant's having declined the trial court's plea offer. To avoid a minefield of issues and it advises trial courts to comport with both refrain from directly making plea offers to defendants in criminal cases and continued that the trial court's role is to approve or reject a plea agreement that the parties submit to it, not to come up with its own plea offer-i.e., a "court's offer." 

The COA held that the record in Sharpe contains no indication that the circuit court imposed a harsher sentence because Sharp declined either the circuit court's plea offer or the State's plea offer.
   
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Pretrial restraint of untainted assets violates Sixth Amendment

In Luis the question presented is "[w]hether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments." 

The Supreme Court held that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. It stated that the nature and importance of the constitutional right taken together with the nature of the assets lead it to this conclusion.

The Court added that the constitutional line it has drawn should prove workable and that line distinguishes between a criminal defendant's (1) tainted funds and (2) innocent funds needed to pay for counsel. While the Court conceded that money is fungible; and sometimes it will be difficult to say whether a particular bank account contains tainted or untainted funds. 
The Court observed that the law has tracing rules that help courts implement the kind of distinction required in this case. 
   
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Prior conviction used to aggravate child pornography conviction

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have "a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." §2252(b)(2). The question before the Court was whether the phrase "involving a minor or ward" modifies all items in the list of predicate crimes ("aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct") or only the one item that immediately precedes it ("abusive sexual conduct").  The Supreme Court held that the phrase "involving a minor or ward" in §2252(b)(2) modifies only "abusive sexual conduct." 
   
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Per curiam reversal for failure to disclose exculpatory evidence

After Wearry's conviction became final, it emerged that the prosecution had withheld relevant information that could have advanced Wearry's defense.

First, previously undisclosed police records showed that two of Sam Scott's fellow inmates had made statements that cast doubt on Scott's credibility. One inmate had reported hearing Scott say that he wanted to "'make sure [Wearry] gets the needle cause he jacked over me.'"  The other inmate had told investigators-at a meeting Scott orchestrated-that he had witnessed the murder, but this inmate recanted the next day. "Scott had told him what to say," he explained, and had suggested that lying about having witnessed the murder "would help him get out of jail." 

Second, the State had failed to disclose that, contrary to the prosecution's assertions at trial, Eric Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would "'talk to the D. A. if he told the truth.'" 

Third, the prosecution had failed to turn over medical records on Randy Hutchinson. According to Scott, on the night of the murder, Hutchinson had run into the street to flag down the victim, pulled the victim out of his car, shoved him into the cargo space, and crawled into the cargo space himself. But Hutchinson's medical records revealed that, nine days before the murder, Hutchinson had undergone knee surgery to repair a ruptured patellar tendon.  An expert witness, Dr. Paul Dworak, testified at the state collateral-review hearing that Hutchinson's surgically repaired knee could not have withstood running, bending, or lifting substantial weight. The State presented an expert witness who disagreed with Dr. Dworak's appraisal of Hutchinson's physical fitness.

The Supreme Court reversed the lower court's denial of post-conviction relief.
   
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Per curiam holding that possession of stun guns is protected by Second Amendment

The Supreme Court noted that it has held that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," District of Columbia v. Heller , 554 U. S. 570, 582 (2008), and that this "Second Amendment right is fully applicable to the States," McDonald v. Chicago , 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." 

The Supreme Judicial Court rejected Caetano's Second Amendment claim, holding that "a stun gun is not the type of weapon that is eligible for Second Amendment protection.  It rejected the Massachusetts' court ruling that stun guns are unprotected because they were "not 'in common use at the time' of enactment of the Second Amendment," and because they fall within the "traditional prohibition against carrying dangerous and unusual weapons."

   
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Refusal to transfer juvenile to adult jursidiction affirmed 

The government sought to have the juvenile defendant's transferred to adult jurisdiction.  The district court denied the motion on the basis that the defendant could not be prosecuted in the adult court for murder in aid of racketeering because his conviction would require the court to impose an unconstitutional sentence.

The COA held that the district court did not err in denying the Government's motion to transfer the defendant for prosecution as an adult and rejected the government's position that the unconstitutional portion of the statute that would have required a death or life sentence for the juvenile could not be severed such that it would then give the district court the authority to impose less than a death or life sentence.

   
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Bank robbery is a crime of violence

After rejecting various claims regarding sufficiency of the evidence, the COA addressed McNeal's contention that bank robbery is not a crime of violence.

It held that it was satisfied that bank robbery under 18 U.S.C. § 2113(a) is a "crime of violence" within the meaning of the force clause of 18 U.S.C. § 924(c)(3), because it "has as an element the use, attempted use, or threatened use of physical force" - specifically, the taking or attempted taking of property "by force and violence, or by intimidation." Because bank robbery is a lesser-included offense of § 2113(d) armed bank robbery, armed bank robbery is also a crime of violence under the force clause. 
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Ineffective assistance of counsel established when counsel sleeps during trial

A defendant's right to effective assistance of counsel is violated when his counsel sleeps during trial. 

The evidence here established that Ragin's counsel slept during a substantial portion of the trial.  
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Application of Adam Walsh "sexually dangerous person" not applied retroactively; remand to determine if defendant had been released from custody

The COA affirmed the district court's determination that the Adam Walsh Act was not impermissibly applied retroactively to Matherly when it found that he was a "sexually dangerous person" under 18 U.S.C. 4248.

The COA remanded for a further hearing Matherly's claim that he was not "in the custody" of the BOP when the § 4248 proceedings were initiated
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Conviction for heroin dealing that resulted in death affirmed

Alvarado contended that the district court erred (1) in failing to clarify for the jury that the results-in-death element meant that the jury could not convict him of the charged offense if heroin was only a contributing cause of death; (2) in failing to instruct the jury that Alvarado must have "reasonably foreseen" that death could result; and (3) in admitting hearsay testimony that Thomas said he purchased heroin from "Fat Boy," meaning Alvarado, in violation of the hearsay rule and the Sixth Amendment's Confrontation Clause.  The COA reject each claim.

First, the COA held that it did not find that the district court abused its discretion, let alone committed plain error, in refusing to attempt a clarification of "results from" as there was no evidence in the case that would allow a jury to find that heroin was only a nonessential contributing cause of the victim's death. 

Second, the COA explained that "the plain language of § 841(b)(1)(C) does not require, nor does it indicate, that prior to applying the enhanced sentence, the district court must find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event." and further stated that the "plain language reveals Congress' intent" to "put[] drug dealers . . . on clear notice that their sentences will be enhanced if people die from using the drugs they distribute." 

Finally, the challenged testimony included statements that Thomas made to his fiancée and to one of his best friends - - in an informal setting -- that he purchased his heroin from "Fat Boy." Because such statements were not testimonial, the COA held that their admission did not implicate the Confrontation Clause and were, if admitted in error, harmless.
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Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
Representing individuals & organizations in criminal matters in State & Federal Court
RCB MEC

Robert C. Bonsib, Esq.

Fellow, American College of Trial Lawyers

Washingtonian "Top Lawyers"  (2002-2015)

"Best Lawyers in America" - White Collar &

Non-White Collar Criminal Defense

Super Lawyers - Maryland & D.C.

Robert C. Heeney Award by Maryland State Bar Association 

for Distinguished Career in Criminal Law

Maryland Pattern Criminal Jury Instructions Committee

Past Chair, MSBA Criminal Law Section

Past Chair, Prince George's County Criminal Law Committee

Former federal and state prosecutor

40 years of trial experience

301-441-3000 (office)

301-509-5100 (cell)

Email Robert C. Bonsib, Esq.

 Website www.robertbonsib.com

  

Megan E. Coleman, Esq.

Board of Directors, Maryland Criminal Defense Attorneys Association

CJA Panel for the U.S. Court of Appeals 

for the Fourth Circuit

Member, National Association of Criminal Defense Attorneys; Prince Georges County, Montgomery County and Maryland State Bar Associations

 Email Megan E. Coleman, Esq. 

240-328-8378 (cell)

Robert C. Bonsib, Esq. | robertbonsib@marcusbonsib.com| 301-441-3000 |www.robertbonsib.com