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Please enjoy our digests of selected recent reported cases from the Maryland and Federal appellate courts, each with a web-link to the full reported opinion.
United States v. Stitz (USCOA - 4th Cir.)

Evidence of "distribution" of child pornography sufficient where defendant knowingly participated in a peer-to-peer file sharing network
One of the most difficult issues for clients charged with distribution of child pornography to accept is that guilt for "distribution" of child pornography can be established even where there was no active conduct of sending child pornography to another.

In Stitz the Fourth Circuit affirmed a conviction for distribution of child pornography where the evidence established that Stitz knew when he downloaded peer-to-peer software that the images of child pornography that he downloaded were saved in a shared folder on his computer and that he knew that the contents of that folder would be available to other members of the peer-to-peer network.

Law enforcement officers were able to, and did access his shared folder and obtained images of child pornography that were saved in shared folder of Stitz' computer. That was sufficient to sustain the distribution conviction.
United States v. McLamb (USCOA - 4th Cir.)

Good faith saves "dark web" search warrant

The Federal Bureau of Investigation (“FBI”) obtained evidence in the course of its investigation of a child pornography website called “Playpen,” a hidden services message board located on the “dark web.” The dark web is a collection of encrypted networks providing strong privacy protections to its users. After locating and seizing the Playpen servers in February 2015, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate users accessing the website. The NIT is a computer script designed to overcome the anonymity protections of the dark web and collect identifying information from computers accessing the Playpen website. A federal magistrate judge in the Eastern District of Virginia issued the warrant, authorizing use of the NIT on Playpen visitors for 30 days. The NIT identified thousands of computers across the world that accessed Playpen during the 30- day period. After the NIT identified McLamb as one such visitor, the FBI seized McLamb's hard drive and charged him with receipt and possession of child pornography. McLamb challenged the warrant’s particularity and its execution, as well as the jurisdiction of the magistrate judge to authorize such a search. 

The NIT works by corrupting the target server, thereby surreptitiously supplementing child pornography data with the NIT script: [NIT] is installed on the server [of a particular Tor website.] After a user of the [Tor website] takes certain actions, including downloading information from the [NIT infected] server . . . that information is supplemented with the NIT instructions. So the user downloads the NIT to their computer and takes it to their computer, wherever it may be located. Once delivered and installed to a user’s computer, the NIT deploys a “payload” software that searches the user’s computer for identifying information: (1) the user’s IP address; (2) a unique signature generated by the NIT so that user’s activities on the Tor network might be identified; (3) the user’s operating system; (4) whether the NIT is already installed on a user’s computer; (5) a host name used to identify the device in other kinds of electronic communication; (6) the user’s active operating system username; and (7) the user’s Media Access Control address, which identifies the location where the user’s computer connects to the internet. The NIT then transmits all of that data to the FBI

The search warrant in this case was authorized before the 2016 rule change which enlarged the scope of United States Magistrate Judges to issue such search warrants.

The Fourth Circuit noted that there have been conflicting decisions with respect to such search warrants. However, in this case the Court held that the results from the search warrant would not be suppress because the federal agents sought legal guidance from DOJ attorneys, because there was not clear judicial guidance and because the search warrant was not so facially deficient that law enforcement officers could not, in good faith, rely upon it, The COA stated that "[w]e are disinclined to conclude that a warrant is “facially deficient” where the legality of an investigative technique is unclear and law enforcement seeks advice from counsel before applying for the warrant."
State v. Williams (COA-Maryland)

Use of 1990 battery conviction to impeach character witness
Williams was convicted of second-degree assault. During the defense case, Williams called two character witnesses, who had know him for ten years, to offer favorable opinion testimony regarding Williams character for being a peaceful and non-violent man. The trial court permitted the State to cross-exam the two witnesses regarding a 25 year old (1990) battery conviction and to ask the witnesses whether each was aware of the conviction ("no") and whether it would change their opinion of Williams ("no"). This
conviction occurred 15 years before either witness knew Williams.

The COA rejected Williams' argument that the conviction was too remote in time and rejected his argument that any probative value of the prior conviction was outweighed by its prejudicial effect. The COA also stated it would not read 15 year limitation into Rule 5-404 to bar the use of the prior conviction.

Lindsey v. State (COA-Maryland)

Jail calls of Defendant not admissible under doctrine of verbal completeness
The State introduced April 11 jail calls of Lindsey. In response Lindsey sought to introduce three jails calls that occurred on April 24, April 28 and July 5, which he contended should have been recevied in evidence as those calls placed in context the jail calls introduced by the State.

The CSA identified the three requirements for admissibility under the doctrine of completeness: (a) No utterance irrelevant to the issue is receivable; (b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable; (c) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony. Id. at 541-42 (citation omitted). Additionally, the doctrine of verbal completeness is subject to the rules of evidence: the utterance must be relevant, its prejudice must not outweigh its probative value, and the doctrine does not allow into evidence an utterance that is otherwise inadmissible hearsay to become admissible solely because it is derived from a single writing or conversation. Generally, the statements sought to be admitted under the doctrine of verbal completeness are part of a single writing or conversation. The Court of Appeals has recognized, however, that “[i]n an appropriate circumstance the doctrine would permit the admission of a separate writing or conversation to place in context a previously-admitted writing or conversation.”

The CSA held that In the present case, the portions of the phone calls that Lindsey sought to introduce consisted of unrelated, subsequent conversations that did not explain or correct any of appellant’s earlier statements in the calls introduced by the State. The CSA also rejected Lindsey's alternate argument that the calls were admissible as inconsistent statements of the victim.


(For a thorough analysis of the rule of verbal completeness under Federal Rule of Evidence 106 and the common law, the Memorandum Opinion by United States District Judge Paul W. Grimm in United States v. Bailey , 2017 WL 2276849 (D.Md, May 25, 2017) is well worth the read.)

Manchame-Guerra v. State (COA- Maryland)

Cross-examination of witness regarding
pending criminal charges
During Manchame-Guerra's April 2015 trial, the State called a witness who testified that he had seen Manchame-Guerra shoot the victim. At the time the witness offered that testimony, he was facing charges of first- and fourth-degree burglary, misdemeanor theft, and carrying a concealed dangerous weapon. Those charges arose out of a 2013 crime—unrelated to the instant case —that occurred in Prince George’s County and remained pending. Manchame-Guerra sought to cross-examine the witness as to whether, in return for his testimony, he expected or hoped for a benefit from the State in connection with those pending criminal charges. The trial court refused to permit that line of questioning. The COA held that that was reversible error.

Defense counsel sought to question the witness about criminal charges in an unrelated case that were pending at the time of his testimony. In particular, defense counsel wanted to ask the witness if he expected or hoped to obtain a benefit from the State in connection with those charges, in return for testimony favorable to the prosecution. Counsel cited Maryland Rule 5-616(a)(4), which allows impeachment through “questions that are directed at . . . [p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.” 

The COA noted preliminarily that Manchame-Guerra presented no direct evidence that the witness had a motive to testify falsely—that there was in place an agreement between the State and him that, in return for his testimony, he would receive a benefit in connection with his pending charges. The COA noted that such direct evidence is not required and that there was sufficient circumstantial evidence proffered that, viewed from the witness' perspective, could have led the witness to expect or hope for a benefit in connection with his pending charges in return for his testimony. Manchame-Guerra, moreover, did not leave the proffer at that also providing details concerning the nature of those charges then-pending against the witness: first- and fourth-degree burglary, theft of property valued less than $1000, and unlawful carrying of a concealed weapon and also pointed out that, by the time of his trial, the charges against the witness had been pending since 2013—roughly 18 months. Additionally, the detective involved in the underlying murder investigation knew of those pending charges when he interviewed the witness about the killing

The COA reminded that test it has established for inquiry under Rule 5-616(a)(4) mandates that the expectation-of-benefit inquiry “should be prohibited only if (1) there is no factual foundation for such an inquiry in the presence of the jury, or (2) the probative value of such an inquiry is substantially outweighed by the danger of undue prejudice or confusion.” 

The error here was not harmless and a new trial ordered
United States v. Covington (USCOA - 4th Cir.)

Unlawful wounding under the West Virginia criminal code of is a crime of violence for career offender purposes

The Fourth Circuit reversed the district court’s determination that the West Virginia criminal offense of unlawful wounding is not a crime of violence under the force clause of § 4B1.2 of the United States Sentencing Guidelines (the “Guidelines”). The district court's decision resulted in a guideline range of 18-24 months. Had the district court determined that the offense was a crime of violence, the resulting guideline range would have been at least 12 1/2 years.

The COA reminded that to determine whether a defendant’s prior conviction qualifies as a crime of violence, the court applies the “categorical approach.” The categorical approach directs a court to focus solely on the fact of conviction rather than the facts of the case. The court must compare the elements required for conviction of an offense to the element(s) required for application of the sentence enhancement, while ignoring the conduct that gave rise to a particular defendant’s past conviction.

The COA then noted that its has held that whether the force used to commit the offense was direct versus indirect use of force is no longer a significant factor in determining whether the conviction was for a crime of violence.

The COA held that district court erred in considering hypothetical scenarios from cases that did not interpret the criminal offense at issue here. This COA made clear that although its focus on the minimum conduct required for conviction such “does not give litigants [or courts] a green light to conjure up fanciful fact patterns in an attempt to find some nonviolent manner in which a crime could be committed.” Rather, there must be a “‘realistic probability, not a theoretical possibility,’ that a state would actually punish that conduct” and accordingly, “litigants must point to the statutory text or to actual cases in order to demonstrate that a conviction for a seemingly violent state crime could in fact be sustained for nonviolent conduct.

The COA remanded this matter for resentencing.
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