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4th Circuit saves Baltimorean from deportation, rules attorney ineffective

A federal appeals court has saved a Jamaican national from deportation – at least for now – in ruling his attorney failed to realize and warn the Baltimore resident that pleading guilty to trafficking in counterfeit goods would likely result in his ouster from the United States.

In its 3-0 decision, the 4th U.S. Circuit Court of Appeals said Philip Swaby received ineffective assistance from attorney Peter D. Ward, who did not know the federal law banning counterfeit goods in Swaby’s case was an “aggravated felony” – which is an automatically deportable offense.

After Swaby served a 364-day prison term under the plea, federal agents detained him with the intent of deportation due to the aggravated felony. Swaby appealed to the 4th Circuit, successfully arguing he never would have taken the plea had he been accurately advised of the consequences.

“Here, Swaby is a husband, a father, and had been resident of the United States since 2001,” Chief Judge Roger L. Gregory wrote in the 4th Circuit’s published opinion. “It is not only reasonably likely, it is unsurprising that Swaby, had he known the true consequences of his guilty plea, would have taken any chance, no matter how slim, to avoid deportation by going to trial than accept mandatory deportation from his family and resident country.”

The 4th Circuit vacated Swaby’s guilty plea and remanded the case back to U.S. District Court in Baltimore for further proceedings.

Swaby had a green card and intended to apply for citizenship when he and his now wife were indicted in 2011 for having allegedly sold counterfeit purses, handbags and other merchandise at their store, Fashion Trendz, in Essex. Much of the merchandise had counterfeit labels of high-end brands, including Coach, Gucci, Louis Vuitton, Burberry, Chanel, Prada and Versace, according to the indictment.

Ward, Swaby’s appointed counsel, recognized that deportation was a potential concern in the case and contacted an immigration attorney for advice, according to the opinion. He sent the attorney a copy of the indictment and the relevant criminal statute, 18 U.S.C. Section 2320, which bans trafficking in counterfeit merchandise “the use of which is likely … to deceive.” The code section Ward sent lacked any “deceit” or “fraud” language and thus would not have been an aggravated felony under federal law.

But that version of the section — unbeknownst to Ward — was not in effect at the time of Swaby’s alleged offense, according to the 4th Circuit’s opinion. The version that did apply included the element of deception, rendering Swaby’s alleged offense a deportable, aggravated felony.

Ward, relying on the incorrect version, erroneously advised Swaby to plead guilty.

Before accepting the plea in 2013, U.S. District Judge Richard D. Bennett warned Swaby that a conviction carries a “risk” of deportation.

The Justice Department, in urging the 4th Circuit to uphold the appeal, argued that Ward’s flawed advice was remedied by Bennett’s warning and the plea should stand.

The 4th Circuit rejected that argument.

“(S)waby only received general and equivocal admonishments about a risk of deportation,” Gregory wrote. “Neither Ward nor the district court informed Swaby that he was pleading to an aggravated felony rendering him categorically deportable. The court’s general, nonspecific warning that Swaby may face immigration consequences and may be deported could not cure Ward’s deficient performance.”

Ward, a Towson solo practitioner, did not respond to an email message request for comment.

Brad N. Garcia, Swaby’s appellate counsel, declined to comment on the court’s decision. Garcia is with O’Melveny & Myers LLP in Washington, D.C.

The Maryland U.S. attorney’s office did not return telephone and email messages seeking comment Tuesday on the decision.

Judges James A. Wynn Jr. and Stephanie D. Thacker joined Gregory’s opinion in the case, United States of America v. Philip Swaby, No. 15-7616.

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