4th Circuit upholds Gun Trace Task Force convictions

A U.S. appeals court on Tuesday upheld the federal racketeering and robbery convictions and 18-year sentences of two former members of an elite Baltimore police unit, which was later shown to be comprised of corrupt officers who stole from those they claimed to investigate and who lied about their overtime.

In a 3-0 decision, the 4^th U.S. Circuit Court of Appeals said prosecutors presented sufficient evidence at trial to prove that Daniel Hersl and Marcus Taylor conspired and committed the federal wire fraud necessary to establish racketeering. In addition, the money the officers stole while investigating gun and drug crimes had a sufficient connection to interstate commerce to establish a federal crime, the court held in voicing dismay for what the officers have done to public confidence in the police.

“This is a particularly sad case,” Judge Paul V. Niemeyer wrote in the 4^th Circuit’s published opinion.

“The community places a noble trust in police officers to define and enforce, in the first instance, the delicate line between the chaos of lawlessness and the rule of law,” Niemeyer added. “And when police officers breach that trust and misuse their authority, as here, a measure of despair infuses the community, tainting far more than do similar crimes by others. The officers’ convictions and sentences in this case are just and necessary, and we can only hope for a renewed commitment to the trust that we place in police officers who discharge their duties well.”

In its ruling, the 4^th Circuit rejected the ex-officers’ argument that wire fraud requires intent and that they could not have foreseen that their overtime submissions would involve electronic or other wire communications.

The court noted the wire fraud involved the electronic transmissions between the police department and payroll provider ADP, a computer-to-computer relationship that was presumably known to or suspected by the officers.

“It would be reasonable to infer from the centrality of the pay system to the police department’s overall operations that employees would generally be aware of the process, including that it involved wire transmissions,” Niemeyer wrote.

“Finally, although it is unclear whether Taylor and Hersl were paid by check or electronic deposit – a means surely subject to their election – it was, in either event, reasonably foreseeable that the general process would at some stage involve wire transmissions,” Niemeyer added. “This is especially true in light of the prevalence of technology in 2016 and the needs of an operation the size of the Baltimore Police Department.”

A U.S. District Court jury found Hersl and Taylor guilty of racketeering and robbery based largely on the testimony of four ex-detectives who worked alongside them in the department’s now-disgraced Gun Trace Task Force and who pleaded guilty to related offenses.

Taylor was convicted of having pocketed $6,500 from the $21,500 seized from the van of a man suspected of planning to purchase cocaine. Hersl was found guilty of having taken at least a share of the $20,000 that task force officers took from Ronald and Nancy Hamilton, a couple whose home they entered without a warrant, according to court papers.

In upholding the convictions, the 4^th Circuit rejected the officers’ argument that the money they were accused of taking was not related to interstate commerce and thus could not constitute a federal robbery offense under the U.S. Hobbs Act.

“The jurisdictional predicate of the Hobbs Act requires only that the government prove a minimal effect on interstate commerce,” Niemeyer wrote.

For example, it was sufficient for the prosecution to show that the money taken from Ronald Hamilton was connected to his interstate business of buying and selling cars outside of Maryland, the court held.

“(W)e have recognized that a business that purchases ‘a substantial portion of its inventory from out-of-state suppliers is engaged in interstate commerce for purposes of the Hobbs Act,’” Niemeyer wrote.

Hersl’s appellate attorney, Stuart A. Berman, and Taylor’s appellate counsel, H. Mark Stichel, declined to comment on the decision. Berman is with Lerch, Early & Brewer Chtd. in Bethesda; Stichel is with Astrachan Gunst & Thomas P.C. in Baltimore.

Niemeyer was joined in the opinion by Judges Allison Jones Rushing and Barbara Milano Keenan. Keenan wrote a concurring opinion that addressed a pretrial matter.

The 4^th Circuit rendered its decision in the consolidated cases United States of America v. Marcus Roosevelt Taylor and United States of America v. Daniel Thomas Hersl, Nos. 18-4414 and 18-4453.