U.S. Court of Appeals for the 4^th Circuit

Criminal; civil contempt: Where the defendant argued the wire fraud convictions for her role in a $100 million fraud scheme should be vacated because the scheme was devised and carried out in Israel, her argument was rejected. The statute’s focus is on the use of the wire—not the underlying fraudulent scheme—so the conviction based on misuse of wires within the United States stands as a permissible domestic prosecution. United States v. Elbaz, No. 20-4019 (filed June 30, 2022).

Maryland Court of Appeals

Criminal; cell phone tracking data: Where the trial court allowed a witness to testify that a user of a device could turn off location tracking software on a cell phone, that knowledge was within the understanding of the average lay person, so the witness did not need to be qualified as an expert witness. State v. Galicia, No. 5, Sept. Term, 2021 (filed June 27, 2022).

Maryland Court of Special Appeals

Administrative; liquor license regulation: Where liquor establishments alleged that a Baltimore City ordinance limiting their hours of operation violated the Equal Protection Clause, but their evidence showed, at most, racially disparate impact, the claim failed as a matter of law. Kim v. Board of Liquor License Commissioners for Baltimore City, No. 137, Sept. Term, 2021; Han v. Board of Liquor License Commissioners for Baltimore City, No. 140, Sept. Term, 2021; In the Matter of the Petition of Myong Nam Kim, Yong Doo Park and Myongnam Inc., No. 885, Sept. Term, 2021; In the Matter of the Petition of Myong O. Friley, No. 886, Sept. Term, 2021 (filed June 29, 2022).

Attorneys; client protection fund: Where an attorney stole money he was holding in escrow, but the attorney wasn’t acting as an attorney or in a fiduciary capacity that is traditional and customary in the practice of law in Maryland, the theft wasn’t covered by the Client Protection Fund of the Bar of Maryland. Grebow v. Client Protection Fund of the Bar of Maryland, No. 1392, Sept. Term, 2020 (filed June 29, 2022).

Criminal; illegal possession of a firearm: Where the defendant asserted facial and as-applied challenges to Maryland statutes prohibiting a person from possessing a firearm if that person has been convicted of a violation classified as a common law crime and received a sentence of imprisonment of more than two years, his challenges were dismissed. Fooks v. State, No. 269, Sept. Term, 2021 (filed June 29, 2022).

Criminal; discovery sanctions: Where the circuit court dismissed a case because the state first produced material required by Brady v. Maryland, 373 U.S. 83 (1963), the day before the trial, that was error. The circuit court never considered whether the defense could make effective use of the material in preparation for or during trial, or the less drastic alternative of a brief postponement. State v. Grafton, No. 1218, Sept. Term, 2021 (filed June 29, 2022).  

Criminal; lack of prejudice: Where the defendant’s trial counsel performed deficiently by failing to timely file a motion for modification of sentence, but the record showed the motion would have been denied even if it was timely filed, the defendant could show no resulting prejudice, so his petition for post-conviction relief was properly denied. Butler v. State, No. 1343, Sept. Term, 2021 (filed June 30, 2022).

Zoning; uniformity requirement: Where an amendment to the Prince George’s County Zoning Ordinance allowed, under certain circumstances, high-density townhouses to be constructed in the residential-agricultural zone, it violated the “uniformity” requirement because the creation of special areas for increased density was not reasonable and was not based upon the public policy to be served. In the Matter of Concerned Citizens of PG County District 4, et al., No. 0472, Sept. Term, 2021 (filed June 29, 2022).

U.S. Court of Appeals for the 4^th Circuit

Criminal

Civil contempt

BOTTOM LINE: Where the defendant argued the wire fraud convictions for her role in a $100 million fraud scheme should be vacated because the scheme was devised and carried out in Israel, her argument was rejected. The statute’s focus is on the use of the wire—not the underlying fraudulent scheme—so the conviction based on misuse of wires within the United States stands as a permissible domestic prosecution.

CASE: United States v. Elbaz, No. 20-4019 (filed June 30, 2022) (Judges RICHARDSON, Rushing, Traxler).

FACTS: Lee Elbaz and her confederates orchestrated a multimillion-dollar fraud scheme, operating from Israel and targeting unsophisticated victims worldwide. Posing as an investment firm, Elbaz and her partners solicited “investments” that cost fraud victims over $100 million. While vacationing in New York, Elbaz was arrested and later convicted for conspiring to commit wire fraud and for substantive wire fraud itself. She was sentenced to 22 years in prison and required to pay $28 million in restitution.

LAW: Elbaz contends that the federal wire-fraud statute criminalizes only domestic, not extraterritorial, conduct. And this, she argues, requires vacating her conviction because the wire-fraud scheme was devised and carried out in Israel.

The court agrees that the wire-fraud statute lacks any affirmative statutory instruction that it criminalizes purely extraterritorial conduct. But the court finds the statute’s focus to be on the use of the wire—not the underlying fraudulent scheme. So Elbaz’s conviction based on misuse of wires within the United States stands as a permissible domestic prosecution.

Elbaz next argues that the district court committed two procedural errors warranting a new trial: refusing to compel immunity for witnesses she planned to call and refusing to grant a mistrial after a juror overheard a disparaging remark about Elbaz.

On the first issue, district courts lack the inherent power to grant immunity. While this court has suggested that in some extreme circumstances a district court may be able to order the prosecution to seek immunity, it is only when the defendant “makes a decisive showing of prosecutorial misconduct or overreaching.” Here, there is not a decisive showing of such extraordinary misconduct. In fact, there is no showing of prosecutorial misconduct. So the district court did not err by declining to compel the prosecutor to grant immunity.

On the second issue, while Elbaz argues that the district court erred in failing to declare a mistrial instead of merely dismissing juror nine, who coincidentally overheard an unflattering conversation about the defendant while in line at a drugstore, the court finds that the district court acted well within its discretion to address this issue by removing the juror, ensuring no outside information was conveyed to other jurors and restarting deliberations with an alternate juror and orders to proceed from scratch.

Elbaz asks that the court speculate that the jurors were contaminated by juror nine before he was excused. But the record shows that none of those jurors knew of the drugstore conversation. Even so, Elbaz argues that the jurors might have been contaminated by the change in countenance by juror nine after he overheard the conversation but before he was removed. But the judge ordered the new jury to disregard previous deliberations, and the court presumes juries follow instructions.

Having found Elbaz was convicted of a domestic wire-fraud offense, the court must determine whether the district court’s consideration of the appropriate sentence is limited to information inside our borders. The court concludes it is not.

However the inclusion of those foreign victims with no nexus to criminal conduct in the United States in the restitution calculation was an error. Finally the court finds that the supervised release conditions were proper.

Affirmed in part, vacated in part and remanded.

Maryland Court of Appeals

Criminal

Cell phone tracking data

BOTTOM LINE: Where the trial court allowed a witness to testify that a user of a device could turn off location tracking software on a cell phone, that knowledge was within the understanding of the average lay person, so the witness did not need to be qualified as an expert witness.

CASE: State v. Galicia, No. 5, Sept. Term, 2021 (filed June 27, 2022) (Judges Getty, MCDONALD, Hotten, Booth, Biran) (Judges Watts, Raker, dissent).

FACTS: In June 2017, on the eve of their high school graduation, two teenagers were ambushed and shot multiple times while they sat in a parked car in a cul-de-sac in Montgomery County. Four men, including Rony Galicia, were charged and ultimately convicted of the murders in three separate trials. The Court of Special Appeals reversed Mr. Galicia’s conviction on the basis of two evidentiary issues that arose during his trial.

LAW: The first issue is whether the trial court abused its discretion when it declined to allow Mr. Galicia to cross-examine one of the state’s witnesses about out-of-court statements allegedly made by one of his co-defendants.

The court holds that the state’s direct examination of that witness did not prejudice Mr. Galicia such that it triggered a right to elicit otherwise inadmissible evidence on cross-examination. Even if the particular statement Mr. Galicia sought to introduce – in which one of his co-defendants allegedly told the co-defendant’s girlfriend that his younger brother, also a co-defendant, had “shot them guys, too” – could fit within a hearsay exception for a statement against the declarant’s penal interest, moreover, the trial court did not abuse its discretion in limiting the proposed cross-examination.

The second issue arises from a prosecution witness’ trial testimony about the tracking of Mr. Galicia’s location on the evening of the murders through data generated by cell phones and other electronic devices. At Mr. Galicia’s trial, the state introduced records and elicited testimony through a witness from Google37 concerning internet searches and location tracking conducted on Mr. Galicia’s two Google accounts. There was a gap in the location tracking data in the Google account that Mr. Galicia was using at the time of the murders for a period of several weeks that included the date of the crime.

The witness testified that a user of a device could turn off Google’s location tracking. Mr. Galicia’s counsel objected to the testimony concerning both the search records and the location tracking data on the ground that the state was required to present expert testimony to admit that evidence. The trial court overruled that objection. In the end, neither the state nor the defense referred to the location tracking testimony in closing argument.

The Court of Special Appeals held that the trial court erred in allowing a lay witness to testify about a cell phone user’s ability to turn off certain location tracking functions on the phone as the court did not consider that function to be within the realm of common knowledge. The court disagrees.

A user’s ability to adjust the location tracking feature of a smartphone is within the understanding of the average lay person. As such, a witness whose testimony referred to that ability did not have to be qualified as an expert. The inference that this testimony was intended to help the jury draw – that Mr. Galicia could have manually disabled location tracking around the time of the murders – was well within the understanding of the average lay person.

Judgment of the Court of Special Appeals reversed.

DISSENT: Because the state has not proven beyond a reasonable doubt that either of the errors described above was harmless, I would affirm the judgment of the Court of Special Appeals, which issued a thorough and well-reasoned opinion in which it reversed Galicia’s convictions and remanded the case for a new trial.

Maryland Court of Special Appeals

Administrative

Liquor license regulation

BOTTOM LINE: Where liquor establishments alleged that a Baltimore City ordinance limiting their hours of operation violated the Equal Protection Clause, but their evidence showed, at most, racially disparate impact, the claim failed as a matter of law.

CASE: Kim v. Board of Liquor License Commissioners for Baltimore City, No. 137, Sept. Term, 2021; Han v. Board of Liquor License Commissioners for Baltimore City, No. 140, Sept. Term, 2021; In the Matter of the Petition of Myong Nam Kim, Yong Doo Park and Myongnam Inc., No. 885, Sept. Term, 2021; In the Matter of the Petition of Myong O. Friley, No. 886, Sept. Term, 2021 (filed June 29, 2022) (Judges Kehoe, BEACHLEY, Shaw).

FACTS: In July of 2020, the Board of Liquor License Commissioners for Baltimore City cited three separate liquor establishments for violating a newly enacted law which limited the hours of operation for certain liquor licenses in a boundary within the 45th legislative district.

The licensees unsuccessfully challenged their citations before the board by arguing that the new law violated the Maryland State Constitution’s “one subject” requirement and violated equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland State Constitution. The board rejected the licensees’ argument regarding the one subject requirement, and “decline[d] to rule” on the equal protection argument because the licensees “failed to provide satisfactory record evidence” to support their claims.

Subsequently, the licensees filed petitions for judicial review in the Circuit Court for Baltimore City. The four petitions for judicial review went before two different judges that resulted in different outcomes. The judge who affirmed the board determined that the new law did not violate the one subject requirement, and that the licensees failed to provide sufficient evidence to support their equal protection claims. The judge who reversed the board, however, determined that the board erred in its equal protection analysis.

LAW: Article III, § 29 of the Maryland Constitution provides, in relevant part, that “every Law enacted by the General Assembly shall embrace but one subject.” The licensees argue that “limiting the hours of operation of one area of Baltimore City and granting the ability to exchange a Class B license for a Class BD7 license in a separate discrete area are two different subjects[.]” The court disagrees.

The two provisions share the requisite “connection and interdependence” to survive a one subject challenge. Specifically, both provisions regulate the sale and distribution of alcohol in the 45th legislative district. In this respect, both provisions, although they accomplish two separate things, clearly “refer to and are germane to the same subject matter”—the overall regulation of alcohol in Baltimore City.

Md. Classified Emps. Ass’n, Inc. v. State, 346 Md. 1 (1997), supports the court’s view that Chapter 389 does not violate the one subject provision. There, the court found that two provisions—one privatizing child support enforcement, and the other developing a pilot program for welfare reform that imposed affirmative obligations on recipients—served the ultimate objective of reducing dependence on government assistance. The two provisions at issue here allowing for an exchange of Class B licenses and a restriction of hours for Class B-D-7 licenses within the 45th legislative district appear to be even more “related” than the provisions that withstood scrutiny in Md. Classified Emps. Ass’n.

In the context of facially neutral government action, challengers seeking strict scrutiny review for their equal protection claims bear the burden of showing that discriminatory purpose was a motivating factor in the government’s decision or other action. Here, to support their claim before the board that Chapter 389 created a distinction based upon race, the licensees cited to census data which showed that the neighborhoods affected by the restriction on hours of operation provision in Chapter 389 are all approximately 90% African American, but that contiguous nearby neighborhoods unaffected by

Chapter 389 are closer to only 5% African American.

The licensees failed to meet their burden. Their reliance on the legislative history materials concerning Chapter 389, as well as the census data showing the racial distribution of different neighborhoods in Baltimore City simply show, at most, a racially disparate impact. That evidence does not, however, demonstrate the discriminatory intent or purpose necessary to support strict scrutiny review for equal protection purposes. In fact, this court’s thorough review of the record in this case, including all of the legislative history materials available from the General Assembly, reveals that the sponsors and supporters of Chapter 389 were solely focused on curtailing crime in the region—not on discriminating against a suspect class.

Judgment of the Circuit Court for Baltimore City in Case Nos. 24-C-20- 003794 and 24-C-20-003795 affirmed. Judgement of the Circuit Court for Baltimore City in Case Nos. 24-C-20- 004827 and 24-C-20-004828 reversed.

Attorneys

Client protection fund

BOTTOM LINE: Where an attorney stole money he was holding in escrow, but the attorney wasn’t acting as an attorney or in a fiduciary capacity that is traditional and customary in the practice of law in Maryland, the theft wasn’t covered by the Client Protection Fund of the Bar of Maryland.

CASE: Grebow v. Client Protection Fund of the Bar of Maryland, No. 1392, Sept. Term, 2020 (filed June 29, 2022) (Judges LEAHY, Zic, Sharer).

FACTS:  Steven J. Grebow entered into an “Escrow Agreement” with the McCloskey Group and its sole member, Brian McCloskey. The escrow account was managed by Kevin Sniffen, a Maryland attorney, who was obligated to deliver a $2 million fee, together with Mr. Grebow’s entire deposit, to Mr. Grebow on the date of the settlement of the HUD loan.

Mr. Sniffen never returned the escrow funds to Mr. Grebow as he and Mr. McCloskey had embezzled the money in the perpetration of a complex wire fraud scheme. For his role, Mr. Sniffen was convicted of conspiracy to commit wire fraud and was subsequently disbarred.

Mr. Grebow filed a claim for $3,115,000.00 with the Client Protection Fund of the Bar of Maryland. The trustees denied Mr. Grebow’s claim. They determined, among other things, that Mr. Sniffen, in his capacity as escrow agent, was not acting as an attorney or in a fiduciary capacity that is traditional and customary in the practice of law in Maryland. Mr. Grebow petitioned for judicial review in the Circuit Court for Baltimore County. That court affirmed the decision of the trustees.

LAW: Neither Mr. Grebow nor the trustees argue that Mr. Sniffen and Mr. Grebow were engaged in an attorney-client relationship. Accordingly, the court concentrates its analysis on the trustees’ determination that Mr. Sniffen was not acting as “an attorney . . . in a fiduciary capacity that is traditional and customary in the practice of law in Maryland[.]”

The court finds that Mr. Sniffen’s duties under the escrow agreement did not resemble the “intermediary roles” occupied by the defalcating attorneys with regard to the compensable claims in Advance Finance Co., Inc. v. The Trustees of the Clients’ Security Trust Fund of the Bar of Maryland, 337 Md. 195 (1995), and American Asset Finance, LLC v. Trustees of the Client Protection Fund of the Bar of Maryland, 216 Md. App. 306 (2014).

Unlike the compensable claims in those cases, whereby the attorneys possessed client funds belonging to non-client third parties—here, Mr. Grebow seeks to recover funds that Mr. Sniffen was holding on behalf of a non-client, Mr. Grebow, for the benefit of the same non-client, Mr. Grebow. Mr. Sniffen was clearly not acting as a “mediator or go-between” as the attorney with regard to the compensable claim with the law client in American Asset Finance.

In addition to bearing no resemblance to the “intermediary capacities” in Advance Finance and American Asset Finance, Mr. Sniffen’s escrow agent duties also did not resemble the example fiduciary capacities listed in Maryland Rule 19-602(b), all of which involve a fiduciary interacting with third parties for the benefit of a client. In further contrast to the compensable claims in Advance Finance and American Asset Finance, Mr. Sniffen’s duties as escrow agent were not adjacent to any legal services that he was providing to either Mr. Grebow or Mr. McCloskey.

Under the terms of the escrow agreement, Mr. Sniffen’s role was limited to creating an escrow bank account, which did not qualify as an attorney trust account, and holding the escrowed funds of Mr. Grebow, a non-client, for investment purposes, until he was instructed to return the funds back to Mr. Grebow. This relationship does not resemble the “intermediary” capacities recognized in Advance Finance and American Asset Finance or the fiduciary capacities listed in Rule 19-602(b).

For all these reasons, the court holds that, under the terms of the escrow agreement, Mr. Sniffen was not acting in a fiduciary capacity that is “traditional and customary in the practice of law in Maryland.” Consequently, the court affirms the trustees’ decision that Mr. Grebow was not eligible to recover from the fund.

Although the trustees’ “Final Decision” provides several reasons why Mr. Grebow’s claim fails, the court need only examine whether there was substantial evidence in the record to support their determination that Mr. Sniffen was not acting in a fiduciary capacity that was “traditional and customary in the practice of law in Maryland.” Initially, the court notes that Mr. Grebow’s “substantial evidence” argument, presented within his briefing on appeal, was waived as it was not raised in his question presented. Even if Mr. Grebow’s claim was preserved, the court holds that the trustees’ conclusion that Mr. Sniffen was not acting in a fiduciary capacity that was “traditional and customary in the practice of law in Maryland” was supported by substantial evidence.

Judgment of the Circuit Court for Baltimore County affirmed.

Criminal

Illegal possession of a firearm

BOTTOM LINE: Where the defendant asserted facial and as-applied challenges to Maryland statutes prohibiting a person from possessing a firearm if that person has been convicted of a violation classified as a common law crime and received a sentence of imprisonment of more than two years, his challenges were dismissed.

CASE: Fooks v. State, No. 269, Sept. Term, 2021 (filed June 29, 2022) (Judges NAZARIAN, Friedman, Battaglia)

FACTS: Robert Fooks was charged with 10 counts of illegal possession of a rifle or shotgun, three counts of illegal possession of a regulated firearm and one count of theft. He moved to dismiss all firearm-related charges on the ground that they violated his Second Amendment right to bear arms. The Circuit Court for Wicomico County denied the motion. Mr. Fooks entered a conditional guilty plea to two counts of illegal possession of a regulated firearm and reserved the right to appeal the denial of his motion to dismiss.

LAW: Mr. Fooks argues first that “[t]he contours of the Second Amendment’s guarantee of the fundamental right to keep and bear arms do not permit the criminalization of possession of a rifle/shotgun or regulated firearm . . . based upon a conviction for the common law crime of ‘constructive criminal contempt.’” For that reason, he contends, sections 5-133(b)(2) and 5-205(b)(2) of the Public Safety Article, which prohibits a person from possessing a firearm if that person has been convicted of a violation classified as a common law crime and received a sentence of imprisonment of more than two years, are facially unconstitutional.

The state responds that Mr. Fooks’s facial challenge is unpreserved. The court disagrees. The fact that the circuit court denied Mr. Fooks’s motion to dismiss without explanation does not negate that Mr. Fooks asked the court (albeit in his supplement to the original motion) to consider a facial challenge when determining the constitutionality of PS § 5-133(b)(2) and 5-205(b)(2). His appellate claim that these laws are facially unconstitutional is preserved adequately.

A facial constitutional challenge is “[a] claim that a statute is unconstitutional on its face—that is, that it always operates unconstitutionally.” But Mr. Fooks has failed to show that there are no set of circumstances under which PS §§ 5-133(b)(2) and 5-205(b)(2) are constitutional. He makes no mention and provides no examples of how PS §§ 5-133(b)(2) and 5-205(b)(2) are unconstitutional in all potential applications. Indeed, Mr. Fooks has failed to show that the statutes are unconstitutional in any applications.

A statute prohibiting an individual convicted of a common law crime and sentenced to more than two years’ incarceration is presumptively lawful, and Mr. Fooks has failed to rebut that presumption. He also has provided the court with no evidence that PS §§ 5-133(b)(2) and 5-205(b)(2) are unconstitutional in all their applications. The court holds that PS §§ 5-133(b)(2) and 5-205(b)(2) are facially constitutional.

Determining that PS §§ 5-133(b)(2) and 5-205(b)(2) are facially constitutional does not resolve Mr. Fooks’s second argument—that the statutes are unconstitutional as applied to him. The court disagrees. The court agrees with the circuit court that a court could find a statute presumptively valid based solely on the legislature’s determination that people convicted of a common law crime who receive a prison term of more than two years should be disqualified from possessing a firearm. A look at the statutory language also supports a conclusion that the statutes are presumptively valid.

The court further finds that Mr. Fooks’s conduct is not “within the protected Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’” Mr. Fooks is not, for these purposes, a law-abiding citizen. It’s not just that he failed to pay child support, but his failure rose to the level of criminal contempt that was punished by a sentence of longer than two years. His conduct fell outside the scope protected by the Second Amendment, and PS §§ 5-133(b)(2) and 5-205(b)(2) are not unconstitutional as applied to him.

Judgment of the Circuit Court for Wicomico County affirmed.

Criminal

Discovery sanctions

BOTTOM LINE: Where the circuit court dismissed a case because the state first produced material required by Brady v. Maryland, 373 U.S. 83 (1963), the day before the trial, that was error. The circuit court never considered whether the defense could make effective use of the material in preparation for or during trial, or the less drastic alternative of a brief postponement.

CASE: State v. Grafton, No. 1218, Sept. Term, 2021 (filed June 29, 2022) (Judges BERGER, Ripken, Wright)

FACTS:  On July 12, 2018, the state filed a criminal information against Michael O. Grafton charging him with various theft crimes. Trial was scheduled to begin in the Circuit Court for Baltimore County on Sept. 28, 2021.

On Sept. 27, 2021, Grafton filed a motion to dismiss and a request for sanctions. The defense argued that, under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and Maryland Rule 4-2634, the state had failed “to disclose exculpatory information, including impeachment information and information not otherwise admissible at trial that may lead to the discovery of admissible evidence.” A hearing was held the following day. At the conclusion of the hearing, the court granted the motion and dismissed the criminal information in its entirety.

LAW: As a preliminary matter, Grafton contends that the state failed to raise below the issue of whether the evidence had been suppressed and, as a result, it was not preserved properly for our consideration. The court disagrees.

The hearing below was for the purpose of addressing Grafton’s motion to dismiss for violations of both Brady and Md. Rule 4-263. The state acknowledged the untimely disclosure of evidence concerning Buddenbohn, but it never conceded that the evidence had been suppressed for the purpose of Brady or that there had been discovery violations. The circuit court rejected the prosecutor’s arguments, determined that a Brady violation had occurred and dismissed the case. The issue presented was preserved properly for this court’s consideration.

Turning to the merits, the fact that the disclosure of information pertaining to Buddenbohn was made on the day before trial was set to begin does not, in itself, lead to the conclusion that Brady was violated. Rather, the critical issue was whether Grafton could make effective use of the evidence pertaining to Buddenbohn. “Whether a delayed disclosure violates Brady depends on the nature of the evidence and the length of the delay, both of which affect the defendant’s ability to make use of the evidence at trial.”

Grafton argues that dismissal “was the only appropriate remedy to address the prejudice caused by the State having suppressed exculpatory material for years[.]” That is not the case. Here, the circuit court did not consider the less drastic alternative of a brief postponement before proceeding to dismiss the case.

It appears from the record that the trial was scheduled for two weeks. The information about Buddenbohn had so recently been disclosed to the prosecutor, that she did not know what additional information remained to be produced. In addition, the prosecutor expressed the state’s willingness to assist the defense in obtaining in a short time frame records pertaining to Buddenbohn.

Without knowledge of the nature of the evidence and the time in which it was ultimately produced by the state, the trial court could not determine whether Grafton could make effective use of it in preparation for or during trial. If the state was unable to produce the evidence in a short time frame, or if for some other reason Grafton ultimately could not make effective use of the evidence disclosed, then Grafton might have a claim that the delayed disclosure constituted a Brady violation.

In light of the specific circumstances of this case, however, the court could not, at the time of the hearing, determine that Grafton was unable to make effective use of the Buddenbohn evidence because only some material had been produced and the state did not know exactly what material “still remain[ed]” to be produced. For that reason, the circuit court erred in not imposing a less drastic alternative of a brief postponement to allow for the production of evidence by the state.

Moreover, disclosure under Brady is distinct from the state’s discovery obligations under Md. Rule 4-263. The circuit court did not address the discovery violations asserted in Grafton’s motion to dismiss. That issue may be addressed on remand. Further, defense counsel advised the court that had the case not been dismissed, she would have asserted Grafton’s right to a speedy trial. Similarly, the defense is not precluded from raising that issue on remand.

Judgment of the Circuit Court for Baltimore County reversed.

Criminal

Lack of prejudice

BOTTOM LINE: Where the defendant’s trial counsel performed deficiently by failing to timely file a motion for modification of sentence, but the record showed the motion would have been denied even if it was timely filed, the defendant could show no resulting prejudice, so his petition for post-conviction relief was properly denied.

CASE: Butler v. State, No. 1343, Sept. Term, 2021 (filed June 30, 2022) (Judges Graeff,  Arthur, ZARNOCH).

FACTS:  This is an appeal from the Circuit Court for Baltimore County’s denial of a petition for post-conviction relief. In his petition, Calvin Rodney Butler contended that he had been denied his right to effective assistance of counsel in connection with a motion for modification of sentence, filed pursuant to Maryland Rule 4-345, when his trial counsel filed such a motion outside the 90-day time limit provided for by the Rule.

LAW: Appellant agrees with the post-conviction court’s assessment that trial counsel performed deficiently, within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), and its progeny, by filing an untimely motion for modification of sentence. In its brief before this court, the state does not affirmatively dispute this finding. The parties’ disagreement is on the question of whether appellant suffered any prejudice arising from trial counsel’s error.

The state claims that there is no basis to presume prejudice because the record affirmatively demonstrates that there is no substantial or significant possibility of a different outcome had the motion been timely filed. The court agrees with the state. Although it is true that the circuit court lacked the authority to grant the late-filed motion for modification, and, therefore, in some sense, appellant lost the opportunity to have his sentence reconsidered, it is also true that the record in this case affirmatively demonstrates that, even if trial counsel had timely filed the motion, the circuit court would have denied it.

Counsel’s failure to timely file the motion did not result in any lost “opportunity to have a reconsideration of sentence hearing” because the circuit court would have denied the motion had it been timely filed. Thus, appellant suffered no prejudice, within the contemplation of Strickland and its progeny, from any error of his counsel in failing to file a timely motion for modification of sentence.

Judgment of the Circuit Court for Baltimore County affirmed.

Zoning

Uniformity requirement

BOTTOM LINE: Where an amendment to the Prince George’s County Zoning Ordinance allowed, under certain circumstances, high-density townhouses to be constructed in the residential-agricultural zone, it violated the “uniformity” requirement because the creation of special areas for increased density was not reasonable and was not based upon the public policy to be served.

CASE: In the Matter of Concerned Citizens of PG County District 4, et al., No. 0472, Sept. Term, 2021 (filed June 29, 2022) (Judges Wells, Beachley, ADKINS).

FACTS:  The Prince George’s County District Council effected a text amendment to § 27-441(b) of the Prince George’s County Zoning Ordinance that allows, under certain circumstances, high-density townhouses to be constructed in the residential-agricultural zone. Appellants allege the bill was a site-specific text amendment implemented for the sole purpose of benefitting the Freeway Airport property and Freeway Realty LLC. The Circuit Court for Anne Arundel County affirmed the decision of the council to enact CB-17.

LAW: Section 22-201(b)(2)(i) of the Land Use Article requires zoning laws to be “uniform for each class or kind of development throughout a district or zone.” This requirement, known as the “uniformity” requirement, is meant to protect landowners “from arbitrary use of zoning powers by zoning authorities.”

Appellees assert that CB-17 does not violate the uniformity requirement because CB-17 is equally applicable to all R-A zoned properties that meet the requisite criteria. In essence, they allege that any R-A zoned property would qualify for townhome redevelopment if it is 100 to 150 acres or was formerly used as an airport, within one mile of a municipal boundary, entirely within 2,500 feet of an electric generating public utility and bordering a right-of-way classified as freeway or higher.

The parties dispute whether any properties―other than Freeway Airport―meet the CB-17 criteria. But the court need not consider whether other properties exist. Rather, the pertinent issue is not whether some other properties might qualify under the criteria, but whether creation of special areas for increased density is reasonable and based upon the public policy to be served.

The record is highly suggestive that the purpose intended by the district council in enacting CB-17 was to create an incentive―in the form of a higher density zoning―for the owner of Freeway Airport to close its operations. Yet, as the cases establish, in analyzing uniformity, the main focus is not on the minds of the district council.

Rather the court examines objectively the law and its relation to public policy. The court concludes that the proximity of the Woodmore development and its lower-density townhomes does not provide any reasonable explanation―from a public policy standpoint― of CB-17’s allocation of higher density to these 129 acres that lie within the low-density R-A zone.

As to the second proffered purpose for CB-17, proponents of the bill presented considerable evidence before the district council that Freeway Airport―since 1983―had a record of 32 accidents, including 10 fatalities, and that some citizens living nearby had fears of future accidents. In essence, appellees argue that public interest in closing the airport―based on a history of accidents―overrides the uniformity rule. But the uniformity statute contains no exception and appellees cite no legal authority to support an exception.

Moreover, the district council is not tasked with or authorized to regulate airports, even local ones. This responsibility lays with the Maryland Aviation Administration of the Maryland Department of Transportation. Of course, the district council may consider the existence of an airport in making planning decisions in the process of a comprehensive or sectional rezoning. But in the context of this text amendment, the council is bound by the uniformity rule.

Appellees have offered no recognized public policy, and the court sees none in the record, that would justify a non-uniform exception allowing assemblages of adjacent properties within the R-A zone to have a much higher density because the acreage is near a power line or utility station. Similarly, singling out former airport property has no apparent public purpose. This criterion fits the Freeway Airport property and is transparently the reason for its inclusion in CB-17. No other airport properties that could qualify under CB-17 are mentioned in the record.

Judgment of the Circuit Court for Anne Arundel County reversed.