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

Criminal; ineffective assistance of counsel: Where the government obtained the defendant’s historical cellular site location information, or CSLI, in good-faith reliance upon then-existing law, the defendant’s counsel did not render ineffective assistance by failing to move to suppress the information. The motion likely would not have been meritorious. United States v. Taylor, No. 20-7593 (filed Dec. 5, 2022).  

Maryland Court of Special Appeals

Criminal; expungement: Where the circuit court entered an order granting a petition for expungement, after the state consented to the petition, and the state then moved to rescind the order because it made an error, the state’s motion should have been denied because it was filed more than 30 days after a final judgment and there was no fraud, mistake, or irregularity. In Re Expungement Petitions of Richard M., Nos. 700, 1435, Sept. Term, 2021 (filed Dec. 7, 2022).  

Criminal; evidence of bigoted beliefs: Where the state introduced evidence of the defendant’s  bigoted beliefs against Black people in support of its hate crime charge, but the hate crime charge was then dismissed by the circuit court, it did not err in allowing the jury to consider the evidence during the murder trial. The contested evidence was relevant to motivation for first-degree murder and its probative value was not substantially outweighed by its prejudicial effect. Urbanski v. State, No. 1318, Sept. Term, 2020 (filed Dec. 8, 2022).

Domestic relations; standing: Where a daughter moved to set aside estate planning documents giving her aunt authority over her mother, the petition was denied because the daughter lacked standing. In the Matter of Andrea Jacobson, No. 1741, Sept. Term, 2021 (filed Dec. 6, 2022).  

Domestic relations; indefinite alimony: Where the circuit court made extensive findings as to the standard of living that the parties established during the course of their marriage and wife’s reasonable expenses, it did not err in awarding indefinite alimony in the amount of $7,155 monthly. Goicochea v. Goicochea, No. 0877, Sept. Term, 2020 (filed Dec. 6, 2022).

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

Criminal

Ineffective assistance of counsel

 BOTTOM LINE: Where the government obtained the defendant’s historical cellular site location information, or CSLI, in good-faith reliance upon then-existing law, the defendant’s counsel did not render ineffective assistance by failing to move to suppress the information. The motion likely would not have been meritorious.

CASE: United States v. Taylor, No. 20-7593 (filed Dec. 5, 2022) (Judges Gregory, Wynn, THACKER).

FACTS: Gloria Patricia Taylor appeals the district court’s order denying relief on her 28 U.S.C. § 2255 motion to vacate, set aside or correct her sentence. Appellant claimed that her trial counsel rendered ineffective assistance by failing to move to suppress information obtained from a search warrant that relied, in part, on the government’s warrantless procurement of certain data from her cell phone service provider.

The district court denied appellant’s § 2255 motion, holding that a motion to suppress the historical cellular site location information, or CSLI, and Global Positioning System tracking data used in the search warrant application would likely not have been meritorious.

LAW: When the government served administrative subpoenas on Sprint in 2014, it acted in good faith pursuant to the Stored Communications Act, or SCA, which permits the collection of certain subscriber information through a subpoena. At that point, this court had not yet decided United States v. Graham, 796 F.3d 332 (4th Cir. 2015), which held that “obtaining historical CSLI constitutes a search, such that the Fourth Amendment bars the Government from obtaining it ‘without first securing a judicial warrant based on probable cause,’” and the Supreme Court “consistently ha[d] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

Thus, until the Supreme Court declined “to extend Smith and Miller to the collection of CSLI,” law enforcement officers had reason to believe that they could collect information from a cell phone provider as long as they complied with the SCA. Therefore, any motion to suppress filed before appellant’s trial would not have been meritorious, even in light of Graham, because the officers had reason to believe in 2014 that it was lawful to collect this information through an administrative subpoena.

Appellant asks this court to look past the language of the subpoenas and find that the agents here were “on notice after Sprint’s responsive production to the first subpoena . . . that Sprint includes repoll location data in response to an administrative subpoena.” While this may be true, even if Sprint did routinely turn over such information, appellant has not identified any legal obligation the government had to ask Sprint to stop doing so.

Rather, the government’s subpoenas ask for statutorily authorized materials. The government cannot be held responsible when a subpoena recipient exceeds the bounds of a subpoena and produces more information than was requested or required. Accordingly, the district court did not err by concluding that a motion to suppress would not have been meritorious because the good faith exception applies.

Affirmed.

Maryland Court of Special Appeals

Criminal

Expungement

BOTTOM LINE: Where the circuit court entered an order granting a petition for expungement, after the state consented to the petition, and the state then moved to rescind the order because it made an error, the state’s motion should have been denied because it was filed more than 30 days after a final judgment and there was no fraud, mistake, or irregularity.

CASE: In Re Expungement Petitions of Richard M., Nos. 700, 1435, Sept. Term, 2021 (filed Dec. 7, 2022) (Judges REED, Beachley, Zarnoch).

FACTS: On Jan. 17, 2017, appellant was charged via criminal information in Case No. 29 with 38 offenses related to a bank robbery. One week later, an indictment was filed in Case No. 042, charging appellant with 34 offenses arising from the same bank robbery.

Several weeks after that, nolle prosequi was entered as to the criminal information. Then, on July 10, 2017, a superseding indictment was filed in case No. 477, charging appellant with 58 offenses arising from the same bank robbery. One week later, nolle prosequi was entered as to the indictment in Case No. 042. As of that date, appellant stood charged only under the indictment in Case No. 477. He was found guilty of 16 counts.

On April 13, 2021, appellant filed a petition for expungement in Case No. 029, on the ground that a nolle prosequi had been entered in that case. On May 24, 2021, the state answered the petition, objecting that the nolle prossed charges arose from the same set of facts that resulted in appellant’s convictions in Case No. 477 and therefore, are ineligible for expungement. The circuit court denied appellant’s petition for expungement.

On April 13, 2021, appellant also filed a petition for expungement in Case No. 042, on the same grounds. On May 13, 2021, the state answered the petition, advising the court that appellant “is entitled to expungement of the records in the instant matter.” Thereafter the circuit court granted the petition for expungement in Case No. 042.

On July 8, 2021, the state filed a “Motion for Appropriate Relief,” asserting that the charges in Case No. 042 are ineligible for expungement because they had been nolle prossed and re-charged in a case that resulted in convictions and that the court should rescind its prior order, which had granted expungement. The circuit court granted the motion and purported to rescind the expungement order in that case.

LAW: The General Assembly first enacted an expungement statute in 1975. Later that same year, the Standing Committee on Rules of Practice and Procedure of the Court of Appeals recommended adoption of a proposed new Rule 1292, to govern expungement proceedings under the newly enacted statute.

Whereas the statute seemingly requires a court to grant an expungement petition if the state fails to file a timely response, the rule seemingly was different, providing that the state’s untimely response “constitutes a consent to the expungement of the applicant’s or petitioner’s records.” There is thus a conflict between the statue and the rule that traces all the way back to the original statute and rule.

Under authority conferred by the Constitution of Maryland, the Court of Appeals “may, by rule, overturn a statute enacted by the legislature governing legal practice or procedure.” Furthermore, when “there is a conflict between such a law and rule, the last enacted prevails.” Accordingly, the court finds that the Court of Appeals effectively amended the expungement statute.

Under CP § 10-107(b)(1), if “a person is not entitled to expungement of one charge or conviction in a unit, the person is not entitled to expungement of any other charge or conviction in the unit.” Plainly, the charges in Case No. 477 are ineligible for expungement. Therefore also ineligible are the charges in Case No. 029. Therefore the circuit court did not act unreasonably or “without reference to any guiding rules or principles” in denying appellant’s petition in Case No. 029.

In Case No. 042, the charges were similarly ineligible for expungement. However the circuit court issued an order of expungement, based on the state’s concession. That order was a final judgment, and the state filed its “Motion for Appropriate Relief” more than 30 days after entry of judgment. Therefore, the circuit court had authority to revise its judgment only on grounds of “fraud, mistake, or irregularity,” which the state concedes does not exist in this case.

Judgment of the Circuit Court for Wicomico County affirmed in Appeal No. 700 and vacated and remanded in Appeal No. 1435.

Criminal

Evidence of bigoted beliefs

BOTTOM LINE: Where the state introduced evidence of the defendant’s  bigoted beliefs against Black people in support of its hate crime charge, but the hate crime charge was then dismissed by the circuit court, it did not err in allowing the jury to consider the evidence during the murder trial. The contested evidence was relevant to motivation for first-degree murder and its probative value was not substantially outweighed by its prejudicial effect.

CASE: Urbanski v. State, No. 1318, Sept. Term, 2020 (filed Dec. 8, 2022) (Judges Berger, REED) (Judge Arthur, concurs).

FACTS: Sean Urbanski stabbed and killed Second Lieutenant Richard Collins III at a bus stop on the University of Maryland campus on May 20, 2017. Appellant was charged with first- or second-degree murder and a hate crime under Maryland Criminal Law § 10-304.

A jury found appellant guilty of first-degree murder and appellant was sentenced to life imprisonment with the possibility of parole. In bringing his appeal, appellant presents two questions for appellate review, rephrased for clarity: (1) did the circuit court err in admitting the racially offensive evidence in violation of the First Amendment and (2) did the circuit court err in denying appellant’s motion for a mistrial

LAW: Appellant was a member of a group that had bigoted beliefs against inter alia, Black people. The other two eyewitnesses were of white and Asian descent. He ordered each person to “step left.” Lt. Collins, a Black man, was stabbed by a person that had bigoted beliefs against Black people. Those bigoted beliefs aligned with and were encouraged by the membership to the “Alt-Reich” Facebook group. The memes that were admitted into evidence were testified as consistent with materials that were posted on the Alt-Reich Nation Facebook group page.

Appellant argues that since the hate crime count was dismissed, the evidence presented was prejudicial to his case. However, the contested evidence did not contain content that would inherently prevent jurors from rationally considering and weighing the contested evidence with all other evidence presented during trial, such as, inter alia, the surveillance footage, the murder weapon found on the appellant’s person with the victim’s blood and the testimony of the eyewitnesses.

Appellant relies heavily on Ayers v. State, 335 Md. 602 (1994), in which the court upheld the constitutionality of the hate crimes statute. Appellant claims that in Ayers, “the Court of Appeals made clear that the hate crime statute survives an as-applied challenge under the First Amendment only when there is a tight nexus between the otherwise protected speech and the crime.”

However, this court reads the holding of the Ayers case that the racially motivated speech, when weighed in context and for motivation of a charged hate-crime under Md. Code Ann., CL § 10-304, has to be connected in some way with the hate crime offense to be used as evidence of motivation of the hate crime. This court reads this standard to only apply to the theory of motivation of charged hate crimes and not the charged first-degree murder charge.

Appellant was acquitted of the hate crime because the circuit court could not find that the appellant murdered Lt. Collins solely “because of” his race. The circuit court nevertheless found the contested evidence relevant to motivation for first-degree murder. This court holds that the circuit court did not err in doing so and is not inconsistent with Ayers. The contested evidence was admissible to show motive or intent to harm Lt. Collins was highly probative and has special relevance to Count One charging murder.

Finally, even if the evidence was not properly admitted, there was an overwhelming amount of non-racially charged evidence before the jury that appellant intended to kill or seriously injure Lt. Collins. Consequently this court does not find the contested evidence prejudicial enough to warrant reversible error.

Judgment of the Circuit Court for Prince George’s County affirmed.

CONCUR: I would have concluded that the probative value of the racist memes and of Urbanski’s membership in a neo-Nazi organization was substantially outweighed by the danger of unfair prejudice, in a case that now involved only a charge of murder. Having determined that the memes and the evidence of Urbanski’s membership in a neo-Nazi organization were inadmissible in a case that involved only a charge of murder, I would have declared a mistrial.

I concur in the judgment because I recognize that an appellate court must afford an enormous degree of deference to the trial court judge’s discretionary determinations about whether the probative value of evidence is substantially outweighed by the danger of undue prejudice and about whether to grant a mistrial.

Domestic relations

Standing

BOTTOM LINE: Where a daughter moved to set aside estate planning documents giving her aunt authority over her mother, the petition was denied because the daughter lacked standing.

CASE: In the Matter of Andrea Jacobson, No. 1741, Sept. Term, 2021 (filed Dec. 6, 2022) (Judges Arthur, LEAHY, Sharer).

FACTS: Amy Silverstone filed a petition for guardianship in the circuit court to obtain control over the person and property of her mother, Andrea Jacobson. At its core, this appeal concerns Amy’s effort to set aside her mother’s estate planning documents (including several wills, revocable trust agreements and powers of attorney) conferring authority upon Lisa Jacobson—Andrea’s sister and Amy’s aunt.

Amy appeals from the circuit court’s orders dismissing Amy’s undue influence challenge to Andrea’s estate planning documents, denying her motion to reconsider, and striking her third amended petition, filed after judgment was entered. In their cross-appeal, Andrea and Lisa contest the circuit court’s order denying their joint motion for sanctions.

LAW: The circuit court correctly concluded that Amy lacked standing to challenge the validity of Andrea’s wills and revocable trust agreements while Andrea is still living because Amy has no property interest in her mother’s trust assets or potential probate estate other than a remote expectancy as a presumptive intestate heir. Also, because Amy failed to allege any misuse or abuse of power by Lisa in her capacity as agent, she was not able to invoke the judicial process to challenge Andrea’s durable, statutory form, and health care powers of attorney. Moreover, the circuit court properly concluded that the bald allegations of undue influence fell short of invoking a recognizable cause of action.

Next, the circuit court did not abuse its discretion in denying Amy’s motion to reconsider because Amy’s deficient motion did not bring the court’s attention to any errors that it was required to rectify. Instead, Amy simply provided page-length quotations from two prior cases setting out black-letter law on undue influence without any explanation as to how the court erred in dismissing her petition on grounds of standing.

Third, this court discerns no abuse of discretion in the circuit court’s decisions to (1) deny Amy leave to amend, and (2) strike Amy’s third amended petition filed after judgment was entered and before obtaining leave to file it under Maryland Rule 2-322(c). Nor did the circuit court err, as Amy contends, in declining to issue a declaration of the parties’ rights by striking the improper pleading without reaching its merits.

Finally, the circuit court did not abuse its discretion in denying Andrea and Lisa’s joint motion for sanctions against Amy for filing her motion to reconsider the court’s November 2 order. Even if Andrea and Lisa could show that Amy brought her motion to reconsider in bad faith or without substantial justification, the circuit court was well within its discretion to deny an award of sanctions.

Judgment of the Circuit Court for Montgomery County affirmed.

Domestic relations

Indefinite alimony

BOTTOM LINE: Where the circuit court made extensive findings as to the standard of living that the parties established during the course of their marriage and wife’s reasonable expenses, it did not err in awarding indefinite alimony in the amount of $7,155 monthly.

CASE: Goicochea v. Goicochea, No. 0877, Sept. Term, 2020 (filed Dec. 6, 2022). (Judges Graeff, Shaw, MOYLAN).

FACTS:  In November 2018, Rosa Goicochea filed a complaint for absolute divorce, or, alternatively, limited divorce, alimony and for other appropriate relief. In October 2019, Juvenal Goicochea filed a counterclaim for absolute divorce. After a trial in March 2020, the court entered a judgment of absolute divorce, granting wife indefinite alimony in the amount of $7,155 per month and a monetary award in the amount of $667,750

LAW: Husband first claims that the court erred in determining that he had dissipated marital funds. Wife responds that the court correctly applied Maryland law and found that husband had dissipated $609,111 in marital assets based on the following evidence presented at trial: husband’s large bank account withdrawals; his payments towards the Tern Drive property and his payments to his paramours. The court finds that the circuit court applied the correct law and made conclusions that are supported by substantial evidence in the record. The court did not err in determining that husband had dissipated $609,111 in marital funds.

It is undisputed that wife withdrew $200,000 from the parties’ home-equity line of credit, or HELOC, in November 2006. The circuit court found that wife dissipated $50,000 of the $200,000 withdrawal and that she presented credible evidence that the remaining $150,000 were used for marital or family expenses. Husband claims that the court erred because, according to husband, wife dissipated all $200,000 in marital assets that she withdrew from the parties’ HELOC. This court disagrees. The trial court was simply not persuaded that wife had dissipated all $200,000 that she withdrew from the parties’ HELOC. And competent evidence supports the trial court’s ruling.

Husband argues that the court erred in valuating his minority interest in the Massachusetts Avenue Surgery Center, or MASC. According to husband, the court’s valuation amounts to an error because it was based on a premium that a buyer paid for a controlling interest. The parties presented dueling expert testimony as to the valuation of husband’s interest in MASC. The court determined that the valuation of the wife’s expert (Joseph Estabrook) was more persuasive.

The court’s decision was reasonable, logical and explained in detail. Although another fact-finder might have accepted husband’s expert’s opinion over Estabrook’s opinion, the trial court was not clearly erroneous when it accepted Estabrook’s opinion testimony as to the value of husband’s interest in MASC.

Husband contends that the court erroneously determined that wife’s necessary reasonable expenses were $15,623.81 per month.

The court disagrees with husband’s contention that the court awarded wife enough money to provide her with a better standard of living than she had during the marriage. The record supports the circuit court’s thorough findings as to the alimony factors. Given the circuit court’s extensive findings as to the standard of living that the parties established during the course of their marriage and wife’s reasonable expenses, the court is not persuaded that the court erred in awarding this amount of indefinite alimony to wife.

Husband argues that the court erred because wife “was awarded 50% of the value of [Husband’s] retirement accounts but the Court failed to include the Required Minimum Distribution (RMD) in its calculation of [Wife’s] income.” The court disagrees. In making its alimony determination, the court stated: “In considering the Parties’ financial needs and resources, the Court necessarily also considers all income and assets, the Court’s monetary award to Wife, the nature and amount of each Party’s financial obligations, and each Party’s right to receive retirement benefits.” Despite husband’s argument, the court’s ruling plainly states that it considered “all income and assets” in making its alimony determination.

Judgment of the Circuit Court for Montgomery County affirmed.