The High Court

April 3, 2015

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Baltimore asks high court to dismiss $15M suit by freed man

By: Steve Lash  Daily Record Legal Affairs Writer March 26, 2015

The Baltimore Police Department and three officers have asked the U.S. Supreme Court to throw out a $15 million lawsuit brought against them by a man who served 20 years in prison for murder before DNA tests led to his freedom. In seeking the high court’s review, the department and officers argue that James Owens waited too long to bring his lawsuit alleging they withheld exculpatory evidence from his 1988 trial. They also say they should have “qualified immunity” from suit because in 1988 the law was not clearly established that individual police officers had a duty to bring forward exculpatory evidence.

U.S. District Judge George L. Russell III in Baltimore had dismissed Owens’  lawsuit in 2012 after finding it was filed late and that the department and officers had qualified immunity anyway. But the 4th U.S. Circuit Court of Appeals revived the litigation last September, saying no immunity existed due to their alleged constitutional violation. The 4th Circuit also rejected Russell’s conclusion that Owens waited too long before filing suit on Oct. 12, 2011. Russell had held that the three-year statute of limitations began to run on June 4, 2007, when Owens’ conviction was vacated due to the newly discovered DNA evidence. But the 4th Circuit said the three-year clock did not start until Oct. 15, 2008 — when the Baltimore City state’s attorney chose not to retry Owens. Thus, Owens met the filing deadline with three days to spare in 2011, the 4th Circuit added, prompting the appeal.

The Supreme Court has not stated when it will vote on the department and officers’ request for review. The case is Baltimore Police Department et al. v. Owens, No. 14-887.

Charles N. Curlett Jr., an attorney for Owens, called it “most unfortunate” that Baltimore has been unwilling to compensate Owens for its flawed and constitutionally suspect prosecution of him. The city is “digging in its heels to avoid paying anything at all,” Curlett, of Levin & Curlett LLC in Baltimore, said Thursday. “We would like to see a change in their posture but at the moment it seems they want to litigate this all the way to the Supreme Court.”

Suzanne Sangree, of the Baltimore City Law Department, said the high-court appeal “has nothing to do with an effort to deprive Mr. Owens of what he may be entitled to.” The city’s focus is on ensuring that police departments and their officers have qualified immunity and cannot be held liable for failing to share exculpatory evidence with the defense, an obligation the Supreme Court has long held belongs to prosecutors, Sangree said Thursday. “Police officers are not lawyers,” added Sangree, the law department’s chief of police legal affairs. “They can’t make that sophisticated legal judgment of what is potentially exculpatory.”

Owens brought suit under Section 1983 of the 1871 federal Civil Rights Act, which prohibits government employees from violating the constitutional rights of individuals. Owens alleges the withholding of exculpatory evidence by officers Jay Landsman, Thomas Pelligrini and Gary Dunnigan violated his right to that information under the Supreme Court’s 1963 decision in Brady v. Maryland. In seeking Supreme Court review, the department and officers say the justices have already held — in their 1994 decision in Heck v. Humphrey — that the three-year filing clock on Brady claims starts when the underlying conviction is invalidated and not later when the prosecution drops the case. Four circuit courts of appeal have ruled similarly, making the 4th Circuit’s decision an outlier, Sangree wrote in the petition for review. “This divergence of opinions reflects confusion on the part of the courts of appeal that can only be resolved by this court,” Sangree added in the petition to the justices. Sangree also made the qualified-immunity argument, saying police departments and their officers had no reason to suspect, particularly in 1988, that they were obliged to share exculpatory evidence with the defense. “Rather than place an independent burden on police officers, this court has instead always required the prosecution to create and implement procedures to ensure that police officers disgorge to the prosecution all relevant information in a criminal case, including importantly, all exculpatory evidence,” Sangree wrote. “The 4th Circuit’s ruling is therefore at odds with the decision of this court, and certiorari is appropriate and necessary to correct the error.”

But Owens’ attorneys dispute Sangree’s interpretation of prior rulings, telling the high court that the three-year clock cannot start while a defendant remains under the threat of a retrial. “No court of appeals has held that the statute of limitations on a Brady claim begins to run while the plaintiff remains subject to pending criminal proceedings in which the Brady violation may recur through the introduction of evidence tainted by the violation,” Curlett and his co-counsel wrote. With regard to qualified immunity, the attorneys say the legal issue is not whether the police had a clearly established duty to share exculpatory evidence with the defense, but whether Owens had a clearly established right to that evidence. “This court has noted repeatedly that the scope of the Brady obligation encompasses not only material known to prosecutors but also material known to police,” the lawyers wrote. Curlett was joined on the brief by attorneys from Brown, Goldstein & Levy LLP in Baltimore and Public Citizen Ligation Group in Washington, D.C.

Owens was convicted of felony murder and burglary in the Aug. 2, 1987, killing of Colleen Williar. Owens was sentenced to life in prison. In his lawsuit, Owens alleges the police officers knew the prosecution’s star witness — James A. Thompson — had told at least four different and inconsistent stories about Owens’ involvement. Thompson eventually testified that Owens had handed him the murder weapon, a knife, days after Williar was killed. Thompson said Owens told him he’d had sex with Williar. But Owens’ boss had told detectives Owens was at work when that conversation supposedly occurred – information the police never shared with defense counsel, Owens’ lawsuit alleges.

Federal Criminal Law

April 2, 2015

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Judge Richard D. Bennett of the United States District Court for the District of Maryland has rebuked state court judges while overturning the conviction of a 1997 murder, the City Paper reports.  According to the article by veteran crime reporter Van Smith, “Bennett has ordered a new trial for Nicholas, because statements given to Baltimore police by two witnesses, who both said they heard gunshots at about the time and place Nicholas said Aja had been shot—which bolstered Nicholas’ version of events, while undermining the state’s case—were illegally withheld from his defense.”

New York

April 1, 2015

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The Court of Appeals of New York has resolved a long simmering question facing out-of-state attorneys who are barred in New York but reside elsewhere.  Can they appear as counsel of record in a New York case?  Interpreting Judiciary Law §470, the Court held that an out-of-state attorney must maintain an office for the purpose of transacting law business in New York to be eligible to practice within the state.  The issue was presented on a certified question from the U.S. Court of Appeals for the Second Circuit, which will consider whether the statute violates the Privileges and Immunities Clause of Article IV, §2.  So this may not be the final word.  The case is Schoenefeld v. State of New York, No. 39, NYLJ 1202722163813, at *1 (Ct. of App., Decided March 31, 2015).

The High Court

March 27, 2015

City Paper

In December, 2013, the City Paper reported, “Two men want detectives made famous by David Simon to pay after flawed murder convictions put them in prison for decades.”

After a significant victory in the United States Court of Appeals for the Fourth Circuit in one of those cases, the Baltimore Police Department and its Detectives have appealed the decision to the United States Supreme Court.  The latest phase of the litigation was covered in today’s Maryland Daily Record.  This link to the article is for subscribers only, but we’ll post the reprint as soon as we get it.

News that Fits

brackets

March 19, 2015

As fans complete their March Madness bracket sheets for their office pools, many will wonder, if only fleetingly, is this legal?  While we will not opine on the legality of such endeavors in this post, we draw your attention to at least one prosecutor’s office that thinks otherwise.  Fox News reports that a New Jersey man faces criminal prosecution after the pool he managed grew to an $837,000 pot and payouts were being made to the Genovese crime family.  It seems the Know Your Customer rules apply to those running sports brackets as well as banks.

Federal Criminal Law

March 4, 2015

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The Washington Post reports how an FBI agent was able to procure drugs to feed his heroin addiction – by skimming them from bags seized as evidence in criminal cases.  Our own Steve Levin is quoted in the article, “It’s shocking that there was such little oversight,” said Steven H. Levin, a private lawyer in Baltimore with 10 years’ experience as a federal prosecutor. “It’s something you would expect to see on a made-for-TV movie. . . . You’re thinking, there is no way that could ever happen. And that’s what happened.”

In a related story, “Man Figures He Has 2 More Bites of Roommate’s Leftovers Before It’s Noticeable.

US Attorney’s Office, Maryland – News

Carmen Johnson Convicted On Charges Related To Two Separate Residential Mortgage Fraud Schemes that occurred almost 10 years ago.

Chief Engineer Of Car-Carrier Vessel Sentenced To Prison For Obstruction Of Justice In Marine Oil Pollution Case (at least this conduct occurred within the last few years…)

Conspirator Indicted In $3.9 Million Fraud Scheme

Baltimore Woman Sentenced To 4 Years In Prison In Credit Card Fraud Scheme

Randallstown Man Sentenced To 5 Years In Prison In Counterfeit Check Cashing And Credit Card Skimming Schemes (Real time for fake cash)

Texas Man Sentenced For Illegal Export Of Night Vision Devices (I’m guessing he didn’t see that coming).

International Criminal Law

UN

February 20, 2015

Here at Levin & Curlett, we keep an eye on the global tumult that may lead to international criminal proceedings in The Hague, whether before the International Criminal Court of one of the ad hoc Tribunals.

Of late, our attention, as well as the world at large, has been focused on the Islamic State (or ISIL, or ISIS, or Da’esh, depending on whom you ask).  This week the United Nations Security Counsel expressly condemned the murder of 21 Egyptian Coptic Christians in Libya.  “The members of the Council further emphasized that such ‘continued acts of barbarism perpetrated’ by ISIL do not intimidate them but rather stiffen their resolve that there has to be a common effort amongst Governments and institutions, including those in the region most affected, ‘to counter ISIL, Ansar Al Sharia entities…and all other…entities associated with Al-Qaida,’ as the Council resolved in its resolutions 2170 (2014) and 2199 (2015), adopted just last week.” Secretary General Ban Ki-Moon also condemned the actions.

Whether through military engagement or the mechanism of international criminal justice, or both, the threat must be checked.

Litigation

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February 17, 2015

Lance Armstrong loses $10 million arbitration ruling.

The New York Times reports that an arbitration panel has ordered the cyclist to pay $10 million in a fraud dispute with SCA Promotions citing an “unparalleled pageant of perjury, fraud and conspiracy” related to the cover-up of Armstrong’s use of performance enhancing drugs.  Armstrong’s lawyer stated that the ruling is “contrary to Texas law” and predicted it would be overturned in court.  Such confidence is, in all likelihood, misplaced.  Courts routinely uphold awards even when the law is misapplied by arbitrators.  The standard to throw out an arbitration award requires the panel to have acted “in manifest disregard of the law.”  That standard is rarely met.  If I were a betting man, I’d wager Armstrong eventually writes the check.

Public Corruption

February 16, 2015

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Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals has spoken of an “epidemic” of prosecutorial misconduct in California.

Both the New York Times and the Los Angeles Times have published editorials since yesterday calling for legal reform that will allow prosecutors to be held accountable for misconduct.

Further illustrating the widespread and pervasive nature of corruption in the criminal justice system, on Saturday the Baltimore Sun’s Mark Puente published an article examining how a criminal case can fall apart when the police are, shall we say, less than truthful in their affidavits submitted to courts in support of search warrants.

Baltimore drug probe crumbles after court challenge

News that Fits

February 13, 2015

Brooklyn, New York

Grand Jury Indicts Officer for Death of Man in Hallway

Two months after a Staten Island grand jury refused to indict an officer for the chokehold death of Eric Garner, which was recorded on video, a Brooklyn grand jury charged an officer with manslaughter, criminally negligent homicide and other offenses for the single shot fired in a pitch-dark hallway that killed Akai Gurley.

USAO-Maryland News

February 9, 2015
Texas Man Sentenced For Illegal Export Of Night Vision Devices

BGF Leader Tavon White Sentenced To 12 Years In Prison In Baltimore Jail Racketeering Conspiracy

Maryland Hunting Guides Sentenced For Violating Maryland Black Bear Hunting Regulations

Former Executives Sentenced To Prison For Defrauding Employer Of $1 Million Through Fraudulent Expense Claims

Go “D!”

Adnan Syed, subject of “Serial,” granted appeal.

It is difficult to tell from the podcast whether Adnan is innocent, but reasonable doubt should not have been out of reach. Congratulations to our friend C. Justin Brown on this excellent result.

USAO-Maryland News

Russian National and Three Others Charged In Kickback Scheme.

Laurel Woman Admits to Stealing Almost $300K in Social Security Benefit Checks.

Former Chief of Baltimore City Division of Transit And Marine Services Indicted for Bribery Scheme.

Maryland Woman Admits To Treating Patients While Fraudulently Posing As A Physician’s Assistant.

US Attorney’s Office, DC–Press Releases

Former Executive Director of Public Charter School Pleads Guilty to Stealing $29,000 in Funds -Defendant Wrote Series of Checks for Personal Benefit –

Former United Medical Center Employee Sentenced To a Year in Prison For Embezzling Over $335,000 in Overtime Pay -Defendant Manipulated Electronic Time-Keeping System –

Virginia Man Pleads Guilty to Weapons Offenses Stemming From July 4th Incident at Freedom Plaza -Defendant Brandished Shotgun in Video Filmed at the Site –

U.S. Consulate Official Pleads Guilty to Receiving More Than $3 Million in Bribes in Exchange for Visas -Scheme Allegedly Generated More Than $9 Million in Bribes –

Former Background Investigator for Federal Government Sentenced to Six Months in Prison For Making a False Statement

Specialty Hospitals of America to Pay United States -$4.2 Million to Resolve False Claims Allegations-

In The News . . .

The common theme in this morning’s news is alleged misconduct by prosecutors and police:

In a high profile murder case, it appears that prosecutors “forgot” to disclose some Brady material.

In this lawsuit, brought by Chad Curlett of Levin & Curlett LLC, it is alleged that police officers lied in an arrest warrant (shocking!), leading to the arrest of the WRONG MAN.

Rumor Has It . . .

Some exciting news rumors coming out of the US Attorney’s Office in the District of Maryland:

AUSA Stuart Berman, the Greenbelt Branch Chief, is retiring after many successful years of government service.  It is expected that Stuart will be joining a small law firm in the mid-Atlantic region.

AUSA Peter Nothstein has been detailed to the Senate Judiciary Committee for six months.  Peter just recently received an annual award for excellence in prosecuting violent crime.  See below.

AUSA Mark Crooks doesn’t just prosecute alleged criminals; he chases them too.

And let’s not forget these AUSAs, following the break: Continue reading “Rumor Has It . . .”

On This Day . . .

Felix Unger was asked to remove himself from his place of residence.  That request came from his wife.

Happy Felix Unger Day from your friends at Levin & Curlett LLC, who vigorously defend those who are also asked to remove themselves from their homes (often by the feds).

Department of Justice News

Earlier today, an Indictment was unsealed and “wanted” posters were issued for fugitives charged with multimillion dollar international cyber fraud scheme.

The posters looked nothing like this:

 

PSZ_PPAPVP1036_main

Welcome to Miami:  Two men from Miami have pleaded guilty to laundering millions of dollars obtained through a $10.5 million Medicare fraud scheme using shell companies they controlled.

DOJ News

US Attorney (Maryland) News

Former State Social Service Supervisor Sentenced To 33 Months In Prison In Bank Fraud Scheme

Baltimore Car Dealer Owner Sentenced To 30 Months For Structuring Deposits Of Over $2 Million To Evade Bank Reporting Requirements

Four Conspirators Charged With Using Medical Patients’ Identities To Steal Over $750,000 Of Merchandise

Title Company Manager Pleads Guilty In $4.8 Million Mortgage Fraud Scheme

Armed Robber Exiled To 25 Years In Prison

Steve’s Fresh Perspective

The Proffer Letter:

The First Landmine in Federal Criminal Defense Practice

 

Assistant United States Attorneys (AUSAs) often take the position that a proffer letter, or a “Queen for a Day” agreement, is intended to protect a defendant who ultimately chooses not to cooperate with the government.   Stated another way, as the Seventh Circuit Court of Appeals did in United States v. Threw, 861 F.2d 1046 (7th Cir. 1988), “the purpose of [a proffer letter], according to the government, is to ensure that in the event a cooperating defendant decides not to plead guilty, any information he may have ‘proffered’ to the government cannot later be used against him at trial” or sentencing, with some exceptions.  It is those exceptions that call into question a proffer letter’s true purpose.  In my view, the purpose of a proffer letter, from the government’s perspective, is to ensure that a defendant pleads guilty, because if he goes to trial after proffering, he is going to sentencing as well.

A typical two-page proffer letter in the District of Maryland contains the following language (liberally summarized): Continue reading “Steve’s Fresh Perspective”

USAO-MD News

A Note From the Doctor Won’t Help This Government Employee, Sentenced for Scheme to Defraud Federal Voluntary Leave Transfer Program She Administered–she created false doctor notes to take paid time off donated by other employees

You’ve got to love the alliteration of this press release:  Four-Time Fraudster Sentenced to 44 Months. 

What is it that they say about the family that schemes together?  Here’s what the US Attorney’s Office has to say:  Frederick Couple PLEAD GUILTY to Fraudently Obtaining Over $700,000 in Advanced Fees. 

So much for the security in the Social Security Administration: SSA RETIREE PLEADS GUILTY TO EMBEZZLING OVER $400,000 AND TO TAX EVASION.

Whistle While You Work

SEC Receives More Than 3,000 Whistleblower Tips in FY2012

Listen to the soothing voice of CNN’s Libby Lewis here as she reports on “Blowing the Whistle on Wall Street:”   http://cnnradio.cnn.com/2012/11/15/blowing-the-whistle-on-wall-street/

And read the SEC’s press release here:

Washington, D.C., Nov. 15, 2012 — Over the past year, the Securities and Exchange Commission received more than 3,000 whistleblower tips from all 50 states and from 49 countries, according to the agency’s 2012 Annual Report on the Dodd-Frank Whistleblower Program released today. Continue reading “Whistle While You Work”

Go “D”!

Judge Motz is willing to do the right thing,  to include correcting an error made at trial.  In this post-verdict Order, Judge Motz granted in part a motion for acquittal based on drug weight:

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA                   *

*

*

v.                                                                           *              Criminal No. – JFM-11-003

*

WAYNE LAMPKIN, JR.                               *

*

******

MEMORANDUM

Defendant has filed a motion for new trial or judgment of acquittal. The motion will be granted in part and denied in part. Continue reading “Go “D”!”

Press Releases

USAO-MD:  Morgan State University Professor Indicted in Scheme to Defraud the National Science Foundation.  

 USAO-MD:  Labor Union PAC Fund Manager Indicted for Embezzling  not $500,000, but $502,586.

USAO-MD:  Ringleader and Girlfriend Plead Guilty in Identity Theft  Fraud  Scheme Involving Not 254 Individual Victims, but Over 250.  

USAO-EDVA:  Mental Health Service Provider Sentenced to 48 Months for Conspiracy to Commit Health Care Fraud.

DoJ News

The Justice Department’s Bureau of Justice Statistics has issued this new report on pretrial release in the federal system.  

Here is the accompanying press release:

From 2008 to 2010, federal district courts released more than a third (36 percent) of defendants prior to case disposition, according to a study released today by the Justice Department’s Bureau of Justice Statistics (BJS). Nearly two-thirds (66 percent) of released defendants were released at their initial appearance hearing, while the rest were released at subsequent events including detention or bond hearings. Continue reading “DoJ News”

On This Day . . .

David Petraeus take note:  On November 13th, Felix Unger was asked to remove himself from his place of residence.  That request came from his wife.

Happy Felix Unger Day from your friends at Levin & Curlett LLC.

Steve’s Fresh Perspective

A Victory for Discretion

In 2004, the then-US Attorney for the District of Maryland famously wrote in a leaked email that he wanted three front-page indictments by November of that year. Though open to interpretation, the impression left by the poorly-drafted missive is that prosecutors should seek headlines rather than justice. Let’s give credit to the prosecutors involved in the Petraeus/ Broadwell affair, er, matter for their exercise of sound discretion. Continue reading “Steve’s Fresh Perspective”