DocketNumber: No. 1046
Citation Numbers: 212 Md. App. 314, 69 A.3d 26
Judges: Matricciani
Filed Date: 5/31/2013
Status: Precedential
Modified Date: 9/8/2022
A jury sitting in the Circuit Court for Baltimore City convicted appellant Julius Henson of conspiracy to violate Md.Code (2003, 2010 Repl.Vol.), §§ 13-401 and 13-602(a)(9) of
Questions Presented
Appellant presents five questions for our review; they are:
I. Was the application of Ejection] L[aw] § 16—201(1)(7) to [appellant] [constitutionally vague?
II. Was the jury verdict inconsistent in counts three (3) and five (5)?
III. Was the court’s instruction to the jury on aiders and abettors clearly erroneous?
IV. Did the trial court err when it refused to allow [appellant’s] experts to testify that [in their opinions] the call, its content and the lack of authority line were the responsibility of the campaign and not [appellant’s] []?
V. Was the court’s sentence forbidding [appellant’s] participation in politics illegal?
For the reasons that follow, we answer no to each question and affirm the judgment of the circuit court.
Factual and Procedural History
In the days immediately preceding the November 2, 2010 statewide elections, senior members of the Bob Ehrlich for Maryland Campaign met to discuss strategy. The discussion among Paul Schurick, Greg Massoni, and Bernie Marczyk,
To effect the plan, appellant and his employee, Rhonda Russell, retained the services of a company named Robodial.org. Robodial.org owns and operates software that places recorded phone calls—known as “robocalls”—and records logistical data about them. Ms. Russell set up an account with Robodial.org and uploaded a list of phone numbers for residents in each county who were selected to receive the robocall.
Hello. I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We’re okay. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you.
Ms. Russell inquired why the message lacked an authority line, and appellant responded that the client did not want one. After appellant gave her the “green light,” Ms. Russell uploaded the contents of the message to Robodial.org.
Shirley Malloy, a resident of Prince George’s County, testified to receiving the robocall on the evening of November 2, 2010. At the time the call was placed to her, the polls were still open. Ms. Malloy testified that the call raised her suspicions because the President was not a candidate on any ballot in Maryland at that time. Peter Vandermeer, a Baltimore City resident, received the same call. The suspicious nature of the call prompted him to vote, and to inform the
Appellant was soon indicted on charges that he “did knowingly and willfully cause to be published and distributed campaign material that did not include the name of the campaign finance entity and the treasurer responsible for said publication and distribution, in violation of §§ 13-401 and 13-602(a)(9) of the Election Law Article of the Annotated Code of Maryland against the peace, government and dignity of the State.” The indictment also alleged that the robocall and authority line omissions constituted voter fraud in violation of EL § 16-201(a)(6),
The jury found appellant guilty only of conspiracy to violate the authority line requirement of EL § 13-401, and the court sentenced appellant to a one-year term of imprisonment, with all but two months suspended. The court ordered appellant to serve three years of probation upon release from confinement, on the condition that appellant refrain from “working in any capacity in election campaigns[,] whether it’s in a voluntary status or paid.”
Discussion
This case presents us with a sad tale. Appellant and his collaborators callously attempted to manipulate members of the electorate in an effort to dissuade predominantly African-American voters from exercising their constitutional right to vote in a gubernatorial election. As we will explain, infra, the current appeal presents no grounds to reverse his conviction or sentence.
I.
Appellant’s first question presented, whether “EL 16—201(1)(7)” is constitutionally vague, is puzzling for a
At the heart of appellant’s tangled arguments is his fundamental confusion about the dual nature of his crime: the robocall not only misrepresented the course of the election, it also failed to disclose the source of funds used to create and broadcast the message. While appellant was charged with voting fraud under EL § 16-201(a)(6), he was convicted only of failure to include an authority line under EL §§ 13-401 and 13-602(a)(9).
Appellant cites
The McIntyre court struck down an Ohio statute that prohibited the distribution of anonymous political literature by all private citizens. 514 U.S. at 348-53, 115 S.Ct. 1511. But appellant was not convicted of being a private citizen who distributed anonymous campaign materials, he was convicted of distributing funded campaign materials that failed to disclose their source, a requirement specifically upheld by Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366-67, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010):
Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” [Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ], and “do not prevent anyone from speaking,” [McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) ] (internal quotation marks and brackets omitted). The Court has subjected these requirements to “exacting scrutiny,” which requires a “substantial relation” between the disclosure requirement and a “sufficiently important” governmental interest. Buckley, supra, at 64, 66, 96 S.Ct. 612 (internal*323 quotation marks omitted); see McConnell, supra, at 231-232, 124 S.Ct. 619.
In Buckley, the Court explained that disclosure could be justified based on a governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending. 424 U.S. at 66, 96 S.Ct. 612. The McConnell Court applied this interest in rejecting facial challenges to BCRA §§ 201 and 311. 540 U.S. at 196, 124 S.Ct. 619. There was evidence in the record that independent groups were running election-related advertisements “ ‘while hiding behind dubious and misleading names.’ ” Id., at 197, 124 S.Ct. 619 (quoting [disclosure McConnell v. Fed. Election Comm’n, 251 F.Supp.2d 176, 237 (D.D.C.2003) (“McConnell I ”) ]). The Court therefore upheld BCRA §§ 201 and 311 on the ground that they would help citizens “ ‘make informed choices in the political marketplace.’ ” 540 U.S. at 197, 124 S.Ct. 619 (quoting McConnell I, supra, at 237); see 540 U.S. at 231, 124 S.Ct. 619.
Whether it is a matter of statutory interpretation or First Amendment protections, the line that appellant attempts to draw between a “person” and a “political consultant” is illusory. Appellant was a “person” for purposes of EL §§ 13-401 and 13-602(a)(9), and it is precisely his role as a consultant directing the use of campaign funds that excludes him from the First Amendment’s protection of anonymous speech.
II. Inconsistent Verdicts
Appellant complains also that we must reverse his conviction because it is legally and factually inconsistent to be convicted of conspiracy but acquitted of the completed crime. Appellant failed to preserve his point for review by objecting prior to the jury’s discharge, McNeal v. State, 426 Md. 455, 466, 44 A.3d 982 (2012); Price v. State, 405 Md. 10, 40, 949 A.2d 619 (2008) (Harrell, J., concurring), but preservation is frankly of little concern here, for appellant is simply wrong. A conviction for conspiracy may lie without conviction of the underlying offense. Townes v. State, 314 Md. 71, 75, 548 A.2d 832 (1988); Grandison v. State, 305 Md. 685, 758-61, 506 A.2d
III. Jury Instructions
Appellant next argues that the trial court erred when it instructed the jury, as follows:
Each charge in this case is a misdemeanor. When a person embraces a misdemeanor, that person is a principal as to that crime, no matter what the nature of the involvement. In other words, if you find beyond a reasonable doubt an offense charged was committed, and that the defendant willfully and knowingly incited, encouraged, aided or assisted in the commission of that charged offense, then he is guilty of that offense.[8]
Under Maryland Rule 2-520(c), the “court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods.” We have stated that the “standard of review for jury instructions is that so long as the law is fairly covered by the jury instructions, reviewing courts should not disturb them.” Tharp v. State, 129 Md.App. 319, 329, 742 A.2d 6 (1999). On review, we “must determine whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given.” Id.
Appellant’s argument on this point again demonstrates a basic misunderstanding of criminal law. He rightly acknowledges that, for misdemeanor crimes, aiders and abettors are held criminally liable to the same degree as principals.
IV. Expert Testimony
Appellant’s next assignment of error is the court’s refusal to allow him the benefit of expert testimony. Under Maryland Rule 5-702, “[ejxpert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” “In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.” Id.
The court is vested with, wide discretion in determining the admissibility and propriety of expert testimony. Rollins v. State, 392 Md. 455, 499-500, 897 A.2d 821 (2006). Accord Wise v. State, 132 Md.App. 127, 135, 751 A.2d 24 (2000) (“[The] trial court has broad discretion to rule on the admissibility of expert testimony and its decision to admit or exclude such testimony is rarely reversed.”); Sippio v. State, 350 Md. 633, 648, 714 A.2d 864 (1998). “[Ajbuse of discretion occurs where no reasonable person would take the view adopted by the [trial] court or when the court acts without reference to any guiding rules or principles.” Hajireen v. State, 203 Md.App. 537, 552, 39 A.3d 105 (2012). The “trial court abuses its
According to appellant’s proffer, his experts “would state that the responsibility for the [robojcall and the authority line was that of the campaign and not of a political consultant such as [appellant.]” By denying him the benefit of expert testimony, appellant argues that “the resulting prejudice to [appellant] was the loss of the testimony which [ ] [would have] set before the jury [the notion] that the authority line failure in the robocall was not his responsibility, but that of the campaign and Mr. Schurick.” Appellant’s attempt to pass the buck, however, cannot succeed.
Appellant argues that “[the court] made no determination as to the qualifications of the experts, nor whether there was a sufficient factual basis to support the expert testimony.” The court, appellant highlights, “reflexively isolated one portion of the requirement under Rule 5-702 and denied the testimony.” By process of elimination, it appears that appellant focuses on the court’s application of Rule 5-702’s second prong, viz., “the appropriateness of the expert testimony on the particular subject.” Appellant characterizes political consulting as a new frontier, insinuating that the court denied his use of expert testimony because “historically, judges have denied expert opinions based upon ignorance concerning the principles of other disciplines.”
Y. The Condition of Probation
Lastly, appellant challenges the special condition of his probation prohibiting him from “working in any capacity in election campaigns[,] whether it’s in a voluntary status or paid.” He argues that “banning him from politics, and thusly his right to make a living is excessive and violates his [constitutional right to free association^] to contracts!.,] and access to political speech.”
Probation, in the first instance, is a “discretionary matter—a matter of grace, not entitlement.” Wink v. State, 76 Md.App. 677, 682, 547 A.2d 1122 (1988). Probation is an “act of clemency bestowed by the court.” Hudgins v. State, 292 Md. 342, 347, 438 A.2d 928 (1982). The “malefactor [] may be free as long as he conducts himself in a manner consonant with established communal standards and the safety of society.” Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965). When imposing probation conditions, “[a] judge is vested with very broad discretion in sentencing criminal defendants, and is accorded this broad latitude to best accomplish the objectives of sentencing—punishment, deterrence, and rehabilitation[,]” and is “limited only by constitutional standards and statutory limits.” Poe v. State, 341 Md. 523, 531, 532, 671 A.2d 501 (1996). However, “a condition to the granting of probation which compels a defendant to give up a
Although there is a paucity of authority for this proposition in Maryland, reported decisions from our sister states recognize the propriety of prohibiting certain types of employment as a special condition of probation. See e.g., People v. Caruso, 174 Cal.App.2d 624, 647, 345 P.2d 282 (1959), cert. denied, 363 U.S. 819, 80 S.Ct. 1259, 4 L.Ed.2d 1517 (1960) (finding no abuse of discretion where condition of probation required the defendant to “remain out of the automobile business” even though the “automobile business is the only one which he knows” in car dealership fraud case); State v. Fox, 22 Conn.App. 449, 457, 577 A.2d 1111 (1990) (“[T]he special condition prohibiting the defendant from engaging in private real estate work during the period of probation was reasonably related to his rehabilitation in light of the crimes he had committed [extortion through position as town planner] and the public service work he was to perform.”); Morgan v. State, 285 Ga.App. 254, 260, 645 S.E.2d 745 (2007), aff'd in part on alt. grounds, 289 Ga.App. 209, 656 S.E.2d 857 (2008) (owner of animal grooming business convicted of cruelty to animals prohibited from owning or caring for animals as special condition of probation—defendant “failed to carry his burden of showing that the special condition is unreasonable.”); Davis v. State, 172 Ga.App. 787, 790, 324 S.E.2d 767 (1984) (After conviction of violating state liquor laws, “special conditions of probation reasonably calculated to take [appellant] out of the sale of alcohol business would be authorized.”); State v. Melton, 364 Mont. 482, 488, 276 P.3d 900 (2012) (“As a general
The federal courts have reached similar conclusions with respect to restricting a defendant’s access to political speech and association. See, e.g., Schave, 186 F.3d at 843 (restriction on [appellant’s] right to association with violent or white supremacist organizations during the period of his supervised release after conviction for supplying weapons to group constitutional.); Malone v. U.S., 502 F.2d 554, 556-57 (9th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975) (“A convicted criminal may be reasonably restricted as part of his sentence with respect to his associations in order to prevent his future criminality.”); U.S. v. Turner, 44 F.3d 900, 903 (10th Cir.1995), cert. denied, 515 U.S. 1104, 115 S.Ct. 2250, 132 L.Ed.2d 258 (1995) (“Incidental restrictions of First
Additionally, the United States Supreme Court has upheld similar restrictions on public political activity to protect the integrity of State politics. In Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Supreme Court rejected a facial challenge to an Oklahoma statute prohibiting certain state employees from:
soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party’s partisan political campaign; serving as delegates or alternates to caucauses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.
413 U.S. at 616-17, 93 S.Ct. 2908.
Maryland’s interest in protecting the state from a person convicted of an election offense is at least as strong as Oklahoma’s interests in Broadrick, which brings the sentencing court’s probation conditions within that case’s ambit. And
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
NAZARIAN, DOUGLAS R. M., J., did not participate in the Court’s decision to report this opinion pursuant to Md. Rule 8-605.1.
. Of the persons listed, only Senior Aid Paul Schurick is material to this appeal. Schurick’s own case arising out of these and additional allegations was tried separately. For the purposes of appellant’s conspiracy conviction, Schurick was appellant’s coconspirator.
. Appellant’s businesses had previously compiled these lists for Democratic Party candidates in Baltimore City and Prince George’s County.
. The indictment originally charged appellant with violations of the phantom section "16-201(1)(7),” but was later amended to charge appellant properly under EL § 16~201(a)(6).
. This subsection prohibits "conduct that results or has the intent to result in the denial or abridgement of the right of any citizen of the United States to vote on account of race, color, or disability.”
. As noted in the description of appellant’s charges, EL § 13-602(a)(9) provides that "[a] person may not publish or distribute, or cause to be published or distributed, campaign material that violates” the authority line disclosure requirements of EL § 13-401, and § 13-602(b)(l) further provides that any “person” who does is guilty of a criminal misdemeanor. By contrast, EL § 16-201(a)(6) goes beyond mere failure to disclose the source of campaign funds and provides that a person may not "influence or attempt to influence a voter's decision whether to go to the polls to cast a vote through the use of force, fraud, threat, menace, intimidation, bribery, reward, or offer of reward!.]”
. We use this word loosely, as appellant’s brief referred only to "Md. Op. Att’y Gen. 110 (1995),” which we presume is 80 Md. Op. Att’y Gen. 110 (1995). At argument, counsel referred to “an Ohio case” but did
. Black’s Law Dictionary defines the word "person” to include a "human being,” which appellant does not deny he is. Black’s Law Dictionary 525 (2nd pocket ed.1996). Maryland has adopted a broad definition of the term person. See Article 1, § 15 (2011 Repl.Vol.) ("Unless such a construction would be unreasonable, the word person shall include corporation, partnership, business trust, statutory trust, or limited liability company.”); Maryland Rule l-202(t) (Defining a person as, inter alia, "any individual.... ”).
8. Appellant’s brief does not quote the instructions as given, but instead quotes an accomplice liability instruction of unknown origin that does not refer to misdemeanors, either as charged or in general.
. Contrary to appellant's assertions about the novelty of political consultants in our electoral system, he advises us that "the first political consultants arose from California in the 1930's.” We suspect that most courts have become familiar with the species in the last eighty plus years.
. If there is any question as to whether the scope of the trial court’s probation exceeded these strictures or is vague, appellant has not raised it. See Broadrick, 413 U.S. at 608, 93 S.Ct. 2908 (statutory prohibitions were “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest”). Appellant presented only the most basic, general attack on the court’s sentence, and to accept his arguments as valid is to deny the sentencing court any power to restrict public political participation, which is against the holding of Broadrick.