In the Matter of R.M.W. (U.S.D.C.)(Approved for Publication)

Signed May 1, 2007--Opinion by Judges Peter J. Messitte, Benson E. Legg, and Andre M. Davis. Approved for publication.

R.M.W., a former member of the Bar of the U.S. District Court for the District of Maryland, was convicted of several felonies and as a result lost his bar membership. He petitioned for readmission to membership. Previously in this case, the U.S. District Court, en banc, had ruled that the standards applicable to the evaluation of application for membership in the Bar by individuals convicted of felonies should also apply to applications for readmission.

The case involving admissions to the Bar, In the Matter of S.G.P., 428 F.Supp. 2d 389 (D. Md. 2006) overruled In the Matter of G.L.S., 586 F.Supp. 375 (D. Md. 1984), and established new criteria for the evaluation of applications and reapplications for membership in the Bar by individuals convicted of felonies.

The factors to be considered are as follows:

1. The nature and character of the offense or offenses committed;

2. The number and duration of offenses and the sentence as to each;

3. The period of any probation or supervised release term and whether the petitioner's adjustment to same was satisfactory;

4. The age and maturity of the applicant when the offenses were committed;

5. The grant or denial of a pardon for any offenses committed;

6. Whether the petitioner was disbarred by any other court;

7. The number of years that have elapsed since the last offense was committed, and the presence or absence of misconduct during that period;

8. Whether the petitioner has complied in all respects with the terms and conditions of prior disciplinary or remedial orders, including the payment of any costs ordered by the disbarring court;

9. Whether the petitioner has engaged or attempted or offered to engage in the unauthorized practice of law;

10. With regard to any incapacity or infirmity (including alcohol or drug abuse), whether it has ceased to exist and is not reasonably likely to recur in the future;

11. Whether the petitioner recognizes the wrongfulness and seriousness of the professional misconduct for which discipline was imposed;

12. Whether the petitioner currently has the requisite honesty and integrity to practice law;

13. The opinions of character witnesses about the applicant's moral fitness;

14. Whether the petitioner has kept informed about recent developments in the law and is competent to practice law;

15. Any other re-admissions to the bar since the petitioner's disbarment;

16. Any other matter that the petitioner may deem relevant to the application or that may be specifically requested by the Court.

R.M.W. began to practice law in his home town, Frederick, Maryland, immediately after graduating law school and passing the bar in 1975. Having used marijuana and other drugs as early as his high school days, by the late 1970's he had become addicted to cocaine and alcohol. In his law practice, much of which involved representation of clients charged with drinking and driving offenses and family matters, he was often paid in cash which he intentionally failed to report as income. This unreported income was used to purchase cocaine for his own consumption such that, during the period of time before his arrest, he was spending between $30,000 and $40,000 a year on his drug habit.

In September 1982, a search warrant was executed on Respondent's residence, which ultimately led to felony convictions both in Maryland state courts (state tax offenses) and federal court (drug offenses) and his disbarment from membership in the Maryland U.S.D.C. He spent a little more than nine months in various federal and Maryland detention facilities.

R.M.W. was suspended from the practice of law by the Maryland Court of Appeals in April 1985 and disbarred on June 4, 1987. He was disbarred by the Maryland U.S.D.C. on July 10, 1984.

R.M.W. was reinstated to the Maryland Bar by Order dated January 7, 2000 signed by Chief Judge Bell for the Maryland Court of Appeals, "with a majority of the Court concurring." He was returned to the Registry of Attorneys on February 3, 2000. Since that time he has satisfied the conditions set forth in that Order in every respect.

The opinion relates in detail the story of R.M.W.'s rehabilitation. As noted in the opinion, the report of the special investigator appointed by the court found that "One Judge [in Frederick County] described Respondent as 'a poster child' for rehabilitation. All the Judges [in Frederick County] enthusiastically support [his] current petition for reinstatement."

In concluding, the panel said as follows:

This Court believes that dishonesty involved in evading income taxes and in not filing tax returns has always been a serious matter. Drug activity today has become a matter of prime concern in the criminal justice system. Indeed, were [R.M.W.'s] cases to have come before a federal court in 2007, it is clear that the punishment to be imposed would be considerably more severe than that which was imposed by the state and federal judges in the mid-1980's.

But whatever the courts of some jurisdictions may believe about the permanent disqualification to serve as an attorney of an individual who has been convicted of a crime of dishonesty, this Court, joining the majority of courts, takes a different view. The Court believes that, when sufficient time has passed since the criminal activity, when there is manifest indication of the individual’s rehabilitation and remorse as well as his skill to serve as an attorney, when all that is presented to the Court in a clear and convincing matter, there is still room for someone to rejoin (or indeed to join in the first instance) the ranks of the Bar of this Court.

Accordingly, the Court concludes that [R.M.W.'s] rehabilitation is genuine and that he does indeed represent a benchmark for attorneys similarly situated who would seek reinstatement in our Bar.

A copy of the opinion is available in PDF as is a copy of the order. Note: As of this posting, the link provided here is correct, while the link to the opinion on the Court's website is not.

Update: A memorandum in this case by the special investigator appointed by the Court as to the issue of whether there is criminal conduct so serious or heinous to preclude reinstatement has been posted here.The Court ordered that the memorandum be attached to the opinion and recommended it for publication because "the memorandum is extraordinarily thorough in its exposition of a very important issue not well illuminated by the case law which would almost certainly prove useful to other courts facing the issue."

Jackson v. United States (Maryland U.S.D.C.) (Approved for Publication)

Signed December 27, 2006--Opinion by Chief Judge Benson Everett Legg (Approved for publication.)

In a pro se petition to vacate, set aside, or correct his 2000 conviction for conspiracy to distribute cocaine and 'crack', Jackson sought relief on due process and effective assistance of counsel grounds, after earlier appeals to the Fourth Circuit (decided in 2002) and Supreme Court (in 2002) were unavailing.

Jackson claimed he was denied due process because "false" or "perjured" testimony was used by the grand jury to indict him. Since he had failed to raise those claims on appeal to the Fourth Circuit, the judge found that he is now barred from raising the issue, but went on to note that the claim would have fallen short in any event, since he did not present any "new evidence" that would demonstrate a jury would not be likely to convict him, under the "actual innocence" doctrine, but only a transcript of the grand jury testimony, which had in fact been used at trial.

Under the Strickland standard, ineffective assistance of counsel claims must establish both the deficiency of counsel's performance, and that the deficient performance prejudiced the claimant, in order to succeed, and failure to establish either would cause the claim to fail.

Here, Jackson's claims of error, and the judge's disposition, were as follows:

Counsel failed to move to dismiss the superseding indictment. Based on the alleged false grand jury testimony raised in the due process claim, the judge rejected Jackson's claim, noting further that a facially valid indictment cannot be challenged for evidentiary incompetence, and thus counsel was not incompetent for failing to raise the issue.

Counsel failed to argue forcefully for a continuance. During the trial, the original indictment had been superseded by an amended version that had added specific quantities of drugs involved, as required by the concurrent Supreme Court decision in Apprendi, and deleted the indictments against Jackson's co-conspirators who had pleaded guilty before trial. The judge found this claim to be without merit, since no new crime was added, the facts added to the indictment were known to Jackson and his counsel, and no claim was made that they were ill-prepared for trial.

Counsel failed to argue that the indictment was insufficiently informative. Jackson claimed that the indictment was defective because co-conspirators were unnamed, there was no "statement of facts", and was "too open-ended." The judge found the claims to be without merit, since the Fourth Circuit does not require unindicted co-conspirators to be named, no statement of facts is required, and the indictment stated the period of the conspiracy.

Counsel erred in moving the original indictment into evidence. At trial, Jackson's counsel argued that, rather than the one unitary conspiracy alleged in the superseding indictment, multiple conspiracies were involved, and that the government had failed to establish those multiple conspiracies. To establish the basis for this, Jackson's counsel introduced the original indictment, which included the names of conspirators not named in the superseding indictment. Since the counsel's strategy was reasoned in that it attacked a possible weak point of the government case, it could not be used under Strickland to prove ineffective assistance of counsel merely because it did not prevail.

Counsel failed to object to the admission of facts relating to Jackson's 1995 drug arrest. Rather than being introduced to establish Jackson's "bad character," evidence of Jackson's arrest, including the type and quantity of drugs and drug-related materials, went directly to Jackson's involvement in the alleged conspiracy during the time period the conspiracy was alleged to have been in operation, and was properly admitted.

Counsel failed to raise on appeal Jackson's arraignment at trial. Jackson was arraigned on the superseding indictment during trial. Since he and his counsel had received a copy of the indictment prior to trial, and had in any event plead not guilty, no prejudice under Strickland was shown.

Counsel failed to raise a "speedy trial" claim on appeal. Since Jackson did not explain how his rights under the Speedy Trial Act had been violated, his claim failed.

In sum, the judge denied Jackson's motions, and closed the case.

The Memorandum and Order are available in PDF.

Valderrama v. Honeywell Technology Solutions, Inc. (Maryland U.S.D.C.)(Approved for publication)

Decided February 14, 2007--Opinion by Chief Judge Benson Everett Legg (approved for publication)

Valderrama, a pro se litigant, sued Honeywell Technology Solutions, Inc. ("HTSI"), claiming violations of Title VII of the Civil Rights Act of 1964 (retaliation, national origin discrimination and sex discrimination) and state law tort claims arising out of an alleged violation of her privacy. After extensive discovery, HTSI moved for summary judgment. The Court granted the motion and dismissed all counts of the complaint.

In order to maintain a Title VII action, a Maryland plaintiff must file a charge of discrimination with the EEOC or with the Maryland Commission on Human Relations within 300 days of the discriminatory act. Typically, complainants use an EEOC form document to file a charge. Valderrama, however, did not use the EEOC form. Instead, she offered a copy of an EEOC Intake Questionnaire as evidence that she timely filed the necessary charge of discrimination.

The Court, noting that the 4th Circuit has never precisely ruled on whether such a questionnaire is sufficient to satisfy the timeliness requirement, compared the contents of Valderrama's questionnaire with the definition of a charge. Quoting EEOC regulations, the Court stated: "a charge should contain 'a clear and concise statement of facts, including pertinent dates, constituting the alleged unlawful employment practices.' [Citation omitted.] At a minimum, the charge must be 'sufficiently precise to identify the parties, and to describe generally the action or practices complained of.'" If a document other than a charge meets this standard and is intended to trigger the machinery of Title VII enforcement, it will suffice to meet the timeliness requirement. Valderrama's allegations in the questionnaire that unidentified persons had made comments about her, however, were insufficient to constitute a timely charge.

The Court considered Valderrama's other claims, found them all lacking in factual support, and dismissed all of them, including the state law claims. The Court retained jurisdiction of the state law claims for the express purpose of dismissing them, noting that allowing the claims to be refiled in state court would be wasteful, "... because they would inevitably be dismissed as unfounded."

The full opinion is available in PDF.

Burman v. U.S. (Maryland U.S.D.C.)(Approved for Publication)

Issued February 7, 2007—Memorandum and Order by Chief Judge Benson Everett Legg. Approved for publication.

Burman was convicted in a jury trial of conspiring to distribute cocaine and possession with intent to distribute cocaine. Burman then filed a motion seeking the return of property the government seized pursuant to a search warrant leading to his indictment and subsequent conviction.

Property purchased with the proceeds of drug trafficking is subject to forfeiture pursuant to 21 U.S.C. §881 and, by statute, the government must initiate a forfeiture case by giving notice to any interested party in addition to publishing notice in a publication of general circulation. The interested party has a specified time in which to file a claim and may either file a request for judicial forfeiture proceedings with the seizing agency or elect to remain in the administrative forum by filing a petition for remission or mitigation. If the interested person seeks the prior option, the agency must refer the request to the applicable United States Attorney, who then files a complaint for forfeiture in federal district court, per 18 U.S.C. §983(a)(3). If a person to whom notice was sent does nothing and the administrative tribunal declares the property forfeited, the district court, by statute, lacks subsequent jurisdiction over the property with one exception: if the claimant alleges the government failed to provide him with adequate notice and that he did not otherwise know of the forfeiture proceedings. If the court concludes that the claimant was adequately advised of the forfeiture proceedings, the court must dismiss the claim. However, if the court concludes that notice was lacking, the government must return the property and/or file a new forfeiture action.

Under 18 U.S.C. §983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim. The Court places the burden on the government to show that it took "reasonable steps" to provide notice to the claimant. "Reasonable notice" requires that the government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence that mail delivery procedures existed at that facility that were reasonably calculated to ensure that the notice, once addressed to the inmate, would still reach him upon arrival at the prison (and, indeed, would only be accepted were the inmate actually present). Notice sent to the inmate's relatives, lawyer or former residence is insufficient.

The DEA sent multiple Notices of Forfeiture to Burman addressed to several jails, to his mother, and to attorneys who had represented him, but there is no evidence that these notices ever reached Burman. The government presented no evidence that Burman was at the particular jails when the notices were delivered, that the persons who signed for the notices were prison officials, or that mail delivery procedures at the jails were reasonably calculated to ensure that the notices reached Burman. Burman, however, evidently knew the government was seeking forfeiture of some of his property because he mailed the DEA letters asking what was happening with certain items. The DEA treated these letters as requests for judicial forfeiture proceedings, but denied the requests either because they were untimely or because Burman failed to submit his claims under oath as required by the statute. The DEA mailed Burman a number of corrective notices advising that his claim must be sworn under oath and giving him 20 days to cure the defect. Except with respect to one item of property, Burman never filed a claim that met the formal requirements. There is, further, no direct evidence that any of the corrective notices ever reached Burman. Consequently, the Court granted, in part, Burman's request for return of some of the property seized and reserved judgment on the remaining property ordering the government provide further evidence and briefing.

The full opinion is available in PDF.

Anderson v. United States (Maryland U.S.D.C.)

Decided January 4, 2007—Opinion by Chief Judge Benson Everett Legg.

Rachelle Anderson was convicted by a jury of conspiracy to (i) sell and offer for sale drug paraphernalia in violation of 21 U.S.C. §863(a)(1), and to (ii) aid and abet the distribution of and possession with intent to distribute heroin, cocaine hydrochloride, and cocaine base. The 4th Circuit affirmed the conviction and sentence, and the Supreme Court denied certiorari.

Just nine days before the expiration of the applicable one-year limitation, Anderson filed a Motion to Vacate, pro se. Her motion alleged that:

(i) her attorney was ineffective;

(ii) the Court erred when it refused to read the entire paraphernalia statute during its instructions to the jury;

(iii) her sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004).

(iv) the Court erred in determining drug quantity for purposes of sentencing; and

(v) because she did not play a managerial role in the conspiracy, her three-level increase under U.S.S.G. §3B1.1 was erroneous.

Several weeks after the government filed its opposition brief, and more than five months beyond the one-year limitations period, Anderson filed a reply brief in which she offered additional support for her original claims and asserted new claims. She later amended her motion again, raising even more claims not contained in her original motion.

The Court held that certain of Anderson's claims were time-barred because she could have but did not assert them in her original motion, while others had already been decided by the 4th Circuit on the previous appeal.

Considering and then rejecting all but one of Anderson's remaining ineffective assistance of counsel claims, the Court determined that the Government had not adequately responded to one of them, concerning the handling of one juror's misconduct and its affect on the other jurors. As to that issue only, the Court ordered supplemental briefing by the Government.

Finally, the Court rejected Anderson's claim that the trial court had violated her constitutional rights by increasing her offense level under the federal sentencing guidelines based on facts not considered by the jury or charged in the indictment. Though Anderson did not cite to United States v. Booker, 543 U.S. 220 (2005), which extended Blakely to the federal sentencing guidelines, the Court assumed that she also relied on Booker. Because the 4th Circuit has held that the rule announced in Booker is unavailable for post-conviction relief where convictions became final before it (or Blakely) was decided, the Court determined that the Booker rule did not apply retroactively to Anderson's sentence and thus it denied that claim.

The full opinion is available in PDF.

U.S. v. Coley (Maryland U.S.D.C.)

Decided December 13, 2006--Chief Judge Benson Everett Legg.

Fourth Amendment, motion to suppress evidence. Defendant contended that a gun found as a result of a pursuit by Baltimore City detectives should not be admitted into evidence because it was the fruit of an illegal seizure under the Fourth Amendment.

The defendant, when stopped by police officers, began to run. He was then taken into custody. After he was taken into custody, one of the police officers reported that he saw the defendant throw something away during the chase. Further investigation resulted in the recovery of a handgun. The defendant claimed that (i) the officers acted without probable cause when taking him into custody, (ii) that the seizure of the gun was the result of that arrest and was thus the fruit of an illegal seizure.

The Court found that because defendant ran from the detectives, he did not submit to police authority and, therefore, there was no seizure under the Fourth Amendment. Since there was no seizure, the gun Defendant dropped during the pursuit was abandoned property and would be admitted as evidence.

The full opinion is available in PDF.