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U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.

By Megan E. Coleman

On November 10, 2022, the United States Supreme Court granted certiorari in Dubin v. United States, No. 22-10, to decide “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” Oral argument is scheduled for February 27, 2023.

This issue not only divided the Fifth Circuit, but it split the federal circuits as well.

The Fifth Circuit’s per curiam opinion in United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022), essentially stands for the proposition that any time a real person’s identity is used during a health care fraud, even if the identity was lawfully obtained, and the person did in fact receive health care services, that a conviction for aggravated identity theft will be automatic, and so will the two-year mandatory consecutive sentence of imprisonment.

In this case, Dubin was convicted of health care fraud for overbilling Medicaid by $101 for a psychological evaluation his company provided to a patient. For this he was sentenced to one year and a day in prison. However, the Government also charged Dubin with aggravated identify theft in violation of 18 U.S.C. § 1028A and obtained a conviction on that count as well, adding a mandatory two year consecutive sentence of imprisonment to Dubin’s sentence. The Government obtained this conviction, not because Dubin stole or misrepresented anyone’s identity, but because he included his patient’s accurate identifying information on the Medicaid claim that misrepresented how and when the service was performed. The Government argued at trial that Dubin’s commitment of the health care fraud offense “obviously” meant that he was “also guilty of” aggravated identity theft because aggravated identity theft is an “automatic” additional offense whenever someone commits provider-payment healthcare fraud.

The Fifth Circuit affirmed the Section 1028A conviction holding that Dubin’s fraudulent billing scheme constituted illegal “use” of a means of identification of another person.

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Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26

By Isabelle Raquin

On December 19, 2022, the Supreme Court of Maryland filed Washington v. State, No. 15, September Term, 2022, addressing whether unprovoked flight in a high-crime neighborhood adds to the reasonable articulable suspicion necessary to detain a person under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.

Washington follows in the footsteps of Illinois v. Wardlow, 528 U.S. 119 (2000), where the Supreme Court of the United States considered whether unprovoked “headlong flight” in a drug-trafficking area constitutes reasonable articulable suspicion for law enforcement to detain a person.  Wardlow determined that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”  However, a lot has happened in the past 20 years that could explain why a person’s flight from law enforcement is entirely consistent with innocence.

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Introduction to Co-Managers of the Maryland Appellate Blog.

As the Maryland appellate courts have made historic changes with their official name changes, the Maryland Appellate Blog is excited to introduce its own updates with three new Co-Managers! Read more to learn more about each co-manager, their introduction to appellate law, and vision for the Blog.

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Did the Frankel Decision Create an Expert Affidavit Requirement for Rule 5-702 Motions?

By Derek Stikeleather

When challenging an expert’s causation opinion that contradicts peer-reviewed medical literature under Rule 5-702(3), does the movant need to provide an affidavit from its own expert to explain the inconsistency between the literature and the challenged opinion? No.

Rule 5-702 does not require an expert affidavit for a court to consider relevant medical or other peer-reviewed scientific literature when ruling on the admissibility of expert testimony. Instead, it is a matter of counsel’s judgment (and possibly budget) to consider whether a competing expert affidavit would help show the court that the challenged opinion is unreliable and inadmissible under Rule 5-702. Although a good expert’s affidavit is often helpful, it might over-complicate some proceedings by opening a prolonged and distracting “battle of the experts.”

Sometimes, professional peer-reviewed literature speaks for itself and most effectively rebuts the challenged opinion on its own. Judges, as “gatekeepers,” do not require expert affidavits to walk them through such literature. But dicta from a recent Court of Appeals opinion, Frankel v. Deane[i], seems to suggest otherwise. This could lead some courts to invent a nonexistent expert-affidavit requirement under Rule 5-702.

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Maryland Appellate Courts’ “Highlighted Cases” Pages Offer a Primer on Motions Practice

By Diane E. Feuerherd

Motions are seldom the feature of an appellate opinion, but often play a prominent role in moving your case, efficiently and effectively, through the appellate process. Title 8 of the Maryland Rules, in Rules 8-431, 8-603 and others, impose requirements on the motion’s timing, scope, contents and appearance, as well as any response. The court may rule quickly, particularly when the motion is filed before the brief, and even dismiss an appeal on the court’s own initiative (see Rule 8-602(a)). While you may be looking forward to the next edition of the Appellate Practice for the Maryland Lawyer: State and Federal, for updates on the Motions Practice in State Appellate Courts chapter (as the author of that chapter, I certainly am!), consider in the meantime the “Highlighted Cases” pages of the Court of Appeals and Court of Special Appeals, each providing in real time examples of motions, responses and rulings. These websites are a helpful primer to appellate practitioners, whether you are seasoned or green.

In other news, the Maryland Appellate Blog wishes to congratulate one of our own, Brad McCullough, on his appointment to the Circuit Court for Montgomery County. He has been a Blog editor and colleague since we started in 2013. We will miss him, but our loss is Maryland’s gain.

Prominent Black Attorney Denied the Same Relief Granted to Former White Governor

By Megan E. Coleman

On September 7, 2022, the Fourth Circuit issued an order denying reconsideration en banc of Kenneth Ravenell’s petition for reconsideration of the three-judge panel’s affirmance of the district court’s denial of his motion for bail and stay of sentence pending appeal.

Judge Wynn issued a dissenting opinion, joined by Judges Motz, King, and Thacker, questioning why the full court refused to reconsider the denial of Mr. Ravenell’s motion for release pending appeal when the court was willing to reconsider the denial of former Virginia Governor Robert McDonnell’s motion for release pending appeal.

Kenneth Ravenell was a prominent African American attorney in Baltimore who argued cases all over Maryland, the United States, and before the United States Supreme Court. In December, 2021, Mr. Ravenell was convicted of federal conspiracy to commit money laundering. In June, 2022, he was sentenced to 57 months in federal prison.

Mr. Ravenell filed an appeal in which he alleged that the district court committed reversible error by refusing to instruct the jury on the statute of limitations because the government was required to prove that the alleged money laundering conspiracy “continued into” the applicable limitations period.

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August 2022 Maryland Certiorari Grants

Today, the Maryland Court of Appeals granted review in two civil cases and two criminal cases.

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Maryland Court of Appeals, in Irwin Industrial, Confirms Alternative Grounds for Summary Judgment, Typically Remain Unavailable to Argue in Appeals

By Michael Wein

The Court of Appeals’s recent decision in Irwin Industrial Tool Company v. Pifer (May 31, 2022, J. Watts) had as the main certiorari issue, on “[w]hether it was reversible error for the [Court of Special Appeals] to reverse the authenticity threshold applied by the Circuit Court for the admissibility of items purchased from the internet.”[i]  This encompassed about 36 pages of the 44-page unanimous decision authored by Judge Watts.  The case also featured the effective but tricky usage of demonstrative evidence at oral arguments, beginning at the 41st minute of the oral argument webcast.

However, Question Presented Two, on “[w]hether it was reversible error for the [Court of Special Appeals] to ignore the alternative grounds for summary judgment encompassed in the Circuit Court’s Order[,]” while only a few pages long, had important applications, beyond the case.  The ultimate decision confirms a reluctance by Maryland appellate courts to decide issues for the first time on appeal, especially when the trial court declines to clearly rest their decision on these alternative grounds.

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SCOTUS 9-0 on arbitration waiver standard.

By Brad McCullough

Much attention is given to the chasm that often exists between the Supreme Court’s rival factions and the divergent views espoused by the Justices, particularly in controversial hot-button issues. (That chasm was especially wide, and that attention reached a fever pitch, over the past week.) But not all cases before the Supreme Court involve such bitter divisions. In late May, the Court reached a 9-0 decision that resolved a split among the circuits in a case involving the Federal Arbitration Act. In an opinion authored by Justice Kagan, the Court held that a party waives her right to arbitration if she acts inconsistently with that right, even in the absence of prejudice to the opposing party. Morgan v. Sundance, Inc., No. 21-328 (U.S. May 23, 2022).

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The Majority, Concurring, and “Controlling” Opinions in the Supreme Court’s Decision of New York State Rifle & Pistol Ass’n Inc. v. Bruen

By Michael Wein

Last week, two blockbuster United States Supreme Court decisions were issued in Bruen and Dobbs.  This Post discusses the first,  New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 2022 WL 2251305, (U.S. June 23, 2022), published last Thursday.  Bruen primarily involved whether and to what extent the Second Amendment applied to New York’s very strict requirements for qualified applicants to obtain a carry permit, for gun possession outside the home. 

The label “majority opinion” and written by the Court’s primary author may not be considered the “controlling” opinion by the other federal or state courts. As discussed and previously examined in a prior Blog Post from 2013, the “Marks Rule” from Marks v. United States, 430 U.S. 188 (1977), guides how to identify the actual holdings in a “split” decision with multiple opinions; this Post dates back to Maryland’s consideration of comparative negligence in Coleman, and described the non-obvious difficulty in simply assuming or accepting the label given to what’s listed as the “Majority” Opinion.[i]  The Blog Post noted,

This construction [in Coleman] would comport with the definition [under Marks] of what is a “majority” opinion—in particular, that any opinion that is the “broadest rule” that has a “majority” of the judges, is to be construed as the majority opinion.   The Supreme Court has shown some creativity in this regard [for example, such as]  McConnell v. FEC, 540 U.S. 93 (2003), in making fractured rulings on the constitutionality of the Bipartisan Campaign Reform Act of 2002, issued three majority opinions for the different sections of the legislation.

The Supreme Court has displayed creativity similiar to McConnell in the recent Bruen case, though unlike Coleman, it’s not on the incorrect label being given, but what’s actually the nuanced “controlling” decision on application.  Broadly speaking, there is a Majority Opinion and authorship on Bruen, by Justice Thomas, which is controlling on the Constitutional impact, but for right now, the effect is limited.   This is a bit opaque on first glance, but was also noticed by some news outlets such as the Washington Post, which wrote articles focused on the Justice Kavanaugh Concurrence, joined by Chief Justice Roberts.  

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