Diallo v. State Of Md.

• Decision Date: 10 May 2010
• Docket Number: No. 91,91
• Citation: 994 A.2d 820,413 Md. 678
• Parties: ABDEL KHADER DIALLO v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

413 Md. 678

994 A.2d 820

ABDEL KHADER DIALLO

v.STATE OF MARYLAND

No. 91

COURT OF APPEALS OF MARYLAND

September Term, 2009

Filed: May 10, 2010

Opinion by Harrell, J.

Abdel Khader Diallo (Petitioner) was convicted in December 2007 in the Circuit Court for Baltimore County of first degree assault, in violation of Maryland Code (2002 & Supp. 2009), § 3-202 of the Criminal Law Article, and use of a handgun in the commission of a crime of violence, in violation of § 4-204 of the Criminal Law Article. Prior to trial and post-judgment Diallo asserted in the Circuit Court that its exercise of jurisdiction over him was improper because he enjoyed derivative diplomatic immunity by virtue of the fact that his father wasan Assistant Secretary-General of the United Nations (the "UN"). The trial court denied his motion to dismiss the indictment and his motion for a new trial on that ground. The Court of Special Appeals dismissed Diallo's appeal in part and affirmed the convictions otherwise. Diallo v. State, 186 Md. App. 22, 972 A.2d 917 (2009). For the reasons that follow, we shall vacate the judgment of the intermediate appellate court dismissing a portion of the appeal and hold instead that Diallo failed to establish before the trial court that, at the time of his offenses or arrest, ¹ he enjoyed derivative diplomatic immunity. The Court of Special Appeals was correct, however, to have found no Brady ² violation regarding Diallo's claim that the prosecutor failed to supply Petitioner with correct information reputed to be in the knowledge or possession of the U.S Department of State as to his father's diplomatic status.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner received a bench trial in the Circuit Court based on a not guilty plea and an agreed statement of facts. Weadopt the Court of Special Appeals's recitation of the events leading to Petitioner's arrest and convictions:

On October 22, 2006, David Reeves, who had recently left a party in Rosedale with a friend approached [Petitioner] on the street and asked if he was selling drugs. When told that [Petitioner] was not selling drugs Reeves became angry and aggressive. Another individual, who remained unidentified in the proceedings, subsequently approached [Petitioner], offered [Petitioner] a handgun and explained that Reeves was carrying a substantial amount of money. [Petitioner] took the gun and pointed it at Reeves. When Reeves attempted to grab the gun, a struggle ensued, during which the gun fired, wounding Reeves in the neck. Reeves was subsequently treated at Franklin Square Hospital for his injuries.

On October 23, 2006, Detective Ramon Geigel visited Franklin Square Hospital to conduct an investigation of the incident. He soon learned that another individual, later identified as [Petitioner], arrived at Franklin Square Hospital at the same time as Reeves and was treated for a gunshot wound to his chest. [Petitioner] was later transferred from Franklin Square Hospital to Johns Hopkins Hospital for treatment. On October 31, 2006 Reeves identified [Petitioner] out of a photo array as the individual who shot him. [Petitioner] was arrested later that day after being discharged from Johns Hopkins Hospital. At the stationhouse, [Petitioner] was administered his Miranda rights and signed a waiver of those rights, ultimately confessing orally and in writing to his involvement in the shooting.

186 Md. App. at 30-31, 972 A.2d at 922 (footnote omitted).

Prior to trial, Diallo filed a motion to dismiss the indictment on the ground that the trial court lacked jurisdiction over him because he was entitled to diplomatic immunity by virtue of his father's position as a high-level official of the UN. Petitioner's father, Hama Arba Diallo (the "elder Diallo"), at the time of his son's offenses and arrest, served apparently as Executive Secretary of the United Nations Convention to Combat Desertification ³ (the "UNCCD") and was stationed formally in Bonn, Germany. Petitioner grounded his claim of diplomatic immunity on (1) the Vienna Convention on Diplomatic Relations of 1961, 18 Apr. 1961, 23 U.S.T. 3227 (the "Vienna Convention"); (2) the Convention on Privileges and Immunities of the United Nations of 1946, 13 Feb 1946, 21 U.S.T. 1418 (the "UN Convention"); and (3) the International Organizations Immunities Act, 22 U.S.C. §§ 288-288f (2006). Diallo tendered in support of this claim an "attestation" from Frank M. Meek, Chief of Administration and Finance of the UNCCD, which we set forth below:

This is to certify that Mr. Hama Arba Diallo, a national of Burkina Faso, is the former Executive Secretary of the Permanent Secretariat of the United Nations Convention to Combat Desertification (UNCCD), and as such was the head of the UNCCD from its inception in 1999 to 19 June 2007. From 1993 to 1999 Mr. Diallo was in charge of the predecessor organization that founded the UNCCD.

In this position the former Executive Secretary held the level of Assistant Secretary General of the United Nations, which position entitled him to diplomatic status, both in Germany and on all official missions to all member country parties of UNCCD. The United States of America, since 2001, has been a party to the UNCCD, and accordingly all of Mr. Diallo's official travel to the United States of America since 2001 has been with full diplomatic status. Also, through responses to periodic inquiries of the Embassy of the United States of America in Berlin, Germany, the Department of State has been notified of Mr. Diallo's position within the secretariat of the UNCCD. With the predecessor organization from 1993 to 1999, as for all United Nations personnel, all of his official travel, including to the United States of America, he had diplomatic status with respect to all of the countries, which he periodically visited while seeking the ratification of the Convention.

Since UNCCD's headquarters is situated in the Federal Republic of Germany, and not in the United States of America, the United Nations and the secretariat of the UNCCD were not required to notify the Department of State of Mr. Diallo's then current status, which was higher than the previous grades that he held while based in New York until 1993.

It should be noted that Mr. H.A. Diallo resigned his position at the secretariat effective 19 June 2007.

The motion alleged also that Petitioner was a citizen of Burkina Faso, a country in West Africa, holding a diplomatic passport from that country. Additionally, he claimed that he held an expired diplomatic identification card from the Federal Republic of Germany and current diplomatic identification papers from the UN.

The State opposed Petitioner's motion to dismiss. Attached to the written opposition was the following certification, dated 20 September 2007, from Holly S.G. Coffey, Deputy Assistant Chief of Protocol of the United States Department of State:

This is to certify that I, Holly S.G. Coffey, Deputy Assistant Chief of Protocol of the United States Department of State, am responsible for registering and maintaining the official records of diplomatic and consular officers, and other employees of foreign governments and international organizations in the United States and its territories and, in coordination with the United States Mission to the United Nations, of members of Permanent Missions to the United Nations and officials to the United Nations.

The official records of the Department of State, including those of the United States Mission to the United Nations, indicate that Mr. Hama A. Diallo was notified by UN Secretariat to the United Nations in New York as a Special Representative of Secretary General (United Nations Conference on Environment and Development) on August 2, 1990. He served in that capacity until his assignment was terminated on June 22, 1993. At the time of Mr. Diallo's appointment, his son, Abdel Khader Diallo, was notified to the Department as a member of his family forming part of his household. Accordingly he is not entitled to diplomatic privileges and immunities in the United States.

The State contended that the Coffey certification was conclusive on the matter of whether Petitioner, through his father, enjoyed diplomatic immunity for purposes of the pending charges. The trial court denied Diallo's motion on 25 September 2007.

Petitioner then moved the court to reconsider the denial of the motion to dismiss and moved to suppress his statement to the police. Petitioner specifically argued that he enjoyed diplomatic immunity, notwithstanding the Coffey certification, because, as his father was a non-resident UN official, the UN was not required to notify the United States Department of State of the elder Diallo's change in status in 1993, which continued until 19 June 2007. At a 13 November 2007 hearing, Petitioner, in an effort to bolster his earlier assertions, presented a copy of his father's diplomatic passport from Burkina Faso and a G-4 Visa issued by the State Department. Additionally, he presented his own German diplomatic identification card. He again pressed to the court the Meek "attestation" as a conclusive document. After taking a recess to consider the additional proffers, the court denied the motion to reconsider, finding that Petitioner had not presented sufficient evidence to show that he was entitled to diplomatic immunity through his father.

Persisting, the defense moved on 27 November 2007 to alter and amend or, alternatively, to reconsider and vacate the order denying the motion to dismiss. Petitioner attached to his motion, inter alia, a list of the "Senior Officials of the United Nations and Officers of Equivalent Rank Whose Duty Station is New York." The list included the elder Diallo's name and listed his position as the Executive Secretary of the UNCCD. The list reflected further that he was working "Away from Headquarters" in Bonn, Germany.

The court granted a defense request for a postponement of a hearing on the latest motion...