Henson v. State

• Decision Date: 31 May 2013
• Docket Number: No. 1046,Sept. Term, 2012.,1046
• Citation: 69 A.3d 26,212 Md.App. 314
• Parties: Julius HENSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

212 Md.App. 314

69 A.3d 26

Julius HENSON

v.STATE of Maryland.

No. 1046, Sept. Term, 2012.

Court of Special Appeals of Maryland.

May 31, 2013.

Edward Smith, Jr., Baltimore, MD, for Appellant.

Thomas M. McDonough (Emmet C. Davitt, State Prosecutor, on the brief), Towson, MD, for Appellee.

Panel: MATRICCIANI, HOTTEN and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MATRICCIANI, J.

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 [212 Md.App. 318]13–602(a)(9) of the Election Law Article (“EL”), by distributing campaign material without an “authority line” disclosing the name of the responsible campaign finance entity and treasurer. At the close of evidence appellant moved unsuccessfully for a judgment of acquittal. After conviction and sentencing, appellant noted this timely appeal.

Questions Presented

Appellant presents five questions for our review; they are:

I. Was the application of E[lection] L[aw] § 16–201(1)(7) to [appellant] [c]onstitutionally 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,¹ pertained to, inter alia, how to influence African–American voter turnout in Baltimore City and Prince George's County. The Ehrlich Campaign retained appellant's businesses, Politics Today and Universal Elections, to provide consulting services. In that capacity, appellant received a telephone call from Paul Schurick inquiring how the Campaign could decrease voter turnout in the aforementioned jurisdictions. Appellant responded that a robocall would best fit the Campaign's designs.

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.² On election day, appellant dictated the call's language and Ms. Russell sent a test message to appellant, Paul Schurick, and Greg Massoni. The call stated:

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 Attorney General's Office and the Board of Elections about the call.

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),³ and that appellant conspired with Paul E. Schurick to commit all of these acts.

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 number of reasons. First, a subsection “(1)(7)” does not exist in EL § 16–201, and appellant is seemingly unaware that his indictment was amended to charge him under § 16–201(a)(6),⁴ which in any event was not the basis of appellant's conviction. Third, the body of appellant's brief nowhere addresses protection from vague laws under the Due Process Clause. See F.C.C. v. Fox Television Stations, Inc., ––– U.S. ––––, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012). Instead, he seems to have mistaken vagueness for his First Amendment defense, and then further confused matters by arguing not that EL §§ 13–401 and 13–602(a)(9) unconstitutionally suppress protected speech, but that his speech actually did not fall within the (allegedly unconstitutional) scope of these sections.

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).⁵

Appellant cites ⁶ a 1995 Maryland Attorney General's opinion discussing McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), to argue that EL §§ 13–401 and 13–602(a)(9) do not apply to him because he is not a “person” but, rather, a “political consultant.” As noted above, however, appellant confuses the question of whether he is a “person” as intended by the legislature—which he plainly is⁷ —with the question of whether his speech was protected from the statute by the First Amendment, which it is not.

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 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);see540 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

A...